« Gov Brown bringing California prison fight back to SCOTUS | Main | A potent response to a prosecutor's perspective on Lafler, Frye and the future of plea bargaining »

May 14, 2013

Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping"?

SensenbrennerThis recent new article in CQ Weekly was especially notable, as I noted in this post, because it highlighted how many Republican members of Congress are now leading serious discussions of review and possible reform of the federal criminal justice system and severe federal sentencing laws.  But I needed to do this separate post to spotlight what seems to be a stunningly stupid comment from Wisconsin Republican Jim Sensenbrenner in his explanation for why he still supports federal mandatory minimum sentencing laws. Here is the passage from the CQ Weekly article that almost made my head explode:

While the dialogue may be changing, passing legislation, as always, is another story.  Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor.

Sensenbrenner said as much in an interview, arguing that without such sentences, prosecutors and defense attorneys would “shop” for judges based on their reputations for handing out tough or lenient penalties.  “If there isn’t a better way to stop judge-shopping, then I think we’re stuck with mandatory minimums,” he says.

Perhaps Sensenbrenner knows something magical about the operation of the federal criminal justice system that I do not know, but I am pretty sure there are no existing mechanisms for either prosecutors or defense attorneys to somehow "shop" for judges based on their sentencing reputations.  If there were, I am confident federal prosecutors would do their very darnedest to make sure they never had any sentencing cases before district judges like Jack Weinstein (who has a well-deserved reputation for abhorring any sentencing rules demanding long setences) and defense attorneys would do their very darnedest to make sure they never had any sentencing cases before district judges like Linda Reade (who has a well-deserved reputation for being eager to give long within-guideline sentences).

As regular readers should know, I think there are a few valid — but ultimately unconvincing — arguments to be made in support of some existing federal mandatory minimum sentencing laws.  And I heartily welcome supporters of existing federal mandatory minimum laws to make their very best arguments in support of the status quo, especially as Rand Paul and other notable new congressional voices urge statutory reforms.  But gosh, is it too much to ask that powerful members of Congress at least have the most basic understanding of how our existing sentencing laws and procedures actually work before they assert that we have to be "stuck with mandatory minimums"?

In my perfect sentencing law and policy world, a comment this idoitic from someone who has long played a central role in passage and reform of federal sentencing laws would be grounds for impeachment.  But, as my work on this blog so often highlights, we are very far — and, I fear, will always be very far — from my perfect sentencing law and policy world.

Some recent and older related posts:

May 14, 2013 at 11:44 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017eeb27bf2d970d

Listed below are links to weblogs that reference Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping"?:

Comments

Accused Dog Killer Goes Judge Shopping
by Marcia Chambers | Aug 17, '12 @ newhavenindependent.org

"It’s called judge shopping, or gaming the system. That, say those familiar with the practice, is precisely what happened last week when a criminal defense attorney for a Branford man accused of strangling his dog bought the time he needed to get a new judge to decide his case."

D. Berman: // "but I am pretty sure there are no existing mechanisms for either prosecutors or defense attorneys to somehow "shop" for judges based on their sentencing reputations. If there were, I am confident federal prosecutors would do their very darnedest to make sure they never had any sentencing cases before district judges like Jack Weinstein" //

So, I dunno, are you saying that this can't or doesn't happen in the federal courts because of the counterweight of prosecutors?

Posted by: Adamakis | May 14, 2013 12:11:55 PM

Doug --

"In my perfect sentencing law and policy world, a comment this idoitic from someone who has long played a central role in passage and reform of federal sentencing laws would be grounds for impeachment."

Your perfect world would also need a constitutional amendment, since Members of Congress cannot be impeached, although than can be expelled (presumably on grounds well short of high crimes and misdemeanors) by a two-thirds vote of the chamber in which they sit:

Article I, Section 5, Clause 2:

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

Posted by: Bill Otis | May 14, 2013 12:26:23 PM

Sensenbrenner in a hack and presents a typical right-wing argument with no basis in reality. He invents a problem and then laments it as Exhibit A for the reason we need to implement a bad policy panacea.

Absent the disease, you don't need the antidote. But when the right-wing crazies want the antidote, they insist on the disease. All rational evidence to the contrary be damned.

