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February 4, 2013

US District Judge Bennet details flaws in career offender guideline in yet another potent opinion

Will-smurf-for-foodLast week I noted the potent opinion in US v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (discussed in this post), in which US District Judge John Gleeson explained why he believes the federal drug quantity guidelines should get little weight at sentencing.  Coincidentally, another thorough take down of another set of guidelines also was handed down last week by another thoughtful district judge — via a lengthy opinion that I only recently found time to read and now post.

US District Judge Mark Bennett's opinion in US v. Newhouse, No. CR 11-3030-MWB (D. Iowa jan. 30, 2013) (available for download below), is another must-read and an "instant classic" like Diaz. I cannot do justice to Judge Bennett's 68-page opinion in Newhouse, so I will be content to let the first few paragraphs (with important footnotes left out, but emphasis in original) serve as an appetite wheter:

Does the grid and bear it scheme of the U.S. Sentencing Guideline Career Offender recidivist enhancement, § 4B1.1, raise a specter of aperiodic, irrational, and arbitrary sentencing guideline ranges in some cases?  This issue is squarely raised by Lori Ann Newhouse, a low-level pill smurfer, “[a] person who busily goes from store to store acquiring pseudoephedrine pills for a meth cook, usually in exchange for finished product.”   Not only is Newhouse a mere pill smurfer, she is truly a “one day” Career Offender because her two prior drug predicate offenses arose out of a single police raid of a Motel 6 room over a decade ago, on February 26, 2002, in Altoona, Iowa, when Newhouse was just 22 years old.  The police found Newhouse and three others in the motel room.  Newhouse was charged in state court and pled guilty to possession with intent to deliver 3.29 grams of methamphetamine and 14.72 grams of psilocybin mushrooms.  She was sentenced to probation on both charges, but on different days, by Chief Judge Arthur Gamble of the Fifth Judicial District of Iowa.  For reasons unknown, but likely random, the local prosecutor filed the two charges on separate days.  Ironically, if the two charges had been filed in the same charging document — or the defense lawyer, the prosecutor, the judge or the court administer had scheduled the two sentencings for the same day — Newhouse would not be a Career Offender.

Because of Newhouse’s Career Offender status, her U.S. Sentencing Guideline range was enhanced from 70-87 months to a staggering and mind-numbing 262 to 327 months. This breathes real life into the observation of the Seventh Circuit Court of Appeals, a year before Newhouse pled to the state court drug charges, that: “The consequences of being deemed a career offender for purposes of section 4B1.1 of the U.S. Sentencing Guidelines are grave.” United States v. Hoults, 240 F.3d 647, 648 (7th Cir. 2001).  Newhouse is just one of thousands of “low hanging fruit” — non-violent drug addicts captured by the War on Drugs and filling federal prisons far beyond their capacity. See United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359, at *3 (E.D.N.Y. Mar. 30, 2010) (observing that in “the war on drugs” “prosecutors can decide that street-level defendants like Vasquez — the low-hanging fruit for law enforcement — must receive the harsh sentences that Congress intended for kingpins and managers, no matter how many other factors weigh in favor of less severe sentences.”); see also Susan Stuart, War As Metaphor And The Rule Of Law In Crisis: The Lessons We Should Have Learned From the War On Drugs, 36 S. ILL. U. L.J. 1, 5 (2011) (pointing out that the war on drugs “has lasted longer than the reigns of the Roman Emperors Caligula through Nero.”); Marc Mauer, The Sentencing Project, The Changing Racial Dynamics of the War on Drugs 1 (2009) (reporting that there has been an 1100% increase in the number of persons incarcerated on drug charges since 1980, from about 40,000 people to 500,000 in 2009).

Download Judge Bennett US v. Newhouse Opinion

As folks around my age may remember well from Saturday mornings long ago, one key distinguishing features of Smurf Village — beyond, of course, a disturbing gender imbalance and a communist social structure (with Papa Smurf as general secretary) — was the ability for every inhabitant to use the word "smurf" to mean whatever Smurfs wanted the word to mean. This ruling by Judge Bennett provide a useful window into just how smurfed-up the guidelines lingo can be, as one prior minor crime a decade earlier can turn a low-level, non-violent drug defendant into a "Career Offender."

