Kopf: A “Second Look” Option Might Lessen Federal Sentencing Disparity

It is no secret that I am Guidelines-centric. Why then do I strongly support a “second look” option similar, if not identical, to the one proposed by Professor Shon Hopwood? See Shon Hopwood, Second Looks & Second Chances, Cardozo Law Review (forthcoming), available at the Social Science Research Network (last revised June 30, 2019) at SSRN pp. 21-22 (Part III) (proposing, at a minimum, that Congress enact legislation allowing federal judges to take a “second look” at sentences after the offender has served 10 years in prison and every 5 years thereafter without the offender having to show extraordinary and compelling circumstances).[i]

The following courtroom sketches are of Tom Brady during “DeflateGate.” The artist, Jane Rosenberg, a 35-year veteran of courtroom sketching, received condemnation for the first one and much better reviews for the second one.[ii]  See where I’m going?

By last count, 73% of the time I impose sentences within the Guidelines with an average sentence length of 94 months in prison.[iii] I do so largely because reliance on the Guidelines is central, indeed critical in my view, to the avoidance of unwarranted sentencing disparity.

As I have written in these pages and elsewhere, sentencing disparity in the federal courts, even between cities in the same district, is indisputable and arguably unwarranted. See, e.g., Richard G. Kopf, Kopf: The Luck of the Draw, Simple Justice (June 2, 2019) (discussing the findings of the U.S. Sentencing Commission, Intra-City Differences in Federal Sentencing Practices, Federal District Judges in 30 Cities, 2005-2017, p. 7 (2019), in which the Commission found: “In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.”).

Professor Hopwood, who accurately stated in his paper that we have become friends even though I sent him to prison for more than ten years[iv], argues that:

It is difficult, if not impossible, to determine who, after having been convicted of a serious crime, has the capacity to become rehabilitated and redeemed. Character is not static, people change, and the law must recognize this reality.

There is little reason to continue warehousing people who have been adequately punished by serving long sentences, and who are no longer a danger to society. The social costs to the families left behind, the loss of human capital and productivity, and the need to give people a second chance at redemption all favor identifying [such] people . . . .

Second Looks & Second Chances at p. 27.

I agree with much of what Hopwood has to say.[v] Indeed, as indicated earlier, I support Shon’s proposed “Second Look” change in the law. But, as also implied earlier, I have an ulterior motive.

I want my fellow federal judges to hew closer to the Guidelines when they initially sentence people to prison. If they knew they would have a “second look” option, that might incentivize more federal judges to hew closer to the Guidelines.[vi] And that would be a good thing if you care about treating ostensibly similar offenders similarly.

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

[i] Because there are pending and impending First Step Act cases on my docket, I do not intend to comment on Professor Hopwood’s views on the eligibility for First Step Act relief discussed in his paper.

[ii] The WAPO suggested that the first one made Brady “look more demonic than dreamy.” In my view, he is demonic!

[iii] The numbers in the text are drawn from an internal analysis of the United States District Court for the District of Nebraska prepared by the Sentencing Commission covering fiscal years 2015 through 2017. My averages would be even higher if you threw out government-sponsored motions for sentences below the Guidelines range.

[iv] “At my own sentencing, I told U.S. District Court Judge Richard G. Kopf that I would change my ways, and he wouldn’t see me again. Judge Kopf noted years later that when I made those remarks at sentencing, he ‘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.’ Richard G. Kopf, Shon Hopwood and Kopf’s terrible sentencing instincts, Hercules and the Umpire (Aug. 8, 2013). What I later showed Judge Kopf was that his sentencing instincts (and these are his words, not mine) ‘suck.’ Id. We are now friends.” Second Looks & Second Chances at p. 4 n. 27.

[v] Hopwood and I disagree about the notion of “general deterrence.” He does not believe “general deterrence” works because most potential offenders are not rational actors. I believe some potential offenders are rational actors.

[vi] I am sure that is not what Shon intended. Sorry, bud!

