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May 15, 2013

US Judicial Conference seeks emergency funding due to "an unprecedented financial crisis that could seriously compromise [its] Constitutional mission"

As reported in this new post at The BLT, the US Judicial Conference yesterday "asked the White House for emergency funding, saying the judiciary does not have the budget flexibility to absorb the large mandatory budget cuts that have caused furloughs in the nation's federal public defender and court offices."  Here is more:

In a letter sent Tuesday to the White House Office of Management and Budget [available here], the U.S. Judicial Conference said the courts need an emergency appropriation of $73 million — $41 million for federal public defenders and $32 million for court operations. The money would save 550 jobs in public defender and clerk offices, and prevent 24,000 furlough days for 5,000 employees, the letter states.

The judicial conference request also connected the emergency funding to the Boston Marathon bombing, saying $5 million for projected representation costs "for high-threat trials, including high-threat cases in New York and Boston" that federal public defenders would have been able to absorb had the sequester not happened.

The courts want to replace part of the $350 million overall cut to the federal courts budget as part of sequestration earlier this year, according to the letter from U.S. Circuit Judge Julia Gibbons, the chair of the judicial conference, and U.S. Circuit Judge Thomas Hogan, director of the Administrative Office of the U.S. Courts.

"The judiciary is confronting an unprecedented financial crisis that could seriously compromise the Constitutional mission of the United States courts," the letter states. "We believe our supplemental request meets the threshold for receiving an emergency designation."

The federal courts, the U.S. Department of Justice and other federal agencies have been sounding the alarm about the impact of sequestration cuts since last year. Since the cuts went into effect, federal public defenders offices and clerk of courts have announced furloughs for employees.

Congress has so far restored funding cuts that affected air travel, and allowed the Justice Department to transfer funds to avoid furloughs for the prison officers, Federal Bureau of Investigation agents, prosecutors and other officials. So far, the courts have gotten no such consideration. "Unlike some executive branch entities, the judiciary has little flexibility to move funds between appropriation accounts to lessen the effect of sequestration," the letter states.

The judicial conference says $13 million of the funding would go directly to restoring public safety, because it will bring back half of the sequestration cuts for drug testing, substance abuse and mental health treatment of federal defendants and offenders. The request includes $28 million to avoid deferring for three weeks payments to private attorneys representing indigent defendants.

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Comments

I would give the money to the PD's, who are underpaid to start with, but not to the courts. Judges are already more akin to royalty than almost any other sort of government employee. They should learn the wisdom my father taught me: "Don't have the money? Then do without."

If they think this makes their lives too hard, they can resign. Replacements won't be hard to come by. I know from having worked in White House Counsel's Office that dozens if not hundreds of qualified lawyers would happily kill their grandmothers to get appointed to the federal bench.

Posted by: Bill Otis | May 15, 2013 7:20:26 PM

Darn:

It's hard to agree with Bill but I do!

Posted by: albeed | May 15, 2013 8:49:26 PM

Wow - I'm in complete agreement with Bill for, I think, the first time ever. (I've been in partial agreement from time to time, but never complete agreement.)

By the way, and you may already know this, Bill, but the FPD system is part of "the courts" for funding purposes, as strange as that may seem. So the terminology sometimes gets a bit confusing. But I agree with your basic point that the Royal Article III Highnesses themselves don't need or deserve a dime more.

Posted by: AFPD | May 15, 2013 10:02:31 PM

While it's great fun to bash judges (especially when, perhaps, one would prefer one's prosecutorial career had culminated on the bench, rather than as a semi-professional blog commenter), we're not talking about furloughing them or cutting their salaries, which are obviously untouchable in any event. Most of the non-FD cuts involve probation, which is the entity doing the drug testing, etc, mentioned in the last paragraph. All that judges are going to do if they don't get less money is delay trials, etc, for longer, which is really no skin off the nose of a judge who doesn't give a damn anyway. And if those who do want to preserve the integrity of the system do think it "needs and deserves" a little more to run it, I think it speaks especially poorly for an AFPD, who should know more than anyone else the value of an independent third branch, to bash judges in such an indiscriminate way. I'm sure Bill and his friends at DOJ would love it if the courts were folded into the executive branch, but you should know better.

