In response to “For Whom the Light Shines” @ Simple Justice

Scott H. Greenfield, a criminal defense lawyer, has another post dealing with 21 U.S.C. §851. You may remember that I posted about Scott’s criticism of some of the things I wrote earlier regarding drugs and violence.  See here.

Mr. Greenfield has written a new and related post entitled For Whom the Light Shines. I reprint a pertinent part of that post because I wish to reply to it. The part of Scott’s post that is relevant to my reply reads like this:

In a comment to post over at Hercules and the Umpire that happens to be about the government’s abuse of 21 U.S.C. §851, a topic that should concern you but probably doesn’t because it’s all federal lawyerly rather than rhetorical, Bryan Gates wrote:

I have two former clients serving mandatory life based on enhancements under 21 USC § 851 for two prior drug felony convictions . Each could have avoided mandatory life by pleading guilty, but would have faced sentences around 25-30 years. The evidence against each was strong.

One the one hand, each should have understood the consequences of the choice they were making. Plead guilty and hope for release sometime in your mid- to late 50′s or go to trial and die in prison. I understand why the prosecutors threatened to file the second prior conviction information if there was no plea. Once you have threatened to do something you need to follow up if you expect to retain credibility.

On the other hand, each of these guys got twenty to thirty extra years of imprisonment because they exercised their right to a jury trial. Out of ignorance or arrogance, they miscalculated the odds of acquittal. Yes, each in each case the government had to expend resources to try them that would have been saved had they pleaded guilty. But does a few days of prosecutorial and court resources used up justify tacking on that much time, if the crime they actually committed did not provided they simply ‘fessed up?

Whether a person admits or denies guilt has long been a factor in the punishment imposed. I’m not sure that much extra punishment is justified. Each will serve about 25 years for the crime he committed, after that they will be serving time for a bad tactical decision.

Bear in mind this is a blog comment, not a post nor a law review article. Its point, cut to the quick, is whether the trial tax of §851, effectively doubling the sentence from merely outrageously long to forever isn’t excessive. And, as Bryan notes, the decision to roll these dice is what more logical thinkers might characterize as a “bad tactical decision.” As a prosecutor once argued in response to me, defendants are presumed innocent, not intelligent.

Judge Kopf responded to Bryan (and again, bear in mind that it’s a comment, not a post):

I have seen that happen as well and I have sentenced several such folks who rolled the dice and are now serving the life sentence I imposed. I felt awful for their lawyers who did everything they could to get them to take the plea offered by the government. I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers who were just wrung out emotionally. Hang in there.

This raises problems on two levels. While Bryan writes about the brutal sentences imposed on his clients, the judge responds with a tummy rub for the lawyer. This happens a lot, when a one-word verdict is returned after a lawyer has left his heart in the well of the court. The judge will express words of comfort about a job well done to soothe the lawyer’s pain. It’s helps some lawyers get through the agony and frustration.

But this also feeds the perception that we’re a self-serving guild, only concerned about ourselves. So what if the lives of human beings, their families, their loves ones, are ruined by a knee-jerk act of Congress abused by an over-powered teeny-bopper in a tie? What about the sad lawyer, for whom real empathy is saved.

Bryan wasn’t seeking a tummy rub, but used the opportunity to ask a hard-line question: Was it really necessary that they be given the slow death penalty because they made the wrong tactical decision? To put it in the converse, isn’t 25 years, twenty-five long years, enough to make the point? Mind you, they weren’t spraying the streets with machine gun bullets killing innocent children, because if they were, the §851 enhancement would be the least of their problems. They were drug dealers.

Judge Kopf gave his answer:

I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers…

Whether this reflects a lack of empathy, humanity or a belief that adding another 25 years to a 25 year sentence just isn’t sufficient to make a judge wonder whether he’s nothing more than a robed executioner for politicians isn’t clear.

Maybe Judge Kopf would feel differently if he had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too. Maybe then he wouldn’t dismiss their slow death so easily.