Posted by: anon | May 14, 2013 12:51:51 PM

ADAMAKIS: the article you reference concerns a STATE sentencing in a court in which it appears the judges periodically rotate in/out of various judicial assignments. Ergo, it seems a state defense attorney (or prosecutor) might try to secure a new judge by delay tactics. To my knowledge, nothing like this structure exists in any federal district courts. (That said, if a federal judge has announced a future retirement date, it might be possible for a prosecutor or defense attorney to try a similar delay game in the hope of getting a new judge. Moreover, all that even a successful delay-tactic could hope to achieve is to get a new judge, not to ensure that the new judge will be better than the former one. Indeed, in the Pepper case that went up to SCOTUS from Iowa, the reputed more lenient Judge Mark Bennett took himself off the case after multiple (suspect) reversals by the 8th Circuit, and CJ Linda Reade took over and doubled the defendant's sentence (through a decision ultimately reversed by SCOTUS).)

As I said above, I do not know of any way, and I do not believe there is any realistic way, for federal prosecutors and criminal defense attorneys to "shop" for a preferred sentencing judge in the federal system.

BILL: thanks for reminding me that I do not know the constitutional provisions for getting rid of a setting member of Congress. If I taught con law, I would/should be deeply embarrassed by this mistake. But, I would suggest it would be even more embarrassing if I were a sitting member of Congress claiming we are "stuck" with President Obama for decades because voters are likely to keep electing him over and over again. Sensenbrenner's idoitic statement about "judge-shopping" in the federal criminal justice system strikes me as comparable with a member of Congress making voting/policy decisions while not knowing that the federal Constitution now includes a two-term limit on the Presidency.

I am curious, Bill, especially since I suspect you have worked with Rep Sensenbrenner and/or members of his staff through the years, if you believe he is really this clueless about the realities of the federal criminal justice system? If so, I also wonder if he is representative of some/many other members of Congress --- on both sides of the aisle --- who perhaps deeply (and perhaps joyfully) misunderstand legal realities in order to support their policy positions? Inquiring minds really want to know!

I both respect and am eager to defend voters and politicians who have different views on policy issues based on an informed understanding of reality. But it strikes me as hard to respect or defend the work of Sensenbrenner or any other members of Congress who might have policy decisions based on a total misunderstanding of law and practice.

Posted by: Doug B. | May 14, 2013 12:57:03 PM

I am not sure off all the nuances but I do know for a fact that judge shopping can go on, at least at the local level. For example, my local district court has only two judges. All it takes then is a successful motion to get one judge recused and it will automatically get assigned to the other judge. Since both the judges have reputations (how true it is I do no know personally) for being hard on different classes of criminal defendants both the defense and prosecutors will try to get one recused if they are unhappy with the random draw. My observation from reading the local paper is that the court of appeals is alive to the possibility of abuse and generally upholds the judge's decision not to recuse but it has happened.

So while I understand the point Doug is making I am not sure that would be caught by the casual reader/voter who more likely would think of what is going on in their own neck of the woods, as Adamakis illustrates.

Adamakis: The counterweight is that at the federal level district judges are /randomly/ assigned to a case. If one is recused for some reason another other random assignment takes place. My federal district has six active judges not including senior and magistrate. That makes it difficult to shop for a specific judge.

Posted by: Daniel | May 14, 2013 1:05:31 PM

Sensenbrenner's statement is obviously wrong. If he actually does hold the truly foolish belief that criminal attorneys can "judge shop," that would indeed warrant the condemnation in Prof. Berman's histrionic post. However, giving him the benefit of the doubt as well as his long experience as a member of the judiciary committee, perhaps it's more likely that he was awkwardly trying to make the point that mandatory minimums reduce the likelihood of what Bill calls "luck of the draw" sentencing, dependent on the personal vagaries of whichever judge is assigned to the case. "Judge shopping" approximates that idea, and perhaps was the closest term to mind during Sensenbrenner's interview, although he obviously could have chosen his words more carefully.

Posted by: Anon | May 14, 2013 1:22:01 PM

"who perhaps deeply (and perhaps joyfully) misunderstand legal realities in order to support their policy positions"

That's EXACTLY what happens. Although instead of "legal," it could read "all."

"the casual reader/voter"

EXACTLY, again. Shame on Sensenbrenner. But then again, only a knowledgeable voter would understand why.

Posted by: anon | May 14, 2013 1:27:03 PM

Doug --

"I would suggest it would be even more embarrassing if I were a sitting member of Congress claiming we are 'stuck' with President Obama for decades because voters are likely to keep electing him over and over again."