Posted by: Flashman | May 15, 2013 10:43:14 PM

Flashman --

Do I know you? I must, since you seem to know a great deal about what I supposedly want.

It's absolutely routine for government agencies, in every branch, to squawk for more money. It goes on in good times and bad. A story about some funding "emergency" has the resonance of a story about the sun rising in the east.

P.S. Is it a little odd for you to tut-tut "bash[ing] judges," then six lines later tell us that those same judges "don't give a damn anyway" when the system slows to a crawl?

Posted by: Bill Otis | May 15, 2013 11:40:30 PM

I was saying that if you believe that judges are spoiled "Highnesses" who care not about anything other than their perqs, then those judge aren't going to be much affected by cutting funding for court operations or for probation to conduct drug testing, because why should they care? I don't believe that there are actually very many judges like that.

As for what you wish you were doing, well -- it's interesting that your cynicism about motives (all lawyers are grifting to become judges; all requests for funding are probably illegitimate borderline scams) doesn't apply to your own.

Posted by: Flashman | May 16, 2013 6:27:49 AM

--- "funding would go directly to restoring public safety" ---

locally, let's fund background checks:

“Robert J. Roberts, 57, a Level 2 sex offender, lied about his criminal history on a job application.
He worked for the town for less than three weeks, and spent some time working at Moreau Recreational Park,
next to Moreau Elementary School.

Roberts indicated on his employment application he did not have a criminal record, and the town did not perform a background check. His status as a Level 2 sex offender stems from a 2008 conviction in Washington County for repeatedly sexually assaulting
an 11-year-old
.”
~5/16/13: poststar.com/news/local/moreau-to-institute-background-checks

Posted by: Adamakis | May 16, 2013 9:35:14 AM

Because judicial chambers staff and salaries are untouched by the sequester, I don't have a problem with the judges "squawking" for more money for the judiciary, as long as it comes with a dose of austerity about how any emergency money is spent. Until sequester, our district's USPO was contracted to pay $40 per month to one national pharmacy chain for supervisees' Prozac, when the same drug can be had at that same chain and others for $4 per month. Only when their money dried up did they notice they had been over paying for YEARS. Where is the oversight and accountability? Why does our USPO have two cars per office that are never used while the officers rack up thousands of dollars of "travel" miles in their own cars PER MONTH? Put a stop to that, and we can drug test every probationer in the country any time we want and twice on Sundays. I don't claim mileage every time I drive out to one of our godforsaken rural jails. I don't hire an expert in every case or even most cases. I do my own investigations in my own car and often on my own time. Perhaps if our FDO were flush with money, I'd do otherwise, but I doubt it.

[One small correction: Judge Julia Gibbons is not the chair of the judicial conference but the chair of the budget committee. Judge William Traxler is the chair of the conference. Gibbons was all too happy earlier this year to decimate the FPD without cutting CJA panel attorneys at all. While I'm glad she seems to have finally gotten religion on the subject, it is quite literally a day late and very likely a few million dollars short. And I, for one, am very relieved she is NOT the chair of the conference.]

Posted by: Another AFPD | May 16, 2013 9:53:04 AM

Flashman --

"As for what you wish you were doing, well -- it's interesting that your cynicism about motives (all lawyers are grifting to become judges; all requests for funding are probably illegitimate borderline scams) doesn't apply to your own."

1. I was not aware that I was the subject of this entry.
2. I was not aware that you have any clue about my "motives," since
3. I was not aware that you know me.
4. I was not aware that I asked for money.
5. I was not aware that cynicism about agency money requests is always unwarranted.

But I am certainly unaware of your real name. What is it?

Posted by: Bill Otis | May 16, 2013 10:19:00 AM

You have your reasons for posting under your real name, and I have my reasons for not. And no, you weren't asking for money; I was just teasing you about what you said re: the WH House Counsel's Office. I think your responses re: judicial interest are what they call non-denial denials, though....

Posted by: Flashman | May 16, 2013 7:08:06 PM

Flashman --

1. My reason for posting under my real name is simple: I believe in being out in the open and responsible for what I write. What is your reason for not revealing your name?

2. My experience in WHCO is relevant to my knowledge of how and why lawyers get to be federal judges.

3. The judicial branch is flush, certainly compared to either USAO's or FPD's, and if extra money is needed, it should go to the latter two.

