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January 27, 2008

Judge Kopf's "Top Ten" take on SCOTUS sentencing work

As previously detailed here, last week week the Ohio State Journal of Criminal Law "officially launched" a new scholarly project: an on-line companion website publishing commentaries from practitioners on cutting-edge criminal law.  The first publication includes original commentaries by four terrific district judges discussing federal sentencing after last month's Gall and Kimbrough rulings. 

Though all four judicious articles in the new OSJCL Amici: Views from the Field merit attention, I have to give a special shout-out to the work of Judge Richard Kopf (in part because he has already contributed indirectly to my weekend plans).  Judge Kopf's piece provides a "Top Ten" view of the sentencing world as a result of the Supreme Court's modern sentencing jurisprudence.  And though the list should be read in full, I cannot help but showcase its start and finish here:

10. Following the Court’s approach, always put off to tomorrow what you can do today.

9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply....

2. Sentencing judges can be divided into two groups–those who are damn sure they’re right and those (like me) who have no clue.

1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.

January 27, 2008 at 09:56 AM | Permalink

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» A Federal Judge's Top Ten Sentencing Observations from ACSBlog: The Blog of the American Constitution Society
U.S. District Court Judge Richard Kopf published The Top Ten Things I Learned from Apprendi, Blakely, Booker, Rita, Kimbrough and Gall [PDF] as part of the inaugural online companion to the Ohio State Journal of Criminal Law, reported Law.c... [Read More]

Tracked on Jan 29, 2008 10:06:58 AM

Comments

Are you sure you didn't mean JUDICIAL articles, as the top ten list, at least strikes me as rather INjudicious?????

Posted by: anonymous | Jan 27, 2008 6:41:32 PM

Judge Kopf's Top 10 list is, in many respects, quite sad. If there was any doubt about what Apprendi meant (which there shouldn't have been), Blakely cleared it up. Which meant that if judges just followed Blakely, they would have been fine. Unfortunately, most of them needed to be told in extraordinarily explicit terms, to do the obvious. Whether that was because of fear or cowardise (which I suspect) or simple stupidity (which I doubt), they have no one but themselves to blame and that includes the supreme court.

In other words, if a judge followed Blakely after Blakely, Gall and Kimbrough confirm that the result (if not the details of how he got there) was right. Just do what the law seems to require and don't wait for someone to lead you there by the nose.

Posted by: Anon | Jan 28, 2008 10:29:00 AM

If I recall the situation correctly, district judges who did follow Blakely did not do "just fine"; the Circuit Courts rapidly showed them the "error" of their ways. It was the Circuit Courts that needed to be shown the path of post-Blakely righteousness, and hopefully Gall and Kimbrough have clearly indicated the way.

Posted by: defense attorney | Jan 28, 2008 11:56:32 AM

If there was any doubt about what Apprendi meant (which there shouldn't have been), Blakely cleared it up. Which meant that if judges just followed Blakely, they would have been fine

Right. Posner and Easterbrook disagree about what Blakely meant, but it's clear to all of the anonymous blog commenters. Then Booker came along, and there was no doubt at all, right? Just ask Justice Ginsburg if you're confused. The Guidelines are unconstitutional, but Justice Breyer and 4 others think that they're just awesome, extol their virtues for page after page, and then say make 'em advisory.

And Judge McConnell's article about the "Booker Mess"? Obviously just fluffy writing--the article should have been 2 words: "follow Blakely."

Half of Booker was written by a judge who disagreed with the principle underlying Apprendi and Blakely, and who seemed, at the time, hellbent on preserving the Guidelines. It's hard to fault federal judges for disagreeing among themselves as to how to react after Blakely and Booker were handed down.

Posted by: | Jan 28, 2008 7:21:57 PM

Def. atty wrote: "It was the Circuit Courts that needed to be shown the path of post-Blakely righteousness, and hopefully Gall and Kimbrough have clearly indicated the way."

I agree fully. When I referred to judges who need to be led by the nose, I was referring both to district and appellate court judges. Any district judge who followed Blakely but was reversed should feel fully vindicated.

Another anonymous poster wrote: "Posner and Easterbrook disagree about what Blakely meant, but it's clear to all of the anonymous blog commenters."

Yes, actually, it was clear to us anonymous blog commenters. And we were right.

"Then Booker came along, and there was no doubt at all, right?"

There was only doubt if you didn't believe that Ginsburg really wanted advisory guidelines, which most district court judges seem to have gotten right and most appellate court judges seem to have gotten wrong. There certainly was no doubt after Cunningham where she stood.

"It's hard to fault federal judges for disagreeing among themselves as to how to react after Blakely and Booker were handed down."

No, it's actually quite easy. Watch - any federal judge who didn't get what Blakely meant is hereby faulted - more so if his or her failure to "get it" was based upon a simple disagreement with the premise.

Posted by: Anon | Jan 29, 2008 12:05:57 PM

Allow me to ask a simple question: what does it mean to "follow Blakely"? Blakely said that any required aggravating factor could not be found by a judge, but had to be found by a jury. So is Anon saying that any federal judge who empaneled a sentencing jury was following Blakely? Or any judge who treated the guidelines as voluntary? For the former, Booker told them that that was unnecessary, so were they vindicated? (And Gall, of course, said nothing.) For the latter, Gall told them that those judges were right... sorta. I mean, the guidelines are voluntary, as long as they're not *too* voluntary--*reasonably* voluntary, I guess. Whatever that means.

And let's be clear: "follow Blakely" is a meaningless phrase. All Blakely did was tell you what you could *not* do. It did not tell you what you could do.

And once you add in the more pragmatic concerns, the issue becomes even muddier. After all, the Supreme Court had revealed once before its willingness to wade into sentencing, with its Mullaney decision, and then its willingness to undo that adventure as fast as possible, as evidenced by Patterson. So when the Court threw a wrench into things with Blakely, it's easy to imagine that some judges genuinely had no idea what would come with Booker, esp. since Blakely was 5-4 with an angry dissent that was ready to reverse it.

If Blakely and its progeny were "obvious" to Anon, it's only because that poster did not fully understand the opinions or the history of Supreme Court's involvement in sentencing.

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