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May 14, 2009

Prosecutorial power, victims rights, sentencing judgments and judicial empathy

Two very different post by Orin Kerr at The Volokh Conspiracy have me thinking this morning about all the topics in the title of this post.  Here are the links:

The first post provides links to the fascinating supplemental sentencing briefs in the Lori Drew cyber-bullying case.  There are lots of remarkable aspects to those briefs, perhaps the most notable being that federal prosecutors are seeking a statutory max of 3 years in prison for Drew for three misdemeanor convictions and that they are pressing a very broad interpretation of the CVRA (no doubt because a vocal "victim" is going to support their sentencing suggestions).  In response, the defense's legal team (which includes Orin Kerr) quotes from Attorney General Robert Jackson's famed 1940 speech about abuses of prosecutorial power and complains repeatedly about the fact that "the goal of the government’s case has been to make Lori Drew the public face of cyberbullying." 

I could go on and on about these two remarkable briefs in what is a truly remarkable case, but folks should just read them here and here.  I would, of course, welcome comments on the legal specifics, as well as whether there is anything wrong with the government’s efforts "to make Lori Drew the public face of cyberbullying."

After I read these sentencing briefs and struggling with all the legal and policy issues they present, I then read the second post from Orin about legal ambiguity and the ways in which empathy is being discussed in connection with President Obama's SCOTUS nominee decision.  Especially after having my mind swimming with all the fascinating and challenging questions raised by the up-coming sentencing of Lori Drew, I was quite surprised and troubled by what a simplistic account Orin gave to the concepts of legal ambiguity and judicial power. 

Here is one part of a comment I added to the first of Orin's posts: "isn't a whole lot of sentencing debate about competing visions of empathy, with prosecutors urging empathy for the victims/society, and defense lawyers arguing for empathy for the defendant?".  Indeed, the more I think about the concept of empathy, the more I am inclined to assert that the issue is not whether a judge should be empathetic, but rather to whom that empathy should be shown in legal rulings and discretionary judgments.

May 14, 2009 at 09:08 AM | Permalink


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Prof. Berman writes:-----
I was surprised and troubled by what a simplistic account Orin gave of the concept of legal ambiguity and judicial power. But, then again, maybe I am simplistic in thinking that even thoughtful and nuanced thinkers like Orin will seek to apply insights from practice to their comments as academics.

I'll try to resist the urge to snark and will say instead that I wish you would elaborate on this.

I thought OK's post on legal ambiguity was the most insightful thing I've read on the question of what Obama means by "empathy" in a prospective Supreme Court Justice (though admittedly there isn't much competition). He's had a fair number of thoughtful posts trying to get at what the real difference is between liberal and conservative views of the role of judges (particularly appellate judges and Supreme Court justices, who are often called upon to decide difficult legal questions), and I think that one's willingness to find ambiguity and one's response upon finding ambiguity are probably somewhere near the core of it... unless you're of the view that either there are never "right" answers or it's all politics and that judges are best classified in terms of (1) their policy views, (2) their skill at writing judicial opinions that further their policy views by cloaking them in neutral principles, and (3) the degree of willingness to further their their policy views in the face of legal authority to the contrary.

It looks as though your post is meant to suggest that there's some inconsistency between Prof. Kerr's brief supporting Lori Drew and his blog post on the role of ambiguity in judicial decisionmaking.

Posted by: anonymous | May 14, 2009 10:17:30 AM

I don't think much of OK's work and this is a good example.

"Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment."

But I disagree with this false dilemma. I am probably more sympathetic to the view mentioned above, that there is no "right" answer. But more fundamentally I have problems with the predicate issue. Namely, why does ambiguity need to be resolved at all? This is why I have always supported judicial and prosecutor discretion and why I am far less troubled than most people seem to be by a conflict among the lower courts. It was Emerson who said that a foolish consistency was the hobgoblin of little minds and I agree. Too often we fail to see the virtue that lies within inconsistency; the beauty of ambiguity. For me, the presence of ambiguity is a call to do absolutely nothing at all.

