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July 28, 2010

"A Brief and Modest Proposal" ... an original essay from US District Judge Richard Kopf

I am very pleased to be able to reprint a timely e-mail that landed in my in-box this afternoon from Richard G. Kopf, United States District Judge for the District of Nebraska.  Here is the Judge's wind-up and pitch:

I read Professors Masur's article entitled "Booker Reconsidered" and your post about his article [available here].  After that reading, a thought occurred to me that has been percolating in my muddled mind for some time.  Hence, the following "Brief and Modest Proposal."  Feel free to post if you like. Take care.

______________________

A Brief and Modest Proposal

Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines.  I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.

For much of their history, compliance with the Guidelines was very high.  So long as the Guidelines were essentially binding in most cases and aggregate compliance rates remained elevated, one could make a reasoned argument that providing sentencing statistics on individual judges was unnecessary and perhaps unfair.  But the Supreme Court has changed all that by significantly increasing the discretion of federal judges when it comes to sentencing.

Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared.  This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice.  See, for example, the New York Times editorial entitled "Rethinking Criminal Sentences" published on July 28, 2010. ("As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will 'breed disrespect for the federal courts,' damaging their reputation and the deterrent effect of punishment.").

By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences.  Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world.  In short, it is time for federal sentencing judges like me to pay the piper.

Richard G. Kopf,  United States District Judge

July 28, 2010 at 05:19 PM | Permalink

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Comments

My initial reaction is that along with knowing a rate of imposing a non-Guideline sentence, one must also know what guideline was driving the advisory range in cases where a variance was imposed. This is because -- using the judge's words -- a "fair number of sentencing [Guidelines] are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy."

Posted by: DEJ | Jul 28, 2010 6:03:00 PM

The judiciary, and many members of the Congress and the Bar, rightly opposed congressional attempts to hold federal judges "publicly accountable" for their "compliance" with the Guidelines. While this suggestion comes from a member of the judiciary, it should be similarly opposed.

The choice is simple: binding "Guidelines" or advisory Guidelines. Because the Sentencing Reform Act was unconstitutional, we now have advisory Guidelines. If Congress wants to make the Guidelines mandatory, all they have to do is amend the SRA to provide for jury determination of enhancements.

Let's not now expand the attack on advisory Guidelines to an attack on an independent judiciary. Judges -- all judges, even the ones that Judge Kopf believes possess "idiosyncratic views" -- need to be able to do their jobs without the pressure to conform to some unknown pressure to overall statistics now called "public accountability." All of a judge's decisions are subject to accountability -- they are completely open and subject to criticism. Any effort to create a new yardstick of "compliance with the Guidelines" is simply an effort to try to avoid specific, case-by-case criticism and seek to pressure judges' decisions "in the aggregate." That is not the kind of judging that I want. Take it one case at a time. Don't worry about your gross statistics. Let the appellate courts do their job.

It's a human system, and we're better off for it.

Posted by: Mark | Jul 28, 2010 8:22:23 PM

I have complained about the practice of law nor of its unrelated practice, that of judging. Today, I want to praise this proposal as very useful for the public, the administrative judges, and for the judges themselves.

I would add these correlates to be followed by the judges themselves, 1) the original charges as a more accurate reflection of the crime, rather than the plea bargained final charged crime; 2) follow up by telephone of the progress of the defendant on the path of maturation, perhaps via a confidential, immunized interview, a list of the crimes committed subsequent to the sentencing; 3) the overall criminal record of the defendant, as a better predictor of outcomes.

Posted by: Supremacy Claus | Jul 28, 2010 8:55:08 PM

"By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion"

How? Surely federal judges aren't strongly swayed by newspaper articles or speeches on Capitol Hill.

Posted by: ohwilleke | Jul 28, 2010 9:35:34 PM

Federal judges are public employees. They already have enormous independence and power, not to mention lifetime tenure and salary.

In a country where the taxpayers have a right to see what they're getting for their money, there is simply no reason that the decisions of individual judges should not be presented to the public in the way Judge Kopf suggests.

