Kopf: Is Sentencing The Hardest Thing A Federal Judge Does?

I wish to spend a little of your time answering the foregoing question. My answer may make you sad. It might also enrage you. I hope it doesn’t bore you.

A recent case out of the Second Circuit, featured in Doug Berman’s wonderful blog, is a good place to begin. In United States v. Singh (2d Cir. Dec. 12, 2017), the defendant pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony. His Guidelines range was 15 to 21 months’ imprisonment, and both the government and the probation office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months—nearly three times the top of the Guidelines range.

The Second Circuit vacated the defendant’s sentence. Particularly in the context of the Sentencing Commission’s statistics on sentences for illegal-reentry cases, the court was not persuaded that the justification offered by Judge Forrest (who took Judge Rakoff’s seat when he assumed senior status) was sufficient to support the magnitude of the variance.

The Second Circuit also believed that there may have been factual errors in the judge’s discussion of the record, and the district court’s reluctance to credit the defendant’s acceptance of responsibility (although it did so in the end) suggested that the court might have conflated the defendant’s statements in mitigation with a failure to accept responsibility. Accordingly, the court remanded for resentencing.

In doing so, the Second Circuit stated the following:

“Sentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.” Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007). While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of “the diverse frailties of humankind.”  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be “sufficient, but not greater than necessary” to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a “generosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.” Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (“Be kind. If we judges could possess but one attribute, it should be a kind and understanding heart. The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.”).

Slip. Op. at pp. 29-30.

Is sentencing truly “the most difficult task of a trial court judge”? With sincere respect for the great judges who have said such things[i], that sentiment is pure pabulum.

In terms of legal and factual difficulty, sentencing is normally relatively easy. That becomes truer as a sentencing judge gains experience. And here, I am not talking about becoming jaded, although that is always a risk.

It is a fact that sentencing is frequently unpleasant. Sending people to prison is a nasty business. Yet, for better or worse, we judges must sentence.

What bothers me about the sentiment that I critique (“sentencing is the most difficult task of a trial court judge”) is not only that it is frequently and objectively untrue, but that it can be used as a backhanded way of seeking sympathy for judges or, worse yet, as an excuse for doing whatever we judges want to do.

Poor us! Watch us wring our hands and nearly weep about that which we are compelled to do.

For goodness sake, we federal judges have lifetime tenure; great legal help from brilliant law clerks; extremely detailed presentence reports prepared by smart and diligent federal probation officers; mostly great lawyers who appear before us; fancy offices and all the rest of the benefits that go with enthronement under Article III. At least in opinions, we should quit uttering such nonsense.

Now, I will engage, minimally I hope, in a bit of obligatory Gertruding.[ii] We should not be cruel when we sentence. We should never be cavalier. We ought to treat defendants with the dignity that all human beings should be accorded by decent men and women. There is no harm in being empathetic so long as we are not credulous. We should seek to emulate the “golden mean” of the wily old Greeks. But we should not kid ourselves or anyone else.

In the vast majority of cases, sentencing is not all that hard. Oh, and by the way, had I sat on the Second Circuit[iii], I would have voted to reverse too.[iv] The sentence was goofy.[v] Parenthetically, I am pretty sure that there is a Latin word for goofy, but damn if I can find it.[vi]

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] Hell, I probably have repeated those words or something similar myself, and I am not, nor will I ever be, in the same universe as judges like Jack Weinstein.

[ii] See the top definition and the unicorn example.

[iii] Happily, the chances of this happening are exactly zero.

[iv] It took the Second Circuit more than nine months to issue the opinion. The opinion is 31 pages long. I see no earthly reason why it took so long and required the killing of so many trees.

[v] To be fair, I am the master of goofy sentences.

[vi] Where is David Meyer-Lindenberg when you need him? [Ed. Note; Probably out chasing some svelte Canadian curler.]

19 thoughts on “Kopf: Is Sentencing The Hardest Thing A Federal Judge Does?

  1. Anon

    Good points all, but it begs the question:

    So, what then is the hardest thing a federal judge does?

    (Please don’t tell us it’s looking up fancy Latin words and phrases to pepper decisions just to look smart–that would be too snarky)

    1. Richard Kopf


      Trying patent cases to juries is the most challenging.

      For example, I once tried a patent case to a jury that involved shit, literally. It had to do with a manure spreader.

      One of the lawyers (Bill Riley) later became Chief Judge of the Eighth Circuit. Bill is one the smartest and most decent guys I have known, a law school classmate of mine, and clerk for an Eighth Circuit judge when I clerked for another. Bill, the rest of the lawyers and I made up the jury instructions because the stock instruction made no sense to sentient beings.