4. Your guessing about my motives is ad hominem and irrelevant. What's the point beyond being annoying?

Posted by: Bill Otis | May 16, 2013 8:18:42 PM

Well, you're retired (I think) and unlikely to get into trouble for speaking your mind; I'm not, so I might. Also, not everyone who comments on this blog strikes me as someone I'd want to looking me up. My original comment was, no doubt, silly, and perhaps rude, although you do seem to spend an awful lot of time commenting here, and you do seem pretty free in generalizing about other groups of people when the mood strikes you.

Most impressive, though, is your ability to avoid the substance of a question you don't like, such as my point that none of the money the judiciary is asking for is going to buy gold-plated chambers toilets. Rather, it appears from the letter, it's mostly going to FPD and probation. How does that square with judges acting like "royalty" who are "flush" with cash (and have you actually been running side-by-side comparisons of budgets, or is your comparison with USAOs just a guess?)

Posted by: Flashman | May 16, 2013 9:17:31 PM

Flashman --

"Well, you're retired (I think) and unlikely to get into trouble for speaking your mind..."

I'm an adjunct law professor at Georgetown, and given all the "sensitivity" stuff going on on college campuses these days, a person who speaks his mind, especially if his mind is conservative, can get in plenty of trouble. Too bad for me if it happens. Life is full of risk, and I am still obligated, in my view, to stand behind, and take responsibility for, what I say by signing my name. (I should add that my colleagues and students have been tolerant, welcoming and generous, notwithstanding my politics).

"Also, not everyone who comments on this blog strikes me as someone I'd want to looking me up."

The same commenters can look up Doug, or Michael R. Levine, or Soronel Haetir, or a bunch of other commenters who sign their names. I was an AUSA, and I'm sure I'm unpopular with all manner of people likely to be much more dangerous than the commenters here. Being afraid of what might happen because someone might get mad at you is no way to live.

"...you do seem pretty free in generalizing about other groups of people when the mood strikes you."

That's true, but the more important question is whether the generalizations are correct. If you care to quote one in particular that you find nettlesome, I will certainly listen.

"Most impressive, though, is your ability to avoid the substance of a question you don't like, such as my point that none of the money the judiciary is asking for is going to buy gold-plated chambers toilets."

I give more substantive responses on this blog by far than any other commenter. I am also the target of more irrelevant, ad hominem remarks than any other. To an extent, that comes with being a conservative on a defense-oriented blog, so that's life (although some of the ad hominem stuff has been disgusting).

As to the flushness of the judiciary: I invite you to go into any federal judge's chambers (there's a reason they're called "chambers" not "offices") and draw your own conclusions.

"Rather, it appears from the letter, it's mostly going to FPD and probation."

Sure, that's what they say now. But even if it turns out to be true, I know from considerable experience (what's yours?) that agency "emergency" requests are, more often than not, crying wolf. To the extent there may be genuine hardship, however, that's unfortunate, but everyday people have to learn to do with less than the ideal, and it is time for the government -- judicial branch included -- to learn that same unpleasant lesson.

"How does that square with judges acting like "royalty" who are "flush" with cash (and have you actually been running side-by-side comparisons of budgets, or is your comparison with USAOs just a guess?)"

As you point out, it's just a blog, and I am not required to meet (what you must know is) a silly demand to run side-by-side budget comparisons, which I seriously doubt you have either. I was very close to the action for a long time, and I know how it goes.

I'll just close by saying that it seems you could seriously discuss a serious topic if you wanted to. Why not try that?

Posted by: Bill Otis | May 16, 2013 10:12:01 PM

After I posted my initial comment, I read the full letter signed by Judge Gibbons, rather than the summary posted here. To say that the summary provided in her letter is disingenuous is an understatement. She breaks the $73 million dollar appropriation into two pieces, saying that $41 million is for federal public defenders. Poppycock. Read further into the letter and you see that she's actually only requesting $8.7 million for FDOs (spread over 96 districts, this averages out to about $80K per district--that $80k is less than 25% of the cut my small district has been asked to absorb by the end of FY13; larger districts have been cut far more in actual dollars if not in budgetary percentages), while more than $27 million of the FDO appropriation request is to pay CJA plan attorneys for whom she has actually advocated and secured a $1/hr raise for the upcoming fiscal year. This all in spite of the strong evidence that FPDs deliver better value for the judiciary and results for the clients than CJA plan lawyers. The mind boggles at the misguided priorities and loyalties.

