Before getting to the beef of this post, I ask that hotter heads cool. There have been a few posts lately about issues raised by Nebraska federal judge Richard Kopf, and some readers disagree strongly with Judge Kopf’s views and show no reluctance saying so.
There’s nothing wrong with disagreement, and I’m sure Judge Kopf has heard strong language that wasn’t necessarily flattering before. But, and this is a big but, the judge is under no obligation to express himself in a blog or engage in any repartee, witty or otherwise, with me or you. As much as there may be some fundamental disagreements, the opportunity to learn and engage is something of enormous value. Maybe something said here will change Judge Kopf’s mind. Maybe it will change some other judge’s mind. Maybe it will give a judge something to think about, even if it doesn’t quite change their mind. Who knows?
At the same time, Judge Kopf remains an Article III judge, and I remain a lawyer. No matter how much I disagree with a judge, I will do my best not to be disrespectful. Don’t call me names for not using a flame-thrower, and no, I am not holding back because Judge Kopf said I was “fair and respectful,” and my manner was “truly kind and gentle.” Temperament matters for judges, and he was just being solicitous. I’m sure he knows better, but is too kind to say so.
So rather than using this as an opportunity to snarl and let the judge know how much you hate, try to see this as an opportunity to make a dent in an attitude that could use a more persuasive tone. Someone’s life may depend on it someday, and that’s more important than your having a chance to spew.
And now, back to our regularly scheduled blog post.
In a comment to post over at Hercules and the Umpire that happens to be about the government’s abuse of 21 U.S.C. §851, a topic that should concern you but probably doesn’t because it’s all federal lawyerly rather than rhetorical, Bryan Gates wrote:
I have two former clients serving mandatory life based on enhancements under 21 USC § 851 for two prior drug felony convictions . Each could have avoided mandatory life by pleading guilty, but would have faced sentences around 25-30 years. The evidence against each was strong.
One the one hand, each should have understood the consequences of the choice they were making. Plead guilty and hope for release sometime in your mid- to late 50′s or go to trial and die in prison. I understand why the prosecutors threatened to file the second prior conviction information if there was no plea. Once you have threatened to do something you need to follow up if you expect to retain credibility.
On the other hand, each of these guys got twenty to thirty extra years of imprisonment because they exercised their right to a jury trial. Out of ignorance or arrogance, they miscalculated the odds of acquittal. Yes, each in each case the government had to expend resources to try them that would have been saved had they pleaded guilty. But does a few days of prosecutorial and court resources used up justify tacking on that much time, if the crime they actually committed did not provided they simply ‘fessed up?
Whether a person admits or denies guilt has long been a factor in the punishment imposed. I’m not sure that much extra punishment is justified. Each will serve about 25 years for the crime he committed, after that they will be serving time for a bad tactical decision.
Bear in mind this is a blog comment, not a post nor a law review article. Its point, cut to the quick, is whether the trial tax of §851, effectively doubling the sentence from merely outrageously long to forever isn’t excessive. And, as Bryan notes, the decision to roll these dice is what more logical thinkers might characterize as a “bad tactical decision.” As a prosecutor once argued in response to me, defendants are presumed innocent, not intelligent.
Judge Kopf responded to Bryan (and again, bear in mind that it’s a comment, not a post):
I have seen that happen as well and I have sentenced several such folks who rolled the dice and are now serving the life sentence I imposed. I felt awful for their lawyers who did everything they could to get them to take the plea offered by the government. I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers who were just wrung out emotionally. Hang in there.
This raises problems on two levels. While Bryan writes about the brutal sentences imposed on his clients, the judge responds with a tummy rub for the lawyer. This happens a lot, when a one-word verdict is returned after a lawyer has left his heart in the well of the court. The judge will express words of comfort about a job well done to soothe the lawyer’s pain. It’s helps some lawyers get through the agony and frustration.
But this also feeds the perception that we’re a self-serving guild, only concerned about ourselves. So what if the lives of human beings, their families, their loves ones, are ruined by a knee-jerk act of Congress abused by an over-powered teeny-bopper in a tie? What about the sad lawyer, for whom real empathy is saved.
Bryan wasn’t seeking a tummy rub, but used the opportunity to ask a hard-line question: Was it really necessary that they be given the slow death penalty because they made the wrong tactical decision? To put it in the converse, isn’t 25 years, twenty-five long years, enough to make the point? Mind you, they weren’t spraying the streets with machine gun bullets killing innocent children, because if they were, the §851 enhancement would be the least of their problems. They were drug dealers.
Judge Kopf gave his answer:
I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers…
Whether this reflects a lack of empathy, humanity or a belief that adding another 25 years to a 25 year sentence just isn’t sufficient to make a judge wonder whether he’s nothing more than a robed executioner for politicians isn’t clear.
Maybe Judge Kopf would feel differently if he had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too. Maybe then he wouldn’t dismiss their slow death so easily.