Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing

Attorney General Eric Holder, addressing criminal defense lawyers, expressed a concern about the use of empirical data to sentence people. One assumes he has similar concerns about the use of empirical data to to decide how offenders should be supervised when out on the streets on supervised release.

The Wall Street Journal wrote the following on August 1, 2014 detailing Holder’s remarks:

Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.

In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.

“By basing sentencing decisions on static factors and immutable characteristics—like the defendant’s education level, socioeconomic background, or neighborhood—they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society,” Mr. Holder told the defense lawyers. Criminal sentences, he said, “should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”

Although I think Holder’s point of view is is naive and manifestly wrong, we should at least thank the Attorney General for flagging a very important issue. With that acknowledged, let’s look a little deeper.

As compared with Holder’s concern, there is a movement at the federal level to seriously examine the huge data bases that exist in order to make predictive judgments about how offenders are likely to do in the future and to factor that data driven analysis into the judicial process. Indeed, a former policy analyst for the federal courts wrote three years ago that:

Evidence-based sentencing is based upon social science. Criminological meta-analysis has identified fifteen key variables that are significantly related to recidivism: 1) criminal companions, (2) antisocial personality, (3) adult criminal history, (4) race, (5) pre-adult antisocial behavior, (6) family rearing practices, (7) social achievement, (8) interpersonal conflict, (9) current age, (10) substance abuse, (11) intellectual functioning, (12) family criminality, (13) gender, (14) socio-economic status of origin, and (15) personal distress. If those variables can be used in sentencing, it may be possible to safeguard public safety while reducing the financial and social costs associated with mass incarceration.

J.C. Oleson, Risk Assessment at Sentencing, ASU Law Journal (June 20, 2011). See also Administrative Office of the United States Courts Office of Probation and Pretrial Services, An Overview of the Federal Post Conviction Risk Assessment (September 2011).

Notice from the foregoing that “immutable characteristics” or “static factors” like race, gender and age are included. If race, gender or age are predictive as validated by good empirical analysis, and we truly care about public safety while at the same time depopulating our prisons, why wouldn’t a rationale sentencing system freely use race, gender or age as predictor of future criminality? The same can be said of factors like antisocial behavior, family criminality and other factors that have in the past made us queasy because they were thought to focus too much on the poor.

In my opinion, the use of empirical methods to assess risk at sentencing and upon supervised release is the most important aspect of the present movement toward criminal justice reform. We can and should aspire to depopulate our prisons. We can and should aspire to treat certain offenders less harshly. We can and should do a better job of helping offenders on supervised release. But if we believe that public safety is or should be a central goal of our criminal justice system we ought not to ignore the truth–certain characteristics that we have shied away from in the past because we worried too much about vague notions of “equality” or “fairness” tell us a lot about future danger. The Attorney General was wrong to put his head in the sand like the proverbial ostrich when he suggested those factors be ignored. The rest of us ought not to make the same mistake.

RGK

It’s time to rewrite or junk entirely 18 U.S.C. § 3553(a)

The pendulum swings.

It is now fashionable to be “soft on crime” rather than “hard on crime.” This is largely because being hard on crime has become ridiculously expensive. I get that, and, in fact, agree with it. However, before we provide group hugs to the special little snow flakes (each one is unique don’t you know) who will reside in our federal prisons, we ought, at least, to know what goals we seek to achieve when we send them to federal prison.

From 18 U.S.C. § 3553(a), here are what judges are supposed consider now regarding the goals of sentencing:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.1

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

If you read these goals and try to apply them seriously you will end up insane. They are inherently contradictory. They provide no meaningful guidance to the sentencing judge.

If  you believe that federal judges are like Platonic guardians imbued with the powers that only the elite can possess, these goals are perfect. Essentially, the federal judge is told to do the right thing. The Supreme Court’s line of cases (e.g., Booker) punctuates that point by making the Guidelines irrelevant for the sentencing judge inclined to sentence without meaningful external constraint. On the other hand, if you believe, as I do, that federal sentencing judges require specific direction from Congress because (1) that is the democratic way and (2) federal judges are no more smarter when it comes to sentencing than the reasonably well-informed lay person, then it is clear that we must junk or rewrite section 3553(a).

In sum, I don’t care whether section 3553(a) is rewritten or junked entirely. If Congress elects to rewrite the statute, so long as the statute sets consistent sentencing goals, I don’t care what goals Congress picks. If Congress junks the statute (or leaves it unchanged), and, by so doing, proclaims that we federal judges are to pick the goals that we think best, then that’s fine too. I just want to know what I am supposed to do at sentencing. Is that too much to ask?
RGK

Sentencing a bad cop

I’m going to have a busy day today. Blood tests at the clinic followed by a short meeting with a nurse to discuss the numbers.  Then off to the southwest on United through Denver. But before I leave, I urge you to go over to the Southern District of Florida Blog and read point 3 of news and notes. It describes a bad cop’s sentencing in federal court. This cop falsely arrested a woman. Why?

The local newspaper gives this account of what happened to the victim, Ms Romeo:

Benjamin did it as a favor to Rothstein [a lawyer, banker and fraudster] and Romeo’s ex-husband, Douglas Bates, who was trying to gain the advantage in a custody battle over Bates’ and Romeo’s children. Bates, who had his own law firm, has been disbarred and is now serving five years in prison for his role in the fraud.

Also in court was the couple’s son, Andrew, who has autism. His prescription medication was among the pills that Poole and Benjamin used to set up Romeo’s arrest. State prosecutors later declined to prosecute Romeo because the pills were all legitimately prescribed for her and her son.

“They utilized my autistic son’s medication to pull this off,” Romeo told the judge. “I don’t understand how educated men can abuse their powers so grossly.”

I am not much for beating up defendants at sentencing. The huge majority of the time I merely recite my standard litany on the section 3553 factors to satisfy the Court of Appeals, and exit the bench quickly. Other judges use sentencing to berate the defendant for his or her crimes. That’s simply not my style. But, I’m not saying it is wrong to do so.

In the Florida case, Judge James I. Cohn imposed the maximum sentence (five years), lashed the defendant verbally and then had the ex-cop handcuffed behind his back in the courtroom. The victim and everyone else saw justice being done in a very stark way and the judge made clear that the handcuffs-in-the courtroom routine was intentional.*

All of this brings me to the question of the day? When, if ever, is it proper for the federal sentencing judge to whip up on the defendant (verbally, of course) at sentencing?

RGK

*This case reminds me that there really are bad cops. I know. Duh! While claiming to be a realist, at times I think more like a silly romantic. Oh, well, I have plenty of time to change–for the uninformed, that’s ironic.

David Markus is stalking me

On Wednesday, I ascended the bench in the customary manner, that is, both literally and figuratively. It was magic for everyone in the courtroom, of that I am sure. It was a criminal case involving a series of serious supervised release violations.

I had not been the courtroom for about a month due to technical difficulties with my blood. Anyway, I put on my robe and the CRD came to get me. I walked up the back stairs, checked to make sure that no one could see my tennis shoes below my robes, opened the door, and all rose. As I said, it must have been magical for them.

David J. from Broward Boulevard in Fort Lauderdale, FL represented the defendant.  After he entered his appearance, the first thing David J. said was, “David Markus says hello.”  I replied “tell him ‘hello’ back.”

David J. did a wonderful job for this client. Despite the early recommendation from probation that I max out the defendant, the defendant escaped prison entirely after making a big effort to reform. Underlying state criminal charges were dismissed. The probation officer was so impressed with the defendant’s reformation that she issued a second recommendation that effectively meant no prison time.

I had a little gentle fun with the defendant. While taking his admission, I asked whether he was sure he wanted to proceed “with a Fort Lauderdale lawyer.” He grinned, and said: “Yes.”  David J. had coached him well.

I sure enjoyed Wednesday despite the fact that David Markus stalked me. By the way, his blog on the goings on in federal court in Miami and the surroundings is, I am told, required reading for federal practitioners down there where judges can be mistaken for gators.

__________________

I am going to be serious for a moment.

The notion that we lawyers are all brothers and sisters before the bar is NOT old-fashioned. The prosecutor, Mick, in the case described above, is a great guy and great lawyer. Mick used to be a police officer. He has some great stories about walking a beat. He took my rejection of his Guideline sentence request with good nature. That did not surprise me. Mick, like David J., has been around the block.

RGK

 

 

Judiciary Supports Sentencing Amendment Retroactivity with Delayed Implementation, Training

I just got this e-mail from the Administrative Office of the United States Courts:

The federal judiciary, which administers the federal probation system, supports retroactive application of a proposed amendment to the U.S. Sentencing Guidelines that would lower penalties for most drug offenses, provided that:

1. The Courts are authorized to begin accepting and granting petitions on November 1, 2014;

2. Any inmate who is granted a sentence reduction will not be eligible for release until May 1, 2015; and

3. The Sentencing Commission helps coordinate a national training program that facilitates the development of procedures that conserve scarce resources and promote public safety.

Judge Irene Keeley, chair of the Criminal Law Committee of the Judicial Conference, expressed concern about the impact the added workload would have on public safety, if the proposed amendment is approved. In the past ten years, probation staffing declined five percent, while the post-conviction supervision caseload rose 19 percent.“The driving factor for the Committee’s decision was fundamental fairness,” Judge Keeley said in testimony today before the U.S. Sentencing Commission. “We do not believe that the date a sentence was imposed should dictate the length of imprisonment; rather it should be the defendant’s conduct and characteristics that drive the sentence whenever possible.”

“The release of thousands of additional offenders to supervision when the system is already dealing with diminished resources and an increasingly risky offender population raises several public safety concerns,” Judge Keely said.

“We believe that the delay in the effective date that we have recommended will help the courts and probation offices manage the surge in workload while we try to secure additional resources,” she told the Commission. “We also are confident in the ability of judges to discern suitable candidates for sentence reductions, and that through close coordination between staff in the judiciary and in the Executive branch this important amendment can be implemented effectively without putting public safety at risk.”

By the way, it was not a slam dunk that the federal judiciary writ large would support retroactivity.  For me, I am glad that it has done so.  The additional tweaks seem reasonable and. in any event, unobjectionable.  RGK 

Memo to Scott Greenfield: Now is not the time to attack Smokey the Bear

Like my affection for the Sentencing Reform Act (a part of Comprehensive Crime Control Act of 1984, Pub.L. 98–473, S. 1762, 98 Stat. 1976, enacted October 12, 1984), the Sentencing Commission and the Guidelines regime, I love Smokey the Bear. I had my own Smokey when I was about 8. My damn brother threw him into the bath and since my Smokey was stuffed with straw he began to smell just like a real bear.* My Smokey soon went missing, along with the foul odor flowing out of him like a bear on beans.

However, I did not know then that, like the Sentencing Commission, Smokey was the product of an Act of Congress that dealt with criminal penalties. See Smokey Bear Act of May 23, 1952, P.L 82-359, Ch. 327, 66 Stat. 92;18 U.S.C 711; 16 U.S.C. 580p-2 (“Whoever, except as authorized under rules and regulations issued by the Secretary of Agriculture after consultation with the Association of State Foresters and the Advertising Council, knowingly and for profit manufactures, reproduces, or uses the character ‘Smokey Bear’, originated by the Forest Service, United States Department of Agriculture, in cooperation with the Association of State Foresters and the Advertising Council for use in public information concerning the prevention of forest fires, or any facsimile thereof, or the name ‘Smokey Bear’ shall be fined not more then $250 or imprisoned not more then six months or both.”).

With the foregoing in mind, I now turn to Scott H. Greenfield (Simple Justice) directly and his post entitled The Fallacy of Sentencing Deference. In that post, and in a powerful style unique to SHG, he takes me on for my post entitled Perhaps it is chemo fog, but I’m getting soft on crime. In that post, I strongly endorsed doing away with mandatory minimums, but also wrote that: “I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines.”  That Guidelines stuff set SHG’s teeth to gnashing.

SHG wrote:

Of course, there is no sound basis for the fact that the Guidelines were crafted at the outset around mandatory minimums, skewing from the outset the perception of proper sentencing and thereafter producing a generation of absurdly severe sentences to form a data set of normalcy for imposing life plus cancer on defendants.

So who needs mandatory minimums anymore? They served their purpose, as new federal judges never practiced law a day in their lives when sentencing took into account the hunger in a child’s stomach compelling a mother to carry a bag with ten kilos of heroin across a border, who think a sentence of 121 months was handed down to Moses on Mt. Sinai.

But for judges with 22 years experience molding the lives of children of uneducated parents with little expectation of feeding them because IBM wasn’t hiring minorities from Fort Washington that day for executive vice president positions, falling back on the magical voodoo of the commission made it perfectly acceptable to impose sentences of decades, lifetimes, for hard, bad choices, for the frail-minded, for the traumatic brain-injured from a few clubs to the head during their youth, for the angry, the miserable, the hopeless, the cynical. After all, the Sentencing Commission said this was the correct sentence, and they must know best.

Thus, the court defers. And loses no sleep at night knowing that the magical voodoo of the United States Sentencing Commission is right and just.

(Emphasis in italics by Kopf.)

Let me first say two things about SHG or his post without intending to curry his favor. (There is no real chance of doing that anyway, and we both know it. However, others might not.) As I have said before, and now say again, I think SHG would make a terrific federal district judge. I would be honored to have him as my colleague.

Furthermore, the most powerful of Scott’s criticism is the ending sentence to his post. Summarized, it this: federal district judges who are believers in the Guidelines regime (like me) can, and sometimes do, fool themselves into ignoring the human carnage that they (and they alone) impose by the draconian sentences fairly frequently called for under the Guidelines. By such self-delusion, judges do terrible harm and they do so without any legitimate excuse.

Now, I want to address SHG directly on several other things. The reader can tag along.

Scott, I assume you abhor unchecked forest fires and concede that all of us should band together to do everything we can to put them out. But because you practice criminal law in New York, because you drive a really neat classic sports car (that I sincerely covet)** and because you are, above all else, a realist, I assume that you also believe that Smokey the Bear is a silly creation of 1950 era advertisers that serves no useful purpose.

But, here is my point:  Statutory minimums are like raging forest fires. We absolutely must put them out. The Sentencing Commission is like Smokey the Bear. If we have to kill him, we can do that later. Let’s not fight about that now.

I deeply fear that such arguments will distract from the most important message that you and I both agree on: Death to statutory minimums. I can just hear the refrain now in Congress by rabid Republicans nut cases:  “They say they want to do away with statutory minimums, but don’t be fooled; this is really all about liberals, criminal defense lawyers, Holder and Obama killing the Sentencing Reform Act and the Sentencing Guidelines while letting all the predators out of prison.”

SHG, I bet you are typing a response now. It has something to do with me being a chicken shit unwilling to engage you on the merits of the Guidelines. Stop! If you really want to argue about the Guidelines, I am willing.  After all, you are far more media savvy than I am. You might be right that nothing you say or I say will distract the dumb asses in Congress.

So, if you conclude that now is the time to fight about the merits of the Guidelines regime, let us have at it. But please let’s avoid generalities. I propose that we start with average and median sentence lengths and sentencing disparity. If you decide that now is the time to have that debate, and agree that we should write first about average and median sentence lengths and sentencing disparity, you go first and I will follow.

What say you?

RGK

*Kip, assuming you read this from your home near Cleveland while contemplating other nasty things to do to me from that far away, I am still really pissed off at you for turning Smokey the Bear into Stinky the Bear, as you laughing called him. This remains true despite the fact that Mom loved you best and gave me all sorts of excuses why you should not be staked to a pine tree and burned to death in a raging forest fire. Bastard!

**SHG’s classic.

Photo credit: Photo by RGK of image on Scott's Twitter page.  Fair use claimed.

Photo credit: iPhone photo by RGK of image on Scott’s Twitter page. Fair use claimed. (I have no earthly idea what that claim means, but it sounds good and legal.)

My dirty little secret: How I obscure the suffering of the defendant during allocution

Mark W. Bennett, U.S. District Court (Northern District of Iowa), and Ira P. Robbins, American University – Washington College of Law, are extraordinary thinkers, writers and researchers. Their new work, entitled Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, (March 10, 2014), is required, and I mean required, reading for any lawyer who represents a federal criminal defendant facing sentencing.

The last thing that takes place before a sentence is imposed in federal court is the defendant’s personal statement to the judge–allocution. After more than 20 years, and a 1,000 plus allocutions, I have a dirty little secret to admit.

Sometimes, when the allocution is raw with begging and bargaining and terror and fear, I will take my glasses off as I look directly into the defendant’s eyes. When I do, the defendant’s facial features becomes fuzzy and obscured and indistinct even though I appear to be focused on the face. I know that doing so is cowardly. But when I reject the plea for mercy, it helps to get me through the long nights that follow. After all, it’s all about me.

RGK

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