May 4, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Judge John Kane, Senior United States District Judge from the District of Colorado.
Q. Having graduated law school in 1960, you were nominated and confirmed to the federal bench by President Jimmy Carter in 1977 (well before many Fault Lines readers were born, I should note). What did it take to become a federal judge back then? You were a young man still, merely 41 years old. Did you dream of ending up on the Supreme Court one day? Looking back, did you have the practice experience, the time in the trenches, that a federal judge should have? If you knew what you know now, would you still have taken the job?
A. I never had an ambition to be appointed to the Supreme Court. Having sat by designation with the Tenth Circuit Court of Appeals, while I respect the judges greatly, I have neither the inclination nor the talents necessary to sit on a collegial court. I love the trial court. I love the excitement, the mix with lawyers, witnesses, and jurors and the oft times demands to make quick decisions that, by necessity, are more intuitive than deliberative.
When appointed, I had been admitted to practice for fifteen years. Before admission, I had served as a law clerk for two state district judges. In law school I had been editor-in-chief of Denver University’s law review and directed its transition from a bar sponsored bi-monthly publication to a full-fledged law journal. I had won some academic prizes and both the law school and the all-university oratorical contests.
Perhaps more importantly, our law school was located directly across the street from the Denver courts and, as with many other law students, I watched Denver’s best trial lawyers try cases, and got to know many of them by sharing a few beers at the end of their day in trial. I met many judges through the kindness and interest of these lawyers. I always asked them for advice about becoming a judge. I wanted to become a judge long before taking the bar exam.
In high school, I had belonged to the Prelaw Club and we made field trips to the courthouse. I told judges of my ambition to become a judge and asked for advice. As a consequence, when I went to college, I majored in English Lit and also in Philosophy. I was an editor on the student literary magazine and acted in a number of student theatre productions. I began to learn to write and took courses in jurisprudence, legal philosophy, and constitutional law as taught in the political science department.
When first admitted to practice, I was lucky enough to become a deputy district attorney in a suburban county. In those days, judges were elected on political party tickets. My first assignments were prosecuting cases to justices of the peace and three person juries. Most of the J.P.s were not lawyers. It was a high volume, seat- of-the-pants experience. Eventually, I was assigned to courts of record and prosecuted both felony and misdemeanor cases. I then moved back to Denver and formed a partnership with an African American lawyer. It was the first racially integrated law firm in the state. Our practice was almost exclusively criminal defense work, but this was in the early ‘60s and we were very active in pro bono civil rights cases. I also cut my teeth on a couple of potential death penalty cases.
In 1965, I was selected to be the first public defender in the state. The office was essentially a pilot program in one judicial district that served as a demonstration project that evolved into a statewide public defender system. In that capacity, I defended a great many felony cases and supervised a staff of lawyers, interns and one investigator. I also wrote numerous practice subject articles and gave public speeches about the public defender system. (My first intern eventually became the Chief Justice of the Colorado Supreme Court.) In 1967, I left the public defender position and became the Deputy Regional Director of the Peace Corps in Calcutta, India. There I engaged in program planning and development, negotiations with Indian and state agencies for new programs and did my best to keep Volunteers out of harm’s way.
I returned to Colorado and in 1970 joined what was then considered to be a large law firm where I engaged in civil litigation handling mostly construction cases, will contests and, to my great joy, matters for newspapers, TV and radio stations, and a magazine publisher. In the latter category, cases involved freedom of the press, defamation, gag orders and employment disputes. I continued to write articles and participated extensively in bar association activities such as the formation and early organization of the Litigation Section of the ABA.
When the opening on the district court bench came about in 1977, the two senators from Colorado established a merit selection committee. There were a number of applicants. I was lucky enough to be selected for the short list of three names that went to President Carter. I had never been active in party politics, but my support came from my lengthy contacts and relationships with the media and the contacts I had with leaders of the ABA Litigation Section. Though I didn’t know her and briefly met her once , it clearly didn’t hurt that President Carter’s mother, Miss Lillian, had been a Peace Corps Volunteer in India while I was stationed there.