Didn't we just elect a President on the basis of "openess and transparency"?

The only reason a person would oppose Judge Kopf's proposal is to enable the Nancy Gertners of this world to hand out 90% downward departures and keep it as quiet as possible.

I am not saying, and do not believe, that public opinion should influence the outcome in any particular case. I am saying that every now and again -- say, in a yearly report -- the public be able to see what their judges are doing and how it stacks up against what their other judges are doing.

Sunshine is, as they say, the best disinfectant.

Posted by: Bill Otis | Jul 28, 2010 10:23:16 PM

Right on Bill. There is no legitimate reason to shield the decisions of Federal judges from public scrutiny (just as, similarly, it's hard to justify the lack of televised proceedings in the U.S. Supreme Court). One of the judges in my district routinely reminds jurors that the courthouse isn't the courthouse of the judges or the lawyers, but of the people. This means openness and requires vigilance against the Star Chamber attitude that sometimes infects the Federal judiciary,

Posted by: observer | Jul 28, 2010 10:42:36 PM

There is no legitimate reason to shield the potential sentences from the jury.

Posted by: George | Jul 28, 2010 11:15:25 PM

George --

"There is no legitimate reason to shield the potential sentences from the jury."

I take it then that you agree there is no legitimate reason to shield actual sentences from the public?

Posted by: Bill Otis | Jul 29, 2010 8:26:22 AM

Please, let the sunshine in.
And to add to the proposal, include forms for the judiciary to complete
1. checking off what Guideline the parties used to request departures (up or down) whether the departure was given

2. giving the GL range, offense level, and CHC of defendant (and if different from what PSR recommended, the PSR recommendation)

3. which part of 3553(a) the judge relied upon to grant a variance;

4. whether, either, on a re-sentencing, or between an adjournment, the sentence changed based upon a new Circuit, SCOTUS, or DCt ruling (like Skilling rule) or change in GL amendments or Congressional action.

Please, let the sunshine in.

Posted by: = | Jul 29, 2010 8:59:48 AM

This argument is not about transparency. This is about pressuring the judiciary. All sentences are currently known and open to the public. This is an attempt to force, or influence, or cajole conformity to the Guidelines. If you don't like advisory Guidelines, please spend your energies lobbying Congress to create a constitutional, mandatory Guidelines system. But please let the judges be judges.

I always believed that the mandatory Guidelines system was an artifact of the Dungeons and Dragons mentality -- an effort to reduce complex human realities to an overly simplistic set of a few variables. The efforts to return to that system are mystifying to me. To now see a member of the judiciary propose a barely-veiled attack on judicial independence in an effort to return to D&D sentencing is even more curious.

Posted by: Mark Pickrell | Jul 29, 2010 9:35:28 AM

"The only reason a person would oppose Judge Kopf's proposal is to enable the Nancy Gertners of this world to hand out 90% downward departures and keep it as quiet as possible."

Another reason would be to enable the John McBryde's of this world to hand out 90% upward variances and keep it quiet as possible.

Posted by: Watching | Jul 29, 2010 10:20:33 AM

And while we're at it, let's require AUSA's to publish the reasons for their charging decisions. After all, they're public employees too. Sunshine really is the best disinfectant.

Posted by: downtown | Jul 29, 2010 10:57:02 AM

And after John has taken away your acceptance of responsibility points for objecting to the PSR.

Posted by: Mark # 1 | Jul 29, 2010 10:57:39 AM

"="

1 thru 3 of your post are already included or recorded (except for the PSR recommendation).

Posted by: = = | Jul 29, 2010 11:46:51 AM

Hmm. I had not seen them on a J&C. No matter. I suppose what I'm interested in is the USSC reporting those statistics in its quarterly GL statistics dumps.

Posted by: = | Jul 29, 2010 11:55:43 AM

"...sentences that depend on the luck of getting a certain judge — will 'breed disrespect for the federal courts,' damaging their reputation and the deterrent effect of punishment."