The ironic part is that, regardless of the two-term limit, it's very unlikely that he would get elected "over and over again."

"Sensenbrenner's idoitic statement about 'judge-shopping' in the federal criminal justice system strikes me as comparable with a member of Congress making voting/policy decisions while not knowing that the federal Constitution now includes a two-term limit on the Presidency."

It struck me as less idiotic than Rep. Hank Johnson's (D-GA) immortal statement that he was concerned that stationing more troops on Guam could cause the island to "tip over and capsize." (http://www.youtube.com/watch?v=zNZczIgVXjg).

Then there was Speaker Pelosi's world-famous admonition that the best way to learn what was in the Obamacare bill was to pass it and find out. (Ironically, this turns out to be true, much to the consternation of those of us whose health insurance premiums will skyrocket next year).

Then there was President Obama, who was proud that he campaigned in "all 57 states," with just one more to go, (http://www.youtube.com/watch?v=EpGH02DtIws).

I suspect Sennsenbrenner was thinking of how the state courts work, but, as the aforementioned examples show, sometimes even very prominent pols say stupid stuff (I won't even start on Joe Biden).

As to anything beyond that, if I started discussing on the Internet who I talk to in this town, or elsewhere, I would forfeit their confidence in my discretion.

Posted by: Bill Otis | May 14, 2013 1:33:50 PM

I put the chances that Sensenbrenner, who has been in Congress since leaving state office in 1979, was talking about state courts at 0.001 percent. Very few members of Congress understand how the criminal justice system works.

Posted by: Thinkaboutit | May 14, 2013 2:01:23 PM

"Then there was President Obama, who was proud that he campaigned in "all 57 states," with just one more to go, (http://www.youtube.com/watch?v=EpGH02DtIws)."

Oh please, Bill. The President obviously mispoke - do you think he really believes that there are 58 states? Sensenbrenner did not. He actually believes "judge-shopping" occurs and is a problem we need to address.

Posted by: Anon | May 14, 2013 2:10:13 PM

Anon stated: "Oh please, Bill. The President obviously mispoke..."

Off topic, but how come that explanation was never good for Reagan, Bush I, or Bush II?

Just curious.

Posted by: TarlsQtr1 | May 14, 2013 3:01:45 PM

Well the readerson this thread have easily tagged Sensenbrenner correctly....It doesn't surprise me though, readers on this site are smart and understand the Federal guidelines, some much too well.

This guy is one who has a voice on the criminal justice system.. Wow.

He is a total air head...Needs to take a night class on the federal guidelines.. 20 mins should be enough to sharpen him up so don't make comments like that any more..

Right about that Judge Linda Reade from Iowa.. She supports her federal G men to the max... AUSA's must appear to have God like qualities
in her district.. Whatever they ask for they seem to get that and more at times..The AUSA pounds it and she Paints it...Auto Sentenceing...

Posted by: MidWest Guy | May 14, 2013 3:03:22 PM

TQ:

"Off topic, but how come that explanation was never good for Reagan, Bush I, or Bush II? ".

Because there is a deliberate media bias in supporting and forgiving politicians with a liberal bias. That is why I don trust the mass media because most information is presented in a biased manner.

If I were a voter in Pelosi's district, I would be embarrassed as all hell in her comment. I would never tell anyone that she is my congressperson.

Still, what Sensenbrenner said demonstrates that not only is a lack of intelligence not a hurdle to getting voted to Congress. It also carries some advantages - like being able to live with yourself.

Posted by: albeed | May 14, 2013 3:29:40 PM

Doug, most members of Congress are colossal idiots, especially about the criminal justice system. The dialogue about that system is so far from the realities on the ground that it's embarrassing. Even the ones who once appeared in criminal court – and there are woefully few of those – have been gone so long that they have no sense of what it is like. Most never did.

Posted by: anonymous | May 14, 2013 3:50:15 PM

Otis,

Why do you play the unserious ignoramus at every turn. Surely, you know that our system over-punishes and disgrace in need of serious reform. Our rate of incarceration is 5-10X other Western democracies. Is 2-3x just not enough for you? Yet doing anything to try to address our over-incarceration problem is completely unfathomable to you and your ilk. Based on your credentials, you are not a knuckledragger, but seem to like to play that role. Grow up.

Posted by: Mark | May 14, 2013 5:52:49 PM

Bill Otis,

Every since you've expressed admiration for Ted Cruz, it's hard to take anything you say seriously.

