Forgive the title, as it was thrust upon me by a United States District Judge who feels he was the victim of the tyranny of the disjunctive. The truth is that the conjunctive was there for him, but he eschewed its safe harbor. His having made the choice, I can do no less than respect it.
It began with a random listicle that included this:
On Friday, I sentenced a young Guatemalan woman, with no criminal history. Horror of horrors, she used a fake idea [sic] to get a shitty job. Despite the Guidelines, I sentenced her to time served and no supervised release. That way ICE will allow her to depart voluntarily and she will be able to take her three little American-born kids with her back to a country where there is no milk and honey but only grinding poverty. Aren’t I a fucking hero?
The concept of sentencing is fairly easy to understand. The law provides for the criteria to be considered, and sentencing theory is well-developed: general deterrence, specific deterrence, isolation, rehabilitation and, of course, the beloved retribution.
And then there are the now-advisory Sentencing Guidelines, which created a sentencing matrix out of thin air in 1987, held constitutional in Mistretta, 1989, after every federal judge in the country held they weren’t but 8 of 9 decided otherwise. The Guidelines were mandatory until they weren’t, via Booker in 2005, and yet their impact during that period fundamentally altered the judiciary’s perspective toward what constitutes an appropriate sentence. When before the guidelines, a judge might believe that a sentence of a few years was sufficient to serve its purposes, he now knew that only decades could do the trick. And so that was his sentence.
Judge Richard Kopf put his random point in writing so that others, we, could understand that he, a senior Article III judge, wasn’t always proud of the role he played in the giant machinery of running a legal system. From the outside courtrooms look like fiefdoms. From the inside, they are prisons in their own right. At least that’s how it seems when constrained by the myriad laws created by politicians to fill the empty pages of press releases and appease the simplistic blood lust of their constituents. Judges, like everyone else, gotta serve somebody.
While the sentence imposed on this “young Guatemalan woman” with three American children, who used a fake ID to “get a shitty job” to feed those three American children because we are the greatest country on the face of the earth was time served, Judge Kopf recognized that there was nothing, absolutely nothing, he could do to alter the inevitable. The Immigration authorities, now with the cool name ICE, would let her fly on her own dime rather than hold her in a cell until they were good and ready to ship her out.
The point was that he had both a conscience about what would come, whether as a judge or just a human being, and despite his best efforts to do right, there was little he could do to prevent the ruin of her or her children’s life. They were doomed. All he could do was not add insult to injury.
Which makes his subsequent post on sentencing all the more curious.
Yesterday, with the Thanksgiving holiday almost upon us, I sentenced people to prison. One case involved a fellow convicted by a jury of schlepping a bunch of drugs. His criminal history score was VI. There was evidence that he had tried to tamper with witnesses. He was represented by a very good and dedicated lawyer. The offender has cancer, and there is absolutely no debate about that. There is nothing more the doctors can do for him. According to a respected specialist, there is a 2 out 3 chance that he will die within the year. His lawyer wanted me to vary downward to the statutory minimum of 240 months (20 years).
Instead, I imposed a Guideline sentence, at the “low-end,” of 324 months in prison. I recommended that the defendant be placed at one of the Bureau of Prisons’ (BOP) Federal Medical Centers, but where he goes is up to the BOP. The BOP can release dying prisoners under a “compassionate release” statute, but that seldom happens. Had I imposed the statutory minimum sentence of 20 years, the BOP may have been more likely to release the fellow as he neared the end.
I’ve broken Judge Kopf’s one paragraph into two for readability and to highlight the first sentence of the second paragraph: I imposed a Guideline sentence, at the “low-end,” of 324 months in prison. The defendant had a criminal history level VI, which would reflect a terrible life of crime for most of us, but to that group of people who exist on the other side of the divide isn’t all that hard to accumulate. It’s not that it’s either good or excusable, but it’s understandable. Except to the Sentencing Guideline Commissioners, who had little association with the poor at any time in their lives.
And so that meant a sentencing guideline range that began at 324 months. For the calculating impaired, that’s 27 years. Not for murder. Not for raping and pillaging a school of young children. For “schlepping a bunch of drugs.”
When it was sold to the American people, sentences of this magnitude would properly punish drug kingpins, the sort portrayed in movies like Scarface, with Tony Montana played by Al Pacino. Who didn’t think he deserved to spend 27 years in prison? But this fellow? He was a “schlepper.”
And he would be dead within the year in all likelihood. Society would be safe and he would get life no matter what. It might have been life plus cancer, but he already had the cancer, thus stealing some of the fun out of retribution. That he will die can’t be helped. That he will likely die in prison regardless of anything else was his own fault.
That he was sentenced to 27 years rather than the statutory minimum of 20, however, was a deliberate decision. As much as I can appreciate that there is a conscience behind this decision, that the factors were weighed that this is where they came out, at least for someone who has obtained the consent of the Senate where I have not, is clear.
But to this mind, there is a slavishness to the fallacy of the Sentencing Guidelines that should be apparent in this anecdote, where it should be clear that the factors of §3553 were not well served. There was no parsimony here. There was no lenity. There was no purpose.
Whether I agree with the conservative political perspective or not isn’t consequential. No political ideology works in all instances, as far as I’m concerned. But there is one thing we can all strive to do in every instance where we exercise power over another person’s life: we do not have to be an asshole. No matter what the Sentencing Guidelines say.