25 thoughts on “Kopf: A “Second Look” Option Might Lessen Federal Sentencing Disparity

  1. SHG

    You’ve summed up Shon’s proposal succinctly and it’s a smart proposal (even if you like it for demonic reasons). Sentencing is anticipatory voodoo, and what a judge assumes at the time of sentence may prove entirely wrong a decade later. If so, then the legitimacy of sentence fails. Automatic review of sentencing goes a long way into achieving the 3553 goals, and isn’t that the point of incarceration?

    Reply
    1. Richard Kopf

      SHG,

      Under federal law the point of incarceration is basically unknown because 18 USC 3553(a) is like Rorschach test. You can find any reason you want to sentence under that statute and the goals set out therein are often contradictory. That is why the Guidelines are so important.

      The foregoing said, an automatic review of sentences is not a horrible idea but allowing the judge the absolute discretion, but not the obligation, to review and then only after a significant amount of time has passed and the offender has requested relief is likely to be the most you could get out of Congress. Moreover, if every sentence had to be reviewed automatically you might well get significant push back from judges due to the time suck problem.

      All the best.

      RGK

      Reply
      1. SHG

        I said Shon’s idea was a good one, which pretty much precludes Congress from passing it.

        As we’ve discussed before, 3553 sounds nice but doesn’t provide the necessary guidance to a judge to allocate concern among the competing factors. Frankly, I prefer it that way, as I fear that Congress would otherwise make retribution 97.2% of the decision, with general deterrence covering the balance. At least this way, I still get to argue something.

        Reply
        1. Richard Kopf

          SHG,

          As you know, Shon has developed a good relationship with Mr. Kushner. Shon has met with the President. He played an oversized role in getting the First Step Act passed. And, I suspect Shon would develop a similar solid relationship with a Democratic administration as well.

          So, I’m not so sure that Congress would reject the idea of a “second look.” I would not underestimate Shon’s ability to get this done, along with a push from many others both in and out of the Academy. In addition to being a helluva a criminal law practitioner, Shon has developed amazing political skills. Evidently, prison does that for some people. You coulda fooled me!

          All the best.

          RGK

          PS. Maybe you or GD should put up Bob Dylan’s “The Times They Are A Changin’.” Written in 1964, Dylan may finally be right. I hope so.

          Reply
          1. SHG

            Despite his hanging with the D.C. elites, Shon has retained his Nebraska twang and “aw, shucks” demeanor. It’s rather charming.

            Reply
            1. shenebraskan

              Twang? Nebraskans have no twang! We speak American English perfectly. The rest of you have funny accents.

              OK, far too many say “warsh” instead of wash. I am not among them.

      1. Guitardave

        Judge Kopf,
        Off topic, but you guys mentioned the art and artist first, so….. Ms. Rosenberg has real talent. One of the hardest things about portraits is getting the eyes right, and to do that quickly is amazing. Both sketches got that right.
        As to which is “evil”, take a longer look. I understand fanatics don’t want to see their hero looking frumpy, but they’re idiots. And in turn, a non-Tom-fan, at first glance, will see it as ‘correct’, supporting their dislike.
        Here’s what i’m seeing…(not as a judgment on Tom, but as an artist decoding what another artist is trying to convey)
        Frumpy Tom looks like someone who knows he fucked up, he’s a mess…it’s an indication of guilt, but it’s also an indication that he has a conscience. As for steely-eyed Matt Damon-Tom, that’s the gaze of an un-repentant psychopath who has zero remorse, and nothing but contempt for the court, and the people who put him there. I’ve know a few people like that, and Ms. R portrayed that “look” so realistically it gave me a little shiver.
        Regards, GD

        Reply
        1. Richard Kopf

          GD,

          I agree entirely with you. I am being serious now.

          I much prefer the first one precisely because of the reasons you mention. I am no art critic, but the first one seems to capture what most people who appear before me look like when I try later to capture them in my mind’s eye. Unlike most folks, the sociopaths look much more like the second drawing.

          You have truly educated me. Thank you.

          All the best.

          RGK

          PS Legal realism and artistic realism go together.