February 4, 2013 at 01:44 PM | Permalink

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LOL typical!


"She was sentenced to probation on both charges, but on different days, by Chief Judge Arthur Gamble of the Fifth Judicial District of Iowa. For reasons unknown, but likely random, the local prosecutor filed the two charges on separate days. Ironically, if the two charges had been filed in the same charging document — or the defense lawyer, the prosecutor, the judge or the court administer had scheduled the two sentencings for the same day — Newhouse would not be a Career Offender."

What this shows me is the complete and continual criminal stupidty of our current criminal govt!

Posted by: rodsmith | Feb 4, 2013 2:43:49 PM

1. The Guidelines have been "advisory only" for, what, eight years now, so there's not a whole lot of traction in going on and on about a particular guideling the court is free to ignore anyway.

2. Even before Booker, Gall and Kimbrough, the court could very likely have given a downward departure, given the somewhat unusual circumstances.

3. With apologies in advance to the drugs-are-nifty crowd, would it be out of line to wonder if the charming Ms. Newhouse could do something more constructive with her life than work for a meth cooker? The unfortunate truth is that, even if the sentence here were nothing more than a stern talking-to, this woman is in big, big trouble. Her problem is not the guidelines, the cops or the DEA. Her problem is the decisions she makes and the way she has chosen to live.

Right now, I wouldn't bet on her making it to 30, the way she's going.

Posted by: Bill Otis | Feb 4, 2013 3:09:04 PM

Since she was reportedly 22 in 2002, I accept your bet to the tune of [cue Dr. Evil voice] one milllllioooon dollars.

Posted by: anon | Feb 4, 2013 3:21:12 PM

anon --

Ha! You got me good. Your check for $1,000,000 is in the mail, made out to "anon," and addressed to 123 Anon Street, Anon, Anonylvania.

Don't spend it all in one place!

Posted by: Bill Otis | Feb 4, 2013 3:38:05 PM

Mr. Otis, judges Gleeson and Bennett write such through opinions, your "on and on" criticism, so appellate courts can properly review them. Both strike me as very thoughtfull opinions detailing their reasons for their policy disagreements . If they hadn't you would be griping about that. Isn't your beef that the Supreme Court has given judges the right and reinforced their duty to exercise their discretion?

Posted by: Steve Prof | Feb 4, 2013 4:11:31 PM

Thank goodness the guidelines are advisory.

Posted by: Thinkaboutit | Feb 4, 2013 4:24:00 PM

Steve Prof --

"Isn't your beef that the Supreme Court has given judges the right and reinforced their duty to exercise their discretion?"

No. The problem is two-fold. First, there is now too much discretion, returning us to the luck-of-the-draw "system." This defendant will do well in EDNY before Mark Bennett. You wouldn't want to think about how she would do on an identical record in EDVA before, say, Henry Hudson.

The luck of the draw is not my idea of what the rule of law should mean.

The second problem is that the discretion is exercised only in one direction, to wit, favorably toward the criminal. I laid it out in this article in the Federal Sentencing Reporter, https://docs.google.com/a/fed-soc.org/file/d/0B5HjNVIrveCFZTc5YjAxNTAtZDE3ZC00YTM5LTg5MzMtNjBkNjE5NzZkNmRk/edit?hl=en&pli=1 If discretion were more evenly balanced, it would be a different matter. But "discretion" turns out to mean "lower sentences across the board." If it turned out to mean "higher sentences across the board," is there any doubt the defense bar would quickly discover the virtues of more binding rules?

P.S. The record "on and on" opinion in this area is probably held by Jack Weinstein, who went on and on AND ON for 400 pages (more I think, when you count the appendices). The name of that case is United States v. C. R., currently pending review (and virtually certain reversal) in the Second Circuit.

