Mimesis Law
14 August 2020

Another Failure

September 14, 2016 (Fault Lines) — This story is purely hypothetical.  Okay?  Don’t demand that I wink.

The offender is young—in her mid-twenties.  She is a white female.  She is addicted to meth.  She probably injects it, but I can’t say for sure.  She had a 36-month prison sentence, but I cut it to time served under Rule 35(b) because she ratted out her compatriots.  She never served a day in prison.  She just rattled around the county jails that the USMS uses to hold prisoners locally until it is time for the AUSA to use her to “encourage” pleas from others. Once in a while, those like her may have to testify, but not very often.

The cravings are ever present.  They have not stopped, and I am pretty sure they won’t. Our heroine gets pregnant on supervised release while using the crystal.  US Probation works out in-patient drug treatment. She fails.  As I recall, four times they set up drug treatment.  Our pretty either gets kicked out or never even shows.

She gets pregnant yet a second time. She is 18 weeks or so along.

We set a hearing date.  She doesn’t show up. The Marshals track her down to a meth house. With warrant in hand, they knock on the door. Someone opens the door.  The Marshals tell the door opener that he has two choices.

The residents can shove her out the door. Or, the Marshals will enter by force and conduct a protective sweep in the process, no doubt finding meth and the paraphernalia that goes with it.  The residents shove her out the door into the waiting arms of the semi-bored US Marshals. It works all the time.

She appears before me in her jump suit.  She weeps ‘cause life sucks. Her lawyer recounts the story of the woman’s life of tragedy and degradation.  For reasons that escape me, the statutory maximum for a supervised release violation that I have available to me on this class of felony is 36 months in prison with up to 60 months of additional supervised release.* If had my way, I should be able to incapacitate her for the statutory maximum of the underlying offense–10 years. Whether I would do so is another story.

Anyway, I sentenced her to 36 months in prison with no supervised release.  I don’t want to spend any more resources on her when she gets out because, well, that would be a waste.  In reality, I want her to become someone else’s problem when she hits the streets.

As a result of her hellish addiction, I recommend to the BOP that she be given RDAP.  Due to the pregnancy, I also recommend placement in MINT.  I haven’t the slightest idea what the BOP will do.  BOP is not bound by my recommendation, and this huge agency does what it wants.

The Marshals take her away.  She is just another failure.

Oh, well, it’s quittin’ time (again).

Richard G. Kopf
United States District Judge (NE)

*See 18 U.S. Code § 3559 and 18 U.S. Code § 3583.

12 Comments on this post.

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  • Scott Jacobs
    14 September 2016 at 9:17 am - Reply

    I see the good Judge has decided to make me want to open a vein…

  • Anon.
    14 September 2016 at 1:23 pm - Reply

    So the marshals took her away, but that is not the end of the story. We don’t know if this is a failure.

    In the hypothetical, you recommended her for RDAP and MINT. You cared. Extended supervised release won’t do any more for her. Marshaling limited resources is important.

    Maybe she elects to avail herself of the assistance offered her in prison. Maybe the limited time in jail is enough to let her get a sober look at her life, and to begin the process of getting help. The end of the story has yet to be written, and she is ultimately her own author.

    Maybe most folks won’t change the script, and the story for them ends in disaster–but some will.

    You just don’t get to know which ones you’ve been able to help and which ones you can’t. So it goes.

    But that one person you help changes the world. The ripple effect of that wave will reach a long way in the future. Just keep going, and don’t lose heart.

    And if you’re chasing at windmills, at least you tried.

  • Bob
    14 September 2016 at 1:39 pm - Reply

    If you had unfettered discretion, what would you do differently?

    • Richard G. Kopf
      14 September 2016 at 2:41 pm - Reply


      I don’t know. All the best.


  • Peter H
    14 September 2016 at 3:31 pm - Reply

    “If had my way, I should be able to incapacitate her for the statutory maximum of the underlying offense–10 years.”

    This seems like a bad and likely unconstitutional idea to me. In particular, it would seem to implicate the double jeopardy clause in a very problematic way. Once a sentence is handed down by the court, barring a change on appeal, that sentence is the final punishment for the crime committed. Once that sentence is completed, no further sentence may be imposed for the underlying crime, because that would be putting twice in jeopardy for the same offense.

    For illegal acts undertaken during the period of the sentence, whether on supervised release or in custody, the court may impose punishment for those illegal acts in and of themselves. But extending the sentence to a different length based on the underlying offense would be punishing twice for the underlying offense, which is not kosher.

    Imagine that the court has two persons who are given 12 months of prison followed by 24 months of supervised release. One had a 10 year statutory maximum sentence, and the other had a 25 year statutory maximum sentence.

    Both violate their conditions of release in substantially the same manner. But under your proposed scheme, one of them faces a maximum of 10 years confinement, the other 25, for the same violation of supervised release. Given that at the time of their sentencing they were found to deserve the same punishment, imposing different punishments for the same new acts has the effect of punishing twice for the underlying crimes, based on a subsequent illegal act. That to me violates the principle of double jeopardy.

    The current statutory scheme on the other hand makes the period of confinement for a violation tied to the sentence found at trial, and therefore would not implicate the double jeopardy clause.

    • Richard G. Kopf
      14 September 2016 at 6:02 pm - Reply

      Peter H.,

      So long as the supervised release sentence plus the underlying sentence do not exceed the statutory maximum for the offense of conviction I don’t see a double jeopardy problem. All the best.


    • Richard G. Kopf
      14 September 2016 at 7:01 pm - Reply

      Peter H.,

      I was in a hurry so let me refine my earlier comment. The guy with a 25-year max arguably poses a greater danger than the guy with a 10-year max or so Congress thought. So, assuming the facts of the hypothetical I still see no problem and that includes unwarranted sentencing disparity under section 3553(a). Whether to max someone in the situation you describe does require sensitivity to the concern that you express, but that is a policy (discretionary) matter and not a Constitutional or statutory issue.

      All the best.


    • Richard G. Kopf
      15 September 2016 at 9:44 am - Reply

      Peter H.,

      I have one more response to your very thoughtful comment and a refinement of my earlier responses.

      I can envision one circumstance, using your hypothetical, where there might be a serious problem with my point of view. That is, assume I max an offender out at 10 years for the offense of conviction, and the offender then violates supervised released. In such a case, the offender’s sentence for violating supervised release should be for a fixed and lesser term than the statutory maximum of the underlying conviction.

      So, I might rewrite the supervised release penalty provision this way: A violation of supervised release may be punished by the greater of (1) X [fixed term] or (2) the difference between the statutory maximum of the underlying offense and the prison sentence actually imposed for the underlying offense.

      Thanks for your help in rethinking my position. All the best.


  • Mark Bennett
    15 September 2016 at 4:02 pm - Reply

    More dramatic than many but really just the daily grist of sentencing meth addicts in districts in the meth pipeline. Very troubling, indeed. I find TSR revocations hearings for meth addicts who relapse very daunting when probation has exhausted their resources. We really don’t have many sensible options. I sent one off to prison yesterday after giving hums several chances. He was literally begging me not to send him back. I did but worry about a suicide.

    • Richard G. Kopf
      15 September 2016 at 10:11 pm - Reply


      One of the reasons I wrote this post was to emphasize your point that supervised release violations are run of the mill for you and me and many other judges in Meth-America.

      All the best.


      PS As you well know, the risk of suicide is real and ever present, particularly ’cause meth addicts often suffer from dual diagnosis problems. In fact, one of the pharmaceutical treatments for folks with ADHD and meth addiction is a drug that acts like meth. See Once-Daily Vyvanse® (lisdexamfetamine dimesylate) CII |10 – 20 – 30 – 40 – 50 – 60 – 70 mg capsules) available at http://www.vyvanse.com/adhd-in-adults. But prisons are loath to prescribe it because of the abuse potential.

  • Peter Gerdes
    20 September 2016 at 1:31 am - Reply

    “If had my way, I should be able to incapacitate her for the statutory maximum of the underlying offense–10 years.”

    I see one obvious reason that would be desirable: her repeated pregnancies.

    However, as a society we’ve specifically decided not to make these kinds of judgements. Unlike alcohol there is no fetal meth syndrome (weirdly) and we explicitly refuse to sterilize or punish reproduction of even then heriditarily mentally handicapped even though they are much less capable than the meth addict of providing decent parenting and (when hereditary) burden their offspring with a far worse affliction even than fetal alcohol syndrome. As you didn’t mention any child abandonment/endangerment changers I will assume those aren’t an issue.

    So setting aside her pregnancies let’s instead assume your reacting entirely to her addiction. Surely you aren’t claiming that *she* would have a more pleasurable life in prison. Meth, whatever it’s failings, is fun and even a short life of an addict outside (while pretty crappy) is better than prison.

    Maybe you think she causes harm to others so must be thrown in prison. Who? Her marginal contribution to meth distribution related violence via her consumption is virtually non-existent (take her yearly consumption as a fraction of all meth consumed in the US and multiply by the number of meth related murders) and likely smaller than the harm we all did (before shale oil) in buying gas and supporter dictatorial arab states.

    Maybe it is the harm she inflicts on family and friends? But surely they are in a better position than you to evaluate which would harm them more her imprisonment or continued poor choices outside and I doubt they are calling for a long prison term. They always have the choice of cutting off contact.

    Maybe you feel she is a danger to others. If so then it would be violence convictions that are relevant not addiction and strangely it is the depressants not the stimulants that lead to the most fights/aggressive behaviors.

    Maybe you feel it’s important to send her to prison to deter others from similar behavior. However, this very case (and decades of the drug war) make it pretty clear that upping the punishment doesn’t deter use. Unsurprisingly as the kind of drug use that makes it into the courts is, by it’s very nature, a failure to properly weigh future harms.


    Ultimately, it seems like you are just deeply frustrated with her continued poor life choices. I can appreciate that but it’s most certainly not the legal system’s job to imprison people for that…and that way lies cultural intolerance.

    Most charitably you find it frustrating that her behavior seems so much worse than others who receive harsher punishments. That is unfortunate but that doesn’t entail it would be better if she had a harsher punishment…perhaps those others deserved less harsh punishment.

    • Peter Gerdes
      20 September 2016 at 1:37 am - Reply

      Perhaps I misconstrued your point. I took you to be claiming that you would like to actually sentence her to more than what you can (though perhaps not the full 10).

      If you are just saying that judges should always have the power to sentence people to the full initial term after a supervised release violation then my comment is off topic but I then fail to understand the relevance of any of the post details.

      Surely that claim depends on general considerations of law and justice and any particular case is irrelevant unless you think it is an example of a situation in which a longer sentence is desirable.