On the day she imposed two 25 to life sentences, judge conducts marriage ceremony for the killer

Eric M. Freedman, the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University, sent me this link. It is a “must” read if you are interested in thinking about the proper role of trial judges who must sentence people.

Should a judge marry an offender who was convicted of killing another person when that judge presided over the trial and imposed two consecutive 25-year to life terms on the offender?  Does it matter that the marriage ceremony was held on the same day the sentences were imposed?  Does it matter that the victim’s family members were escorted out of the courtroom after the sentencing hearing and prior to the start of the marriage ceremony? Does it matter that the judge baked a cake for the couple? Does it matter that the offender is likely to appeal?

Here’s my quick (not well thought out) take. Primarily out of concern for the victim’s family, I doubt I would have done what this state judge did. I also doubt that there was anything legally or ethically improper about the judge’s compassionate behavior. In fact, I admire her.

What do you think?

RGK

PS Many thanks to Professor Freedman!

Genghis Khan and sentencing

Photo credit:  frans 16611"s photostream per Creative Commons license.

Photo credit: frans 16611’s photostream per Creative Commons license.

The authors of The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice, discussed in the last post, looked at the important question of the behavior of federal district judges when they sentence people.  Among other things, the authors concluded that the political party of the President who nominated the judge was a good proxy for judicial ideology.  The authors then looked to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University to provide data about the sentencing decisions of individual judges.  After that, the authors matched up sentencing decisions by individual judges and the party affiliation of the President who nominated the judge.  The authors then ran a statistical analysis (once again using TRAC resources) to determine if there were differences in sentence lengths between judges nominated by Republican Presidents and judges nominated by Democratic Presidents.  Among other  things, the authors found that “there is evidence of ideological influence, with judges appointed by Republican Presidents generally imposing heavier sentences when other influences are corrected for.  The ideological influence is modest, however, . . . .”

For now, I intend only to highlight four things.  I hope to stay out of the weeds.  Here goes.

Point One

Federal courts have a lot of sentencing data, but there is a big problem collecting the data and putting into a useable form.  Because the TRAC data contains identifying information for individual judges, it is a unique and valuable resource.  At present, there is no other such information for the entire federal judiciary that is readily available.  The effort it took to accumulate this data and then put it into a useable form was truly gargantuan.  I laud TRAC for its efforts.

Point Two

There are problems with the TRAC information.  See Tracking TRAC’s New Sentencing Data, 25 Federal Sentencing Reporter No. 1 (October 2012).  Many of those problems are, however, vastly overblown as evidenced by the fact that attacks on TRAC are generated largely by defense lawyers.  They have a motive to trash anything that suggests that judicial discretion at sentencing is a bad thing.

The foregoing said, real problems persist.  In my view, the most significant problems with TRAC reports are these:  (1)  one has to pay for the TRAC data and the cost is not insubstantial;  (2) a user agreement must be signed that limits how the user may use the TRAC reports; (3) the TRAC reports do not separately address departure and variance motions that frequently drive sentencing outcomes.

There is a better way.  The United Sentencing Commission has data identifying each federal district judge by name and it has specific data for each sentence imposed by that judge.  In short, the Sentencing Commission data is more refined than the TRAC data.  Unfortunately, the Sentencing Commission will not normally release this data.  The only way to obtain the data is for the chief judge of the district to request the release of the data or for each identified judge to consent to the release of the data.  Since that data was generated by a judge publicly sentencing a defendant, there is no good reason not to make that data freely available to anyone who wants it.

To date, only the District of Nebraska (my district) has made that data freely accessible to the public.  See  United States District Court District of Nebraska, Judges’ Sentencing Data.  Among other things, the Sentencing Commission data for the judges of the District of Nebraska shows that for “drug cases, there appears to be a marked difference between sentences imposed in Lincoln (higher) and sentences imposed in Omaha (lower).”   Richard G. Kopf, Judge-Specific Sentencing Data for the District of Nebraska, 25 Federal Sentencing Reporter No. 1, p. 51 (2012).*  Why an analysis of the sentencing practices of judges in two courthouses no more than 60 miles apart reflects big differences in sentence outcomes is a grave cause for concern.

Point Three

It is critically important to remember that the authors of The Behavior of Federal Judges were looking at the data from a national perspective.  Thus, whether ideological differences matter more than modestly in individual districts does not appear to have been clearly addressed.

If you are a defendant, the existence of only modest ideological influences, when derived from an average of all the district judges in the nation, is not comforting.  In the district where the sentence will be imposed, a defendant wants to know whether he has drawn a Republican Genghis Khan.

The following chart (showing five years of data ending in September 2012) obtained from TRAC (for all sentence types) illustrates just how widely divergent sentence outcomes can be in the same district:

table

(Although I have long ago shed my affinity for the Republican party, it appears that I am, nevertheless, the District of Nebraska’s Genghis Khan.)

Point Four

Whether one uses the TRAC data or data from the Sentencing Commission, when it comes to sending people to prison it is important to concentrate on what is going on in each district and in each courthouse within each district.  Given the broad and national scope of their endeavor, it is perfectly understandable why the authors of The Behavior of Federal Judges did not drill down to the district level.  For federal sentencing judges, we lack any similar excuse.

RGK

*The Federal Public Defender lobby suggests that the Nebraska disparity can be explained by differences in the use of Rule 35(b) sentence reduction motions that come after initial sentencing–Lincoln prosecutors use them more and Omaha prosecutors use them less, so say the FPDs.  However, my analysis of the data (cases numbers, section 5K1.1 motions, and Rule 35(b) motions), which I have shared with our FPD, suggests that is highly unlikely that any such difference is substantial enough to explain away the disparity.   So far, I have heard no rebuttal to my analysis.  As I said earlier, for this post, I want to stay out of the weeds.  So, I will go no further on this point.

The Judicial Toilet

The photo shown below got me thinking about toilets and my role as a judge.  In addition to incessant fawning (that never gets old), one of the perks of becoming a federal judge is that you generally get your own toilet.  Until I took senior status, I proudly claimed my own toilet as one of the  finer trappings of the judicial role.  But, now, that has all changed.

The practice in our little courthouse is that when a judge takes senior status, the old judge moves from his former chambers to make room for the new judge.   When our wonderful new colleague John Gerrard joined us, I moved just like Warren Urbom moved when I became an active district judge.

With one exception, my new chambers are perfectly fine.  Since I practiced law for 13 years in an office without windows, virtually anything is better than the dump I had while in the law biz.

There is a big problem however.  My new digs don’t have a toilet.  I have to walk three steps into the corridor to get to a bathroom and that bathroom is also used by court staff and jurors.  Ick!  Ick!  Ick!

Communing with commoners while in the commode is probably good for the soul.  It does not, however, burnish my self perception as a big cheese.*   Just say’n.

*I am not the only big cheese with toilet and self perception issues.  “I just realized my name is an anagram for ‘toilets'” — T.S. Eliot, on his deathbed.

 RGK

Photo credit:  Two Roses’ photostream.                                                                    Used pursuant to a Creative Commons License, http://creativecommons.org/licenses/by/2.0/deed.en

toilet2

“Partial-Birth Abortion” litigation: An example of the problem of an uncertain role definition for federal trial judges

Initially, three things need to be plain:

(1) I do not write to take a substantive position one way or another on abortion regulation by the state or federal government.

(2) I intend no criticism of the individual justices.  Moreover, I intend no substantive criticism of the Supreme Court’s abortion jurisprudence.

(3) In the fall of 2011, I recused myself from handling any more civil cases involving the regulation of abortion.  See General Order No. 2011-10 (D. Neb.) (Kopf, J., recusing and explaining basis for recusal),

Turning to the meat of this post, I was the trial judge in both of the Carhart cases that ended up in the Supreme Court.  Compare Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998) (Nebraska’s partial-birth abortion statute was unconstitutional), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000) with Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004) (the federal partial-birth abortion statute was unconstitutional), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007).

Even though there was very little difference in the cases from my perspective, the Court affirmed the first decision but reversed the second.  To say that I was perplexed is an understatement.  It is that perplexity that prompts this post.

At the heart of abortion litigation is the Supreme Court’s “undue burden” standard.   See Planned Parenthood v. Casey, 505 U.S. 833, 845-46, 877, 879 (1992).  The Supreme Court’s test asks whether, prior to viability, the regulation unduly burdens a woman’s decision to terminate her pregnancy.  According to the Court, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden.  Assume that as a trial judge I am only interested in knowing how to understand and then apply the “undue burden” standard.  Assume further that I approach that task with no conscious bias.   How do I go about my task?

I could and should use precedent to try to parse the meaning of “undue burden.”   See Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial-Birth Abortion and Word Games–A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11 (2002).  But what if the intellectual giants of the lower federal courts can’t agree on what the words mean.  See, e.g.Hope Clinic v. Ryan, 195 F.3d 857, 861, 876 (7th Cir. 1999), cert. granted and judgment vacated by 530 U.S. 914 (2000) (Judge Easterbrook wrote the opinion upholding efforts to ban the practice and Judge Posner wrote a stinging dissent).  When that happens, the federal trial judge is in a real pickle.

Now, this is not a “poor me” lament.  I get paid the same whether my decisions are affirmed or reversed.   Moreover, you can’t become or long survive as a federal trial judge without a strong ego.  (Insert the snark of your choice!)   The law is necessarily ambiguous.  It is ever-changing.   Blah, blah, blah.

So, why do I write this post?   Intending no effrontery, I urge the justices to write their opinions with the role of the federal trial judge more keenly in mind because it is in everyone’s interest to do so.  And, I offer what to many may seem a simple-minded way of going about doing so.

When writing opinions, the justices would do well to ask:   In subsequent cases, is the federal trial judge to behave more like the Herculean judge or more like the judge-as-umpire when applying our decision?  Of course, the more ambiguous the role definition the less likely it is that the federal trial judge will get it right.   Everyone’s interests are served by providing greater precision.

If the justices want to be more explicit about role definitions for trial judges, then, and as odd as it may seem, they might also try writing jury instructions after reading their opinions and before they are published.  (To be clear, I know that juries typically have no role in abortion cases.)   We communicate to lay people all sorts of tricky legal stuff in jury instructions.   We define conspiracies and motivating factors .  In so doing, our language sometimes gives juries broad latitude and other times very little latitude.  While writing jury instructions may seem pedestrian, I have often found that you cannot fully understand the substantive law until you can put it into jury instructions.  The private and in-chambers exercise of writing jury instructions as a test for opinion clarity would serve to focus the justices on the important work of assigning more precise role definitions for federal trial judges.

I appreciate that the justices have many tasks to accomplish when writing opinions and many of those tasks are very difficult and not apparent to the rest of us.   See, e.g., Jeffrey Toobin, The Nine, pp.  48-59 (Doubleday 2007) (discussing the interplay between the justices that resulted in the Casey opinion and the “undue burden” test).   Nonetheless, providing the federal trial judge with a clear role definition ought to be at the forefront.*

RGK

*Until the appointment of Justice Sotomayor in  2009, no justice has had experience as a federal trial judge since Justice Whittaker ended his tenure in 1962.

Pleas and the BS that comes with them

While lamenting that this blog is likely to be timid, and worse, less than candid, John K., commenting at SL&P, posed a question that is a wonderful way to begin to honestly discuss the role of a federal trial judge.  He wrote:

On the off chance the judge’s blog will be more candid, I’d love to get his take on plea colloquies… particularly ones in which defendants who end up with home detention/probated sentences swear prosecutors who menaced them with plausible trial-penalty threats of 30 years in prison in no way coerced them into taking the deals.

Since judges must know it’s BS, I can’t help but wonder how they rationalize their role in such a ridiculous exercise.

Sure, I know the defendant’s assertion that no one “threatened” him is BS.   However, I have concluded that it is the type of BS that a trial judge must tolerate.  Above all, lawyers and the clients they represent deserve predictibility.  Let me explain.

First, there is legal gobbledygook that helps.  The trial judge can rationalize accepting the plea by relying upon a  hoary legal maxim.   Roughly stated, a prosecutor does not “threaten” if he or she only promises to do what the law permits.  But, this formalism is not alone sufficient to justify accepting the plea.  Something more is required.

I rely upon Justice Holmes to provide that “something more.”  According to Holmes, when eying what the government might do to them, “[p]eople want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of public force through the instrumentality of the courts.”  Oliver Wendell Holmes, “The Path of the Law,” in Holmes, Collected Legal Papers, p. 167  (New York: Peter Smith, 1952) quoted in Bradley C. S. Watson, Oliver Wendell Holmes, Jr. and the Natural Law.

A judge’s adherence to accepted legal formalisms such as “a threat is not a threat if the prosecutor only promises to do what the law permits,” allows lawyers and their clients to predict outcomes.  Let me be more concrete.

Contrary legal dogma notwithstanding, if a Herculean judge were to reject the plea because the judge decided the defendant was in fact “threatened,” what would happen to the client?   Because a judge generally cannot control the prosecutor’s charging decisions or make the prosecution go away, the most Hercules can practically do is set a trial.  In many instances, a trial produces results far worse than the bargained for plea deal.  It is, of course, possible that the defendant would be acquitted.  Even so, by rejecting the plea and the formalism that it is founded upon, Hercules, the judge, wrecks havoc with the client’s desire for predictability.

Now, the foregoing rationalization for accepting the plea depends upon additional factors under Rule 11 of the Federal Rules of Criminal Procedure and the precedents of the Supreme Court.   Among other things, I must satisfy myself that the defendant is truly guilty.  I must satisfy myself that the defendant knows his rights (the alternatives).  I must satisfy myself that the defendant is represented by competent counsel.  Those, of course, are formalisms as well, but they tend to assure the procedural fairness that Holmes also insisted upon.

When it comes to determining how hard the government is going to hit you,  predictability rather than uncertainty is preferable.  So, John K., that is what allows me to accept pleas despite the copious amounts of BS that come with them.

RGK

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