Posted by: Daniel | May 14, 2009 10:56:57 AM

anonymous: I tweaked the post a bit to respond to your request for elaboration, and here I can/will provide more:

1. I do think that, when it comes to hard legal questions, there rarely are "right" answers and further than it is especially peculiar to try to describe hard legal debates in 70/30 or 55/45 or 50/50 percentage terms. What is the "right" answer to whether and how the CVRA applies is the Drew case? What is the "right" sentence for Lori Drew? And how might Orin or anyone else sensibly describe these question in 70/30 or 55/45 or 50/50 percentage terms?

2. I also think that policy/politics always does impact judicial decision-making. I also think that every serious legal thinker realizes this (especially after Bush v. Gore), but I also think that far too many people do not want this reality to be transparent and so they like to talk about there often "right" answers to be found in law that are free of any influence of policy/politics.

3. I do think judges can and should operate MUCH differently than politicians in pursuing policy/politics, especially in "easy" cases: For example, it would do great harm for a judge to say, for example, I do not think Doug Berman committed any crime/tort when writing this post, but I think it would be good policy/politics to keep him from saying that there rarely are "right" answers hard legal questions and so I will allow him to be prosecuted/sued for this post. However, in hard cases, like the case of whether and how Lori Drew committed a crime/tort, I think it is inevitable that the judge's visions of policy/politics is going to impact whether to allow victims to testify and what sentence to impose (or even whether the pending motion to dismiss should be granted).

Put very simply, I think the realists and crits are basically right about the reality of the nature of law and judicial decision-making and I think that real cases like Bush v. Gore and the Lori Drew case --- rather than abstract discussions of academics -- show that all real laws ultimate accept and deal with what realists and crits have been saying for decades.

Posted by: Doug B. | May 14, 2009 11:07:22 AM

Prof. Berman, thank you very much for the clarification. I'm generally sympathetic to Prof. Kerr's views because I'm more of a formalist than a realist, but I have no response to Bush v. Gore when the realists bring it up.

This is only a partial response to your further remarks, but in my view the ultimate decision a district judge is asked to make at sentencing is very different from most of the decisions that Supreme Court Justices are asked to make. Section 3553(a) is a particularly value-laden command. The word "empathy" isn't in the statute, but after thinking about all of the reasons for why we sentence and how they apply to the particular case, the judge is essentially asked to use his/her heart, subject to few restrictions (esp. after Kimbrough and Spears) other than the parsimony command.

What I take Prof. Kerr to be talking about, for the most part is cases like the Ledbetter case (though perhaps the relevance of his discussion doesn't extend as far beyond Ledbetter as he thinks it does), where the question is difficult but essentially a technical one. Unlike 3553(a), the statute of limitations in Ledbetter doesn't incorporate general standards or values (except in the sense that statutes of limitations generally incorporate the value of finality/repose triumphing over redressing wrongs once some time has passed), but Justice Ginsburg (joined by 3 dissenters) and (I believe) President Obama have said that empathy for the situation of women in the workplace should have informed the court's construction of the statute.

Reasonable people can disagree about how much Prof. Kerr's point can be abstracted beyond Ledbetter, but I think that, at least in that context, he's correct.

Thanks again for your additional comments.

Posted by: anonymous | May 14, 2009 12:10:47 PM

Well, anonymous, let's focus on Ledbetter to show the how easy that case is to be an empathy/value judgment. As you suggest, SOL are the creature of enacted statutes in which legislatures seek to place the value of finality/repose over redressing wrongs at some (usually arbitrary) point. But, in part because SOL's can sometimes reward wrongdoers who cover up their wrongdoing, courts have tended to find (or should I say interpret) limits/exceptions to SOLs in a variety of settings. So, in any tough case involving an SOL, I think the real question is do you have more empathy for the person wronged seeking redress or for the wrongdoer seeking repose long after the harm. And, I think even a formalist might have to admit that Congress is to make the essential empathy/policy judgment, that will then be applied by courts in different factual situations.