Posted by: Bill Otis | Feb 4, 2013 6:24:41 PM

I think Bill Otis has touched on something important but may not be drawing the right conclusion from it. One of the most striking things about the post-Booker data recently posted was how overwhelmingly more common below-guidelines sentences are than above-guidelines sentences. This is particularly odd if one remembers the original self-lauding publicity of the USSC (referenced in the recent Diaz opinion) to the effect that they were not going to impose ex nihilo some brand new and controversial moral theory of what sentences were appropriate on what facts. Rather, they were mostly just going to gather data about existing sentencing practices and essentially average it out so that guidelines ranges would approximate the average sentence a given fact pattern would in practice have yielded in the old discretionary days - bleeding hearts would be pushed to sentence more severely and hanging judges pushed to sentence more leniently to approximately the same extent; thus reducing luck-of-the-draw disparities. I remember hearing a fellow from the First Circuit named Breyer make more or less this point at a presentation way back a quarter-century ago. So . . . either: a) today's federal judges are skewing below the guidelines because they're a bunch of bleeding-heart softies compared to the cold-eyed tough-on-crime Carter appointees that populated the federal bench back when the USSC was gathering the data; or b) the USSC for whatever reasons has not done a very competent job in carrying out that aspect of its mission, because if the guidelines were "right" you would expect to see approximately even numbers of above-guidelines and below-guidelines sentences, which means the USSC should be tweaking the guidelines until you see that sort of result; or c) in particular high-volume areas (such as drugs as discussed in Diaz, but also elsewhere) the USSC has for whatever reasons not in fact seriously tried to draft guidelines that codify the average of aggregate actual sentencing practice but has instead pursued other desiderata, and therefore no one should be surprised when actual average sentencing practice turns out to be what it always was and no one should be surprised that that's at variance with non-binding guidelines that were not a bona fide attempt to approximate the median of actual practice. Certainly in terms of selling to judges the notion that they should exercise their discretion with a strong presumption in favor of following the guidelines, more judges might voluntarily fall in line if they were more convinced that the guidelines range in the PSR really is a good-faith approximation of the mid-point of the range of sentences that a representative sample of their experienced and well-regarded peers on the federal bench would left to their own devices find appropriate on the particular fact pattern. How many judges actually view the numerical output of the guidelines calculation in those terms?

Posted by: JWB | Feb 4, 2013 7:47:36 PM

JWB --

A wonderfully thoughtful post from someone who obviously was there from the getgo.

I'll just say, very briefly, that a major reason the judges now seem to doubt the guidelines mirrors a controversy that existed at the beginning, now about 30 years ago: Congress thought that judges were going too soft on drugs and white collar crime, and, in those two areas, wanted to step up sentencing. This twin desire was one of the key items that made possible the unlikely duo of Ted Kennedy and Strom Thurmond, who co-sponsored the SRA that created the guidelines. Kennedy wanted to get tougher on white collar crooks; Thurmond wanted to get tougher on drug pushers. And that is the stuff of which Congressional compromises get made.

Congress continued to be dissatisfied with lenient federal sentencing throughout the 80's, which is why it enacted more mandatory minimums, even against the backdrop of the binding guidelines regime that existed then.

So you are correct in noting the general desire to track existing sentencing practice, but you may have missed the two exceptions as to white collar and drug offenses. Thus, not at all surprisingly, those are the two areas (along with CP) in which we see the most controversy today.

Posted by: Bill Otis | Feb 4, 2013 8:34:41 PM

As to the discretion going only in one direction, I will direct the reader to many of the material support for terrorism matters. For some defendants, whether the District Court exercises discretion yielding either a sentence that is too high or too low, such discretion is checked by the Circuit Court, with directions to increase the sentences. Similar instances may be seen in some child pornography matters this blog has highlighted.

And for less serious matters that material support, I recall Judge Hudson using discretion in a fairly recent matter in which the defendant stood charged with organizing illegal dog fights.

Posted by: = | Feb 4, 2013 10:09:46 PM

I'll offer an educated guess (as an Iowa prosecutor) as to why there were two separate case files and the resulting career offender status: the cops didn't have a field test kit for the psilocybin mushrooms. Even if one was commercially available, I doubt they had one. She probably got arrested for the meth and they filed the other charge once the lab report came back.

Another state criminal law oddity is that the rules specifically don't allow amending a trial information or indictment to add a new count. You have to file it separately and move to consolidate. That wouldn't prevent doing the sentencing on the same day, but would make it much more likely that they would stay separate cases - especially if the case pled out.