I have several reactions to Mr. Greenfield’s post.  In no particular order, here they are:

*”Rubbing the tummies” of defense lawyers after they have had the shit kicked out of them in a trial that they knew would end badly resulting in a significantly increased sentence for their clients, gives me comfort. Once in a while, it may also comfort those lawyers. Maybe I should stop the practice, but I doubt I will.

*Criminal defense lawyers, like prosecutors, have an emotional “shield.” I don’t. By this I mean that the role of a federal prosecutor or a federal defense lawyer allows, in fact demands, that the lawyer earnestly believes in the  “justice” of his or her cause. I don’t have that luxury. At least as I envision my role, I am supposed to be open and agnostic. Moreover, because I serve at the trial level, I am also supposed to be an applicator of a complex series of rules that one hopes in the very long run will produce some sort of “justice.” There is no reasonable expectation that “justice” writ large can be served on a daily basis. In fact, it is rarely my proper role to be a judicial policy maker. That’s for the big boys and girls. As I once told a federal public defender, “I don’t do justice, I do law.” Most of the time, I wouldn’t know “justice” in the metaphysical sense if it bit me in the ass.

*Sentence an aging crack whore, have her hang herself in the cell adjacent to your courtroom right after you have done so, and then ask yourself how much empathy you feel for the rat bastard who knowingly feed her addiction. Do I have empathy for the self-proclaimed”gentle”drug dealer I sentenced to life in prison, who directed his crew to sodomize a teenage girl with motor oil ’cause she didn’t pay her drug debt, and who beat others with baseball bats or pipe wrenches when the unfortunates threatened to snitch or failed to pay their bills? No, I don’t. But what about great judges like Bennett or Gleeson or Weinstein, you say. Haven’t they overcome similar experiences and remained able to seek “justice” above all else? Sure, in a manner of speaking. But, they envision their judicial roles much differently than I do. They earnestly believe that their judicial role is quite broad. I earnestly believe that my judicial role is quite narrow–go ahead, if you like, and murmur something about the German judges of WW II. Indeed, it may also be true that Bennett or Gleeson or Weinstein are simply better human beings than I am, but only the Gods, and not criminal defense lawyers, get to judge me on that question.

*I don’t lack for conviction and I am no right-wing nut job despite the fact that a Republican President appointed me. I have prosecuted a Republican state attorney general in an impeachment proceeding. I have dissented, while sitting by designation, when the Eighth Circuit said the First Lady, Mrs. Clinton, lost her attorney client privilege because she spoke to the White House counsel in the presence of her personal lawyer. I have declared unconstitutional state and federal “partial-birth” abortion statutes, both of those decisions have ended in the Supreme Court and serious personal consequences have ensued. I have written a variance decision based upon post-offense rehabilitation, later reversed by the Court of Appeals, favoring a young black woman, who I originally sentenced to life in prison for a “crack” conspiracy despite the fact that she had no criminal history. After the reversal, I publicly urged two Presidents to commute her sentence. So there!

*Section 851 enhancements pose a huge problem for the judiciary as pointed out by Judge Bennett and later Judge Gleeson. I do have sincere empathy for the defendant who get’s hit with a section 851 enhancement because of a dumb decision or merely because the defendant insisted upon a jury trial. But, discussions of empathy and generalized notions of “justice” obscure the legally significant question. The important legal issue is how to balance the Executive’s power to charge, and the federal trial judge’s responsibility to impose a sentence that is not grossly disproportionate to other sentences of similarly situated individuals. See here. Being a fan of rules, I am beginning to develop some ideas about how federal trial judges could practically strike the proper balance by using court rules or standing orders to require the Executive to explain the basis for seeking such enhancements. We shall see if my ideas bear fruit.

*The post to which I reply ends this way: “[I]f [Kopf]] had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too[,]  [m]aybe then he wouldn’t dismiss their slow death so easily.” After reading this conclusion I was mad and I wanted to scream “that’s really unfair and you know it.” After some reflection, I will stifle the shout. In truth, Mr. Greenfield’s point is a good but disturbing reminder that I sentence human beings and not abstractions.


