January 24, 2008
OSJCL Amici launches with four district judges on Gall and Kimbrough
I am very proud to announce that this week the Ohio State Journal of Criminal Law has "officially launched" a new scholarly project: an on-line companion website that will publish commentaries from practitioners on cutting-edge criminal law. As explained here, OSJCL Amici: Views from the Field, in aspires to "help bridge divide between the academy and the practicing community by creating a venue for leading practitioners to engage with academics, students, the public, and others in the criminal law field."
The official launch includes publication of original commentaries by four district judges discussing federal sentencing after last month's Gall and Kimbrough rulings:
- Judge Richard Kopf of the District of Nebraska takes a Letterman-esque “Top Ten” view of the sentencing world as interpreted by Supreme Court decisions.
- Judge Gerard Lynch of the Southern District of New York emphasizes the “guideline” nature of the Sentencing Guidelines.
- Judge Lynn Adelman and law clerk Jon Deitrich of the Eastern District of Wisconsin, ask us to “curb our enthusiasm” for the twin decisions, which—they argue—do not go quite far enough.
- Judge Nancy Gertner of the District of Massachusetts identifies both the apparent blessings and the less-obvious dangers of the Court’s holdings.
Future on-line commentaries will come from practicing lawyers as well as judges, and we expect to cover a diverse range of topics at OSJCL Amici. A lot of effort has gone into creating a distinctive on-line companion to OSJCL; I hope many folks (especially legal practitioners) will check out the first offering of essays and will share feedback on both the substance and style of this new endeavor.
January 24, 2008 at 09:37 PM | Permalink
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Tracked on Sep 22, 2009 4:39:30 AM
This is a great idea. It is always interesting to read what judges think; it is enlightening, beneficial, and even fun. They occasionally grope around in the dark as well.
Posted by: Ernie King | Jan 25, 2008 10:27:53 AM
(professor, former defense side)
Posted by: Ernie King | Jan 25, 2008 10:30:16 AM
Thanks for the work. This will be very interesting.
Posted by: beth curtis | Jan 25, 2008 12:20:06 PM
As an assistant federal defender for 28 years I have experienced both the pre-guideline and post guideline systems. The articles by both Judges Lynch and Gertner have but a line or two about an intractable flaw in our current system that runs counter to the currents of Gall and Kimbrough--the exercise of Executive Branch discretion as to who to prosecute and for what as well as the prosecutorial use of enhancements such as 21 USC 851. So long as those who prosecute as advocates in an adversary system can by threat or force set the penalty (or its upper and lower limits)and limit the theoretically impartial judiciary's power to assess individual blameworthiness and punishment.
Posted by: Scott Tilsen | Jan 25, 2008 3:04:51 PM
Thank you, Mr. Tilsen. This is exactly what I've been trying to argue, without much success, over the last few days, except I call it extortion. Like loan sharks who jack up the interest if not satisfied quickly enough.
Further, when the scales of justice tip so unevenly in favor of one side or the other, corruption is soon to follow due to a lack of sufficient checks and balances. See Tainted Trials, Stolen Justice.
Posted by: George | Jan 25, 2008 3:29:07 PM
That is exactly right. Judge Kopf's top ten is a very satisfying statement for many.
Posted by: beth curtis | Jan 26, 2008 12:21:08 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 26, 2008 2:02:23 PM