Posted by: Dave from Texas | May 14, 2013 6:19:58 PM

Mark --

It's all true. I do not share your enthusiasm for criminals. I am able, however, to recommend a site you could cozy up to: http://gawker.com/freejahar-when-conspiracy-theorists-and-one-direction-478152664

Try to avoid spending all your time there.

Posted by: Bill Otis | May 14, 2013 6:22:44 PM

Dave from Texas --

"Every since you've expressed admiration for Ted Cruz, it's hard to take anything you say seriously."

I neither expect nor wish to be taken seriously by the Every-Crook-Has-An-Excuse crowd.

Posted by: Bill Otis | May 14, 2013 7:27:07 PM

I have certainly heard anecdotally from lawyers who did federal criminal defense work in the Southern District of New York in the old pre-Guidelines era many decades ago that there most definitely were ways to judge-shop in those days, in particular in situations when the indictment had not already come down (thus previously triggering assignment to a particular judge) before you reached your plea deal. If the government was opening the docket number simultaneous with the plea agreement, the parties (i.e. you needed the AUSA on board) could within certain bounds (by knowing in advance which judge was scheduled to sit which week in "Part 1" to deal with miscellaneous matters where no judge had previously been assigned) steer the case to a particular judge with a particular reputation with respect to sentencing. That specific approach may no longer work in the SDNY, but I imagine it's naive to think that every single federal judicial district in the country has a bulletproof random assignment system that can never be gamed even with the mutual cooperation of AUSA and defense counsel.

Posted by: JWB | May 14, 2013 7:35:25 PM

Whether defendants can "shop" or not, reducing sentencing disparity between judges is an important and worthy goal. It was one of the principal motivations for the Sentencing Reform Act. When Booker screwed up the Guidelines, the case for getting rid of mandatory minimums was weakened.

Posted by: Kent Scheidegger | May 14, 2013 8:43:03 PM

Kent, you bring up a viable argument for mandatory statutory sentencing provisions. And I respect those willing to make such arguments and to support them with facts. What I do not respect --- and have a hard time even getting my head around --- is a person who has served decades in Congress apparently not understanding the most simple basics of the federal criminal justice system.

I am not at surprised --- though I am deeply disappointed --- that this thread of comments became mired in the usual partisan tripe rather than a serious discussion of the serious problems of experienced members of Congress displaying extraordinary ignorance concerning important matters of public policy in areas that are supposed to be their specialty.

Sensenbrenner is not only a senior member on the House Judiciary Committee, but also Chair of the Subcommittee on Crime, Terrorism and Homeland Security. And his comment is not a mere mis-statement of the latest USSC report or of the details of the guidelines or Booker, but rather suggests a profound misunderstand of the basic operation of the federal criminal justice system. I would be as if the Chair of the House Space subcommittee were to assert that we should not try to visit the moon again because we might get stuck in the cottage cheese that the moon is made of.

I would hope that everyone who cares about reasoned and informed policy-making would criticize any out-to-lunch comment by any policy-maker. But perhaps this is just too much to ask in these partisan days.

Posted by: Doug B. | May 14, 2013 10:09:59 PM

Kent
Mandatory minimums screwed up, impossible.....A guideline sentence not only wastes lives, money as well...most could get it cut in half and still be gross...

When the circuit judges couldn't back swat owi as a crime of violence, I lost all respect.
Any dumb bunny knows a violent crime must have men's rea.

It had to go clear to scouts to be over turned....pretty sad.
Not returning to a half way house is a crime of violence... Not
Gall pretty well stomped on the 8th circuit, but not until they increased sentences dramatically....for many a few unfortunates that will never get out.

The federal system was put together by some excellent systems professionals.
Certainly not government employees... Creative open minded and technically competent. But that's where the good stopped.. Congress and many a AUSA and judge
Has made it a quest to continueally add more charges and more triggers for enhancements.. When you refer to an increase as an enhancement , you know it's out of hand.... Goes hand in hand with our bloated non budgeted bandits running the country these days....when .46 out of every dollar you spend is borrowed, nothing is sustainable.

Lookup duck hunter gets 30 yrs... Basically a felon who went duck hunting with a sporting shotgun.. Ended up getting 30yrs... Way over done...

Was he a bad guy, yes he wasn't a role model for sure. But not a 30 yr offender.
Sad state of affairs America is in

Now they want to lower owi bad to .05. Hope that gets shot down. It's more money for the legal beagles period.. Sc where are you, I need some of your better one liners.