You asked, “If you knew then what you know now, would you still have taken the job?” The answer is an unequivocal “Yes!” I think I am very lucky and I have never regretted it. One thing I can say with pride is that when I was selected, the senior partner of the firm I was in said he had one request: “Please do not complain about the salary.” I never have and I have always declined membership or association with organizations that promote judicial pay increases. I’m not opposed to pay raises, I’m just keeping my promise.
Q. Before becoming a judge, you served as both a deputy district attorney and a public defender. What impact did those experiences have on you when you took the bench? Did you find one side to be more compelling, to influence your perspective? Was there a sense of pressure to be more supportive of the prosecution, federal agents? Was it a struggle to maintain neutrality? Did you tend to be more supportive of law enforcement or sympathetic toward the accused?
A. I have been fortunate to have had experience as a prosecutor, a criminal defense attorney, and a civil trial lawyer representing both plaintiffs and defendants. I don’t find either side to be more compelling or to influence my perspective. I think each role has its danger spots. Public defenders have far too many cases and can lose vigor. Prosecutors can become oppressive and abusive of their considerable discretion and civil lawyers can become greedy. But these are temptations that discipline and resolve can prevent.
I don’t believe I am influenced by any sense of pressure from the prosecution or federal agents or unduly sympathetic to defense lawyers. All of them put their shoes on one at a time. Candidly, what I do have frequent trouble with is dealing with laws that I think are counterproductive to achieving justice. The Sentencing Guidelines frequently fall into that abyss.
For the most part, I like lawyers and I like other judges. We are all human and I like some better than others. There are some senior judges who contribute greatly to the functioning of the courts and a few others who don’t. For myself, I find as I get older that I spend more time in doctor’s offices than I would prefer and I am not as productive as I once was, but I’m still eager to take on challenging cases and less enthusiastic about the so-called mill run cases.
Q. For years now, you’ve been critical of the job law schools, and particularly academics, have been doing to prepare the next generation of lawyers. What has gone terribly awry with the concern new lawyers have for their own welfare rather than their clients? How have law profs failed to indoctrinate their students into a profession rather than a business? Are the law profs still capable of doing so, since few have ever practiced law? Are the students today capable of appreciating the client-centered duty they assume when they become members of the bar?
A. Law schools are a microcosm of the universities. The early 20th century economist Thorstein Veblen said that universities should be called “Hire Education.” I agree. The progressive decline of education in the humanities in favor of producing more fodder for industry and corporate America is very disturbing to me. I think law schools offer too many frivolous courses apparently instituted to fulfill the eccentric interests of some faculty members and perhaps even more vapid students.
The basis for arguing that the third year of law school should be abolished is in my view a result of that problem. I think that if law schools are to award a doctorate degree, then at least an acceptable thesis should be a graduation requirement. I also think the first year of law school should include courses in legal philosophy and rhetoric. Dean Roscoe Pound defined the legal profession as “an organized body of men [people] pursuing a learned art in a spirit of public service.”
The practice of law and the craft of judging no longer comport with that definition. Thanks in great measure to Justice Blackmun’s decision in Bates & Osteen v. State Bar of Arizona and its progeny, such as Goldfarb v. State Bar of Virginia, law is no longer a profession; it is a business. I don’t think the legal academy can be blamed for this, but it doesn’t deserve any credit for correcting it either.
As for judging, the courts are nearly entirely immersed in process rather than substance and are on the path, if not already, to becoming faceless bureaucracies. Law students today are products of our culture; it has become a technocracy and the dire foretelling of Orwell’s 1984 and Huxley’s Brave New World is more reality than fiction.
