Casual cruelty

Yesterday, while in Omaha, I was to sentence a guy in a drug case. He was going to do a lot of time. We got all the way through the sentencing process save for the defendant’s opportunity to speak. When the defendant spoke, the first thing he said was “I don’t feel so well” or words like that. He was sweating profusely, he seemed shaky, and he appeared to be nauseous..

He said he had not been given his medications at Douglas County Corrections. The US Marshals had delivered the fellow’s medication to Douglas County when they transported the guy from the Diagnostic and Evaluation Center (D&E) at the state prison the day before. The fellow apparently had herniated discs that required surgery, and he was evidently anxious and depressed.

The fellow kept apologizing to me about being sick. He wanted to be sentenced. He wanted to get to a Federal Medical Center for a thorough work-up. He had no apparent motive to delay sentencing.

When I asked the US Marshals what had happened, they advised that Douglas County Corrections (where we “store” prisoners in Omaha) won’t administer medications prescribed at other correctional institutions like D&E (where we also “store” prisoners) until Douglas County Corrections is independently satisfied that the prisoner needs the medications. Until then, the prisoner does not get the medication. In this case, there was no weaning him off the medications–Douglas County Corrections simply refused to give him the stuff at all. I suppose they would have gotten around to the medication issue at some point.

I suggested that this seemed silly since the Nebraska Department of Corrections, the entity that operates D&E, is far more sophisticated than a county jail and Douglas County Corrections could probably trust the State of Nebraska that the drugs were necessary. The US Marshals, who are, in my experience, both humane and professional, replied that it was not their policy that had deprived this man of his medications. Indeed, they had done absolutely everything they could to see that he got his prescribed drugs including hand delivering them to Douglas County Corrections.

I don’t like sentencing people to prison when they are sick. That is particularly so when their sickness results from the casual cruelty of correctional bureaucrats. So, I continued sentencing. No big deal.

RGK

Am I a conservative or am I an asshole?

Yesterday, with the Thanksgiving holiday almost upon us, I sentenced people to prison. One case involved a fellow convicted by a jury of schlepping a bunch of drugs. His criminal history score was VI. There was evidence that he had tried to tamper with witnesses. He was represented by a very good and dedicated lawyer. The offender has cancer, and there is absolutely no debate about that. There is nothing more the doctors can do for him. According to a respected specialist, there is a 2 out 3 chance that he will die within the year. His lawyer wanted me to vary downward to the statutory minimum of 240 months (20 years). Instead, I imposed a Guideline sentence, at the “low-end,” of 324 months in prison. I recommended that the defendant be placed at one of the Bureau of Prisons’ (BOP) Federal Medical Centers, but where he goes is up to the BOP. The BOP can release dying prisoners under a “compassionate release” statute, but that seldom happens. Had I imposed the statutory minimum sentence of 20 years, the BOP may have been more likely to release the fellow as he neared the end.

A reader of this blog, in another context, wondered whether I am a conservative or an asshole. He evidently does not understand the tyranny of the disjunctive.

RGK

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.

RGK

Two really good criticisms of my views about drugs, violence, and victimless crime

In order to understand this post, please read two of my earlier posts and the comments to each. See here and here.  Now, please read Matt Brown, Tempe Criminal Defense, Victimless Non-Violent Federal Drug Crimes and Scott H. Greenfield, Simple Justice, Only the “foolish” call drug crimes “nonviolent.” Those responses to my earlier posts are extremely well-written, persuasive and very critical of my views but entirely fair and respectful. I urge you to read both of them.

Here are several observations:

* Mr. Brown and Mr. Greenfield are correct in one of their primary criticisms.  I was plainly wrong to assert so strongly that all federal drug crimes have “victims” and all federal drug crimes are “violent.”

*In defense of my rhetorical hubris, I believe that much of the rhetoric coming from reformers about draconian drug laws, particularly at the federal level, is misleading. The words “victimless” and “nonviolent” are thrown around far too casually.  That doesn’t justify my hyperbole, but it does explain my visceral reaction to those words.

*I agree (and I said as much earlier) that in the federal courts we are sending far too many people to prison for far too long because they committed drug crimes. I also agree that the ravages of poverty, and our nation’s stubborn unwillingness to honestly address poverty, is at the root of many drug crimes. However, I am pretty sure that my response to poverty would be far more authoritarian than most could stomach because of what I see daily in the courtroom. I have tried to write frankly about that in a post entitled “we can’t handle the truth.”

*If we are to have an intellectually honest debate, we need to describe facts rather than characterizing them. That is, we must stress candor rather than rhetoric.

*In a truly kind and gentle manner, Mr. Greenfield suggests that my writing is sometimes “awkward.”  He is absolutely right. Finding the right “voice” for this blog is a struggle. Besides, I am a bit of freak anyway (AWKWARD).

RGK

Shutdown and sentencing

More fun today. Wearing my long black robe, I called the Bureau of Prison from the courtroom to hold a previously scheduled and ordered sentence reduction hearing under Rule 35(b). The hearing was to be held “on the record” but over the phone. The lawyers were in the courtroom and the inmate was supposed to be on the phone. The government asked for the hearing. Last time I checked, it’s cheaper to use the phone than fly an inmate to Lincoln.

Guess what? No one answered the phone at the prison. Not even a voice mail message telling me to have “Have a nice day!” Bummer. Think I’ll go home. No one complies with my orders anyway. Apparently, compliance with court orders is optional now that the man with the golden tan has sent everyone home.

RGK

Want ad: A judicial executioner to serve for a lifetime

Photo credit: jamesrdoe per Creative Commons license.

Photo credit: jamesrdoe per Creative Commons license.

Leave it to a plaintiff’s personal injury lawyer to speak the truth. Vince and I where talking right before I gave a luncheon speech to the Nebraska Association of Trial Attorneys. Since Vince is the Chairman of the Democratic Party in Nebraska, we were gossiping about who might replace Judge Bataillon, who has announced his intention to take senior status.

Near the end of the conversation, Vince said something insightful. It went roughly like this: “I hope whoever it is realizes what pain they will inflict and what pain they will observe as they sentence people.” He added, “It must do something to you.” Vince was right, and in spades.

Now, this is not a “poor me” story about federal trial judges. We are all big boys and girls with egos to match. But, let’s also be clear about something else. The candidate to replace Joe Bataillon, or any other federal judge, will be unprepared for the impact of criminal sentencing on the sentencing judge.

The federal sentencing regime is the one aspect of being a federal trial judge for which there is no comparable experience that a judicial candidate can draw upon for help. Trust me. I don’t care whether you were a prosecutor, criminal defense lawyer, civil practitioner, a judge from the state courts, or even a federal magistrate judge, when it comes to federal criminal sentencing, you’re unprepared.

The best way to think about it is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?”  Those who covet a federal trial judgeship should think hard about this truth before pursuing the job.

I doubt they will. Instead, they will say to themselves, “I’m different. I am not weak. I am strong-minded.” Or, “I’m just doing what the law requires.” Or, “They did it to themselves. They deserve it.” Or, “Someone has to do it, and maybe I can improve things.” The rationalizations are endless.

But stripped of the BS that allows good people to do bad things, here is the essential truth: When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis. So, I have a bit of advice for those who wish to replace Judge Bataillon. Be careful what you ask for. You have no idea what the hell you’re getting into.

RGK

Vignette

She worked as a prostitute, this white girl. She had connections to the Mexicans. She put her black pimp in contact with the Mexicans, and the two–the pimp and the prostitute–went into the meth business. It nicely supplemented the pimp’s crack operation. The pimp was sweet on the girl, but she didn’t reciprocate his affections. But she did live with him. She cleaned his house, cooked his meals and let the customers in. Upstairs, he filmed pornographic movies but she didn’t participate. He liked to have sex with one girl while another “tweaked” on the meth crystals he dropped off the bed while he thrashed around with the first girl. They caught the white girl on telephone intercepts, and that brought down the white girl, the black pimp and the Mexicans. I sentenced her during diversity week.

RGK

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