Posted by: Another AFPD | May 17, 2013 12:18:56 PM

Judge Kopf responds to Bill Otis:

http://herculesandtheumpire.com/2013/05/17/kopf-richly-deserves-the-snark-but-dont-hurt-the-innocent-in-the-process/

Posted by: Anon | May 17, 2013 1:53:49 PM

Anon --

I'm gratified, I suppose, that the Judge refers to me as "really smart and very experienced lawyer." I'll have to remember that when the large defense contingent on this blog says that I'm a stupid Nazi, or whatever the epithet du' jour is.

The gist of Judge Kopf's response is that the additional money is needed for support staff to avoid furlough days, not for judges. I'll take him at his word, knowing him to be an honorable man.

I was an AUSA for years before I rose on the ladder. During that time, there was the occasional budget "crisis" and/or furlough. Somehow we all managed to survive. Those affected will survive this time, too.

More broadly, our country has been spending money it doesn't have. It has to cut back. The debt is unsustainable, as everyone from the President on down agrees. This means that we are going to have to MAKE DO WITH LESS. That is an unhappy fact, but a fact nonetheless.

The court and probation officers who stand to get hit by the sequester will be made whole in the end, as has always been the case in the past. Judge Kopf also says that the money is needed to "avoid further decimating the ranks of the FPDs," demonstrating that he did read or remember what I said, which was exactly the opposite -- that extra money SHOULD go to the FPD's, because they are underpaid to start with.

I agree that it's unfortunate that the court staff is going to get hit, even if only temporarily (and it is only temporarily). But adversity is part of life, for them as for the rest of us. I admire the Judge for standing up for the people he works with every day, and of course I understand his empathy for them. But this overspending simply has to stop.

Lastly, the Judge might want to reconsider his references to "snark," having himself ridiculed Rep. Sensenbrenner, not for Sensenbrenner's quite uninformed remark, but for his appearance, referring to the somewhat heavyset Sensenbrenner as "the Bucky Badger doppelgänger"(http://sentencing.typepad.com/sentencing_law_and_policy/2013/05/judge-kopf-weighs-in-on-rep-sensenbrenner-and-on-comments-to-his-comment.html).

Judge Kopf also laid on some snark (although I had to laugh, because it was pretty good snark) about how he once talked to Sensenbrenner under a very large portrait of the man. The Judge's (well-taken) point was that Congress is full of fat egos.

Just so. But next time the Judge is down at the courthouse, he might want to take a look around at the number of equally huge portraits of judges -- portraits that adorn a large number of courtrooms. Big egos are not restricted to the political branches.

Posted by: Bill Otis | May 17, 2013 3:31:58 PM

An outspoken critic of the defense bar, and rabid law-and-order advocate, had this to say about cuts in government spending that have already led to the early release of prisoners, with more expected:

"This means that we are going to have to MAKE DO WITH LESS. That is an unhappy fact, but a fact nonetheless. [A]dversity is part of life . . . ."

Posted by: Mashup | May 17, 2013 4:53:19 PM

Dear Mr. Otis,

First, I agree with you about too much money being devoted to and spent on judges and their chambers. (My "toilet" post and another regarding the "third rail of judicial politics" were a feeble effort to address such things)

Second, and even so, the impact of sequester is on good and decent employees and not judges. Even if you hacked out of the ongoing budget the fancy crap that both you and I find objectionable, it really wouldn't ameliorate the harm to our employees, not to mention the FPDs and CJA counsel. Note that DOJ is not facing furloughs. Incidentally, I think that is a great thing, but one that places increased pressure on FPDs.

Third, regarding portraits, most of them are hideous and virtually all of them are too gilded for this age. So far as I know, however, no appropriated funds go into paying for them (at least in these parts). For what's worth, I will come back from the dead and haunt anyone who even thinks about commissioning a portrait of me. Snark alert: Kopf, you don't need to worry!

