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.
[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!