Posted by: Miwestguy | May 14, 2013 10:14:04 PM

Bill,

Why can't you just address the clearly relevant issue? Pointing out how ignorant other politicians are doesn't undermine the significance of a representative who heavily influences federal judicial matters being so uninformed on the system. Your whole shtick here is to lambast the criminal apologists for never supporting the need for long sentences even when the case clearly demands it (e.g. an Ariel Castro). But hypocritically, you never acknowledge that conservatives can be misguided in their law enforcement efforts or prosecutors overly aggressive or unethical in the face of equally clear cases (e.g. Sensebrenner or the many tossed verdicts over prosecutorial misconduct that are noted here). If I didn't know you actually existed, I'd assume you we're just a 1L troll. I respect a gadfly but not a hypocrite.

Posted by: AFP | May 14, 2013 11:37:25 PM

AFP --

"Pointing out how ignorant other politicians are doesn't undermine the significance of a representative who heavily influences federal judicial matters being so uninformed on the system."

It establishes that even smart politicians like Obama can say stupid things, thus diluting the notion Doug is trying to sell here, to wit, that the stupid thing Sennsenbrenner said fatally undermines the argument for MM's.

Anyone can make Argument X look silly by quoting a maladroit supporter of Argument X. But that is not a fair coming to terms with Argument X.

"Your whole shtick here is to lambast the criminal apologists for never supporting the need for long sentences even when the case clearly demands it (e.g. an Ariel Castro)."

They can frustrate me at any time by coming off their own shtick that every crime can be excused. I would be delighted by such frustration. Instead, and out of thin air, I get upbraided for supporting Ted Cruz.

"But hypocritically, you never acknowledge that conservatives can be misguided in their law enforcement efforts or prosecutors overly aggressive or unethical in the face of equally clear cases."

That is false. I have repeatedly criticized Mike Nifong for his unethical and racist prosecution.

Beyond that, you seem simply to assume that we all agree on the meaning of "overly aggressive." I constantly hear that charging defendants with their entire crime spree is "overly aggressive" "count stacking." And not infrequently I hear that charging ANYONE with a drug crime is "overly aggressive" because drugs should be legal. But I do not agree with either of those things, nor do the commenters making those charges cite any judicial opinion or legal rule supporting their views of my supposed Nazism (another word that your side carelessly throws around).

"If I didn't know you actually existed, I'd assume you we're just a 1L troll. I respect a gadfly but not a hypocrite."

I am not in the market for the respect of those to whom I furnish my name but who cloak their own behind Internet anonymity. I have the respect of those from whom I seek it.

Posted by: Bill Otis | May 15, 2013 12:28:06 AM

I have never seen Prof. Berman get this agitated nor call anyone a bad name until this article. I am curious as to why this article set him off so much.

If I were a black or Hispanic gangbanger terrorizing the Bronx, I would ask for Judge Sotomayor by name, especially if indicted for killing a white man. Her intense racial animus could set me free.

At the state level, I would seek the judge to whom my firm gave a party and a huge campaign contribution.

Posted by: Supremacy Claus | May 15, 2013 12:29:59 AM

Well bill i disagee. I think this govt fucktard of a senator has proven he's pretty much either too big a LIER! or RETARD to keep either his job or pretty much his LIFE!

He should be automatically removed for cause. Cause he's either a RETARD or a LIER! You pick!

Posted by: rodsmith | May 15, 2013 1:40:49 AM

Prof B.,

I suspect the reason the thread is politically partisan is because it began that way.

You are ridiculing a relatively minor detail in order crusade against MMs. Perhaps Federal defendants and prosecutors cannot go "judge shopping" but without MMs they can definitely play the "judge lottery" and "win" by getting one who looks to undermine the will of Congress when they passed the law (yes, they do this with MMs too but at least it becomes more difficult). Sensenbrenner's argument is about sentencing consistency, not "judge shopping" per se and should be addressed as such.

Politicians speak a lot. They will, by the mere volume of their words, say some incredibly dumb things at times. If this had come in a prepared speech, I would be more worried. This was an interview though, so cut the guy the same slack you would expect to be afforded.

Case in point, with all due respect, a law school professor's statement about impeachment of a Congresscritter was an equal to the "stunningly idiotic" comment by Sensenbrenner (if not worse, because you had more opportunity to choose your words than he did). I am no attorney but knew that. In fact, when I taught government in public school, my high school seniors knew that.

