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May 13, 2005

Another potent (and hilarious) opinion from Judge Kopf

In my Sentencing Judges Hall of Fame, US District Judge Richard Kopf has earned a special plaque for consistently writing the most engaging and entertaining sentencing opinions. (Recall his fine and often amusing work in Wanning and in Tabor.)  Judge Kopf has outdone himself with his opinion in US v. Bailey, No. 4:02CR3040 (D. Neb. May 12, 2005), which is available for download below. 

Bailey is Friday's must-read for everyone interested in federal sentencing issues, or for anyone interested in seeing how a well-crafted opinion can deliver drama and humor, as well as astute legal analysis. (I am tempted to declare Bailey a great legal dramedy for the sentencing set.)  To provide just a flavor of Bailey, consider these opening passages:

Most of the time, we should sentence a person without regard to the pain and damage our sentence will inevitably inflict upon his or her children.  The exceptions to this rule are few and far between.  Indeed, when I first skimmed the motion to depart under U.S.S.G. § 5K2.0 in this case, my reaction was quick and visceral: "Are you kidding me?"  The Assistant Federal Public Defender asked me to impose a nonprison sentence on Bailey, a fellow who possessed child pornography, in order to save the defendant's little girl.  No way, I thought, hell will freeze over before that happens.

I next explain how hell froze over. With Booker in mind, I also explain why normal departure theory, rather than the "mix-and-match" approach that I have previously scorned, is capable of dealing with this truly unusual case.

This opening is only one of many highlights in Bailey.  Among the others are: (1) a reference to SNL's Emily Littela in the course of responding to my comments in this post about Judge Kopf's Tabor opinion, (2) a detailed account of departures based on family circumstances, (3) praise for a expert witness because she is "unlike the soft-headed shrinks I sometimes encounter," and (4) a call for the Court of Appeals, which gets "paid the big money," to address "whether Booker nullified § 3553(b)(2)."

In a closing footnote, Bailey also includes a pitch for Congress to have the "mature wisdom to wait ... a reasonable period of time (say three years)" before responding legislatively to Booker.  An alternative course, says Judge Kopf, could be unseemly: "By acting precipitously, Congress reinforces the (unjustified) image of a bunch of blood-starved cave dwellers looking for a fight.  Sometimes one can win by waiting."

Download judge_kopf_bailey_departure_opinion.pdf

May 13, 2005 at 03:34 AM | Permalink


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On another front, does anyone know if there is any literature relating to the potential applicability of Apprendi et al. to restitution?

Posted by: Anonymous | May 13, 2005 9:29:40 AM

As for 3553(b)(2), I know of at least one case (one of mine) that involved mandatory Guideline sentencing under (b)(2) that the Supreme Court GVR'd, so it appears that the Supremes think _Booker_ applies. There certainly doesn't appear to be a principled way to distinguish between (b)(1) and (b)(2).

So how do you like getting slapped down by a federal judge, Prof? Now you know how we PDs feel!

Posted by: JDB | May 13, 2005 11:34:11 AM

Anon: I plan to post some materials about restitution soon, though you can search the blog for existing posts.

JDB: I have the good fortune of a forum for responding to getting "slapped down" by a federal judge, I am just debating whether I dare continue to take on a foe with such a sharper wit than me.

Posted by: Doug B. | May 13, 2005 11:43:32 AM

Do it, Doug. Wit is no substitute for legal reasoning nor for accurate statutory construction, both of which are lacking in Judge Kopf's opinions. His interpretation of the federal sentencing process, post-Booker, is functionally identical to that held unconstitutional by the Supreme Court. I have a problem with that. Needless to say, I have no beef with the *result* in this particular case, and the opinion could have served as a model of judicial reasoning to justify a departure, before the Supreme Court struck the statutory provision for "departures" from the statute. Post-Booker, the result is fine, but the opinion's statutory analysis is irreconcilable with the plain language of section 3553(a).

Posted by: Peter G | May 13, 2005 8:55:38 PM

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