Fourth, as long as it doesn’t go too far, I am perfectly fine with snarky comments directed at me or any anyone else who deserves them and who plays in the big leagues. Frankly, one of the things I have enjoyed about your posts is that you can take a punch.

Lastly, and more specifically, regarding the Congressman, let me ask for a favor. I am sincere about this. Reflect upon sentencing a young black man to a mandatory life term for a crack cocaine conspiracy (where there were no guns and no violence) because the fellow had two prior drug convictions.* Then ask yourself whether my admittedly harsh comments and cartoon directed to and about Congressman Sensenbrenner–regarding his statement that we need mandatory minimums because of judge-shopping–were unfair or out of place. If you still think I went too far, then I sincerely apologize.

All the best.

RGK

*See, e.g., United States v. Moore, 411 Fed.Appx. 922, 2011 WL 693261 (8th Cir. 2011).

Posted by: Richard G. Kopf | May 17, 2013 5:17:43 PM

Mashup --

Do you disagree with any part of the lines you quote? If so, you neglected to say so.

P.S. I'm sure we can all concur, however, that outspoken criticism -- or any criticism -- of the defense bar is verboten.

P.P.S. If we would trim entitlements, which is where the real spending problem lies, we wouldn't be faced with anything approaching the current difficulty in criminal justice spending.

Posted by: Bill Otis | May 17, 2013 5:20:41 PM

Dear Judge Kopf,

Thank you for your response.

A few points, if I might. First, it's very unfortunate that the culture, political and otherwise, has become so addicted to entitlement spending that it was omitted from the sequester. The innocent and able employees you note, and with whose colleagues I worked for many years while an AUSA, wind up taking the hindmost as a result. I wish it were otherwise, and in a country not so addicted, it would be. But the country is where it is, and sacrifices, sometimes unfair, are coming. We simply don't have the money we are spending. It has to stop.

DOJ is not, at the moment, taking furloughs (so far as I know), but if it comes to that, so be it. I viewed it as an honor and a privilege to work in the federal criminal justice system, which is easily the best in the country, if not the world. If temporary sacrifices are needed to keep it running, my view of it is that that's part of adult life. Probably the most important lesson my parents taught me was to do without. I eventually learned that I COULD do without. I'm quite sure I'm not the only one capable of assimilating this unwelcome but inevitable message.

As to portraits: I'd be happy to take you on a tour of the Fourth Circuit courthouse in Richmond, where the portraits are pretty good and even look like the judges. And, yes, they are not paid for by the taxpayers; generally, the money is furnished or raised by former clerks.

My point was that powerful people -- people who tend to have giant portraits made of them -- can have fat heads. The very best of them avoid this, but,as I have learned from my years inside the Beltway, it's an occupational hazard. Human nature being what it is, it's hard uniformly to resist, whether the pictured person is in the judiciary, the political branches, business, academia (pictures of deans are all over the place at Georgetown), or in practically any institution. (Full disclosure: My grandfather, Henry Shirley of Richmond, has a giant portrait of himself hanging in a palace-like government building in that city. The Shirley Highway outside Washington, DC, is also named for him. So I am not entirely qualified to be casting the first stone here. My only excuse is that it's not the first).

To avoid this note's becoming too long for the site to assimilate, I'll continue it later. Again, thank you for your reply.

Best regards,

Bill


Posted by: Bill Otis | May 17, 2013 7:10:59 PM

Bill,

I enjoy reading your comments at this blog. I do not have to provide an opinion, nor style my opinions in prose, in order to leave a comment.

But since you invited my input, I note that your take on curbing entitlements is just more black-or-white thinking on your part. While entitlements, which is such a meaningless, partisan buzzword at this point, may be one way of finding some money to contribute to penal institutions and the CJ system, this "solution" is far too simplistic. Further, it tells us nothing about causes from a policy standpoint. For example, entitlements did not cause the federal or state criminal laws to grow by leaps and bounds. Nor do entitlements cause lawmaker-inertia when it comes to reevaluating existing crimes and punishments or considering alternative punishments to conventional imprisonment. (It is possible that entitlements do explain why states such as Texas overbuilt prisons.) Not surprisingly, it is the budget chrunches that force lawmakers to take a hard look at the whole CJ system.

To sum it all up, use heavy-handed sarcasm to make your points in the comments at your own risk. What is good for the goose is also good for the gander.

