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May 3, 2012

Sharp comments about sentencing guidelines from district judge concerned about vets

I just came across this local article which, as a companion to a story about the struggles of returning combat veterans, provides some sharp quotes from a federal district judge who made headlines (as noted here and here) when sentencing such a vet.  The local article is headlined "How Fair Are Federal Sentencing Guidelines?  One Skeptical District Judge Weighs in," and here are excerpts:

John Brownfield Jr., a young combat vet who ... showed post-deployment symptoms of PTSD and got caught smuggling tobacco into the federal prison where he worked.  But instead of sentencing Brownfield to a prison term, as was called for by federal sentencing guidelines, Senior U.S. District Judge John L. Kane gave him five years' probation and ordered that he undergo counseling and an alcohol treatment program.   With that decision, not only did Kane buck the sentencing guidelines, he also ignored the deal (recommending a prison sentence of 366 days) that the prosecuting attorney and defense attorney brokered earlier that year.

Judge Kane's 30-page sentencing memo, which can be found here, went above and beyond the more drab, pedestrian court orders associated with sentencing hearings.  Heavily researched, rich in context and chock-full of legal citations and footnotes, the memo received significant recognition after Kane filed it in December 2009....

In an interview with Daily RFT, Judge Kane opens up about why the Brownfield case was probably the most meaningful of his 35-year career, his qualms with the way the government treats veterans, and why he thinks some of the concepts behind federal sentencing guidelines are "bullshit."

"Too many judges follow the guidelines as they were written on Mount Sinai," says Kane, who was nominated to the federal bench by President Jimmy Carter in 1977.  By ignoring the guidelines in the Brownfield case, says Kane, he simply was following the advice of the Supreme Court following its opinion in Gall v. United States, which he cited in his memo.

"Then and especially now, we're told not to deviate from those guidelines, but [in the Brownfield case] it didn't matter to me," says the judge.  "I did what I thought was the right thing.  You cannot reduce human conduct to a matrix.  I think the guidelines help recognize what are normative sentences, but that doesn't mean all people can fit into the same slot ... there's something Orwellian about them."...

In the Brownfield case, says Kane, the sentencing guidelines failed to address two factors: the first was Brownfield's veteran status; the second was his PTSD-like condition. Brownfield, says Kane, wasn't getting much help from his own lawyers, which prompted the judge do his own research.  When he called the local VA he discovered there was a six-month waiting list for patients, including those suffering from PTSD-like symptoms. Kane called the revelation "despicable."...

After going through probation and undergoing treatment, Brownfield is doing well, says Kane.  His case, he adds, was probably the most important case he ever heard....

"They ought to get rid of the entire double grid," Kane says now, suggesting the guidelines should serve as one of many sentencing factors.  "To say all cats are black is bullshit," he adds.  "There are different shades of gray, and that's what these guidelines don't take into consideration."

Kane takes care to note that ignoring federal guidelines should not equate with being soft on crime.  One of his nicknames, he says, is "Maximum John" because of his tough stances on certain offenders that cross his path.

Kane says he's received complimentary letters from members of the legal community following his memo.  But he never heard back from the Sentencing Commission.  Kane suspects the members didn't appreciate his message.

Some related posts on sentencing vets:

May 3, 2012 at 10:08 PM | Permalink


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Can you believe it. Considering each sentence on the merits...? Before you know it, they will be instructing juries to consider their conscience before rendering a verdict.

Posted by: Jardinero1 | May 3, 2012 10:27:12 PM

The problem jardinero1 is that here is another side to coin. What happens to equality. What happens when the shade of gray (wink wink) is just an excuse for racism or sexism or a political or a family connection. Do I like a one size fit all approach. No. But I don't like the implication that anything goes and that judicial discretion is unbounded. There has to be a happy medium somewhere.

Posted by: Daniel | May 3, 2012 11:38:55 PM

i agree daniel but i think that as long as the courts invovled make sure to document and explain their reason for thier decison like the judge above we should be able to catch any that wonder off the reservation!

Posted by: rodsmith | May 4, 2012 1:17:55 AM

Jardeniro1 --

The whole point of the rule of law is to provide predictable outcomes under written standards so that the citizens know what the rules and consequences will be. Since the "conscience" of one jury can be wildly and at random at odds with the "conscience" of the next, the rule of law could not survive the luck-of-the-draw path upon which you would put it.

Posted by: Bill Otis | May 4, 2012 3:16:13 AM

Mr. Otis,

Your stated Raison d'Etre of rule of law is entirely valid.

It raises several questions:

1. Does culture determines the rules or do the rules determine the culture? and more importantly,
2. Does the law as applied reflect the mores and values of the culture.

The second question highlights the distinction to be made between the rule of law and the concept of justice. Justice is the law applied. I think that the application of the law should be reflective of the culture and in many cases it is not. Justice occurs in the courts, when plaintiff and defendant are allowed to plead their cases before impartial judge and jury. As you know, each case will be unique and the application of the law may vary. Such a forum is required for justice, because the law is squishy, gray, convoluted, conflicted, ambiguous and the result of hundreds if not thousands of years of ever changing culture.

Posted by: Jardinero1 | May 4, 2012 9:52:00 AM


The harm of jury nullification is vastly over rated. In most places, in a criminal trial, a unanimous jury is required to convict. Yes, potentially, one crazy juror "wandering off the reservation" can stop a conviction, allowing the guilty man to walk free. But one juror acting on their conscience can also prevent a horrible misapplication of the law.

Using the favored Jim Crow South scenario of "To Kill a Mockingbird", one juror of conscience could have prevented the bigoted jury from convicting Tom Robinson. On the other hand, if eleven of the jurors had not been racist or biased then no single outlier could have caused Tom Robinson to be convicted.

Posted by: Jardinero1 | May 4, 2012 10:06:05 AM

One of the biggest problems with "the rule of law" is that those who administer it -- prosecutors and judges -- are all to frequently corrupt, dishonest, and/or incompetent.

The saying "good enough for government work" applies to judges and prosecutors just as much as it applies to DMV workers.

Posted by: Calif. Capital Defense Counsel | May 4, 2012 4:30:27 PM

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