A long time ago, in a galaxy far, far away, I once contemplated an offer to start an academic career. I was then, and am still now, fascinated by classical political thought—Plato and such. While I declined a generous offer to pay me to pursue a Ph.D., my fascination with the great classical thinkers remains. And that, then, brings me to the present day and Plato.

Plato thought democracy was one of the worst forms of government. I am beginning to agree with him.

Plato’s incisive critique of democracy is worth remembering today as we witness the madness that prevails in the halls of Congress, at the White House, in the Republican Party, and in the Democratic Party. In this regard, an increasingly large number of our fellow citizens on the left and right have gone completely off the deep end.

Plato tells us that the rabble cannot be allowed to govern.[i] Plato would not be surprised that rabidly self-interested citizens comprise a large segment, perhaps a majority, of the general public. Continue reading →

I will call him Stan. Stan was a middleweight in the interstate meth business. That’s how I got to know and sentence Stan.

With a weapon, Stan was involved in more than 1.7 kilos of meth. His criminal history category was VI—the worst of the worst. So, I hit Stan with 292 months (almost 25 years) in prison despite the fact that he was only 22. Happily, the Sentence-O-Matic 1000 worked exactly as intended.

Later, under Rule 35(b) and a retroactive change in the drug Guidelines, I reduced his sentence twice. Ultimately, he got a mere 151 months. He did his time, and got out of prison.

Stan was into his thirties by then. If you were aware of the recidivism study conducted by the Sentencing Commission in 2016, you would wager a lot of money that Stan would reoffend. Continue reading →

You do not need to be a Trump supporter to decry the tsunami of leaks coming from government higher-ups or those merely working for the government. It seems that virtually everyone who lives in Washington, D.C. is or wants to be a leaker.

I have two thoughts regarding leaks. Briefly, here they are. Continue reading →

In Part 1, I addressed intra-district sentencing disparity in the District of Nebraska.  I presented eight tables containing judge-specific sentencing statistics for fiscal years 2015-2016[1] and I asked for insights from readers of Simple Justice. As promised, I now set out some of my thoughts and respond to several of the interesting, and often funny, comments.

I start with two assumptions. The great bulk of the readers of SJ loathe the Sentencing Guidelines. Also, I assume that many of you don’t like Attorney General Sessions, and are particularly worried about his May 10, 2017 memo that, among other important aspects, requires federal prosecutors to charge “the most serious, readily provable offense.”

I don’t want to argue about the Sentencing Guidelines writ large, whether Sessions is a dolt or whether you prefer Attorney General Holders’ previous (and dainty) way of doing business. Indeed, if you are now a CDL in the federal trenches, you have no choice but to “Cowboy up” and deal with the legal realism of the moment. Continue reading →

The United States District Court for the District of Nebraska is the only court, or at least that’s what I have been told, that regularly publishes each judge’s individual sentencing statistics. We have been doing so since 2007.

These statistics are prepared by the Sentencing Commission at the request of each judge of our court. If for no other reason, I am proud of our judges for being utterly transparent on this subject. And that is true notwithstanding the fact that I am told by a person with intimate knowledge of such things that our practice is very annoying to a fair number of judges in other districts.

Keep in mind that our court is very busy when it comes to criminal cases. On a per-judge basis, we rank 8^th in the nation for criminal felony cases and 7^th in the nation for supervised release violations. (See here, click on “Judicial Caseload Profiles for Nebraska and All District Courts for the 12-Month Period Ending September 30, 2016.”) Continue reading →

One of the greatest novels of the 20^th century is Joseph Heller’s Catch-22. The novel is set during World War II. It follows the life of Captain John Yossarian, a U.S. Army Air Force B-25 bombardier.

As most everyone knows, the title Catch-22 has become a figure of speech.  The best explanation comes from the omnipotent eye of Heller: Continue reading →

In flyover country, the old saw about six degrees of separation does not apply. It is more like two degrees. This is a post about the intimacy (and that is not too strong a word) that exists between criminal defense lawyers, prosecutors, judges and, albeit infrequently, clients. Be forewarned, this examination ends with a literal punch to the gut and a heartrending chuckle.

Alan Stoler has devoted most, but not all, of his professional life to representing those accused of crimes. He was once a prosecutor who handled all manner of heavy duty criminal cases. Another prosecutor of about the same age is a fellow by the name of Alan Everett. They graduated from the University of Nebraska College of Law at about the same time. During their time together as prosecutors, these fellows played racquetball and cheated on the golf course. I doubt that either one of them was very good at these sports, but that hardly mattered. They were and are close friends.

Both went on to bigger and better gigs. Alan E. became an Assistant United States Attorney. He is among the best I have ever encountered. He is scrupulously fair but tough as nails in the most understated of ways. He is funny. By that I mean he is wry in a shaken but not stirred sort of way.

Alan S. became a CDL, and not just any criminal defense lawyer. He has taken on all comers—from death penalty cases to drug cases that threatened life in prison. Like Everett, Alan S. is among the best I have encountered. He was so good that our court appointed him as the Criminal Justice Act panel representative, serving in that capacity for more than a decade. He taught trial advocacy at the UNL law college for 22 years. Stoler’s sense of humor is similar to Everett’s, although a bit more world-weary, as you shall see at the end. Continue reading →

Let us stipulate that lawyers, judges, law professors and legal pundits are not real people and many are not good either. By “good” and “real,” I mean the salt of the earth types that comprise the vast majority of the American public.

With the foregoing agreed, I next address a question Scott put to me recently:

What impact does the partisan handling of Judge Neil Gorsuch have on the federal judiciary?

The answer is as plain as the very large nose on my very old face. That is, the partisan handling of Judge Neil Gorsuch has made good and real people stupid and that, as a consequence, has irreparably harmed the federal judiciary. There are two aspects to this post.

The Confirmation Hearings

The confirmation hearings were a complete embarrassment.  With two non-lawyers running the show (Senator Grassley and Senator Feinstein), political theatre was the order of the day. Continue reading →

As I write this on a Sunday morning, I am in the middle of a complex criminal jury trial that will likely last four weeks. Of course, I cannot write about the substance of the case or the lawyers. But watching the criminal defense lawyers in that case started me thinking about my observations of other criminal defense lawyers over the last 25 years.

It occurred to me that the readers might be interested in my top ten observations about criminal defense lawyers from the perspective of a federal trial judge. So, in no particular order of importance, here are my observations: Continue reading →

Ed. Note: I’ve opened the door at SJ for posts that would otherwise have appeared at FL.

I am fond of saying that I do law, not justice. That sounds amoral. Perhaps it is. But I have a fallback position. I am certain that I know the converse of justice and that is evil. I write today about an example of evil[1] and why I desperately desire vengeance.

Let’s start with some basics. Legal philosophers who believe in retribution as a proper function of punishment eschew vengeance as a legitimate reason for punishment. Rather they believe retribution has a higher calling. Boiled down, here it is:

(1) that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment; [and]

(2) that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve.”[2]

Retributive Justice, Stanford Encyclopedia of Philosophy (Jun 18, 2014).

Continue reading →