Traditionally, the only way you got a real feel for a federal judge’s views on sentencing was when you had a defendant standing next to you about to lose a huge chunk of his life to the Guidelines God. Would she adopt your downward departure argument, always a long shot, or accept the role of grid referee and take the easy route that assured affirmance for not straying.
After Gall and Kimbrough, I questioned whether the Supreme Court’s language would be strong and clear enough to put the various Circuits in their place. After all, there were no more stringent backers of the mandatory result of the “advisory” guidelines, making sure that those judges who thought Booker actually meant something were shown the light. But that’s old news. It’s a new world now, right?
Through this convoluted sourcing, via Bashman to Doc Berman to the newly launched Ohio State Journal of Criminal Law, comes four remarkable essays by federal judges on their views of the impact of Gall and Kimbrough. While my views are no doubt the most fascinating of all, these come from people whose views actually mean something. Of particular note is that we have access to judge’s vision of federal sentencing without any defendant’s life on the line, a window that never really existed before the blawgosphere.
Without further ado, here are the players (and their respective pdf’s) as described by Berman:
Judge Kopf, who happens to be the good-natured fellow who sent Doc Berman a half case of brewskis on a lark, has the most fun with this exercise in his “Top Ten” list:Judge Richard Kopf of the District of Nebraska takes a Letterman-esque “Top Ten” view of the sentencing world as interpreted by Supreme Court decisions. Judge Gerard Lynch of the Southern District of New York emphasizes the “guideline” nature of the Sentencing Guidelines. Judge Lynn Adelman and law clerk Jon Deitrich of the Eastern District of Wisconsin, ask us to “curb our enthusiasm” for the twin decisions, which—they argue—do not go quite far enough. Judge Nancy Gertner of the District of Massachusetts identifies both the apparent blessings and the less-obvious dangers of the Court’s holdings.
10. Following the Court’s approach, always put off to tomorrow what you can do today.
9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply.
8. Footnote 9 in Blakely (“The Federal Guidelines are not before us, and we express no opinion on them.”) is the biggest practical joke in the history of American law. See lesson One below.
7. The “merits” and “remedial” opinions in Booker satisfy George Orwell’s definition of “Doublethink.” That is, the two opinions, and Justice Ginsburg’s swing vote to make both the law, reveal “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”
6. Never impose a sentence that is too harsh or too lenient. To quote Baby Bear, make it “just right” or, perhaps more importantly, to satisfy Justice Breyer, make sure it is just “reasonable.”
5. Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi.
4. In an Ivy League sort of way, it makes sense to address the “crack” question fifteen years after everyone else knew something was terribly wrong. See lesson One below.
3. Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t.
2. Sentencing judges can be divided into two groups–those who are damn sure they’re right and those (like me) who have no clue.
1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.
I don’t know about you, but this is about as funny as a federal judge has been since Sam Kent, who is no longer allowed near women and children.
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