Posted by: Mashup | May 17, 2013 7:11:25 PM

Mashup --

By entitlements, I mean Social Security, Medicare and Medicaid, nothing more or less.

To see for yourself whether cutting them would ameliorate the squeeze on everything else, take a look at the pie chart here, http://www.crimeandconsequences.com/crimblog/2013/03/the-silliness-of-looking-to-cu.html

And what have we gotten for all the entitlement spending? A culture of dependency, chronic high unemployment, low growth, and more people on food stamps and below the poverty line than ever.

What have we gotten for all the criminal justice spending? The lowest crime rate in 50 years, with all the economic and human benefits that has brought about.

You tell me which is the success.

I'm not sure what you're referring to with the "black and white thinking" remark. It seems to me that, for example, those who would entirely abolish the death penalty are much more into black and white thinking that those, like me, who would look at cases one at a time and evaluate the particular aggravating and mitigating factors in each.

Posted by: Bill Otis | May 17, 2013 11:10:33 PM

Bill,

Thanks for saying that I appear capable of a serious discussion of the issues. I seldom choose to seriously discuss issues here, because I find the quality of the comment section very poor (as I think most of its readers obviously do -- this is a very widely read blog in the CJ community, but almost no one comments). You are indeed more sane than most commenters, and I'm sure we could have a nice chat in real life. You do have a tendency, which I think has been well on display in this thread, of bobbing and weaving around difficult issues, trying to score debater's points, and retreating into platitudes when challenged. Judge Kopf's pushback seems to have prodded you into full hail-fellow-well-met mode, as you're now telling stories about your grandfather and have moved from the state of the judiciary to a cocktail party lecture about government overspending writ large. There's nothing horrible about that, but I mean....was "your point," when you started responding to this post, really the rather anodyne sentiment "that powerful people . . . can have fat heads"? It seemed like it was more than judges, in particular, and more than other players in the system, think that they're "royalty" and should have their budgets slashed as punishment. So, I suppose I should applaud your evolution over the course of this comment thread.

Posted by: Flashman | May 17, 2013 11:31:18 PM

(cont.)

And to be even more specific -- your last comment chuckled away my question about whether you had any basis for your statement that the courts are better funded than USAOs. How "silly" of me to ask! You were "close to the action" for a long time! You "know how how it goes!" And yet, I've now heard from multiple sources, and you appear to accept, than DOJ has cancelled all its furloughs, while FDs and court staff in various locations still face them. So, maybe the judiciary is not "certainly" "flush" when compared to USAOs?

Posted by: Flashman | May 17, 2013 11:41:10 PM

Bill said: social security, medicare, and medicaid, 3 of the most successful domestic programs ever introduced by western government, have created "A culture of dependency."

Ladies and gentlemen, Bill Otis has jumped the shark.

Posted by: Anon | May 18, 2013 9:25:24 AM

Flashman --

"... this is a very widely read blog in the CJ community, but almost no one comments."

You have a different definition of "almost no one" than I do.

"...you're now telling stories about your grandfather and have moved from the state of the judiciary to a cocktail party lecture about government overspending writ large."

Government spending writ large is the whole problem, hotshot. You don't know this? The sequester came about AT ALL only because Congress could not agree on even a start on spending reductions. The reason we're facing cutbacks is that we've been massively overspending -- overspending driven by entitlements.

Is that a "cocktail party lecture?" I don't know or care. It's true, something you don't and can't deny.

"...was 'your point,' when you started responding to this post...that judges, in particular, and more than other players in the system, think that they're 'royalty and should have their budgets slashed as punishment."

No wonder you're acting so superior. You never understood what I was saying to start with. At no point, when I "started responding to this post," did I say that judges OR ANYONE ELSE should have their budgets "slashed." The post is solely about whether Congress should approve a specific request for extra "emergency funding" beyond what is currently available. Only in the make-believe world of Washington, DC, is the denial of extra funding considered budget "slashing."

"And to be even more specific -- your last comment chuckled away my question about whether you had any basis for your statement that the courts are better funded than USAOs."

Would you mind quoting me on that? I think you're going to have a hard time, since I never said it. What I did say is that the courts are "flush" compared to USAO's (and FPD's, which you seem to have left out).