          Reply
          1. Guitardave

            Judge,
            I should have figured with the number of people you see who are at the worst low of their life, you were already aware of these things. Sometimes I suffer from a need to expound on the obvious.
            After I posted the comment i had another thought. I got to wondering if the artist was trying to convey a deeper message. If both sketches are accurate representations of what she saw, the fact that they almost look like different people may be saying “this person has a bi-polar, split personality thing going on”… or as they used to say, ” is possessed by a demon”…
            (Ha! someone got it right a WAPO?…stopped clock syndrome strikes again)

            PS Sorry about the trip down the rabbit hole. I know it doesn’t mean much, but as a non-lawyer I think Hopwoods idea has merit, but my cynicism about bureaucrats makes me doubt it will be implemented correctly, if at all.
            Best wishes, GD

            Reply
    1. eliot clingman

      Ray, bringing back parole would be logical and woyld demonstrate historical memory. How unamerican! At last, have you no shame?

      Reply
    2. Richard Kopf

      Ray,

      Good question. There are a number of reasons why that would not be a good idea. I will give you one.

      In the past, the Federal Parole Commission was under the DOJ. I don’t want the Executive branch to take on this task.

      All the best.

      RGK

      Reply
      1. SHG

        I’ll try for two: it doesn’t kick in unless and until someone is parole eligible, which could still be 30 years down the road.

        Reply
        1. Richard Kopf

          SHG,

          Well, then, I will see your two and add a third. The Sentencing Reform Act of 1984 was intended to promote truth in sentencing or real time sentencing. While a second look somewhat detracts from that goal, it does not kill it entirely. A parole system like the one of old would put a stake through the heart of truth in sentencing. The public deserves better.

          All the best.

          RGK

          Reply
    1. Richard Kopf

      Joyce Lee Holsen,

      If you refer to the balance of the cases when I did not sentence within the Guidelines, a certain percentage were the result of the government asking or agreeing per Rule 11(c)(1)(C) that I should sentence below the Guidelines (about 6%).*

      As for the balance of about 20% I have not looked specifically at each case over the three years of the study. But a pretty good guess is that a fairly large number were kiddie porn cases where everyone across the nation–including prosecutors–agree that the Guidelines are plainly wrong largely because the penalties set by Congress don’t fit the crime of mere possession or receipt. (I’m not talking about hands-on production.) But since the Commission must follow the statutory directives the sentencing matrix is ratcheted up to stunning heights.

      A certain percentage were likely “fast track” immigration cases–illegal reentry after deportation–where the government agreed to a 2 or 4 level reduction pursuant to the Guidelines in exchange for the offender giving up his or right to a deportation hearing plus the offender had spent time in ICE custody which would not be credited by the Bureau of Prisons thus warranting a below range time-served sentence and immediate deportation. As for the others, I assume there were a variety of reasons.

      The foregoing said, the rate of my compliance with the Guidelines is far above the national rate and at the top here in Nebraska. The national rate was around 50% in 2017.

      I hope this is responsive. All the best.

      RGK

      * For cooperators who do not receive a reduction at the time of sentencing, Rule 35(b) sentence reductions that come after, and sometimes long after, sentencing are not counted in the analysis I referred to in the post. Thus, my government sponsored below range sentences at sentencing are low as compared with other jurisdictions.

      Reply
      1. SHG

        Only at SJ can an insipid and antagonistic question receive such a serious and fully-explained reply from a federal judge. Yay.

        Reply
  2. Miles

    While sentencing disparity is an issue, it could be ended entirely by drawing and quartering every defendant. Or, given that every defendant present differently, based on their personal circumstances and the differing nature of the offense, sentencing disparity isn’t really an issue at all, but a natural by-product of the individualized treatment each defendant should be shown under 3553 and the relative weight given by the sentencing judge, as they’re obliged to decide.

    Reply
    1. Richard Kopf

      Miles,

      If A and B both sell 1.5 kilos of meth, both carry guns (with a swagger), both have a criminal history of VI (the highest), both lack a high school education, both grew up in a single-parent family in an impoverished neighborhood but one is white and the other brown I suppose I should give the white guy a break ’cause of, well you know, white supremacy. Or maybe I should give the brown guy a break ’cause of, well you know, white supremacy.

      As for drawing and quartering, that fell out favor some years ago. I am all for bringing it back.

      Anyway, all the best.

      RGK

      Reply

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