Q. You’ve been one of a handful of judges who has openly expressed disdain for the War on Drugs. Was this your point of view when you took the bench? Did anything happen during your time as judge that made you realize that the drug war had gotten out of hand? What impact did the Sentencing Guidelines and mandatory minimums have on you as a judge? Do you find the Guidelines undermine your ability as a judge to impose what you believe to be appropriate sentences?
A. My open disdain for the War on Drugs is unabated. My years on the bench have increased, not ameliorated, my disdain. The War on Drugs, simply stated, is now and always has been stupid and counterproductive. This nation learned of the folly during Prohibition. What we do is subsidize the black market and criminal syndication.
No sentient person would intentionally set out to do what our society has done. Along with the rest of the flotsam and jetsam of the War on Drugs, we have the world’s largest prison population with its characteristic disparate racial population, we have abandoned the concept of rehabilitation, we have increased the incidence of recidivism and developed a pervasive disrespect for the rule of law. I have no moral problem with the criminalization of illicit drug manufacture, importation and distribution, but sending human beings to prison for possession and use of such drugs is unconscionable. We should not be treating a medical problem as a legal problem.
Even the nascent legalization of marijuana in some states has been ill-considered. The taxes imposed have created market prices that accomplish two things: First, more people who would not have consumed marijuana when it was illegal now do. (The same people who obey traffic laws.) And second, an increased number of consumers soon realize that they can obtain illegal marijuana at a cheaper price than the legal stuff that’s jacked up with taxes. Thus, the black market continues to prosper. Our country experienced the same thing following Prohibition with so-called moonshine. We ignore history and we repeat it.
Q. Having been on the bench both before the Guidelines and after they were held “advisory” in Booker, a mere 16 years later, is there a lasting impact as far as federal sentencing? Do you see judges and prosecutors reared on the Guidelines as viewing sentences that would have been deemed very harsh before the Guidelines as ordinary and appropriate now? Have the courts just become too hardened to the idea of decades in prison such that it no longer seems draconian? Can anything be done to change this?
A. Yes. The Sentencing Guidelines have a continuing impact despite Booker. Those judges who did not serve before 1988 have had no experience sentencing without the Guidelines. Even though the Guidelines are now merely advisory, many of these judges have no other reference point. In addition, the Sentencing Commission continues and does its utmost to promote guideline sentencing. It is not in the judicial marrow to push the envelope and so guideline sentencing remains, for the most part, business as usual.
Are the Guideline sentences too harsh? Many of them are, and that explains why most sentencing variances and departures result in lower rather than higher than guideline sentences. Not all, however; some Guideline results are ludicrously low.
I have seen one Sentencing Guideline recommendation calculating a range of 18 to 24 months for a crime having a statutory maximum sentence of ten years, wherein the defendant had more than twelve previous felony convictions. Such a computation was based not on the crime, the effects on the victims or the risks to public safety, but rather because of reductions for “acceptance of responsibility,” serving as an informant and reaching a plea bargain early on so as to save the government time and expense in preparing for trial.
In another case, the defendant had been convicted of three separate counts of identity theft and making false statements to government officials and lying to obtain citizenship after having been adjudicated a human rights violator in Ethiopia, such that the total maximum sentences imposed consecutively totaled twenty-two years. The Guideline calculations came up with a recommended sentence of zero to six months on two counts followed by a mandatory twenty-four months on the third count. I stated in my opinion, later affirmed and cert denied, that his crime and character were equated by the Guideline calculus in the same category as some Mexican national using his brother’s drivers license. See my sentencing opinion in United States v. Worku, 12-cr-346-JLK (D.Colo. 2014). I think it’s worth the read irrespective of this interview.
The other problem is that the Guidelines result in algorithmic sentences that have no connection whatever with individual characteristics or the qualitative differences in characteristics that are allegedly considered in formulating the Guidelines and producing “calculations.”
