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.]