Posted by: AlanO | Feb 4, 2013 10:24:24 PM

= --

"As to the discretion going only in one direction, I will direct the reader to many of the material support for terrorism matters."

Well, OK, let a thousand flowers bloom, but the most comprehensive measure of the direction of departures, and thus of sentencing court discretion, is the USSC table of statistics. Since the Commission's website is "currently under construction" (i.e., it got hacked by some wiseguy pranksters), I'll have to give the stats from memory, but my memory tends to be pretty good about this stuff.

About 53% of the cases are sentenced within range. About 42% get downward departures, and less than 2% get upward departures. The single biggest source of downward departures is government substantial assistance motions, true. But the figures don't lie. Judicial "discretion" is, as I say, exercised virtually always to benefit the defendant, whether government sponsorship is taken into account or not.

One may call this many things, but a "balanced" use of the departure power is not among them. Departures are the defendant's playground, not the government's.

Posted by: Bill Otis | Feb 4, 2013 11:39:10 PM

Thank you AlanO for that insight. That version of events seems plausible to me and highlights what I think is one of the most devastating aspects of our modern system, which is is lacks of checks. Everyone is off in their own specialist corner and no one is minding the big picture until a judge gets involved. Take a step back and think about all the resources that have been wasted, all the time that has been spent, a judge having to write a 63!! page opinion....

all because the cops quite reasonably didn't have the specific kit in their car that night.

That is bonkers. It might be "unusual" but it highlights a real weakness in the system.

Posted by: Daniel | Feb 5, 2013 2:43:40 AM

Mr. Otis,

Discretion by judges is certainly more often exercised to lower a Guideline sentence. That is because the Guideline sentences, especially in drug cases, are outrageously lengthy - almost 3 times what they were prior to the SRA. As the recent opinions by Judges Gleeson and Bennett point out the drug table and the career offender guidelines bare not rational relationship to anything and are simply U.S.C.C. smoke and mirrors. If the guideline ranges in drug cases were not so ridiculously long -- judges would not be varying so much - after all Mr. Otis most federal judges were highly regraded former prosecutors something you consistently claim to be. As for discretion, any rational sentencing scheme must have discretion. the current one, post Booker , gives judges back limited discretion to fashion a reasonable sentence. But when it comes to MM's judges have no discretion except as to the extent of the substantial assistance departure. Most sentencing discretion still lies with AUSA's : whether to make a substantial assistance departure, how much to recommend off, whether to waive a 851 enhancement, waive or give up a role or gun enhancement, whether to apply Pinkerton liability, the list goes on and on. The real problem is that despite a few memos bearing the names of Attorney Generals like the soft-on-crime Ashcrof, there is greater disparity on how AUSA's apply all of the above then there is by judges. Judge Bennett's Newhouse opinion is a prime example. She plead guilty and cooperated, but the AUSA never waived the 851 enhancement - my understanding is that in more districts than not the 851 enhancement is waived when a defendant pleads, not even with a cooperation plea. So the difference between a defendant getting a 5, 10 , or 20 MM sentence depends not on the judge but the AUSA waiving the 851 enhancement. You prefer that prosecutors have all the discretion...the current system still gives them much more discretion than judges - and that's a huge problem.

Posted by: SteveProf | Feb 5, 2013 10:07:06 AM

Off topic, can you fix the Dorf on Law link? Multiple blogs use an old link and it makes me have to take two steps to move from blog to blog. Lazy request!

Posted by: Joe | Feb 5, 2013 11:28:29 AM

SteveProf --

"the Guideline sentences, especially in drug cases, are outrageously lengthy..."

That is an opinion, and one often held by defendants and defense lawyers, but it is only an opinion.

"...almost 3 times what they were prior to the SRA."

I doubt that. Do you have numbers, or a source for that? But even if it's true that drug sentences are to some degree higher than in the pre-SRA days, that is what Congress intended. Indeed, getting to higher drug sentences was one of the main reasons Congress passed the SRA. Congress was, with good reason, very displeased with the lenient sentences of the 60's and 70's.

"most federal judges were highly regraded former prosecutors..."

I don't think that's true at all. Some were former prosecutors, sure. Something wrong with that? Again, could you provide figures and a source?

"...something you consistently claim to be."

I "claim" to be a former prosecutor because I am. Whether I was highly regarded is, again, a matter of opinion. Apparently it is not your opinion. Fine. Let a thousand flowers bloom. Others have different opinions.

"As for discretion, any rational sentencing scheme must have discretion."

100% correct. In light of this incontestable fact, the original guidelines system provided for considerable discretion. But it was not unlimited, nor should it be.

"But when it comes to MM's judges have no discretion except as to the extent of the substantial assistance departure."

Congress is both entitled by the Constitution, and wise, to determine that, for some serious offenses, there is a floor below which no sentence should be allowed to go. The real question, it seems to me, is where that floor should be, not whether the concept of a sentencing floor is per se illegitimate.

"Most sentencing discretion still lies with AUSA's : whether to make a substantial assistance departure, how much to recommend off, whether to waive a 851 enhancement, waive or give up a role or gun enhancement, whether to apply Pinkerton liability, the list goes on and on."

That is not exactly "sentencing discretion." It is charging discretion, and (obviously) charging may affect sentencing (depending on the verdict). But charging discretion is, under the Constitution, exclusively vested in the executive branch.

"...despite a few memos bearing the names of Attorney Generals like the soft-on-crime Ashcrof, there is greater disparity on how AUSA's apply all of the above then there is by judges."

I think you're comparing apples and grapefruit. But for however that may be, the Diaz and Newhouse opinions by themselves amply demonstrate how wide district court discretion has become. As I have noted, there is essentially no likelihood that either offender would have received this degree of leniency in EDVA or many, many other districts around the country.

"[Newhouse] plead guilty and cooperated, but the AUSA never waived the 851 enhancement - my understanding is that in more districts than not the 851 enhancement is waived when a defendant pleads, not even with a cooperation plea. So the difference between a defendant getting a 5, 10 , or 20 MM sentence depends not on the judge but the AUSA waiving the 851 enhancement."

Waiving the enhancement is done on a case-by-case basis, as it should be, because the degree, truthfulness, comprehensiveness and timeliness of cooperation inevitably varies from one cooperator to the next, and the variation can be vast. The executive branch -- which bears the responsibility of conducting the investigation -- is far better suited to evaluate these things than the judicial branch. If the AUSA's decision to withhold a waiver is based on some improper reason such as race or sex, the defendant can move the court for an order to compel.

Congress has decided that some aspects of discretion will be vested in the executive branch, while others, generally of at least equal importance, will be vested in the judicial branch. No matter how the vesting balance is struck, the defense bar of course will want to move it away from the former and toward the latter.

'Twas ever thus, and ever will be.

Posted by: Bill Otis | Feb 5, 2013 1:12:21 PM

SteveProf's opinion as to whether or not the sentences are lengthy or not is in fact a value judgment and we are all entitled to make those; that said, the legislature has it as its prerogative to set the baseline sentence from which departure is taken. For example, the legislature could set a baseline presuming defendant is cooperative then provided for upward departures where the State proves that cooperation does not exist. Alternatively, the legislature could have set, as it did set, the baseline as absent cooperation then allowed the downward departure where the defendant proves such cooperation exists. One seeking the result where upward departures outnumber downward departures should lobby for a lower baseline with fewer opportunities for downward departure and greater opportunities for upward departure.

It appears the legislature has reasonably set the baseline in such a way to generally require the defendant to prove a downward departure, rather that in such a way as to require generally the government to prove the elements of an upward departure. This choice seems entirely reasonable to me.

Posted by: C60 | Feb 5, 2013 2:53:26 PM

"Waiving the enhancement is done on a case-by-case basis, as it should be, because the degree, truthfulness, comprehensiveness and timeliness of cooperation inevitably varies from one cooperator to the next, and the variation can be vast."

Mr. Otis, it may have been done that way in your day but that is not how it is done now in most districts. Many districts always waive the 851 enhancement when a defendant pleads - regardless of cooperation. Period. This creates great disparity in a defendants ultimate sentence based solely on the lack of a DOJ national policy. The factors you described in cooperation apply to the extent of the departure for substantial assistance but have never in my career in over 25 districts had any impact on the waiver of a 851 enhancement. To call it "charging" discretion is correct but it has more impact on a defendant's drug sentence than any discretion exercised by a judge and it is unreviewable. You are correct this is how Congress set it up but it is not applied fairly and that never seems to bother you. You are in favor of mandatory guidelines for judges but refuse to hold the DOJ to a national policy (with appropriate exceptions and discretion) to help promote uniformity in sentencing. You seem to just want prosecutors to be able to control the length of a defendants sentence.

"But charging discretion is, under the Constitution, exclusively vested in the executive branch"

Very true but don't you agree that unfairness arises when this discretion is unevenly applied?


"most federal judges were highly regraded former prosecutors..."
"I don't think that's true at all. Some were former prosecutors, sure. Something wrong with that? Again, could you provide figures and a source?
Here is a good example of your constant bait and switch approach to this blog. Of course its true you can easily find that data - more district court judges were former federal prosecutors that any other career path. And of course there is nothing wrong with that nor did I imply there was. The point is your former colleagues who are now sentencing judges vary a lot because the guidelines are too harsh. Or do you think they vary because of DOJ wonder dust that was formerly sprinkled on them?

Posted by: SteveProf | Feb 5, 2013 3:43:25 PM

Free Tim Tyler #99672-012 Prisoner of the war on drugs for over 20 years. Serving a double life sentence without parole for LSD under the career criminal law. Non-Violent dead head. He Aint Heavy, he's my Brother.

Posted by: Carrie | Feb 5, 2013 3:57:18 PM

Just re Bill Otis' points on Congressional desire to push up sentencing in drugs/white-collar/etc. compared to prior average practice: The question is how Congress has gone about doing it. Justice Scalia took the position in Mistretta that he could "find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws." The USSC's victory in Mistretta perhaps ultimately proved illusory once the guidelines eventually turned out to be merely advisory, but the point remains that if Congress wants to prescribe detailed sentencing rules binding on judges it can always do so itself via statute - it's not just mandatory minimums, it can prescribe an entire micromanaged guidelines-like regime and have it (subject maybe to some interesting Apprendi etc. issues) be mandatory. But Congress has to do it itself, not punt to some bunch of unelected and legitimacy-challenged technocrats and thereby avoid full accountability for the hard choices that need to be made when you get down to the details. If the Guidelines are merely advisory, and particular guidelines are an attempt by the USSC to implement what it believes to the will of Congress where Congress has not actually enacted the relevant details of that will, then . . . judges are free to follow the guidelines when they find them persuasive and ignore them the rest of the time, for very sensible separation-of-powers reasons.

It's separately interesting if judges still by and large want to give out drug sentences (or white-collar sentences, or whatever) lower than the politicians would prefer, given the wholesale turnover on the federal district court bench since the Thurmond/Kennedy alliance of three decades ago and the fact that very very few lawyers whose private-practice specialty was drug-crime defense have gone onto the federal bench since then. If an entirely different set of judges have the same view of the issue, then either the socialization pressures on new recruits to the federal bench are powerful indeed (a hypothesis that should be taken seriously, I should note) or there's actually something substantively wrong with what the politicians desire that would eventually become obvious to any randomly-selected group of thoughtful individuals who spent enough time wading through the details of individual cases rather than holding press conferences in Washington.

Posted by: JWB | Feb 5, 2013 4:00:54 PM

Steve Prof --

Just one note for now.

You said that "most" federal judges are former prosecutors. I said I doubted that, and asked for documentation. Your response is (bold type added): "Here is a good example of your constant bait and switch approach to this blog. Of course its true [and] you can easily find that data - more district court judges were former federal prosecutors THAN ANY OTHER CAREER PATH."

In fact, it would seem that you are doing the bait and switch. Your original proposition was that "most" federal district court judges were former prosecutors. Your present proposition is very different -- not that most are, but that prior prosecution experience is THE SINGLE MOST FREQUENT CAREER PATH to a judgeship.

Your present proposition may well be correct (I suspect it is, though I don't know), but it is a bait-and-switch (shall we say) from your earlier one. Assuming arguendo that prior prosecution experience is the MOST FREQUENT career path, that does not prove -- indeed it does not even suggest -- that A MAJORITY of district court judges were former prosecutors.

Example: It could well be the case that 30% of district judges are former prosecutors, 15% are former defenders, 10% are former law professors, 10% former legislators, etc. In that event, it would be clearly true that being a former prosecutor is the most frequent career path, and clearly false that most district judges are former prosecutors.

If you are continuing to maintain the latter claim, I remain skeptical, and again request documentation. If you are switching to your more recent and different claim, I have no problem with it.

Posted by: Bill Otis | Feb 5, 2013 5:09:30 PM

Your right, Mr. Otis. On average over the last 20 years only approximately 45% of federal judge appointments were former prosecutors. I stand corrected. You attack by nitpicking a minor point. How about addressing my disparity argument caused by lack of DOJ consistency. Why doesn't that seem to bother you at all? And isn't there some merit to the fact that with so many former prosecutors as judges they still vary downward because the guidelines are too harsh in drug and cp cases? And how about yur bait and switches which I pointed out?

Posted by: Steve Prof | Feb 5, 2013 7:05:32 PM

SteveProf --

"Your right, Mr. Otis. On average over the last 20 years only approximately 45% of federal judge appointments were former prosecutors. I stand corrected. You attack by nitpicking a minor point."

If it was minor, why did you bring it up? And then why did you pursue it, accusing me in the bargain, and incorrectly, of doing a bait and switch? And why is it "attacking" or "nitpicking" to question you about a proposition you advance, or to request documentation for it? I thought that was the way civil debate is conducted. Am I wrong about that? Why?

"How about addressing my disparity argument caused by lack of DOJ consistency."

There is a consistent approach overall. Consistency does not mean, however, the same outcome in each case, nor should it, since every case is different and should be evaluated on its individual merits.

"Why doesn't that seem to bother you at all?"

There's a very long answer to that question, and I won't go into all of it. Part of it is my temperment. Part is that the passing years have taught me that to be more accepting of life's many and often serious imperfections; just being outraged all the time is fine, I guess, for adolescence, but that's not where I am anymore. The part most relevant for your purposes is that, as noted, differences in treatment are warranted by differences in the attitude, usefulness, candor, knowledge and timeliness of different cooperators.

"And isn't there some merit to the fact that with so many former prosecutors as judges they still vary downward because the guidelines are too harsh in drug and cp cases?"

Not much. Judges, first among all others, need to accept that Congress gets to decide the basic parameters of sentencing. This is so because, except for Constitutional constraints, those parameters are for the people to determine through their elected representatives. In my opinion, judges should (and they do) have reasonable discretion to decide where, within the general parameters thus established, the particular sentence of a given criminal should be set, but that's as far as it goes. We fought the Revolution to establish majority rule in preference to rule by an unelected, robed plutocracy. What conduct should be made criminal, and how much punishment it warrants, are quintessentially political rather than judicial questions.

Posted by: Bill Otis | Feb 5, 2013 8:06:42 PM

What was minor was that whether it was a majority or the single most common prior experience of federal judges is immaterial except to nitpickers. Your attempt to minimize disparity by DOJ policies by invoking separation of powers totally misses the mark. Former prosecutors who are now judges vary downward and have the right to do so because the guidelines are too harsh. That is indisputable except to DOJ apologists like you.

Posted by: Steve Prof | Feb 5, 2013 8:37:09 PM

SteveProf --

The other day, I gave you three specific examples of where I sharply disagree with DOJ policy. Another one came up roughly an hour and a half ago, see the first comment on http://sentencing.typepad.com/sentencing_law_and_policy/2013/02/feds-request-lwop-for-samuel-mullet-sr-leader-of-amish-beard-cutting-gang.html#comments

DOJ "apologists" should be made of sterner stuff, wouldn't you think? Indeed, I recently testified before Congress in opposition to DOJ's refusal to seek a return to the pre-Booker sentencing system. The tape is available here, http://judiciary.house.gov/hearings/hear_10122011.html

My testimony begins at the 44:00 minute mark.

If that's being a DOJ "apologist," I'm sure Eric Holder is not holding his breath waiting for its critics.

Posted by: Bill Otis | Feb 5, 2013 10:03:56 PM

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