Kopf: A Very Short Take On Vengeance At Sentencing

I don’t know how many people I have sentenced. But it must be well over 1,000 since I became a district judge in 1992. One year, I kept track. I sentenced over 200 folks that year alone. Anyway, I got to thinking about vengeance.

Not often, but once in a great while, I am terribly upset, angered and sickened by a defendant’s abuse of a victim. In those cases, some might say that I act like an avenging angel at sentencing.

Now, this doesn’t happen often. I have been jaded for a very long time.

Nothing much upsets or shocks or angers me anymore. The rape of children by their parents in child porn production cases rolls off my back, and I readily accept Rule 11(C)(1)(c) plea agreements without blinking.[i] The guy who killed two other fellows because they stiffed him on a $500 weed deal caused me to shake my head, but not much more.

But, as I say, there are cases where one might describe my sentence as an act of vengeance. Take the case of United States v. Lounsbury, No. 09-3058 (8th 2010) (unpublished). In that case I varied upward to 72 months for a first-time offender whose Guideline range was 27 to 33 months.

In that case, the offender held a power of attorney for her elderly aunt. The offender put her aunt in the Alzheimer’s wing of a nursing home and then stole about $250,000 from the old woman after paying the nursing home. Because the victim had been moved from Indiana to Nebraska, the old woman was deprived of the comfort of family members during her final years. Indeed, the offender ignored the old woman for over a year. While there were other aggravating factors, the mistreatment of the victim was a motivating factor for my sentence.

Was my sentence an act of vengeance? Or, was my sentence “just punishment” within the meaning of those words as they are found in 18 U.S.C. § 3553(a)(2)(A)? You be the judge!

All the best.

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

[i] Those are plea agreements that require me to impose a specific sentence (or sentence within a specific range) if I accept the agreement. In kiddie porn production cases, CDLs who know me demand those plea agreements ‘cause they know I would max their clients out if given the chance. The government agrees to save the kids the horror of testifying.

25 thoughts on “Kopf: A Very Short Take On Vengeance At Sentencing

  1. SHG

    Reversed and remanded to the District Court for consideration of the parsimony clause of 18 U.S.C. 3551. Much as the conduct of the defendant may evoke a visceral sense for the need for retribution, it remains the law that a sentence “no more than is necessary” must be imposed. The justification for a 72 month upward departure for conduct anticipated in the Guidelines fails to adequately take the parsimony clause into account. Accordingly, the sentence imposed was an abuse of discretion.

    All concur.

    1. Richard Kopf

      SHG,

      Not in the 8th Circuit!

      All the best.

      RGK

      PS The parsimony provision is like the porridge taste test in the
      Goldilocks and the three bears fable.

    2. Casual Lurker

      “Reversed and remanded…”

      Wow! Smooth move! Who knew that one could self-appoint to the judiciary? And not just to the lower court, but to the appellete court, all without any of that “advise and consent” nonsense.

      I guess you’re just waiting for a SCOTUS slot to open up?

      (You can relax, now. That’s it for the backlog of posts 😉 )

        1. Casual Lurker

          “I hereby find you guilty and sentence you to a nunnery.”

          A Nunnery?!?!

          Something must be wrong with the Sentence-O-Matic?!?! Where do I file an appeal?

  2. PseudonymousKid

    Dear Judge Kopf,

    Don’t worry about it. It’s not vengeance. You made a call to set the punishment at something commensurate to the crime. Now seventy-three months, that would be vengeance obviously. But again, don’t worry because seventy-one months wouldn’t have been commensurate and definitely would not have felt so righteous. I, for one, trust your judgment and the judgment of the appellate court that upheld the imposition of the just seventy-two month sentence.

    I don’t understand how you find sentencing so easy. Thanks for another peek behind the curtain into a sentencing judge’s mind.

    Best,
    PK

  3. David Meyer-Lindenberg

    Was my sentence an act of vengeance? Or, was my sentence “just punishment” within the meaning of those words as they are found in 18 U.S.C. § 3553(a)(2)(A)?

    Your posts are one of my favorite things about this place, Judge. But just because I’m charmingly naive & just fell off the back of a turnip truck doesn’t mean I don’t know a trap when I see one.

      1. David Meyer-Lindenberg

        Laudatio unius non est contemptio alterius. Except in the specific case of Barleycorn shitposts, which everything I say should be construed to disparage.

    1. Richard G. Kopf

      David,

      I don’t trap Germans and I hate turnips. All the best my brilliant young friend.

      All the best.

      RGK

  4. IamSmartacus

    I used to do medical research on Alzheimer’s disease, but I kept forgetting what I was trying to swim.

  5. Tom

    Judge: In assessing punishment, pure punishment for the act can and should be a factor. Yes, deterrence is important as is rehabilitation and taking a criminal out of society to protect society. But sometimes acts are so bad that they deserve a lot of punishment just for the sake of punishment.
    Take the 1974 case of Ronald Clark O’Brien in Houston. He took his two kids trick or treating along with some other children. He went to a house that was dark but came back with giant pixie strix laced with cyanide. He gave the candy to each of his kids so he could collect life insurance on them and to other kids to cover his tracks.
    Only his son died.
    Those facts are just horrible but true. That is a case where vengeance and punishment for the sake of punishment is appropriate. And, I’m a criminal defense attorney who generally feels sympathy for my clients and people in their situation.
    Giving a 72-month sentence to someone who rips off an elderly relative, then warehouses her in a nursing home far from her friends and family is another instance where punishment simply to punish can be appropriate. At a minimum, the defendant should have rotted in prison for as long as the old lady was alive in the nursing home.

  6. Keith Lynch

    Are you ever “terribly upset, angered and sickened” by a defendant stubbornly claiming to be innocent? If not, do you always give those people the same sentence as someone who claims to be guilty and remorseful?

  7. Ray

    What has always bothered me about crimes involving this kind of fraud, is that the victim can’t see it coming and lacks the chance to get out of the way. I don’t like violent crime either, but many victims put themselves in bad situations they could have avoided–don’t involve yourself in a drug transaction if you don’t want to get shot. So, no, I don’t think a 72 month upward departure was necessarily extreme where the victim has dementia and loses the comfort of family at the end of their life when it is needed the most. But if you feel some latent remorse–don’t. You did the offender a favor, the extra time here on Earth may have taken centuries off the time needed in purgatory. You may have even saved the offender from the ultimate divine sanction–who knows. I’m Catholic, see what the Jesuits did to me.

    1. Richard Kopf

      Ray,

      I once said that “Judges are not [supposed to be] Jesuits.” I said it while testifying in front of the Sentencing Commission. A lot people thought it was unwise to express myself in that way. You, my friend, understand.

      All the best.

      RGK

  8. losingtrader

    .” The rape of children by their parents in child porn production cases rolls off my back”

    Rich, I think you might have chosen different words here. I have a mental picture of this that isn’t flattering.

      1. Wrongway

        Wow… I’m really trying hard not to search for puppy pants on google images at this very moment…
        I’m sure I wouldn’t be disappointed, & also maybe slightly traumatized by the results…

  9. Wrongway

    Question…
    While the sentence handed down was “Just a Bit Outside” of the sentencing guidelines…

    https://youtu.be/Jdv2Wp9MzY0

    Where did he do his time ??
    Was it like at “Club Fed” where you can complain about the lack of dijon mustard ??
    Or the Attica of Omaha, where there are complaints of the amount of corn in their daily diet ??

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