December 10, 2007
A district judge who is true to his word
Long-time readers with great long-term memories may recall an entertaining opinion written in the weeks after Booker by US District Judge Richard Kopf. In US v. Wanning, No. 4:03CR3001-1 (D. Neb. Feb. 3, 2005) (discussed here), Judge Kopf rejected Judge Pratt's view that the guidelines are just to be one of many factors considered by sentencing judges after Booker. When expressing his view in Wanning, Judge Kopf added this footnote:
I like and have great respect for Judge Pratt. Nothing I say in this memorandum is intended as a personal criticism of him. I simply (but strongly) disagree with his legal reasoning on this subject. While I take the liberty of using Judge Pratt's decision as an example of a methodology that I think is incorrect, I certainly do not intend to single him out. Indeed, and to be fair, many of my colleagues (Judges Bataillon and Strom, for example) side with Judge Pratt. If I turn out to be wrong, I will buy them all a beer.
Id. at slip op. at 2 n.2 (empahsis added)
In the wake of Judge Pratt's ruling in Gall being affirmed today by the Supreme Court, I received this e-mail from Judge Kopf (which he graciously allowed me to post here):
I wrote Bob Pratt today, with copies to Joe Bataillon and Lyle Strom, indicating that I owe them all a beer. It now occurs to me that I owe you one as well. Until I pay you, feel free to publish this mea culpa as my guarantee that beer is on the way to Columbus.
Take care.Rich KopfUnited States District Judge
December 10, 2007 at 07:43 PM | Permalink
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Tracked on Dec 10, 2007 10:06:33 PM
Off the subject...why did T Boon Pickens kid get probation. They seem to be using the number 1.2 million. How does that translate to probation? Come on now.
Posted by: DAG | Dec 10, 2007 8:21:47 PM
Posted by: EJ | Dec 10, 2007 8:26:00 PM
This is not the only bet over this issue won and lost today among judges of the courts of the United States.
Posted by: | Dec 10, 2007 10:21:06 PM
Hah, very cool.
Posted by: John Marshall | Dec 10, 2007 10:55:50 PM
While everyone gets likker'd up the real winner is disparity. Yea Supreme Court.
Posted by: dweedle | Dec 11, 2007 9:26:29 AM
Everyone gets so worked up about disparity. If I have to choose between: 1) little disparity at all; or 2) allowance for warranted disparity with a somewhat increased risk of unwarranted disparities, I'll choose the latter path -- and the Supreme Court seems determined to take that path, thankfully.
Posted by: M. | Dec 11, 2007 9:30:00 AM
dweedle, disparity has always been and will always be king, even in a mandatory guideline world. See Albert Alschuler, "Disparity: The Normative and Empirical Failure of the Federal Guidelines," 58 Stanford Law Review 85 (2005).
Though guidelines are important to standardize the terms of sentencing debate, excessive pursuit of uniformity is a form of modern alchemy that poisons a system in the pursuit of a largely unattainable gold standard.
Posted by: Doug B. | Dec 11, 2007 10:46:02 AM
Not so cool. Why was it so hard for Judge Kopf to follow the seemingly simple Booker directive? How many folks received longer sentences than necessary because the judge couldn't pry his mind away from the guidelines matrix? There is finally some common sense back in sentencing. Regarding disparity, advisory guidelines allow for less not more in at least one crucial context; where government charging decisions place similarly situated people in starkly contrasting exposure positions, the ability of a judge to impose a non-guideline sentence acts as a remedy consistent with 3553(a). Applause not derision is in order here.
Posted by: about time | Dec 11, 2007 10:53:13 AM
This is not likely to result in more reasonable sentencing. This IS likely to result in more mandatory minimums. Maybe not right away with this Congress, but soon. See firearms.
Posted by: LC1 | Dec 11, 2007 2:22:32 PM
The learned judge seems to have the proper amount of humility and humor. I would be willing to bet that he is a fine judge.
Posted by: federalist | Dec 11, 2007 2:49:32 PM
I hope Judge Kopf will enjoy his beer, knowing that because of his and other judges' inability to follow the not-too-complicated precepts of Booker, many prosecutors, defense attorneys, probation workers and defendants have had their jobs made much harder for the past two plus years.
His glibness over this fact just makes it all the more charming, doesn't it?
Isn't it strange how so many so-called textualist judges were unable to grasp the clear textual meaning of Booker. Given enough time, conservative judges will make legal realists of us all.
Posted by: william | Dec 11, 2007 2:59:29 PM
I get a little more geeked the more I dwell on the judge's little wager. I'm reminded of the Duke brothers betting $1 with each other to prove/disprove their nature/nurture discussion in Trading Places. Never mind the impact on lives, the good judge will make it all OK by buying a beer or two. William is right-charming.
Posted by: about time | Dec 11, 2007 3:39:15 PM