Since Congress swiftly "overruled" via new legislation the empathy judgment made by the majority in Ledbetter, can/should I make a strong argument that the majority just got the law wrong --- i.e., the majority picked the wrong side in a 55/45 debate by showing more empathy for the company's repose than for Lilly's harms --- or can/should I say the original Congress messed up the drafting, or should I say the original Congress never anticipate a case like Lilly's? In my view, any way you slice it, we come up with realism, not formalism, and efforts to hide behind fomalism in some cases always seems to me to be an effort to simply disguise policy judgments one likes. That's why Bush v. Gore (and/or Heller and/or the 11th Amendment cases and/or Casey and/or ..... etc.) always present a challenge for formalism --- folks typically can/will only hide behind formalism when they like the results; when they don't, they find another theory that gets them through the night (equal protection or originalism or stare decisis or....)

Posted by: Doug B. | May 14, 2009 1:55:02 PM

Maybe we only disagree about just how "tough" the Ledbetter case is. I think, and apparently 5 Justices thought, that Congress's words were clear enough and the legal materials yielded a "right" answer. Congress drew a line, and on one side of the line accused wrongdoers get away with their bad acts and on the other side those people can be hauled into court. Congress used specific words to describe where the line is, and in this case the legal question was difficult but not close.

The original Congress wrote a clear rule. Regardless of whether the original Congress anticipated Ledbetter and decided that she should lose or failed to anticipate Ledbetter, I don't think that when the rule is clear it turns into an empathy question. If it's just insolubly ambiguous, then maybe that's how it comes out, but Orin's point was (I think) that some judges are more willing than others to find ambiguity.

Given the public reaction to Ledbetter, the current Congress saw fit to revisit the old Congress's judgment and change it. I think the formalists would say that this is precisely how it should work when legislators and judges stick to their proper roles. I don't think judges should be in the business of predicting what the current legislature would do if it could revisit a judgment its predecessors made.

Posted by: anonymous | May 14, 2009 2:27:17 PM

Orin Kerr is more of a right wing hack than a thoughtful law professor. Empathy is not a concept that one could use in the same paragraph or page of Prof. Kerr's views on criminal law or sentencing. He has a rather Ed Meese quality to the subject and it ain't that thoughtful. I have found him over the years to be nothing more than an apoligist for the government - Dept. of Justice misconduct and all.

Posted by: James Law | May 14, 2009 3:51:38 PM

Prof. Kerr and other defense lawyers will not listen.

1) It is impossible to make someone commit suicide. The message was not the cause of the suicide. If it were, my message would cause mass lawyer suicides, and I could rest. The far more likely cause of suicide of a child is family discord, not a stupid message from a fictional character. Beyond the family stress, is a brain abnormality that cannot be duplicated by normal people. The family should be investigated.

2) The case criminalized a bogus contract breach. This is unlawful, and violates procedural due process, not to mention the Commerce Clause.

3) Always, always, always, attack the vile cult criminal in the prosecution, and the vile cult criminal on the bench after the first adverse ruling. Why should the innocent defendant live alone in uncertainty. The cult criminals should be shaking in their boots seeing the defense attorney walk in. The latter should have total e-discovery on both the cult criminals down to kindergarten. Why? Improper motive. Getting your name in the paper is an improper motive. Why? Bias. All cult criminals are biased against the innocent defendant.

4) Every utterance of the vile cult criminals should bring a demand for a mistrial, a recusal, and all costs from personal assets.

5) The case is a threat to internet freedom and candor. It should be dismissed on logic and policy grounds.

Why won't defense attorneys full do their jobs? If they did the vile cult criminals could be deterred, eliminating defense attorney jobs.

Posted by: Supremacy Claus | May 14, 2009 4:02:12 PM

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