      When Bill’s investiture was held he asked me to speak. I did and said that he was the first Circuit judge to have turned shit into gold. That got a laugh from some and frowns from others. By then, I didn’t give a shit.

      All the best.


  2. Lex

    “So, what then is the hardest thing a federal judge does?”

    Patent cases and bankruptcy appeals, unless you’re the sort of weirdo that likes that stuff. Mostly because the lawyers write briefs under the assumption that the judge has the same familiarity with whatever zoo-section of the USBC is at issue that they or the bankruptcy judges possess.

  3. Solaric

    Perhaps some of the sentiment is not so much a statement of fact so much as a statement of ideals (in the practical, not starry-eyed sense)? I don’t think that’s always a foolish effort either, given that norms and culture can help a little in avoiding becoming jaded in general, and here help reassure the public that a system that is opaque to them is trying for justice. Given the detailed guidelines and extensive investigation, debate, and consideration that leads up to sentencing, even a layperson on reflection should realize it couldn’t possibly be “the hardest thing” a judge has to deal with, particularly given the occasional crazy IP cases and the like which must result in significant ulcer medicine sales. Still, as you say it deserves to be taken seriously every time.

    So sort of “spiritually hard” vs parts of cases that are just plain mentally challenging and/or an-arduous-slog hard maybe? And while most of the public is never going to ever read about specific decisions let alone the decisions themselves, I think in mass it still filters out a bit and contributes to the message of “yes, whatever it may seem in some cases, this is something that the system in general takes seriously.”

  4. Rural State Trial Court Judge

    I think it might be different for elected State Court judges in the lower courts.

    Often times we are called on the sentence someone for a misdemeanor, without any information about the person and only a bare recitation of the facts from the complaint. No sentencing guidelines or investigations. Sometimes you have a recommendation from the prosecution and the defense. Other times, not. The task of deciding how much of someone’s life to take away without any information is daunting. 6 months jail can ruin someone’s life pretty quickly.

    On the other end of the spectrum, if you err on the side of leniency and the person goes out and hurts/kills someone, then, as an elected judge, you may as well hang up the robe and start looking for a new gig. The fact that the State did not bother to show up to the sentencing hearing is one of those little nuances that are going to be swallowed up by the headline of Defendant Kills Victim After Being Released by Judge X.

    1. SHG Post author

      State judges face a very different scenario. The worst part is the shoddy representation, and that’s entirely on lazy or overworked defense counsel. I don’t envy the job at all.

    2. Richard Kopf

      Dear Rural State Trial Court Judge,

      My former law partner is a state district judge out in the middle of nowhere where we practiced law together in a district that had far more cows than people. He must face a retention election every six years. I hear you.

      By the way, I have enormous respect for state judges in rural America who labor long and hard with little and often no help. I am frank to say that I doubt I would be up to the task.

      Thanks for your comment. All the best.


      1. Rural State Trial Court Judge

        Thank you. I look forward to your posts and admire your insight and, more importantly, your frankness.

  5. Rural State Trial Court Judge

    Our defense attorneys do a very good job, particularly our public defenders. They take the cases and fight issues where it benefits the client, but also know when to cut a deal. They are high caliber attorneys. So I cannot fault them. Our Prosecutors are pretty reasonable about charging too.

    The issue, as I see it, is the underlying notion that a 6 month sentence is considered petty. No one wants to devote support resources to a petty offense, when you have the big bad felony. Quite frankly my misd. defendants will serve more actual jail time -due to nonprobationable misdemeanors- than a felony defendant who gets probation.

    The other issue is the defendant who insists on pleading guilty right out of the gate without even talking to a PD.

    1. SHG Post author

      If your defense attorneys consider a 6 month misd sentence petty, maybe they aren’t doing as good a job as they should? I never considered any sentence petty, including straight probation. It’s still a conviction, still will hurt the ability to get employment, licensure, housing, etc. Sure, felonies are worse, but no conviction is petty.

      Not to speak ill of your defense lawyers, but you should never be flying solo when it comes to deciding sentence, “petty” or otherwise. If it’s a 6 month plea, then that’s the deal, but if it’s left to you, then it’s their job regardless to persuade you what the sentence should be.

      1. Rural State Trial Court Judge

        Not so much the attorneys that consider it petty, but society and the legal system as a whole (i.e. the case law holding no right to jury in “petty” cases). My cases are considered so minor you do not need any legal training to sit.

        My attorneys fight the misdemeanors just as much as a felony. But when it comes to sentencing, I lack the PSI information and am entirely reliant on the attorneys recommendations, for better or worse.

        A more tricky part comes when the person waives counsel and pleads at the arraignment, leaving me to impose sentence with little more than a name, address and complaint and, if I’m lucky, my memories of the last time the defendant was in.

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