Can't the same thing be said of sentences fashioned (through charging decisions) by even-handed, fair-minded prosecutors -- as opposed to "creative, aggressive" prosecutors with an eye on the governor's mansion or a seat in Congress?

I, too, find it curious a judge would appear so eager to defer to a justice-dispenser contrivance fashioned in the disco era rather than trust in his own wisdom and sense of justice.

Posted by: John K | Jul 29, 2010 12:04:12 PM

I see that some folks question my motives in writing a “Brief and Modest Proposal.”
I have several thoughts.

First, perhaps I loath judicial independence. See, e.g., Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007); Carhart v. Stenberg, 11 F. Supp. 2nd 1099 (D. Neb. 1998), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000). See also In Re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (dissent).

Second, perhaps my “Modest Proposal” was a practical joke. See, e.g., Jonathan Swift, A Modest Proposal (1729) (”I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed is at a year old a most delicious, nourishing, and wholesome food, whether stewed, roasted, baked, or boiled ...”)

Third, perhaps I really do think judicial transparency in the digital age is critically important (but only in Canada). See, e.g., Richard G. Kopf, The Courts, the Internet, E-Filing and Democracy, 56 U.N.B. L.J. (2007).

Fourth, perhaps I am a narcissistic provocateur with a personality disorder not otherwise specified. See, e.g., my therapist.

Finally, I encourage Professor Berman’s readers to pick any of these motives or any other motive that someone might conjure up. I am perfectly happy to cop to any of them. The important thing is whether, objectively viewed, “A Brief and Modest Proposal” makes sense. Just sayin.

Richard G. Kopf
United States District Judge

Posted by: Richard Kopf | Jul 29, 2010 12:38:52 PM

I hope it's the second one.

To the concluding rhetorical question (whether the proposal makes sense), I'd have to say only if one overlooks the discretion and discrepancies prosecutors bring to the party on the front end. The tighter the guidelines, the more significant their influence on sentencing outcomes.

Beyond that, as others have noted, there's plenty of sunshine on courts now.

IMHO, what breeds disrespect for the federal courts among those who actually have some experience with them are their heavy tilt in favor of government authorities over citizens accused of crimes and the increasingly palpable conservative ideological feel to the decisions they hand down.

Posted by: John K | Jul 29, 2010 3:21:12 PM

Re the suggestion by "Watching" that "let's require AUSA's to publish the reasons for their charging decisions," there are a number of potential problems with that concept.

Such a requirement would conflict with Rule 6(e) of the Federal Rules of Criminal Procedure, §190.25(4)(a) of the NYS Criminal Procedure Law, and comparable statutes imposing grand jury secrecy rules. How could an AUSA disclose the factors he or she considered in deciding whether to file charges and, if so, which ones to file, without disclosing confidential testimony and other evidence obtained through the grand jury proceedings which led to the indictment?

Grand jury secrecy is designed to protect the lives and safety of confidential informants and witnesses, to protect against the destruction or concealment of evidence, and to protect the reputations of subjects of interest when an investigation exonerates them or produces insufficient evidence to indict. Does "Watching" really think that forcing AUSAs to disclose the identities of confidential informants would pose no risk to life and safety?
AUSA do not exercise sole, unfettered individual discretion when making charging decisions. They must operate not only within standard U.S. Department of Justice guidelines and procedures, but also in accordance with guidance documents involving non-standard investigative techniques and procedures. Does "Watching" really think that it would benefit the public interest to compel the disclosure of such information to Al Qaeda, foreign intelligence agencies, or defense attorneys working for narcotics cartels and organized crime?

AUSAs making charging decisions are subject to multiple layers of managerial oversight, from the head of the Criminal Division of the U.S. Attorney's Office in which they work, to the U.S. Attorney, to the national headquarters of the Criminal Division of the U.S. Department of Justice, and in major cases to the Attorney General. At every step of the way, both the AUSA and the supervising managers may be asked for legal advice and recommendations based on privileged and confidential attorney-client communications from federal law enforcement officers, the officials of federal agencies, and elected officials. Does "Watching" think that AUSAs can casually disregard the legal and ethical obligations which all attorneys have to honor the attorney-client privilege, or does he simply think that only private-sector attorneys have such professional obligations?