Maybe I should have used "plush" instead of "flush," but I thought the meaning was clear enough. If it isn't, go down to your nearest federal courthouse and take a look at the facilities there, starting with the judges' chambers. Then go over to your nearest USAO or FPD and compare those facilities, and tell me who's doing better.

For a guy who launches his (admitted) rudeness while hiding behind the curtain, you're quite aggressive. If you want to use this snide, looking-down-your-nose attitude, fine, but be forthright enough to do it under your own name.

It's possible for me to have a "hail-fellow-well-met mode" with Judge Kopf (as you snarkily put it) because he says who he is, speaks respectfully, isn't bent on being snide, and has experience you're not even willing to claim. I'd be happy to have the same mode with you, too, but not as long as you engage in this superior, half-sneering tone you choose to employ.

If you'd like to change it, that would be welcome. Do you?

Posted by: Bill Otis | May 18, 2013 9:56:11 AM

Anon --

"Bill said: social security, medicare, and medicaid, 3 of the most successful domestic programs ever introduced by western government, have created 'A culture of dependency.'"

That's a good way to elide the point, that being that spending on those programs has us headed into national bankruptcy. I had not heretofore been aware that bankruptcy was the sign of a "successful" social program, but, hey, have at it.

Newsflash: ANY program can be, or at least seem, "successful" -- for a while -- if we just borrow and borrow for today's generous benefits. But that is being "successful" in the way a heroin addict's latest injection is "successful." Yup, he's going to feel a lot better, for the moment. But the long term path is to self-destruction. That is exactly the path we are on with government spending. Would you mind telling us, amidst all this "success," who's going to be paying off the $16 trillion? And how?

More people are dependent on government checks now than ever before, and, yes, that is a culture of dependency. Workforce participation is at the lowest level since Jimmy Carter. Yet with it all, more people are below the poverty line than at any time since the poverty line was invented.

A "successful" program is one that does more than feel good right now. It's one that can sustain itself so that the next generation, and the next, can benefit as well. That is not what we have, as you can't help knowing.

Your post is just cheerleading for willful, and eventually catastrophic, shortsightedness.

Posted by: Bill Otis | May 18, 2013 10:26:23 AM

Dear Judge Kopf,

Let me now address your final point, which is this:

"Lastly, and more specifically, regarding the Congressman, let me ask for a favor. I am sincere about this. Reflect upon sentencing a young black man to a mandatory life term for a crack cocaine conspiracy (where there were no guns and no violence) because the fellow had two prior drug convictions.* Then ask yourself whether my admittedly harsh comments and cartoon directed to and about Congressman Sensenbrenner–regarding his statement that we need mandatory minimums because of judge-shopping–were unfair or out of place. If you still think I went too far, then I sincerely apologize.

"*See, e.g., United States v. Moore, 411 Fed.Appx. 922, 2011 WL 693261 (8th Cir. 2011)."

With all respect, I don't think there's a whole lot of connection between (1) a sensible debate about statutory minimum sentencing, or about the sentence in the Moore case in particular, and (2) Rep. Sensenbrenner's quite mistaken view that we need such sentencing rules because of (pretty much non-existent) judge-shopping in federal court.

I'm quite sure Rep. Sensenbrenner voted for the crack mandatory minimum for a third felony conviction, but I'm equally sure (a) that his was not the deciding vote, and (b) that his opinion about judge shopping (if he voiced it at the time (many years ago), which I also doubt), persuaded a majority (or perhaps any) of his House colleagues to adopt the measure. Even if it did, there is no evidence it persuaded anyone in the Senate, and even less that it persuaded the President to sign it.

In other words, the reason statutory minimums came into the law has very, very little to do with what a single Congressman says about them now.

They are in the law for largely the same reason that both mandatory guidelines and statutory minima came into the law during the 1980's. The reason was that in the prior two decades, crime had been exploding, Congress thought sentencing had been too lenient and too scattershot, and thus was determined to do something about it. Thus was born determinate sentencing.

In the roughly 25 years since the principal embodiment of determinate sentencing (the SRA) became effective, the crime rate has dropped by 50%. This is not all due to determinate sentencing. Indeed, it's not all due to sentencing at all. But at the minimum, longer sentences and less judicial discretion have coincided with the big crime drop. One could call this many things, but "failure" is not among them.

I should apologize in advance for the following professorial-like discourse, but what can I tell you? There is a balance between rule-driven and discretion-driven sentencing regimes. No regime the country has now, or had in the past, is fully tilted toward one or the other, nor could any sane regime be. The question is how what balance there should be between rules and discretion. Reasonable minds differ on this. I lean toward rules, for reasons I'll explain shortly.

In the pre-SRA years, the regime was tilted toward discretion. As noted, Congress was not thrilled with the results. Sentencing outcomes were all over the place. Irrational disparity abounded, and crime was spiraling. The SRA, mandatory guidelines, and statutory minimums on top of that were the reaction. They tilted the system more toward the rule-driven side. Sentencing judges understandably had reservations about this. (It is no coincidence that the SRA was losing in the majority of district court challenges before SCOTUS upheld in Mistretta, 8-1). They still do.

I spelled this out in detail in my article in the Federal Sentencing Reporter, which can be found here: https://docs.google.com/a/fed-soc.org/file/d/0B5HjNVIrveCFZTc5YjAxNTAtZDE3ZC00YTM5LTg5MzMtNjBkNjE5NzZkNmRk/edit?hl=en&pli=1 I elaborated further in my more recent Congressional testimony, here: http://judiciary.house.gov/hearings/pdf/Otis%2010122011.pdf

I should probably continue this in the next post.

Best regards,

Bill

Posted by: Bill Otis | May 18, 2013 12:51:12 PM

Dear Mr. Otis:

I didn't mean to fault the Congressman for the enactment of statutory minimums. I meant to fault him for expressing a frivolous reason for keeping them, most especially because of his elevated position and stature.

But, here's the thing: You and at least one other thought my posts were uncivil. In retrospect, I think you both were right. I apologize, and I do so sincerely.

On my blog last night, I posted an unflattering poster of myself in tights and a bra. I hope that will invest my apology with some credibility.

Best regards.

RGK

Posted by: Richard Kopf | May 18, 2013 6:48:04 PM

Dear Judge Kopf,

No apology is owning from you, but one is from me. My criticism of you on the other thread for the Sensenbrenner remark may have been substantively fair, but its tone was nasty and aggressive. I apologize. People who live in glass houses, as they say.

No sensible person could think that MM's should continue to exist in the law because of federal judge-shopping, which is, for most purposes, all but non-existent.

There are in my view quite good reasons to keep MM's, however, reasons having to do with the hazards of over-balancing the system with discretion at the expense of rules. Any decent system will have both discretion and rules; the question is how much of each. I tend to prefer rules for a variety of reasons. It's too long of a discussion to go into for present purposes, but two of my primary reasons are (1) pure discretionary sentencing has an unfortunate history over the last 50 years, while rule-oriented sentencing has done better; and (2) rule-oriented sentencing more nearly embodies the virtues of a rule-of-law system, and thus tamps down on the inevitable tendency among judges (and all other human beings) to mistake personal preference, sympathy and temperament for wisdom.

Your picture is hilarious, but I would respectfully suggest to your clerks that they use a different picture when they get your courthouse portrait done, which they're going to do pretty much whether or not you want it. You know how they are.

Best regards,

Bill

Posted by: Bill Otis | May 19, 2013 6:27:49 PM

Dear Mr. Otis,

One last comment, and we can call it day.

I truly appreciate your responses. They stimulated my thinking about the constant need on my part to model civility rather than snark. My apology stands because I took a cheap shot, and that was wrong. As for your comments, nothing you wrote requires an apology.

As for MMs, I get your point. If only the Supreme Court would have taken care more care with Booker and its progeny, the rule driven jurisprudence that we both favor could have been preserved without reliance on MMs. As Doug has noted, there are rational arguments for preservation of MMs, and you point to some of them. On balance, I favor doing away with MMs while taking the Supreme Court head-on with regard to the Guidelines--that is, let's allow juries to decide Guideline aggravators and then let's make the Guidelines rules.(I have way oversimplified things, but you get what I mean.) In the end, I like rules rather than open-ended discretion because I don't believe we judges know much more than anyone else about how to sentence.

All the best.

RGK

Posted by: Richard Kopf | May 20, 2013 10:12:10 AM

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