Busting the myth that’s often said, but rarely observed, Judge Richard Kopf pulled back the curtain.

Is sentencing truly “the most difficult task of a trial court judge”? With sincere respect for the great judges who have said such things, 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.

Before 1989, when the Supreme Court held, in contrast to every other federal judge, in Mistretta that the United States Sentencing Guidelines were constitutional, sentences were argued on a sui generis basis. Judges had discretion. Lawyers had the chance to sway them, with whatever presented itself in the case, the defendant’s history, the world. And it was left to the judge to do his job.

Never having sentenced anyone, I can’t speak to how hard it was to arrive at a sentence. But as an advocate, I damn sure wanted to make it as hard as possible. I wanted the judge to feel the pain, the anguish, the harm done to spouses and children caught up in the mix. And the sentences imposed were, for the most part, significantly below the Guidelines.

From 1989 to 2005, when the Supreme Court in Booker said, “just kidding” about the Guidelines being mandatory. we argued sentences with calculators, scrutinizing to the extreme the Guidelines’ commentary and using the word “heartland” as many times as possible.

We were all turned into bean counters, dividing by twelve and ending with ridiculous numbers. Nobody got 10 years. They got 121 months. Why the extra month? The Guidelines said so. No judge has an explanation for that month, or any of the weird permutations of months and years the Guidelines imposed. Note that I say the Guidelines imposed, as if judges were grocery clerks reading silly numbers bearing no relation to much of anything off a grid.

After the Supreme Court undid its “error,” and returned a measure of legitimacy to sentencing, pointing judges to the criteria of §3553(a), their hands were somewhat untied. But I’m unaware of any judge ever imposing a sentence of 120 months, saying that there is no basis to tack on the 121st month.

In 2011, the New York Times did a profile on Second Circuit Judge Denny Chin which contained this paragraph.

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.

Not that Judge Chin was a bad judge, but this was bullshit.

“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.”

How could he not? There was no proof that he got it wrong. He uttered numbers and human beings before him disappeared into the bowels of the Bureau of Prisons, while children crying in the back of the courtroom left, their sobs never to be heard again. Whatever he did was right because there was no way to show it was wrong.

Today, sentencing is freed from the bean-counter’s chains, but still subject to the bean-counter’s influence. An offense that might have brought a sentence of probation in 1985 would today bring a sentence of 37 months (not 36, mind you, but 37, because level 21), and judges will impose it with the confidence that they have “done the right thing.”

Rule and roll. Don’t second-guess yourself.

Unlike most judges, Judge Kopf is one of the few who had a poor schmuck come back to haunt him, a ghost of sentencing past.

Hopwood proves that my sentencing instincts suck. When I sent him to prison, I would have bet the farm and all the animals that Hopwood would fail miserably as a productive citizen when he finally got out of prison. My gut told me that Hopwood was a punk–all mouth, and very little else.  My viscera was wrong.

Not every defendant will turn out like Shon Hopwood, who hates it when I call him a freak of nature, but he is. He’s a brilliant, wonderful person who just happened to rob a few banks when he was a dumbass kid before he hit his stride. But he’s also the reminder of how hard it should be to impose a sentence on a human being.

Sure, not every defendant will turn out to be a Georgetown law prof after winning a couple Supreme Court cases from the prison libe, but when we’re dealing with the law of large numbers, hundreds of thousands of people whose lives are forever tainted by the ease with which a judge mutters some numbers, whose only grounding in reality is a chart some committee pulled out of its collective butt, you have to believe there is another Hopwood, or Mozart, or the nice guy who taught your kid to read, hiding among the Mansons.

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.

We’re told that empathy is all, that we should spend our days and nights weeping over the trauma felt by every vulnerable person. Judges want us to feel for their pain when they have to do the “most difficult task”? Poor babies. At least you don’t have to sit in a cell every night for the next 188 (not 180, but 188) months wondering if your children have food to eat.

Judges should lose sleep. They should never be able to sleep. It should suck to be a judge, but as Judge Kopf says, it doesn’t. It’s a great gig, even though the pay sucks, so cut the crap. Imposing sentence is “not all that hard,” which means the system does it wrong, because it should be.