Criminal proceedings involve rules which exclude a variety of information from formal introduction into evidence or public disclosure because such information may be unconfirmed, appear unreliable, or be highly prejudicial despite having probative value. Does "Watching" really want AUSAs to be compelled to smear criminal defendants by making full public disclosure of all information they considered in making their charging decisions, including uncorroborated, inadmissible or prejudicial material?

Finally, "Watching" offers the standard, reflexive suggestion that "sunlight really is the best disinfectant." Yet who does "Watching" think will evaluate such disclosures by AUSAs, and for what purposes? Does he really think that we can place faith, trust and confidence in criminal defense attorneys, advocates for various causes, and bloggers to review and comment upon charging decisions in a candid, objective, neutral, and purely public-spirited manner, free from any undisclosed conflicts of interest or personal biases? Does he really think that such parties will be motivated by a desire to improve the quality of charging decisions, as opposed to a desire to hunt down and kill confidential informants and destroy or conceal evidence?

Posted by: 02Pete | Jul 29, 2010 3:52:51 PM

02Pete - Sorry I got you so worked up (and it was me, not "Watching"). Do I really think all those things you asked? No, of course I don't. I was just having fun with Bill Otis' suggestion that federal judges should publish their sentencing decisions b/c they "are public employees." Maybe judges should publish their decisions, and maybe they shouldn't, but their being public employees has nothing to do with it. Federal prosecutors are just as much public employees as are federal judges and, as you know, there are many good reasons not to make them publish their charging decisions. As for the the "standard, reflexive" suggestion that sunshine really is the best disinfectant, I lifted the phrase from Bill's post. (Bill is fond of standard, reflexive suggestions).

I hope you feel better now.

Posted by: downtown | Jul 29, 2010 4:45:06 PM

downtown --

"Maybe judges should publish their decisions, and maybe they shouldn't, but their being public employees has nothing to do with it."

Actually it has plenty to do with it, unless you think public employees should be able to operate in secret. That is certainly not what Obama was saying in the campaign.

But for however that may be, perhaps you could favor us with the substantive answer to the question you finessed: Should judges publish their decisions or not?

The real reason many members of the defense bar oppose greater exposure of sentencing is that downward departures are given in more than 40% of the cases and outnumber upward departures by better than 20 to 1. The more the public is screened off from this gross imbalance in the use of "discretion" -- tilted almost entirely in favor of criminals -- the better the defense bar likes it.

Posted by: Bill Otis | Jul 29, 2010 8:47:39 PM

"IMHO, what breeds disrespect for the federal courts among those who actually have some experience with them are their heavy tilt in favor of government authorities over citizens accused of crimes and the increasingly palpable conservative ideological feel to the decisions they hand down."

John K, truer words have never been spoken.

Posted by: Judge T | Jul 29, 2010 9:48:26 PM

Q. Should public employees be allowed to operate in secret?
A. Yes. See, e.g., 02Pete's discussion of AUSA's and why they should indeed be allowed to operate in secret. (I can't imagine you disgree with me and 02Pete on that one, Bill. If you do, I'd love to know why.)

Q. Should judges publish their decisions?
A. Sure. I really do like sunshine.

Posted by: downtown | Jul 29, 2010 10:55:29 PM

Bill,

If 40% of cases involve downward departures, and downward variances are 20x more likely than upward variances, why is that evidence of a problem with judges rather than with the Sentencing Commission? Judge Kopf's "baseline" is the Sentencing Commission's Guidelines, but what if the Commission's baseline is wrong? That's why I object to the Feeney Amendment and Judge Kopf's either serious or not suggestion to resurrect it. The Sentencing Commission, in my opinion, has done a bad job, and I believe that judges' consistent downward variances shows that the Commission has done a bad job. Any effort to promote "compliance" with the Guidelines is just an effort to force echo-chamber judging starting from an overly-harsh baseline.

Rather than trying to force "compliance" to the Guidelines, why is there no outrage that for 20+ years defendants were over-sentenced under an unconstitutional system? The problem is not with the judiciary, it's with the Sentencing Commission. Booker has simply demonstrated the extent of the Commission's failure.

Posted by: Mark Pickrell | Jul 30, 2010 8:44:58 AM

Mark,
Hear, hear.

Posted by: Def. Atty. | Jul 30, 2010 11:29:04 AM

Mark Pickrell --

So let there be publication of each judge's sentencing decisions, as Judge Kopf proposes, and let the public debate begin.

Your argument simply assumes its conclusion: Sentences are too harsh, therefore the judges are right to exercise their "discretion" almost entirely to the benefit of criminals. Meanwhile, the Sentencing Commission is a bunch of fascists.

It may be that your conclusion is correct, but you can't prove it by ipse dixit. My proposal: Let the information about judges' behavior get more widely known, then let the public decide.

I will live with democracy's decision whether or not I agree with it. Will you?

Posted by: Bill Otis | Jul 30, 2010 6:53:17 PM

I've got no problem with publishing sentencing decisions. As they are already public, I've got no problem with publishing them. Publishing a scorecard against the Guidelines is different (although you, or any other private party, is free to analyze the data any way that you like). I don't believe that any governmental entity, particularly the entrenched bureaucrats at the Sentencing Commission, should be given any money or authority to "grade" the work of the judiciary against any politicized metric.

More importantly, you clearly don't understand what ipsie dixit means. My belief that the Guidelines are overly harsh is a personal opinion. It is not something that is subject to proof. Therefore, the rhetorical critique of "ipse dixit" does not apply. Nor is any other opinion regarding whether the Guidelines are harsh, lenient, or something in between subject to that critique.

The rhotorical niceties aside, I believe that the overwhelming number of judges shares my opinion -- and your statements of FACT (if true) that 40% of sentences are below the Guidelines range is a fact that supports my personal opinion that the Guidelines are too harsh. It is also a fact (after Booker) that the Sentencing Reform Act was unconstitutional. My opinion -- the Guidelines are too harsh -- is bolstered by a very significant fact: the overwhelming portion of the federal judiciary agress that the Guidelines are too harsh, based on your description of the degree of variances that we now see with an advisory Guidelines regime. What facts, if any, bolster your opinion of the propriety of the Guidelines ranges? As far as I know, you've never given them. Talk about "ipse dixit."

And to answer your final question, I'm completely prepared to accept our constitutional republic's resolution of these matters. We have denied certain powers to Congress, including the power to abrogate the right to trial by jury. We have endowed our INDEPENDENT judiciary -- an unelected one at that -- with the power to impose criminal sentences within the lawful range. I've got not problem with either of these principles. I also have no problem with respecting the Congress' (constitutional) decisions regarding mandatory minimuma and maxima for crimes. If Congress ever chose to establish a constitutional mandatory sentencing regime, with grand jury accusation and petit jury factfinding of all sentencing enhancements, I'd have no problem with that.

I don't believe I've ever written anything in contradiction of these basic principles. I just wish that the Department of Justice would share them. The jury, both grand and petit, has always been a vital component of our democratic republic. Government officials have always hated them for that very reason. So when you challenge me with whether I'm willing to accept "democracy's" decisions, the answer is an emphatic yes. Let's get on with it.

Posted by: Mark Pickrell | Aug 2, 2010 11:05:04 AM

Sorry for the multiple typos above.

Posted by: Mark Pickrell | Aug 2, 2010 11:10:49 AM

One thing that seems to have been overlooked is the need for judges to know what their colleagues are doing and why. In my district, our judges seem to have little information about how the other members of the same bench are handling sentencing decisions and don't seem particularly intersted in getting it. Isn't it important that they consider what others are doing (though they are by no means bound to follow them) not just in terms of results but in terms of process.

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