Q. You’ve been a strong supporter of free speech, as reflected in your decision in the Diana Hsieh case, where you compared her “personhood” paper to Thomas Paine’s Common Sense as quintessential political speech. Is free speech under attack today? There have been fervent cries to end what’s called “hate speech,” to eliminate First Amendment protections from speech that people find hurtful. What has happened to our appreciation of speech? Is this a problem that exists only on college campuses, or is this happening throughout our society? Are these calls for curtailing free speech finding any support in the judiciary, or are the courts still behind First Amendment protections?
A. Free speech has not received very good treatment from the Supreme Court. Commercial speech was not and is not what free expression is about. The primary function of free expression is to communicate ideas, not products. The freedom of speech is contained in the 1st Amendment and should be read in that context as related to freedom of religion, freedom of the press, freedom of assembly and petition.
There are some categories of expression that are not considered protected within the free speech ambit. One is obscenity and then there is so-called “hate speech.” That’s the sort of politically correct crap now pervading campuses, such as the law school professor who lost tenure because she failed to warn students in a criminal law class that a discussion of rape might “trigger” someone becoming upset or the situation at Brown University where students were provided a comfort room next to the lecture hall because they might become upset. I am not at all sympathetic with efforts to censor speech because it is “hurtful.” If it is, then more speech is the remedy, not less.
I think the courts continue to support the idea of free speech; it is embedded in our jurisprudence. The problem, however, is that the fundamental purpose of free speech has been confused and abused even to the point that the transfer of money is considered speech. Duh?
Q. You’ve also taken a very firm stand in refusing to acquiesce to official recalcitrance by the Denver police in complying with court orders. In James Moore’s case, you said:
We are demanding the city and county of Denver comply with the law like any other defendant. I once had the marshals seize all the records in the Internal Affairs Bureau, and if I have to do this again in this case, I will.
Were you always ready to take on the Denver establishment? Was it different when you were a young judge? Has anything changed in your willingness to hold the Denver police accountable?
A. I think all organizations, whether public or private, and all individuals, must comply with court orders. No one, including law enforcement agencies, should escape or avoid accountability under the law. To do otherwise is corrupt. If the law is considered unwise, it can be changed, but it should not be ignored or circumvented.
Q. Before taking the bench, you practiced criminal defense and civil rights law in the “hood,” in the only integrated firm in Denver. That was likely a very bold move at the time, and one that could have had significant impact on your career, but it didn’t stop you. Have lawyers forgotten what they do, to take on hard cases, unpopular causes? Are lawyers today far too worried about their own welfare? Have lawyers lost their understanding of what it means to be a professional? What can be done to bring lawyers back to their roots, their dedication to professionalism rather than what makes them happy or makes them money? Is this a law problem or a societal problem, where things like work/life balance are more important than responsibility, character and principle?
A. See my “Swan Song” speech. Stated simply, if being of service to others and being a champion for others is not your primary motivation, there are a hell of a lot easier ways to make a living. I think that practicing law as a service to others and to the stability of our society has many more rewards than net income.
Q. Of all the changes you’ve lived through in your almost 40 years on the federal bench, what has had the biggest impact on criminal law? So much has happened, from the militarization of the police, the drug war, the ubiquity of video, technology crimes. What stands out as the most positive change in law? And what’s the worst change you’ve seen? There are rumblings that the profession of law is on the decline, perhaps even on its death bed. Is it over for lawyers? Is it over for the law?
A. The most positive change in the criminal law in the forty years I’ve been involved is, I think, the development of legal access, the right to counsel for all people. The worst change has been the Sentencing Reform Act and its influence on state systems to implement quantitative rather than qualitative criteria in legal thinking and sentencing.
The administration of justice is a matter of aesthetics, not physics. Human beings are unique, individual and worthy. They are not the products of cybernetic calculations. There will always be law, but what kind of law is another matter entirely. In each instance, it is best to remember Andre Gide’s dictum that “a mind incapable of revolt and indignation is a mind without value.” Of course, our situation is not good; our obligation and reason for being is to make it better.
Photo Credit: Helen Richardson, Denver Post