The New York Times did a feature on Second Circuit Judge Denny Chin that offers one of the most intimate, and painful, visions of how a judge comes to decide the price to be paid for a conviction. It’s a lengthy article, and remarkably frank in many respects.
Judge Chin served on the Southern District of New York for 16 years before he was elevated to the Circuit.
He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or the equivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: “Rule and roll.” Be decisive. Don’t second-guess yourself.
Few paragraphs about judicial decision-making are as illuminating and fear-inducing than this one. We would never give children a loaded gun, yet we give people with “little experience in criminal law,” which may well over-state Judge Chin’s experience, the power to put human beings in prison for decades, with the admonishment to “rule and roll.”
This isn’t to say that Judge Chin took the task lightly.
“It is just not a natural or everyday thing to do,” Judge Chin explained, “to pass judgment on people, to send them to prison or not.”
“I mean, there is so much at stake,” he added, “and there are so many different considerations that come into play.”
Fair enough, but what little comfort comes from the seriousness with which he undertakes this task is subject to the interpretation of his words. What to some reads as empathy for the defendant to others may signify a stoic concern for the victims. Which it is can only be ascertained from how it’s played out.
One thing to bear in mind is that Judge Chin’s sentencing experience has to be viewed in light of pre-Booker mandatory sentencing guidelines, where draconian a sentencing regime was not merely the norm, but required. For a judge without experience in criminal law, his on the job “education” came from a grid that mandated imprisonment of extraordinary length, with essentially no break for all the things that reasonable people would think should factor into the equation.
Aside: In the post-Booker, non-mandatory guidelines world, where consideration of 18 USC §3551 is permitted, consider that most sitting federal judges, who came from a world where “criminal law” was never uttered, spent their career imposing sentences mandated by the Sentencing Guidelines, are now authorized to impose a sentence that is no greater than needed. What meets that criterion, however, is informed by their tenure under the Guidelines, as they have no other experience from which to draw.
The articles goes on to offer some examples of sentences imposed by Judge Chin, together with his rationale for his decisions.
Her lawyer, though, was asking the judge to sentence her only to home confinement, because she was raising five children who ranged in age from 5 to 13, and also caring for her 14-year-old sister, as their own mother had been a crack-cocaine addict. He had said that sending Ms. Kidd to prison would almost certainly result in her children being placed in foster care, destroying what was left of the family.
His arguments gave Judge Chin pause.
“The report cards had an impact on me,” Judge Chin recalled in a recent interview. “She was getting them out to school every day, and they were holding their own. I was impressed by this.” Ms. Kidd, who had also apologized for her crime in a letter to the judge, was “a decent mother,” he concluded. Moreover, one of his law clerks had shown him a news report on the terrible conditions in foster homes and facilities for children in New Jersey, where the children would most likely be sent.
Concern for the hugely destructive collateral damage to innocent children?
But the robbery had been violent, with one robber killed in a police shootout. And the judge was seldom persuaded to grant leniency because of family circumstances — it was, after all, the defendants’ crimes, not the sentence, that caused hardships for families.
In the end, he decided that Ms. Kidd had to go to prison, but he imposed only a 30-month sentence. “I cared very much about the future of the children,” Judge Chin recalled, “but I was willing to take the risk that they would be sent to foster care, even with a shorter sentence.” His decision involved weighing conflicting concerns and interests, he said, “something we have to do all the time.”
It would seem that this example, at the front of the article, is offered to show the terrible choices a judge faces in imposing sentence. If so, it fails to satisfy. Neither the generic “a crime is a crime,” nor the omnipresent facile argument that the defendant should have thought about her kids before committing the crime (as most crack-addled defendants give serious consideration to collateral consequences before making choices) explains this sentence. While 30 months is a break, no doubt, the harm to the children is done. That Judge Chin may be “willing to take the risk,” one can’t help but recognize that he’s taking the risk with someone else’s children. Rule and roll.
Another case mentioned in the article involves a criminal defense lawyer, Pat Stiso. Just so it’s clear, Pat was a good friend of mine. Still is, even though almost every other criminal defense lawyer ran from him the minute his indictment was announced. He was a good lawyer, which is how he ended up in a bad situation.
Unlike commentary based on media accounts, I have intimate knowledge of Patsy’s case. This is how the Times describes it:
If Judge Chin believed that some defendants deserved leniency because of their otherwise unblemished history, in his eyes others forfeited their right to a break.
Such was the case with Pat V. Stiso, a Bronx lawyer, who had pleaded guilty to narcotics conspiracy and obstructing justice after being accused of, among other things, hiding money for the leader of a drug gang. He faced a guideline range of 70 to 87 months, for a possible term of more than seven years.
While true, it fails to capture Pat’s downfall. By doing what almost every lawyer does, trying to keep his client happy and on board, he ended up making some monumentally dumb decisions. At the time, they hardly seemed to lead inexorably to his sliding into the fringes of a conspiracy, but when his client flipped, that’s where he found himself. He didn’t want to be there, and tried to get out, but the stupid decision, innocuous at the time, left him in an untenable situation. And so he pled out.
He said Mr. Stiso’s supporters had not seen his other side, which had allowed him to accept “tens of thousands of dollars in cash in grocery bags, money that was earned from the sale of heroin.” Defense lawyers had to do their jobs, he said, “but this is not a case about the blurring of a line. This case doesn’t even come close.” He sentenced Mr. Stiso to 87 months.
I was one of those supporters. I wrote a letter on Patsy’s behalf. I knew all about the grocery bags of money, “earned from sale of heroin.” To read that quoted phrase makes me cringe, as if criminal defendants’ invariably paid out of their Nobel Prize winnings.
Judge Chin was shocked and outraged by this, enough to whack Pat with the maximum sentence. As it turned out, he served it under BOP constraints that largely prohibited him from outside contact, including speaking to his wife and children.
According to the article, Judge Chin estimates his handiwork at 1100 sentences. If you do something enough, you come to believe you do it well.
“What did I learn?” Judge Chin recalled 15 years later. “I learned that this was going to be hard.” But he said he had gained confidence, and did not agonize over the decision. “I felt I had done the right thing.”
While Judge Chin’s sentencing legacy will surely be the 150 years imposed on Bernie Madoff, in anticipation of a miraculous medical breakthrough, my memory hangs on his sentence of Pat Stiso, a ” case [that] doesn’t even come close.” It comes far too close for me.