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.