All Things Considered, Shon Hopwood and me

This week, Shon Hopwood and I participated in a joint interview with Melissa Block of NPR. Ms. Block was in Washington, Shon was in Seattle and I was in Lincoln. That exchange will air today (Thursday, September 5, 2013, 4:35 PM Eastern Time) on All Things Considered.

For what it is worth, I enjoyed the exchange. I had not talked with Hopwood since I sentenced him in 1999 to 147 months in prison. I found him mature, introspective, smart, engaging, intellectually honest, and well-spoken. Ms. Block impressed me as well. Her credentials are superb, but even they fail to adequately convey her terrific interviewing skills. She drew us out like a great lawyer taking discovery depositions of fact witnesses.

If I won’t give interviews to for-profit media, why did I consent to this one? NPR is, of course, a not-for-profit entity. More importantly, NPR has an educational mission. Since I hope this blog educates (at least some of the time), and since Shon’s story is certainly educational, I concluded that doing the interview was the right thing to do.  I guess we shall see.


Does saying “I’m sorry” matter when federal judges sentence?

Photo Credit: "National apology day" in Australia from X per Creative Commons license.

Photo Credit:  In recognition of the pain inflicted upon aboriginal peoples, “National apology day” in Australia from Butpa per Creative Commons license.

As the earlier posts on “gut instinct” and sentencing revealed, many of us are interested in knowing what motivates a judge to select a particular sentence in a criminal case. Magistrate Judge Andrew J. Wistrich, from the Central District of California, Professor Jeffrey J. Rachlinski, from Cornell Law School, and Chris Guthrie, Dean at Vanderbilt Law School, have published a fascinating and ground breaking empirical study entitled Contrition in the Courtroom: Do Apologies Affect Adjudication, 98 Cornell Law Review 1189 (July 2013).

Judge Wistrich was kind enough to send me a copy of the article. For a variety of reasons, I am blown away by it. The article looks at the impact of apologies in the context of civil and criminal litigation. Any advocate who has clients who screw up (and in my practice that was the great bulk of them) ought to read the study and digest its findings.

For today, I want to concentrate on the criminal law side of things. Among a lot of other empirical work, the authors conducted a study of 34 federal magistrate judges and asked how these judges would sentence someone under the Sentencing Guidelines when an apology was in play. With footnotes numbers included but with the contents of footnotes omitted, here is what the authors found:

We asked the thirty-four federal [magistrate] judges to sentence the defendant according to the U.S. Sentencing Guidelines. For them, the underlying charge consisted of violating 18 U.S.C. § 876(c), which makes it unlawful to mail a threatening communication to a federal judge.158 We provided the base offense level for the crime, which was 12, as well as the defendant’s criminal history level, which was I. Based on these factors, the appropriate sentencing range under the guidelines was ten to sixteen months. We also asked the judges to decide whether
the offense “involved any conduct evidencing an intent to carry out
such threat,”159 which would increase the offense level to 18,160
thereby producing a sentencing range of twenty-seven to thirty-three
months.161 After the judges made this determination we asked them,
“Based on the facts of this case, what sentence would you impose?”162

The apology had no effect on the federal judges.163 Among the
control group judges, 23.5% (4) raised the offense level and among
the apology group judges, 29.4% (5) of the judges raised the offense
level. This difference was not significant.164 Among the judges who
chose the lower offense level, the control group judges imposed an
average sentence of 13.8 months while judges in the apology group
imposed an average sentence of 14.2 months. Again, this difference
was not statistically significant.165 Among the judges who chose the
higher offense level, the control group judges imposed an average
sentence of 27 months as compared to 28.2 months for those judges in the apology group. This difference was also not statistically significant.166

Id. at 1221-1222.

While an apology did not matter to the federal magistrate  judges sentencing under the Guidelines, the apology did matter to Ohio judges on the state bench, Canadian judges and newly appointed (and presumably state) judges in a jurisdiction that was not identified at the request of those judges.  Id. at 1222-1224.

What are my thoughts? First, there is a serious question about whether federal magistrate judges are a good proxy for federal district judges who do most of the sentencing. Also, the sample size was small thus indicating that one should be cautious about extrapolation. Second, with the foregoing caveats noted, the study suggests, at least to me, that the Guidelines are likely to “water down” to the point of irrelevancy apologies in most criminal cases. In other words, at least in the federal system where complex rules guide a judge’s sentencing discretion, most of the time an advocate can advise his or her client that saying “I’m sorry” will not help.

In any event, the article is an example of a great use of the empirical method to study “real life” questions of significance to the bench and bar. (More please!) The authors should be proud of themselves.


Making the The Justice Safety Valve Act of 2013 palatable to cynics and skeptics

Cynics and skeptics of the The Justice Safety Valve Act of 2013 worry that without firm statutory minimums some federal district judges will go wild.  Their concerns are not without foundation.

What if the Act were left entirely as it is proposed but the appellate standard of review was lowered and set by statute.  That is, anytime a district judge sentenced below the statutory minimum under the Act, the standard of review on appeal would be de novo for both facts and law.

Just a thought.


%d bloggers like this: