Answering “interrogatories” focusing on sentencing from a law student

As I have noted before, I frequently receive e-mail with questions. I try to answer all of them. Recently, I received some questions from a law student focusing on sentencing questions, and I answered them. That law student has now followed up with more questions which I will also answer. I publish the questions and answers ’cause they may have some interest to readers.

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Law Student’s First Set of Interrogatories and Kopf’s Answers Thereto (not under penalty of perjury):

Your questions are good ones and get to the heart of sentencing.  I will briefly answer them, but please understand that I am ultimately a legal realist. That is, I don’t believe much in stating theoretical positions in the abstract.

  1. As a practicing judge, do you view punishment as communicative? Or merely as getting a high risk offender/re-offender off the street? Or put more broadly, since you have been highly critical of 3553(a), what is the purpose of punishment for you and how do you pick between retributive/utilitarian theories? And how does that ultimately impact the sentencing range you pick (I am well aware of Booker and all the case law that has followed and your position on the blog that you are in favor of guidelines but I am interested in your view independent of Booker etc and for purposes of your answer just assume you have freedom to do whatever you want up to the statutory maximum)? 

In addition to being a legal realist, I am primarily a utilitarian when it comes to sentencing. I intend to communicate only in the sense that I hope my sentence serves to deter others. That said, there is often a place for retribution in those cases where there is real harm to real people.

Having said the foregoing, in a democratic society like ours, I would prefer that elected officials express more specifically the goal or goals of sentencing. If there are multiple goals, Congress could rank them in terms of priority.

Because I believe that the Sentencing Commission tries hard to implement what it sees as the will of Congress, I tend to sentence within the Guidelines even now because I have independently determined that the will of the people is most often implemented when I sentence within the Guidelines.  To be clear, I follow Booker and its progeny and don’t give the Guidelines special weight. On the contrary, when I follow the Guidelines, I do so because I have independently determined that the range established by them in a given case is the proper one after looking at all the section 3553(a) factors.

I want to be clear also about something else. I don’t think judges are any better equipped to sentence an offender than the reasonably well-informed lay person. In fact, it would be pretty easy to convince me that jury sentencing is the way to go.

Regarding your law school classmate, I try never to lecture or make off the cuff remarks.  Normally, I just recite the section 3553(a) factors I relied upon, and call it good. But, I always ask the lawyers “whether they would like any further elaboration of my statement of reasons.” They almost always decline. By declining, the Court of Appeals reviews the adequacy of my statement of reasons under the “plain error” doctrine.

  1. I don’t know how or what possessed you to be such a friend to Mr. Hopwood. But clearly its played a crucial part in his success and he owes you a debt of gratitude. But would you advise other defendants to write to their judge to tell them how they turned out? (See below for explanation) 

I like to know how people turn out. When I learn that a defendant has overcome the harsh reality of a federal conviction, I often learn things that later are helpful to me when I sentence others. Shon’s case taught me to be especially aware that my instincts can be wildly off base. 

  1. Also, I just have to ask the following two questions because I am really curious:

(a) I have read so many quotes by judges that by sentencing xyz to prison that they will be rehabilitated, find a moral compass, find their way, start the path to restitution, whatever. Every time I read such a quote, I wonder if judges are actually aware that most people are not rehabilitated through the process of imprisonment: when you sentence someone to prison, where/how do you expect rehabilitation to come about from the confines of a concrete cell?

Prisons almost never rehabilitate people. I never express rehabilitation as a reason for sentencing. For my money, that would be just plain dishonest.

(b) In a related vein, if you have an immigrant defendant who is going to be deported (lets say to a far off land and not to Mexico from where re-entry is quite easy) after his/her sentence, how does that impact your view of what sentence is appropriate/analysis of the 3553(a) factors? The reason I ask this is I have often seen cases where the judge robotically repeats the 3553(a) factors and imposes a guideline sentence even though most will not apply to immigrant defendants (i.e. “protecting the public,” but the defendant is going to be deported with no chance of return seems to be overlooked, the need for “rehabilitation,” immigrants are not assigned to camps or minimum security prisons and do not have many rehabilitative programs available to them and besides why would you want to spend time and money “rehabilitating” a defendant that is going to be deported), etc. etc. I mean I have rarely seen judges engage these issues in an immigrant case involving drugs, guns or fraud but I have read plenty of appellate court decisions that say deportation should not be considered a factor for downward departure. 

I don’t think the fact of a pending deportation should increase or decrease a prison sentence. Remember that if a defendant is deported he can avoid supervised release, and that is a significant “bonus,” providing he or she does not reenter again (see below). In short, I view deportation as a collateral consequence much like I would view the likelihood of a civil judgment flowing from the conviction. 

I do think, and the law is now pretty clear, that deportation should be considered when determining whether to impose a term of supervised release after release from prison.  With citizens from Mexico, once in a while I will impose a period of supervised release. By doing so, the defendant knows that he or she is subject to a prison term for illegal reentry if he or she comes back after deportation plus an additional prison term for violating my supervised release order. Supervised release thus serves as an additional deterrent in those cases.

Please note that the Nebraska federal court has long been a “fast track” court.  That is, the defendant receives a base offense level reduction if he or she agrees not to contest deportation.

Law Student’s Second Set of Interrogatories and Kopf’s Answers Thereto (not under penalty of perjury):

1. Insofar as you are a utilitarian though, how do you overcome (on a theoretical level), justify or respond to the many moral, theoretical and ethic objections to sentencing based on deterrence (Kant’s famous quote comes to mind)? In a related vein, would you not agree that in certain respects the Guidelines over-estimate the risk of re-offending I have read some of the discussions on your board regarding the overly long sentences for drug offenders and some white-collar offenders.

I am sorry to disappoint you but the Kant quote to which you refer is not self-evident to this dope. I suppose the following from Kant is probably close to what you are thinking about:

For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens. The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: “It is better that one man should die than that the whole people should perish.” For if justice and righteousness perish, human life would no longer have any value in the world.

My answer is a practical one. I not purely utilitarian, although I love Bentham largely ’cause he was practical, honest, and had himself stuffed at his death. In truth, I don’t think anyone is purely utilitarian or purely retributive.  As I indicated there is a place for retribution even though, for me, the utilitarian tends to predominate.

Yes, sentences are now too long no matter the theory you ascribe too. That is the “fault” of the Congress and Guidelines. But see below.

(a) But would you not agree that the Guidelines and the sentencing commission are far from what Judge Frankel originally envisioned? It seems to me that far from being the democratic and representative commission that Frankel envisioned, the Commission enacts enhancements more or less based on a knee-jerk reaction by Congress (often without empirical support for the enhancement). A good article by a prominent federal public defender on this point (covering a variety of offenses) is this:

Amy Baron-Evans, The Continuing Struggle for Just, Effective and Constitutional
Sentencing After United States v. Booker (Aug. 2006) (unpublished manuscript),
available at <http://sentencing.typepad.com/sentencing_law_and _policy/files/struggle_for_constitutional_sentencing_after_booker.rev.8.16.06.doc&gt;

What is your response? The reason for this question is, as I read the history of the Guidelines, as originally envisioned, the Guidelines were far from what they are today and if they had been implemented as originally envisioned, they would not act as a “one way ratchet up” but would also limit punitiveness (or act as a floor for punishment and a ceiling for punitiveness). There have been far more number of sentencing guideline amendments over the years increasing sentences than there have been decreasing/allowing for departures.

Sure, the Guidelines do not function precisely as Frankel envisioned. It is also clear that the Commission reacts in a way that follows the will of Congress. So what? Congress has the Constitutional right to set up such a scheme, and in that sense there is nothing undemocratic about it. Ms. Evans would be very happy with the Commission if it called for puny sentences. She is not happy with it because the Commission calls for stiff sentences. To my way of thinking, the Commission is doing what Congress wants and I find nothing objectionable to that behavior as a Constitutional matter.  In fact, that is quintessentially the job of the People’s elected representatives rather than judges who are not elected. Now, I too would prefer shorter sentences. I say, again, so what? Judge are no better in selecting the rationale for sentencing and the length of sentences generally speaking than the Congress and the Commission. More to the point, those are purely policy choices that in my estimation should be made in a democratic environment that reflects the political will of the electorate. That is hardly “knee jerk” unless you think the chaotic business of democracy is “knee jerk.” Indeed, the present movement in Congress and the Commission–from both sides of the Congressional aisle and all sides of the Commission–for moderating long prison sentences is proof that the system is reflective of the will of the people. The pendulum is swinging back, and that push came from the People’s representatives in Congress and in the Commission established by Congress.

 (e) You have stated that believe in empirical based sentencing but how would you reconcile that with “democratic” sentencing. I have seen quite a bit of research that indicates that most people don’t think criminals are punished enough. And if it were up to some, they would not only imprison a criminal but would like to tar and feather them. If you “give the people what they want,” are you not stepping away from empirical based research? 

The short answer is that politicians and lay people can be educated by the empirical. Again, the movement to reduce long prison sentences flows from such empiricism. Moreover, empirically based data can help the Commission and others give Guidance for variances and departures.  Please note that empiricism may also drive up sentences. More generally, good policy often is countered by bad politics and that takes place with any issue Congress confronts–such is the price of democracy.  Congress is certainly not populated by Platonic Guardians, and the federal courts should never aspire to become Platonic Guardians either. As Holmes said, if the people want to go to hell, it is my job to help them get there.

3. Deportation: You state that you are a legal realist but you also state that you view deportation only as a collateral consequence. I take issue on two points and would appreciate a response.

(a) Realistically speaking, deportation is one of the most severe sanctions available and it is virtually assured after a federal criminal conviction (many federal convictions qualify as CMTs or Aggravated felonies). Additionally, once deported, a defendant is very unlikely to ever be re-admitted to the Untied States. How is that not a sanction?

It is a sanction. However, it is a collateral sanction. More practically, if the alien doesn’t have to serve supervised release, his criminal punishment is less severe than the sentence of an American citizen.  That is, an American will serve prison time and then supervised release time. The alien will serve prison time, but arguably no supervised release time ’cause he or she will be south of the border.

(b) If a criminal is deported (again assume its to a far off land and not Mexico), realistically speaking many of the 3553(a) factors just dont apply. An example: you dont need to protect the public from a person that will likely be deported (if they have an aggravated felony). Of course we can get into hypotheticals about how they might come back to the US and go on another criminal spree, but that just appears to me to be a parade of horribles.

I am not sure about the meaning your question, so I reformulate it. I think you ask: If a person is deported to some place (say China) where it is unlikely that they will ever be able to come back to the US, should not that person’s sentence be lighter ’cause specific deterrence does not apply? Maybe, but probably not. Somehow, they got here once. So, general deterrence applies. I also think all the rest of the section 3353(a) factors probably apply too. In short, I reject much of the premise of your argument. I don’t go easier on folks who are deported except perhaps when determining whether to impose supervised release, and that decision is based almost entirely on utilitarian concerns.

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In addition to answering the law student’s questions, I hope this post stimulates some discussion. We shall see.

RGK

Perhaps it is chemo fog, but I’m getting soft on crime

I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines. See, e.g., Prepared Testimony of Richard G. Kopf, United States District Judge, District of Nebraska for the United States Sentencing Commission, Washington, D.C. (presented on Tuesday, February 15, 2005) (asserting that district judge’s should be required to provide a “plainly superior, principled reason why the advisory Guidelines should not be given decisive weight” when sentencing particular individuals).  Given that background, I write today about statutory minimum sentences and the evolving controversy about whether they should be retained.

Reducing federal prison populations is all the rage. Some want to do it for monetary reasons, but others want to do it because they believe there are “non-violent” drug dealers sentenced to terms of federal imprisonment that are far too long and those long sentences fall disproportionately on black and Hispanic people. Whatever the motivation, Congress is considering slashing or doing away with mandatory minimum sentences.

This week thoughtful and highly regarded former prosecutors, including two men who served with distinction as Attorney General, sent the Senate majority and minority leaders a letter opposing reduction of mandatory minimum sentences for drug dealers.  One of the signatories, former Attorney General Mukasey served 18 years as federal district judge sentencing people. These folks are brilliant, tough, and experienced and they are motivated by an intense desire to protect the public from the drug predators that currently prowl about in numbers that would stagger the uninformed.

The letter reads as follows:

May 12, 2014

The Honorable Harry Reid
Majority Leader

The Honorable Mitch McConnell
Minority Leader

United States Senate
Washington, DC 20510

Re: Federal Criminal Sentencing Reform

Dear Majority Leader Reid and Minority Leader McConnell:

As former government officials who served in the war on drugs, we care deeply about our nation’s system of justice. During our tenure, we labored to see that justice was well served, the guilty punished and the innocent protected. We recognize the ongoing need to continue to improve how the nation deals with crime.

Significant components of our statutory framework for sentencing lie at the heart of our nation’s success in confronting crime. Collectively, these sentencing measures have helped substantially to reduce crime throughout our nation over the past thirty years. A series of laws, beginning with the Sentencing Reform Act of 1984, have dramatically lessened the financial and human toll of crime on Americans. Critical to these laws has been the role of mandatory minimum sentencing and the exercise by Congress of its Constitutional prerogative to establish the minimum of years of detention served by a federal offender. While federal judges are properly entrusted with great discretion, strong mandatory minimums are needed to insure both that there is a degree of consistency from judge to judge, and that differing judicial ideologies and temperaments do not produce excessively lenient sentences. In addition, and of central importance, prosecutors use strong mandatory minimums, along with safety-valves built into the current system, to induce cooperation from so-called “smaller fish,” to build cases against kingpins and leaders of criminal organizations.

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals. We are concerned specifically by proposals thatwould slash current mandatory minimum penalties over federal drug trafficking offenses — by asmuch as fifty percent. We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety. We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP. We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking – not drug possession offenses – and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities. This “safety valve,” as it’s known, has been in the law foralmost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperationand, thus, breaking down drug conspiracies, large criminal organizations andviolent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety. We have made great gains in reducing crime. Our current sentencing framework has kept us safe and should be preserved.

Sincerely yours,

William P. Barr
Former United States Attorney General

Michael B. Mukasey
Former United States Attorney General

Samuel K. Skinner
Former White House Chief of Staff and Former United States Attorney, Northern District of Illinois

William Bennett
Former Director of the White House Office of National Drug Control Policy

John P. Walters
Former Director of the White House Office of National Drug Control Policy

Mark Filip
Former United States Deputy Attorney General

Paul J. McNulty
Former United States Deputy Attorney General and Former United States Attorney, Eastern District of Virginia

George J. Terwilliger III
Former United States Deputy Attorney General and Former United States Attorney, District of Vermont

Larry D. Thompson
Former United States Deputy Attorney General and Former United States Attorney, Northern District of Georgia

Peter Bensinger
Former Administrator, Drug Enforcement Administration

Jack Lawn
Former Administrator, Drug Enforcement Administration

Karen Tandy
Former Administrator, Drug Enforcement Administration

Greg Brower
Former United States Attorney, District of Nevada

A. Bates Butler III
Former United States Attorney, District of Arizona

Richard Cullen
Former United States Attorney, Eastern District, Virginia

James R. “Russ” Dedrick, Former United States Attorney, Eastern District, Tennessee and Eastern District, North Carolina

Troy A. Eid
Former United States Attorney, District of Colorado

Gregory J. Fouratt
Former United States Attorney, District of New Mexico

John W. Gill, Jr.
Former United States Attorney, Eastern District, Tennessee

John F. Hoehner
Former United States Attorney, Northern District, Indiana

Tim Johnson
Former United States Attorney, Southern District, Texas

Gregory G. Lockhart
Former United States Attorney, Southern District, Ohio

Alice H. Martin
Former United States Attorney, Northern District, Alabama

James A. McDevitt
Former United States Attorney, Eastern District of Washington

Patrick Molloy
Former United States Attorney, Eastern District, Kentucky

A. John Pappalardo
Former United States Attorney, Massachusetts

Wayne A. Rich. Jr
Former United States Attorney, Southern District, West Virginia

Kenneth W. Sukhia
Former United States Attorney, Northern District of Florida

Ronald Woods
Former United States Attorney, Southern District, Texas

Reprinted from Crime and Consequences.

I agree with much of what is contained in the letter.  In particular, and despite weak liberal reasoning to the contrary, harsh federal drug sentences have undoubtedly reduced federal crime rates for drug offenses to record lows. Mandatory minimum sentenced undoubtedly help prosecutors squeeze lesser drug dealers so that the prosecutors can get at bigger fish. To say that the federal prisons are largely comprised of “non-violent” drug dealers defies the reality of the terribly vicious and violent drug business. Twenty two years of imposing federal sentences for drug offenses, including imposing mandatory life terms on blacks and Hispanics, convince me that mandatory minimum statutory sentences are perhaps the most powerful of all the tools a federal drug prosecutor possesses.

But I have come to the conclusion after these twenty two years that mandatory minimum sentences for drug offenders should be totally eliminated or at least scaled back such that they play no part in most federal drug cases. Here, in summary fashion, is why I have come to that conclusion:

  1. If Congress intends to maintain the Sentencing Commission and the ideals behind the Sentencing Reform Act of 1984, which is my paramount desire and concern, then mandatory minimum sentences must go.  It makes no sense to give the Commission the power to build a rational and empirically driven sentencing scheme and then instruct the Commission that no matter how rational and data-driven that scheme might be the design must be arbitrarily altered by fixed numbers.  If we are to have a panel of thoughtful sentencing experts backed up social scientists of high repute (the Commission) Congress must set the Commission free.
  2. We must decide who sentences.  Statutory minimum sentences essentially bifurcate the act of sentencing between the Executive branch and the Judicial branch.  The prosecutor picks a sentence of a certain number of years (the statutory minimum) and anything more is left to the judge. This dichotomy is both theoretically confusing and it also practically produces sentencing disparity by allowing prosecutors to pick and choose when “they will sentence” and when they will allow the sentencing judge to fully perform the act of sentencing.
  3. If the coercive power of a statutory minimum to obtain cooperation is necessary, the Commission could implement a rationalized but far more consistent equivalent by rewarding offenders who cooperate with the government.  For example, think of the role reduction Guidelines as model. Through a similar Guidelines approach, a cooperating individual might receive anywhere from a one point reduction and up to a four point (or greater) reduction for cooperation if sought by the government and approved by the judge. The Commission has always been sensitive to the interests of the Department of Justice and there is no reason to think that future Commissions, unconstrained by statutory minimums, would ignore the legitimate needs of DOJ.
  4. The authors of the letter add that they fear the Commission is moving to otherwise reduce drug sentences and imply that elimination of mandatory minimums is an example of a Commission gone rogue. No one who has followed the Commission over the years would classify it as soft on crime. While prosecutors may think the Commission is going too far reducing base offense levels for drugs, the cure for that is a debate with the Commission and not the blunderbusses of statutory minimums.

So, there is my story and I’m sticking to it. If I am getting soft on crime, then so be it.

RGK

A tempest in a teapot

Read Doug Berman’s post today entitled: Was it “disrespectful” to the judiciary (or, in fact, quite helpful) for AG Holder to order prosecutors not to oppose application of pending drug sentencing guideline reduction?  Judge Pryor, who sits on the Sentencing Commission, is upset that AG Holder jumped the gun and therefore screwed with separation of powers rules when he told his prosecutors to allow “non-violent” offenders to argue for application of a lower drug Guideline based upon a proposed Guideline change but before the Sentencing Commission adopted the change (which it did unanimously on Thursday).

Here’s my very abbreviated view:

Judge Pryor’s lament (and those of others like him) is silly. We sentencing judges aren’t obligated to do anything because the AG and his munchkins don’t “oppose” something. And, since the Commission unanimously adopted the rule change anyway, why should we be concerned at all? Hell, all the major players agree with the change. We in the federal judiciary have enough to worry about without erupting over Holder’s alleged “lack of respect.” By the way, I think the AG is a weak, weak sister, but that’s an entirely different matter.

RGK

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