Fault Lines
18 August 2017

Are Federal Judges Addicted to Incarceration?

July 25, 2016 (Fault Lines) — Addiction?

ad·dic·tion –  uh-dik-shu n
1.        a strong and harmful need to regularly do something or have something
2.        the quality or state of being addicted
3.        a primary, chronic disease of brain reward, motivation, memory and related circuitry
4.        the state of being enslaved to a habit or practice

The United States of America leads the world in mass incarceration. We incarcerate more people per capita than China, Saudi Arabia, Russia, and even North Korea.  The vast majority of folks incarcerated are poor and people of color. Sections of most major metropolitan cities have been ravaged by the many effects of mass incarceration. This mantra has become well known.  But less has been written about why federal judges seem to be addicted to incarceration.

I practiced some federal criminal defense in my earlier days as a lawyer in private practice from 1975-1990, so I mostly experienced the wide, unfettered discretion of federal judges that led to the passage of the Sentencing Reform Act of 1984. My clients often received probation. So did many others, because half of the 10,000 cases that the original United States Sentencing Commission looked at after the SRA was passed but before the Guidelines were adopted, did too. But the commission ignored that fact when they devised the sentencing ranges.

This brings me to my dear friend and colleague, Judge Rich Kopf, who I greatly admire and respect but recognize we often see sentencing issues differently. He has become a forceful and exceptionally well-informed advocate for the “use of actuarial data at sentencing.” He argues that such data should play “an important role in sentencing,” even though the data is currently being collected for use in supervised release.

Hey, I am all for empirical data, and am one of the few judges who collect it and write about it in my law review articles. But just as I am skeptical of the U.S.S.C.’s mantra that the guidelines are empirically based, which is in many ways is demonstrably false, we should be at least as skeptical of my good friend’s claim that we should use this new data in sentencing. (How many of the 30+ Specific Offense Characteristics in the current Fraud Guidelines are based on any shred of empirical data?)

Assuming that Judge Kopf is correct that the actuarial software he is so enamored with is accurate and statistically valid, and that 74% of offenders in the high risk category have their supervision revoked, nearly a quarter do not.  And the new software can’t differentiate. Even if it allegedly could, are we going to trust a new algorithm to tell us which specific offenders are in the 74% who will fail or the 26% who will succeed?

If so, we should be taking sentencing off our list of duties and leave it to government computers. I am skeptical.  If it is simply one more tool where we can be assured of the validity of the information – then I would welcome it in helping us sort out and apply the 3553(a) factors.

But Judge Kopf’s laser-like focus on this tool distracts from more central, and in my view, much more important questions: Why are federal judges addicted to incarceration? Why are judges so Guideline-centric?  Why, after being given the discretion, no, a constitutional mandate to apply the 3553(a) factors, do so many judges give a guideline sentence in most, if not virtually all, of their sentences?

I was recently on a panel of federal judges where a colleague proclaimed that he gave a guideline sentence at least 95% of the time? Just how does a judge fairly apply the 3553(a) factors and almost always give a guideline sentence? How does that work?  Isn’t that judge violating the constitutional lessons and requirements of Booker?  Are lengthy guideline-centric sentences for non-violent low level drug addicts really necessary? And are judges going to use Judge Kopf’s new tool to enhance these already Draconian sentences because we need a new algorithm to tell us most addicts will relapse?

I worry that this is just another so-called “empirical” and purportedly “objective” tool to which judges so easily surrender because it is easy to apply and gives judges a false sense of security about uniformity. Too much “uniformity” breeds unwarranted sentencing disparity by failing to account for the human judgment that judges possess so they can treat each offender as unique.

I salute Judge Kopf’s interest in using cutting edge technology to advance justice. That is something his district has been a national leader in during my quarter of a century on the federal bench in Nebraska’s sister district. It’s one of the federal courts best kept secrets. But pardon me for being skeptical on this one. However, I would not bet against Judge Kopf convincing me, not by his preaching but by watching him in action. It won’t be an easy conversion.

9 Comments on this post.

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  • Anon.
    25 July 2016 at 12:53 pm - Reply

    Around 2007 time frame I attended a CLE regarding federal criminal defense at the New York County Lawyers Association. There was a panel of federal judges to include Judge John Gleason. One of the speakers stated that the older federal judges hated the sentencing guidelines, but that the newer judges loved the guidelines. He attributed this to the fact that many new federal judges came from big name law firms where they did not engage in criminal defense. They wanted guidance. Perhaps the gravitational pull of the guidelines is a security blanket that allows some judges the confidence to render sentences without feeling guilty.

    Maybe its because by the time a defendant gets to criminal court in the federal system its because they have already proven themselves to be incorrigible to the point that the state system can’t effectively deal with them.

    This all may lead to the next question, which strikes me as whether we are overusing the federal courts to deal with crimes that should best be left to the state system.

    • TMM
      25 July 2016 at 3:10 pm - Reply

      Twenty-two years ago as a young lawyer, I wrote a law review article about the right uses of federal criminal law — where the federal interests exceeded the state interests. The practice, however, is that each local U.S. Attorney’s office pretty much sets their own priorities as to what merits a federal prosecution. This leads to a lot of offenses that should be federal being handled at a state court level (felons in possession, interstate transport of low level amounts of drugs) and some state offenses being handled in federal court.

      • Anonymous
        25 July 2016 at 3:30 pm - Reply

        If you are Terrence Messinier, I read that article and had it in mind. It was very well written. Stuck in my head, and it’s been a while since I read it. It’s been even longer since Fordham. I think you were a year behind me. That is if it is you.

        • TMM
          25 July 2016 at 3:39 pm - Reply

          Class of 88 at Rose Hill

          • Anonymous
            25 July 2016 at 7:03 pm -

            I knew it. I was class of 1987. And your article was very well written by the way. I found it about five years ago doing research on another topic.

            Ray Rigat

          • Anonymous
            25 July 2016 at 7:04 pm -

            Oh, and we are still young lawyers. Relatively speaking of course.

    • shg
      25 July 2016 at 7:29 pm - Reply

      Kids, before the SRA of ’84, and even up until Mistretta, federal court was reserved for the most select crimes. Drugs were largely unheard of in federal court. There were mob cases (that’s where AUSA John Gleason made his bones), but that was about as dirty as it got.

      Before the Guidelines, sentences were similarly gentlemanly. After the Guidelines issued (I believe in 1987), every judge held them unconstitutional until the Supreme Court ruled in Mistretta that they were, indeed, constitutional. That changed everything.

      Younger judges today never experienced a federal court without Guidelines. They never had to argue for or against a sentence without a Guideline to cling to. The biggest argument they had was the occasional heartland pitch, which rarely succeeded. So when they became judges, they had no experience with sentence outside of the guidelines. The Guidelines were their world, their view of what an “appropriate” sentence should look like. A generation of judges who never experienced a world without Guidelines gives rise to judges who need a crutch, as they’ve never walked without one.

      As for overuse, they also never saw a federal court docket without a drug case on it, without gun cases, without “puny” and dirty state court street crime. Federal courts didn’t do street crime, or street criminals. Old judges remember.

  • Richard G. Kopf
    25 July 2016 at 2:28 pm - Reply

    Mark,

    My post next week will be a response to your post today. Specifically, I hope to explain how PCRA can be used at sentencing without furthering the addiction.

    Thanks for starting the conversation. All the best.

    Rich

    • losingtrader
      25 July 2016 at 11:36 pm - Reply

      Rich,
      I think you’re about to leap off a blind ledge.
      Your penchant for stats and math, are, inescapably akin to the Halting Problem.

      But, I’m going to make it easy for you.And ,not because you are getting older (every time I think you’ve lost your mind you express a detailed explanation I have to read 5 times to understand)

      I’m going to send you a matrix that has 5 years as a maximum sentence for any non-violent crime, since I know you like that number.It’s mandatory you remember juries would likely sentence way below guidelines unless the words “child” or “terrorist” are involved.
      Take a few dozen shots (just not with my Bullet, although I’ll have 2 Bullets soon) at being vilified for light sentences. You might like the villain role.