Does that make you unintelligent, unqualified for your position, or wrong on mandatory minimums? No, just as it does not make Sensenbrenner any of those things.

Posted by: TarlsQtr1 | May 15, 2013 8:15:56 AM

TarlsQtr1 and Bill: I do not disagree that politicians say dumb things all the time, just like others do. But I recall Sensenbrenner talking about "judge-shopping" in the Oct 2011 House hearing about Booker, and I did not beat him up then because I figured it was just a silly mis-statement in the context of a hearing about lots of different sentencing issues.

But now, years later, there is a bipartisan bill to modify the operation of mandatory minimums, and Sensenbrenner, Chair of the key House subcommittee on sentencing issues, during a formal interview argues we should keep MMs because of the problem of "judge-shopping." Again, this strikes me as comparable to the Chair of the House Space subcommittee saying he does not support another moon landing because it is made of cheese. There may be good reasons to oppose another moon landing --- just as there may be good reasons to oppose MM reform --- but a wrong fact about objective reality is not one of them.

I would hope that even partisans would lampoon any leading elected official who supported his space policy position based on a claim the moon is made of cheese, rather than try to spin that statement as kinda true because the moon is soft or by stressing other valid arguments to support an otherwise viable policy position.

That all said, TarlsQtr1, I will admit that by putting GOP in the title of this post, I did note the party affiliation of the maker of this misguided comment about judge-shopping. But I did so in large part because the GOP has historically been eager to assail judicial sentencing discretion, and I am now troubled to think this GOP position may be based on a (widespread?) misguided belief that criminal litigants get to pick their sentencing judges.

Most importantly, if and whenever Rep. Sensenbrenner were to note/admit his mistake, I would readily forgive and forget because I would no longer worry ignorance is the foundation for his policy position here. (To their relative credit, GOP folks who have said dumb things about rape and pregnancy have often been quick to clarify their statements or to provide some studies or evidence in support of their questionable claims.) All I really hope for here is (1) an honest debate over the pros/cons of MMs, and (2) a willingness by folks on both sides of the aisle to try to get known facts correct even while having differences of opinions about what conclusions/policies to draw from these facts.

As the saying goes, everyone should be entitled to their own opinions, but not their own facts. And when a leading sentencing reform actor in Congress has the facts so wrong about how the federal criminal justice system operated --- this is plainly not a "relatively minor detail" --- I would hope folks on both sides of the aisle would urge a correction rather than defend ignorance.

Posted by: Doug B. | May 15, 2013 9:10:01 AM

Doug --

One quick way to alleviate your concerns about Rep. Sensenbrenner would be to have the Chairmanship shift back to its former occupant, Rep. Lamar Smith. But I don't think that will make you any happier; indeed, from what I know of Rep. Smith, it will make you less happy.

P.S. I'm thinking of writing an op-ed on the Leahy-Paul bill. As you doubtless know, the papers won't print an op-ed that tracks any previously published piece (on the Internet or elsewhere). That is why I have refrained from repeating what would be the contents of that op-ed here or (for the moment) on C&C.

Posted by: Bill Otis | May 15, 2013 10:07:13 AM

I certainly do not think that judge-shopping is so widespread as to be a standalone justification for MM's, but on further reflection Prof. Berman's apparent notion that it never ever ever happens suggests the sort of naivite about the actual practice of law that is stereotypically attibuted to legal academics (which is odd, because he in general seems more empirically-focused than many of his colleagues in the academy) at least as often as it is attributed to politicians. I don't know exactly how common it is in practice in criminal matters, but forum-shopping in general (and then to some extent judge-shopping within forums) is ubiquitous in civil litigation and . . . it's not a per se breach of the rules of professional responsibility or anything. I doubt it is completely absent on the criminal side of the docket. At a macro level, it is not the case that the venue rules are so precise that any given criminal matter necessarily must be brought in only a single place (either federal judicial district or division/vicinage within a given district). Jack Weinstein is one of a plethora of Article III judges in Brooklyn, but in much of the country the federal judiciary is spread sufficiently thin that if you can control which courthouse a case will be assigned to you can come close to picking your judge. So, for example, near Prof. Berman's neck of the woods in the N.D. Ohio there are over a dozen federal judges located in four different courthouses, but at present only one federal judge stationed in the courthouse in Youngstown. I don't know how the assignment system works there, but I assume it at least in part attempts to get cases with a strong nexus to the Youngstown-area part of the district assigned to the judge who sits in Youngstown, and I would be surprised if there weren't ways of structuring certain cases (given a sufficiently complex fact pattern that not everything points to the same venue) that might make it materially more or less likely that it would be assigned to Youngstown and also surprised if no one in the USAO or (in a pre-indictment negotiated plea situation) local defense bar had ever taken advantage of that. Even in a federal courthouse where there are two or three judges, insiders may know enough about e.g. vacation schedules to be able to exert control over judicial assignment via control over the decision of when to file.