PS on the ERISA post

The ERISA post is generating some very thoughtful comments. Because I try to respond to most comments, and because I have two generic responses, I will use this supplemental post in response.  Two things:

1. The substantive dispute about whether ERISA insurance companies are accorded deference, also highlights an important point about the role of federal trial judges. A very good argument exists that in the civil context there are no more federal trial judges. On the contrary, in a many civil law areas, federal judges have been told by the Supreme Court that trials are last resorts, to be avoided except in very narrow circumstances. Thus, the ERISA problem highlighted in the featured article ought, in the broader context, to be viewed as a continuation of the Supreme Court’s determination to eliminate civil trials whenever possible. Now, I can make a strong argument that this is a very good thing just as easily as I can make a strong argument that this is a very bad thing. From the larger policy perspective, however, we ought not get distracted by the intricacies of the particular substantive law we are discussing. In other words, for purposes of this blog, I am more interested in focusing upon judicial role and the policy implications of limited versus expansive roles for trial judges.

2. Any time the Supreme Court limits the role of federal trial judges, the federal trial judge’s life is easier. This has real world implications. To be clear, I do not mean to suggest that we are lazy, although a very few are. But, the Posners of the world would assert that for rational actors like trial judges “effort aversion” and “leisure preference” is a strong motivator of judicial behavior. If that is true, the Supreme Court’s “let’s limit civil trials” jurisprudence has power way beyond the strength or weakness of the Court’s substantive reasoning.


The current conservative judicial mind and the idea of restraint

I must be brief. I am off to Omaha early this morning for a fun-filled day of criminal law. I will hold eight sentencing hearings. All of the defendants are likely to receive prison time.

As a federal trial judge, I read tea leaves and follow precedent. Almost never am I called on to apply my own theory of Constitutional adjudication. That said, it is helpful to understand what the “big boys and girls” are thinking. That is particularly true of the “big boys and girls” who are conservatives. After all, they tend to dominate the current makeup of the Supreme Court and the Courts of Appeal. In particular, the idea of “judicial restraint” that allegedly animates so many “conservative” decisions is a notion that is, at least for me, desperately in need of clarification.

With that in mind, I heartily recommend Joel Alicea’s* short essay entitled Real Judicial Restraint in the Fall 2013 issue of National Affairs. It is a readable and cogent explanation of the separate concepts of “judicial restraint” that have moved, are now moving or should move judicial conservatives. Alicea has his favorite, but it is the taxonomy that I find most helpful. The essay is well worth reading if you desire to gather intelligence on the current conservative judicial mind and the notion of restraint.


*The author is a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. His piece receives praise from Ed Whelan the prominent conservative legal commentator.

PS As is so often the case, I give thanks to Howard Bashman and How Appealing for the tip.

An order of Frye

Photo credit:  jeffreyw's photostream per Creative Commons license.

Photo credit: jeffreyw’s photostream per Creative Commons license.

Partially in response to the insightful guest post submitted by Elaine Mittleman, I have entered a standing order for my cases that attempts to deal with rejected or lapsed plea offers and the decision of the Court in Missouri v. Frye.  The order is also responsive to some of the concerns expressed in Lafler v. Cooper.

In addition to two very thoughtful judges of my court, I had the assistance of very capable representatives from the office of the United States Attorney for the District of Nebraska and the Federal Public Defender for the District of Nebraska.  Those folks know who they are, and they have my sincere thanks.

Since this order potentially relates to impending matters that may come before me, I will have no further comment on the order.  I reproduce the order below.  (The original will appear on our external web site.)
IN RE: Making a Record to Comply with
Missouri v. Frye, 132 S.Ct. 1399 (2012)
in Cases Assigned to Judge Kopf
In Missouri v. Frye, the Supreme Court applied the Sixth Amendment right to effective assistance of counsel to the consideration of formal plea offers that lapse or are rejected. In doing so, the Court observed that the prosecution and the trial courts may adopt measures to help ensure against late, frivolous, or fabricated claims. First, a formal offer’s terms and processing can be documented.  Second, courts may require that all offers be in writing. Third,  formal offers can be made part of the record at any subsequent plea proceeding or before trial to ensure that a defendant has been fully advised before the later proceedings commence. With that in mind,
1. In cases assigned to Judge Kopf, the government shall not make a formal plea offer unless it is in writing and signed by the United States Attorney or one of her assistants.
2. If one or more formal plea offers have been made and rejected or have lapsed, counsel for both sides and the defendant shall assemble with the defendant before a magistrate judge immediately prior to trial and jury selection for the purpose of making a record of the rejected or lapsed formal plea offer(s).*
3. When making a record of rejected or lapsed formal plea offer(s), the magistrate judge will inquire of counsel and the defendant as to:
A. The existence of formal plea offer(s) and a copy of each formal plea offer that has been rejected or has lapsed shall be marked as an exhibit and received in evidence.
(i) The clerk shall seal the exhibits.
(ii) The clerk shall retain the exhibits and not return them to counsel until the defendant has been sentenced or a jury has acquitted the defendant of all charges. The clerk shall return the exhibits to counsel when the defendant is sentenced or when a jury has acquitted the defendant of all charges.
(iii) At, but not before, the time the exhibits are returned to counsel, the clerk shall upload copies of the exhibits to CM/ECF and docket them as “rejected or lapsed plea agreement(s)” or similar wording.
B. Whether rejection or lapse of the formal plea offer was the result of a knowing, intelligent and voluntary decision on the part of the defendant.
C. Such other matters as may be deemed pertinent by the presiding judicial officer.
4. When making a record of a rejected or lapsed formal plea offer, the presiding judicial officer will abide by and strictly adhere to the provisions of Federal Rule of Criminal Procedure 11(c) prohibiting judicial officers from participating in plea discussions prior to the offering of a plea agreement.
5. Immediately following the hearing required by this order, the courtroom deputy assigned to the case shall cause a transcript of the proceedings to be prepared and filed in the court file. The transcript shall be filed as a sealed document.
Dated: June 13, 2013
s/Richard G. Kopf
Senior United States District Judge
*For those situations where a plea offer has lapsed or has been rejected, but a subsequent plea offer agreed upon, I anticipate that the normal Rule 11 inquiry will be sufficient.

More on mythology and Standing Bear


Photo credit:  Part of a painting done by Zoey Wood-Salomon used as a banner by the Indigenous Law and Policy Center Blog.

For an interesting take on mythology and the Standing Bear and Elk cases, see Adrea Korthase’s May 11, 2013, post in “Turtle Talk,” the Indigenous Law and Policy Center Blog at the Michigan State University College of Law.  The author helpfully refers to Volume 4, part 4 of Seen & Heard (November 2,1904) published shortly after the beginning of the 20th century in Philadelphia by Louis N. Megargee.*   Entitled “The Suppression of the Indian,” the full essay can be found at pages 4753 through 4771.  Among other things, it provides fascinating insights about Tibbles.

Thanks to Turtle Talk and Adrea Korthase!


*The collection is edited by James Hoyt.  It is available as a free EBook.

The trouble with Social Security disability appeals

This is a photo of "petroleum-free" lip balm with a SPF rating of 15. The SSA apparently handed out this handy health care item as a promotion.  The container urges the user to apply the balm while also applying online for Social Security benefits. Obamacare for the lips? Very weird.

This is a photo of “petroleum-free” lip balm with a SPF rating of 15. The SSA apparently handed out this handy health care item as a promotion. The container urges the user to apply the balm while also applying online for Social Security benefits. Obamacare for the lips? Very weird.

Photo credit: Aric Riley’s photostream per a Creative Commons license.

If you apply for social security disability benefits and your application is denied, review can be sought in a federal district court.  These are significant cases.  “If a claimant wins his or her appeal, the average cost of lifetime benefits is approximately $300,000. Should a claimant fail to prevail, the family may be facing financial ruin.”  Association of Administrative Law Judges, Meeting the Challenges Ahead.

As with bankruptcy law, social security law is complex and arcane.  Unlike my very favorable view of certain specialist tribunals like bankruptcy appellate panels (BAPs), I am a strong believer in review of social security disability denials by federal district judges.

These appeals are both hard and frustrating.  I know because every once in a while I will do one myself from scratch (without help from a law clerk).  When I do, I am confronted with a huge record replete with pages and pages and pages of medical records.  Additionally, and more frequently than I would expect, there is sometimes a mismatch between the opinion denying relief and the record.  And all of this brings me to a delicate but critical point.

The social security appeals we deal with require review of a decision “authored” by an Administrative Law Judge (ALJ) who is employed by the Social Security Administration (SSA).  I know several of these judges, and I have a very high regard for their integrity, competence and work ethic.  But, frankly, there are serious problems with a fair number of the opinions “authored” by ALJs.

The SSA confronts a huge docket of disability claims.  In FY 2011, the SSA received around 3.3 million disability claims and there was a large backlog of cases.  Meeting the Challenges Ahead.   In turn, the ALJs are expected to turn out decisions at a dizzying rate.

For example, between September 29, 2012 and March 29, 2013, which included 122 working days, the number of dispositions per day per ALJ ranged between a high of 3.17 per day to a low of 1.50 per day.  Hearing Office Dispositions Per ALJ Per Day Rate Ranking Report FY 2013 (For Reporting Purposes: 09/29/2012 through 03/29/2013) (segregated by hearing office).  In Omaha, where many of our cases originate, the rate per day per ALJ was 2.44.  Id.  While the SSA is to be complimented for being transparent, these numbers are chilling to me.

To make matters tougher for the ALJs, after they make their decision in chambers, an opinion must be written.  But they don’t write their own opinions.  Rather, they send their notes to a paralegal or sometimes a lawyer to write the opinion.  The ALJ is then supposed to review and approve or edit and then approve the opinion.

However, the quality of the decisions varies greatly according to the skills of the opinion writer and the time the ALJ can devote to editing the opinion.  For example, according to one disgruntled judge, “a lot of the writers are under a great deal of pressure to produce numbers of decisions. You can not have quality and quan[t]ity.  Something has to give. As an ALJ you will not have the time to write your own decisions. You will be lucky to find the time to edit them.”  ALJ Discussion Forum (March 22, 2013) (bartleby).

On April 9, 2013, the President of the Association of Administrative Law Judges wrote a scathing letter to the Acting Commissioner of SSA.  In part, the letter said:

I am writing you concerning a matter of extreme importance to  the Social Security Administration (“SSA” or “Agency”), the AALJ and, we believe, the American people. Succinctly, that matter involves the unlawful imposition by the SSA of an illegal production quota upon administrative law judges responsible for appeals from disability claims denied at the state level. As you know, the Administrative Procedure Act, as well as the Social Security Act, guarantees the decisional independence of all federal administrative law judges. Those federal laws as well as the United States Constitution also guarantee the procedural due process rights of disability claimants. SSA, in derogation of these rights, is enforcing an illegal decisional quota upon administrative law judges and is enforcing a series of illegal “Benchmarks” in furtherance of the quota, requiring administrative law judges to adhere to arbitrary deadlines for designated stages in the hearing process. Perhaps most troubling is that the quota is the result of fiscal, political and other extra-judicial considerations, exactly the type of pressures the United States Supreme Court in Butz v. Economou,438 478 (1978), made clear were anathema to decisional independence. Moreover, this conduct is precisely the type of conduct the U.S. Congress intended to eradicate by enacting the Administrative Procedure Act.

The letter ended with this ominous statement:

Should you choose not to address these concerns, the AALJ is prepared to take whatever steps may be necessary, including litigation, to protect the decisional independence of administrative law judges, the procedural due process rights of the claimants and the interests of the American people. Individual administrative law judges have also expressed an interest in asserting their own rights in conjunction with the AALJ in possible litigation.

To be crystal clear, I have no opinion about the dispute between the ALJs and the SSA.   I favor neither side.  I highlight this dispute only to show that there is a strong “real world” justification for Article III review of important Executive Branch decisions like the denial of Social Security disability claims.  While the review of these decisions are burdensome to federal district judges, they are also as important as other types of litigation that garner much greater attention.


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