Following the New York Times editorial on the latest fashion trend in sentencing, Lawprof Doug Berman got an email from his beer buddy, Nebraska District Court Judge Richard Kopf.  The good judge not only offers some thoughts on the state of affairs of sentencing, but wants you to know his thoughts as well.

Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines.  I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.

Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared.  This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice.

By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences.  Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world.  In short, it is time for federal sentencing judges like me to pay the piper.

For those of us who didn’t sleep through high school American history, we learned that federal judges had life tenure, upon good behavior, for the purpose of not being held publicly accountable for the exercise of judicial discretion.  The notion was that the judiciary should serve the law rather than transitory public whim.  I know, a bit Pollyanna-like, but these were high-minded ideals.

Judge Kopf appears to fall into the “consistency is good” camp, his reasoning being curious.  Some will read his point as being that those who don’t have fancy-pants lawyers get screwed, while the wealthy can hire the best legal talent to buy their way out of long sentences.  There’s a problem with that seemingly egalitarian position, however.  We’ve lived through the reality of this position from 1987 through Booker, and learned that the outcome is everybody gets screwed. 

His second reason, judicial idiosyncratic beliefs, raises a different issue.  Who’s to say that a judge’s exercise is idiosyncratic?  Why, the collective wisdom of the United States Sentencing Guidelines Commission, of course.  And their solution is to eliminate the factors that serve to personalize a sentence to a defendant and an offense, because that’s the stuff that gives rise to what appears to be superficially disparate treatment.  Ah, the love of bean counting for consistency.

It’s not that Judge Kopf hasn’t shown his mettle in the past on sentencing issues, such as when he bench-slapped the Supreme Court in The Top Ten Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough and Gall.

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.

Yeah, I love it too.  But be cautious about what you project onto Judge Kopf’s views.  In the comments to Doug’s posting, my bellwether buddy from Crime and Consequences, Bill Otis, adds his two cents.

The only reason a person would oppose Judge Kopf’s proposal is to enable the Nancy Gertners of this world to hand out 90% downward departures and keep it as quiet as possible.

We sure wouldn’t want that to happen, now would we?  For every person who reads into Judge Kopf’s email the opportunity to impose consistent, but reduced, sentences, there are Bill Otis fans marching on courthouses with torches and pitchforks demanding that jaywalkers be executed.  There’s nothing like public accountability to remind us how much the public hates criminals.

But what of the ability of scholars to “provide a reasoned critique of the federal sentencing process in this post-Booker world?”  After all, isn’t that really the point of all those guys and gals strolling into courtrooms day after day, to provide law professors with something to analyze?  It would be a terrible shame if all that experience in the trenches, from the first day in the United States Attorneys office to their going away party as they ship off to the Ivory Tower were wasted.

It’s been less than 24 hours as this post is being written since the House of Representatives approved the Durbin bill reducing penalties for crack from 100 to 1 all the way down to 18 to 1, as if one to one would cause the San Andreas fault to open.  How long will it be before the cries about crack-crazed raping and pillaging are heard throughout the federal courthouses of America?  Remember, just as hemlines go up, they also come down.  Personally, I think Nancy Gertner’s hemline looks awfully darn good.