An interesting related point might be that it is almost certainly the case that the decision whether to pursue federal prosecution or stay out of the way and let the same conduct be prosecuted in state court is affected some percentage of the time by the USAO's perception of the likely sentencing consequences of a state court prosecution and its view of whether they are stringent enough. There may indeed be situations where state-court mandatory minimums would be likely to lead to *harsher* punishment than might be expected in federal court. In New York, for example, before the old Rockefeller drug sentencing laws were reformed 8 or 9 years ago, it was not that unusual for a state court conviction to require a mandatory 15-to-life sentence for a defendant with no prior criminal record when the federal Guidelines range (maybe even when the Guidelines range was driven up by a federal statutory MM) for the same conduct would be materially less.

Posted by: JWB | May 15, 2013 11:48:38 AM

JWB,

your comments do not suggest anyway that a DEFENDANT in a FEDERAL criminal case could go about choosing a judge, though perhaps prosecutors are able to in certain unusual circumstances. That said, what does that have to do with mandatory minimums? Is Sensenbrenner suggesting he needs mandatory minimums to prevent the government from choosing some soft on crime judge to give a lenient sentence?

1. That does not track the concerns of the Sensenbrenner we know in Wisconsin. It does track with the disingenuousnesss of the man with which we are familiar.

2. If that is his concern it is not only illegitimate (no one seems otherwise here) but if it were a real concern it would smack of some serious sort of easily discoverable local corruption.

This is why, despite where everyone seems to want to take this, Sensenbrenner's remarks were "stunningly idiotic", or as we call it here, Wednesday.

Posted by: Matt | May 15, 2013 12:42:26 PM

Defendants can't shop for judges in federal court, but prosecutors can and do shop for magistrate judges when soliciting search warrants, pen register approvals, etc..

E.g., there are five magistrate judges in Texas' Southern District and they rotate duties related to issuing warrants and related orders every two weeks. So with the schedule mapped out in advance, each AUSA knows when each judge will be on duty. One of those judges, Stephen Smith, has begun applying higher standards for certain types of electronic surveillance than his peers (there's a case pending at the 5th Circuit to decide if he's right). If surveillance applications were evenly split among magistrate judges in Houston, each of the five would receive roughly 20% of them. In practice, though, Judge Smith gets 8-10%. Smith has said himself that in light of that data, "Judge shopping is an issue."

Posted by: Gritsforbreakfast | May 15, 2013 1:25:59 PM

I think it is difficult to judge shop in federal court for defense attorneys. I guess it is possible for prosecutors to judge shop by timing the return of indictments, but I suspect that does not happen often in my district. Judge shopping is pervasive (on both sides) in State court.

I am also discouraged when I hear comments from congressmen (and even Supreme Court judges) that show that they have very little knowledge of how the criminal justice system works on the ground.

Posted by: Bryan Gates | May 15, 2013 2:07:40 PM

Judge shopping doesnot happen in the MidWest... You are going to the district court house, (only 1) and there is only 1 Chief Judge.. The chief Judge handles almost all cases that are of any consequence..

Therefore, judge shopping doesn't exist.. You don't get to pick when or where you to court...At least within 700 miles of where I live, so that pretty much sums it up...

State court is entirely different...You can mess with a tainted jury pool and get the case to a diff county.. You can wait till a judge is on vaca and perhaps select judge X.. Not a gimme, but much more flexibility than Federal..

Master mind OJ would not be pulling what he is today in Federal court..

I bet Bill Otis could cut him down in 2 paragraphs or less...

Posted by: MidWest Guy | May 15, 2013 2:45:06 PM

My view is that, while there may be some opportunities to judge shop, it is generally difficult for either side to select their trial/sentencing judge in federal court.

On the main topic, I don't expect every member of Congress to be fully versed in every issue. I do expect that members of Committees and Subcommittees will have a better than average understanding of the issues that come before them. I don't know if Sensenbrenner just doesn't have a good understanding of the case assignment system, is basing his comment on some prior incident of judge shopping that he knows about, or if he just misspoke. I'm sure someone will correct him.

My personal objection to mandatory minimums is that they skew the concept of the Sentencing Guidelines. A main rationale for the Guidelines was to examine the prior history of sentencing decisions, isolate factors of significance for each type of crime, and come up with Guidelines that reflected the "typical" sentence for the type of crime, the specifics of the crime, and offender characteristics (with criminal history heavily weighted). By aggregating the sentencing data, the idea is that judges who sentence too "leniently" cancel out those who sentence too "harshly." Of course, our past 20+ years of sentencing history is now based on Guidelines sentences, most of that time when Guideline sentences were mandatory and the judge had little discretion to deviate from the Guidelines. Now that the Guidelines are advisory, we are seeing various areas where some or many judges don't like the Guidelines result and are deviating from them. Further, MMs skew only the lesser sentence results. If a judge would otherwise sentence below the MM, the sentence that the judge thinks is fair is trumped by the requirement that the judge impose the MM. Also, some Guidelines are tied to the MMs, which skews what a typical judge would do. On the other end, if a judge would sentence at the MM or higher if there were no MM, then the MM is effectively meaningless (It could be said that statutory maximums have a skewing effect too, if judges would prefer to sentence above the maximum). Thus, if we want a true system where the Guidelines reflect how the "typical" judge would sentence, then we should not have MMs.

The underlying issue is that judges are individuals. Some sentence above the average sentence, some sentence below. The choice is whether you allow judges considerable sentencing discretion and accept that variation or have Congress impose minimums and maximums to restrict sentencing discretion (I think that Congress could constitutionally say the sentence for committing X offense is Y years, no more or less, giving judges no sentencing discretion at all). That choice is influenced by whether you think that sentences in general, or in a particular case, are too harsh or too lenient. While most people probably agree that you shouldn't give a mass murderer probation or a first time petty thief LWOP, there is substantial room for disagreement as to what sentences are fair and appropriate in any given case or category of cases. Perhaps Sensenbrenner's underlying concern is his view that some judges sentence outside of what he thinks is fair and appropriate, therefore their discretion should be limited. Personally, I favor giving judges considerable sentencing discretion as the sentencing judge has the most information regarding the offense and the offender to come up with an appropriate sentence. In that system, the Guidelines stay advisory (and fully based on actual sentencing experience without Congressional directives through MMs or otherwise) to give the judge a summary of what other judges are doing. That, of course, runs contrary to one of the other purposes of the Guidelines: increasing uniformity of sentencing. I'd be more in favor of the Guidelines being a stronger factor in sentencing if they were truly based on empirical experience. The goal of having Guidelines reflect actual sentencing experience necessarily has to allow judges considerable sentencing discretion to gather accurate data, which conflicts with the goal of uniformity in sentencing. I place greater priority on actual sentencing experience data, with the hope that it will lead to greater uniformity, knowing that there will always be outlier judges on both sides.

Posted by: Webb Wassmer | May 15, 2013 3:18:38 PM

No such thing as Judge shopping by the defense in the federal court system. You are stuck with who comes up on the wheel. In state court in California, generally, you get one shot to remove the first assigned judge, but no choice after a second judge is randomly assigned.

Posted by: ken wine | May 15, 2013 6:14:57 PM

"It establishes that even smart politicians like Obama can say stupid things, thus diluting the notion Doug is trying to sell here"

The analogy to Obama's and other politicians's goofs is more ridiculous than anything Sensenbrenner said. Obama's 57-states bungle was an immaterial performance error of the sort everyone makes, not the key fact and leading argument provided for a written news article (and so probably submitted for quote approval before publication) regarding a policy he'd been championing for a decade. (I grant TarlsQtr1 his point that many on the left were unforgiving of similarly insignificant performance errors by Reagan and the Bushes (though that defense could be ridden a little too hard...).)

As for the Pelosi quotation (or paraphrase), it simply elides the context that made her statement perfectly sensible. And Johnson's remark was a rather obvious joke. (How in the world can anyone not see that it's a joke?)

Posted by: Michael Drake | May 17, 2013 12:33:43 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB