Cross: Douglas Berman, The Final Sentence
June 15, 2016 (Fault Lines) — Ed. Note: Scott Greenfield crosses Doug Berman, the Robert J. Watkins/Procter & Gamble Professor of Law at The Ohio State University’s Moritz College of Law, and the proprietor of Sentencing Law and Policy.
Q. You graduated Princeton in 1990 with a degree in philosophy. Why philosophy? Was this about a liberal arts foundation for the future, or was there a plan to be the Nietzsche of Jersey? How did that prepare you for the rigors of law school and, later, the practice of law? Were there any alternatives coming out of Princeton other than law for your future?
A. My favorite class my senior year in high school was a philosophy course, and so I signed up for a number of Philosophy (and Politics) electives during my first year at Princeton. I quickly discovered that I liked that there was, relatively speaking, a lot less reading and a lot more critical thinking in my philosophy classes than in other classes. Also, in the spring of my frosh year at Princeton, I took an upper-level Ethics course, and my reading/thinking/writing in this course felt “practical” in light of my own long-standing interests in contemporary politics and public policy. When I got a good grade on my very first paper in this upper-level Ethics course, I concluded that majoring in Philosophy would be a good idea.
My choice of major was influenced by my interest in possibly pursuing a career in law. There are a handful of lawyers in my family — although, interestingly, my father gave up practice of law only a few years after I was born, and I only saw him as a middle-school teacher while growing up. I heard from a variety of folks that a philosophy degree would prepare me well for law school, and I wrote a lengthy “Junior Paper” during my penultimate year at Princeton on different philosophers’ perspectives on the death penalty.
Because there are also many teachers in my family, and because I so thoroughly enjoyed my study of ethics in college, I did give some real thought to pursuing a Ph.D. after completing my undergraduate studies. But I also concluded it would make more sense (both logistically and economically) to first pursue a law degree and think about other advanced degrees only if law study did not quite work out.
Q. From Princeton, it was off to Harvard Law School, driving right past New Haven on the way to Cambridge. Based on your senior thesis, “Killing, Letting Die, and the Right to Noninterference,” it seems as though you already had sentencing on your mind. Did you go in with an interest in criminal law? Were there other areas of law that intrigued you? Did you plan to put your law degree to use in the trenches, or was academia the goal?
A. I definitely found myself, both in college and law school, to be much more drawn to so-called “public law” topics than to “private law.” I was actually somewhat surprised to find interesting “business-oriented” classes like Contracts and Property and Taxation and Corporations. But, perhaps in part because I was at HLS during a period when Critical Legal Studies was a hot topic, I came to believe that too much of standard law school “canon” was committed to helping students know the legal rules that matter most only to those who have the most money. (This struck me especially during the extended study of “estates in land” in my 1L Property course; I found remarkable we were required to learn the intricate rules for how rich landowners could pass on real property to their families while the basics of family law was relegated to an upper-level elective class.)
My interests in criminal law and family law were, ironically, cultivated by the lack of attention given to these topics I noticed while serving as an editor on the Harvard Law Review. I particularly recall spending an afternoon in the HLR offices looking through a huge stack of article manuscripts submitted for consideration for publication. Reviewing the titles and abstracts of hundreds of manuscripts, I was struck by how many articles were focused on so many different commercial law topics and how few addressed the areas of law that most “average” people encountered on a regular basis.
Because I always had academic interests, and especially as various mentors confirmed my impression that being a law professor was a “good gig,” I definitely had an inclination early in my law school career that I should seriously consider pursuing a career in legal academia. But, I also always believed that I ought to give legal practice a chance. For that reason — and because I was still seriously courting my NYC-based college girlfriend (and now wife) — I turned down a research assistant opportunity with a legendary professor in Boston during my first law-school summer to work as a summer associate in a very small white-collar defense firm in Manhattan.
Finally, as for other topics of interest in law school, I was also drawn to Intellectual Property. I had a general interest in theater cultivated at my “artsy” high school and in English classes I took in college. I recall thinking that IP topics involved an interesting intersection of public policy concerns with business interests; if I had to “sell out” to pay off my school loans, I thought to myself, being involved in intellectual property litigation seemed to me likely much more interesting than putting together corporate transactions or real estate deals.
Q. After law school, you did two stints as a Second Circuit law clerk, first for Judge Jon Newman and then for Judge Guido Calabresi, both heavy hitters on one of the busiest circuits for major criminal cases in the nation. What did you take away from Judge Newman? And Judge Calabresi? Your time there was post-Mistretta, while the Sentencing Guidelines ruled the nation. What was the attitude toward the Guidelines? Did the judges embrace them, or was it begrudging acceptance? Did they regret having to adhere to sentences that a few years earlier would have been excessive outliers? Why no Supreme Court clerkship after the Circuit?
A. My two years clerking on the Second Circuit for Judges Newman and Calabresi were incredibly formative with respect to my legal interests and perspectives. What really struck me during these years was how differently my bosses approached the tasks and craft of judging even though they had relatively similar political commitments and judicial philosophies.
I have often described Judge Newman as the consummate jurist and Judge Calabresi as the consummate academic: the group of clerks working with and for Judge Newman would often flag this or that issue tangentially related to the case we were working on, and Judge Newman would always explain that the court could and only should address that issue if and when it were to arise in another future case; the group of clerks working with and for Judge Calabresi would often receive incredibly insightful lectures from Judge Calabresi about how a seemingly simple case actually had connections to the entire history of tort law or of the unique role of lower federal courts in constitutional litigation.
As you note, the federal sentencing guidelines were just getting their “sea legs” when I was clerking, and my very first big case working for Judge Newman involved an appeal by federal prosecutors of a decision by legendary District Judge Jack Weinstein. Judge Weinstein had refused to apply a mandatory minimum statute based on the quantity of drugs involved in a sting operation: he wrote a massive opinion explaining why, in light of the historical importance of mens rea, it was improper to have drug quantities alone trigger enhanced sentences regardless of the defendant’s awareness of the amount of drugs involved in the offense. The more conservative judges on the Second Circuit panel hearing the appeal were eager to rule emphatically that mens rea should have no part in sentencing determinations turning on drug quantities; but Judge Newman, appreciating the historic and philosophical importance of mens rea, authored a nuanced concurrence that sought to leave open the possibility that, in the right case, mens rea considerations might be relevant to the application of some sentencing enhancements.
In this case and others, Judge Newman helped me better understand why he had long been an advocate for federal sentencing reform, but then became a leading critic of the particular form of reform that the Sentencing Guidelines represented. Similarly, Judge Calabresi was quite engaged by the prospect of interpreting the Sentencing Guidelines on appeal in a purposeful and progressive manner in order to ensure district judges would have adequate discretion to consider individual factors appropriately at sentencing. Conversations with both Judges Newman and Calabresi helped me not only appreciate various flaws of the Sentencing Guidelines, but also the ways federal judges could (but too often failed to) interpret the Guidelines to minimize the impact and import of those flaws. These insights provided the foundation for my first major law review article, in which I argued that federal judges had largely failed to seize the important opportunities that the Sentencing Reform Act provided for being more actively involved in developing the rules which govern federal sentencing.
As for why no Supreme Court clerkship, you will have to ask the Justices on the Court in the mid-1990s. I applied repeatedly to the Justices, but never even got invited to interview for a position.
Q. After Judge Calabresi, you went Biglaw at Paul Weiss. Was that the direction you wanted to take? Was it a money decision? Your work included IP, business torts as well as criminal law. Aside from criminal, were these areas of interest for you? Did you consider staying at Paul Weiss and going for that corner office? If you hadn’t gone academic, would you still be at Biglaw today?
A. I still had school loans to pay off after my clerkships, and the BigLaw prospects of making six figures (including two clerkship bonuses) was hard to turn down. In addition, I had spent two summers at Paul Weiss and had been really impressed with the people I had gotten a chance to work with there. I had a sense that I could learn a lot from the lawyers at Paul Weiss, and I did. It certainly helped my learning curve that, during my two years at the firm, I worked on average probably about 75 hours per week.
I very much enjoyed my work in the litigation department at the firm; I always felt challenged and I had a terrific “docket” of interesting cases. But, especially because I was living in Connecticut and thus had a lengthy commute, I did not like the nature of the work/life (im)balance while at the firm. My wife and I were eager to start a family, but I could see how hard it was for my colleagues at the firm to balance BigLaw work responsibilities and parenting commitments.
In short, I concluded pretty quickly that BigLaw was not going to be a long-term fit for my long-term personal commitments. I also figured out pretty quickly that the BigLaw experience was not a perfect professional fit either, but this was in large part because I found so much of my work so interesting I kept wishing I had more time (and could bill a client) for writing critically about what I was doing and learning.
For example, I was involved in interesting patent and trademark litigation for a major client, and I was especially intrigued by the unique forms and fora in which this litigation was taking place. When it comes to commerical litigation, a commercial litigation lawyer would be helpful for those who are having issues with it. I recall wishing I could take a month off to write an article about what was wise (and not so wise) about how this litigation was directly and indirectly impacted by its setting. But, of course, neither the firm nor its clients wanted to pay for me to do academic-type writing about my experiences. In this way, though I was enjoying my BigLaw lawyering experiences, I came to realize that I would enjoy even more the day-to-day work of being a legal academic.
Q. During your time at Paul Weiss, you were able to devote significant pro bono efforts to the representation of a Texas death row prisoner. How did that come about? Was that part of a pro bono program offered associates at Paul Weiss? How did you end up working with a Texas convict? Did this representation influence your views on the death penalty? Do you have sufficient faith in the system to believe that it’s capable of sufficient certainty to put a person to death?
A. Perhaps the chief reason I decided to work at Paul Weiss when considering BigLaw options was the firm’s serious commitment to pro bono work, especially in the criminal justice system. I had gotten a lot of experience with the federal criminal justice system during my two years clerking on the Second Circuit, including a few cases dealing with federal habeas procedures, but I never encountered a capital case while clerking.
Once at Paul Weiss, I expressed interest in helping out with any capital cases. I was “lucky” enough to get a chance during my final few months at Paul Weiss to work closely with a terrific senior associate trying everything possible to preclude the scheduled May, 1997 execution of a condemned Texas defendant who was indisputably intellectually disabled. Though I have always been something of a death penalty “agnostic” when it comes to efforts to condemn and execute the “very worst of the worst” murderers, I felt very confident arguing in any and every forum that it should be unconstitutional for a state to seek to execute anyone who, by virtue of their personal disabilities, could not by definition be among the “very worst of the worst.”
My experiences trying and failing to spare the life of Terry Washington not only influenced my views on the death penalty, but also fostered my peculiar disaffinity for being focused on criminal defendants claiming they are factually innocent and have been wrongly convicted. In the Terry Washington case, there was a hint of a last-minute suggestion that my client was factually innocent, but I sincerely did not want to seriously contemplate this possibility. I was convinced that my client’s execution, due to his intellectual disability, was an injustice even if he was in fact fully guilty of murdering his coworker. The notion that he might have all along been factually innocent would connote an injustice on a scale I do not like even to contemplate.
On the ultimate question, I actually do have faith that our criminal justice system can operate in a manner that leads only to the condemnation and execution of the “very worst of the worst.” But this could happen, I suspect and fear, only if and when there was a genuine and collective interest among all involved criminal justice participants to condemn and execute only a handful of indisputably guilty mass murderers like Ted Bundy and Timothy McVeigh. The unfortunate modern reality seems to be that one group of involved criminal justice participants sincerely hopes to preclude forever any executions, while another group of involved criminal justice actors seeks to capitally condemn a sizeable number of killers. I believe these dueling forces, exacerbated by systemic class and culture biases that infest all our government institutions, now largely account for why our modern capital punishment systems are still administered so dysfunctionally.
Q. In 1997, you began teaching at The Ohio State University’s Moritz College of Law. What made you decide to leave Paul Weiss to go teach? Did you consider practicing criminal law? Had you already decided that your scholarship interest would be sentencing? Why? What aspect of sentencing did you find so intriguing as to make it the focus of your scholarship?
A. As mentioned before, while in practice at Paul Weiss, I often hankered for time off to write in a more scholarly setting about cases I was working on. In addition, during my clerkships, I had forged a relationship with Professor (now Dean) Marc Miller, who was a founding editor of the Federal Sentencing Reporter. Based on a few short articles I wrote for FSR while clerking, Dean Miller invited me to be a junior editor of FSR, which became one of my pro bono activities while at Paul Weiss. And during this period, the Supreme Court handed down its biggest pre-Booker ruling about the Sentencing Guidelines, Koon v. United States, dealing with judges’ departure authority. Thinking a lot about the various nuanced opinions in the Koon case, and particularly about the various ways in which debates over sentencing law and procedure did not always break down on traditional liberal/conservative lines, enhanced even more my interest in finding more time to think deeply and write critically about the still-developing federal sentencing system.
This background prompted me to enter the teaching market by selling myself as someone who could and would teach and write on criminal justice topics. But, because I had done IP work during my clerkships and at the firm, I also sold myself as someone who could and would teach and write on copyright, trademark and patent issues. (Somewhat amusingly and annoyingly, I was asked during one teaching interview whether I had strategically selected my topics of interest/expertise based simply on the two hottest legal topics of the mid/late 1990s.) I was lucky enough to receive an offer to teach at Ohio State and also at another well-regarded law school, and it was clear that I would be expected to spend most of my time on criminal subjects at Ohio State while I would be expected to spend most of my time on IP subjects at the other school. Though I was impressed by both schools and thrilled to have these options, I just felt in my heart that a criminal justice focus was a better fit for me.
During my interviews for the job at Ohio State, I often talked about how many interesting philosophical and practical issues arose at sentencing, and I indicated that I would be interested in eventually developing a specialized upper-level sentencing course. Amazingly and wonderfully, the folks at Ohio State said that, after teaching the standard first-year Criminal Law course during my first fall teaching semester, I could and should devote my first spring semester to developing and teaching “my” sentencing course. I was both amazed and scared that I could, and now would need to, develop a whole new course out of whole-cloth during my very first year of teaching. This unique challenge provided me with the unique opportunity to review and think critically about what should be part of the modern sentencing law canon, and my interest in and excitement for teaching and writing about sentencing law and policy grew even more in the process. And, perhaps as a fitting way to tie up this early chapter in my academic career, I got the main idea for my second major article while I was teaching about departure authority and the Koon case in my very first sentencing class.
Q. In 2004, you started your blog, Sentencing Law and Policy, which has become the universally acknowledged source for sentencing law. What made you decide to start a blog in the first place? Did you anticipate that it would end up being cited by courts? You started SL&P right before the Supreme Court decided Booker, which was pretty much the biggest thing to happen to sentencing in a generation. What did that mean for SL&P? How did Booker affect your scholarship, given that it changed everything?
A. After developing my own materials for my sentencing course, I reached out to Marc Miller and other colleagues to see if we might work together to develop a sentencing casebook. That book came to fruition in 2003 under the title Sentencing Law & Policy, and we were committed in our publishing contract to create a website as a companion to our new text. Because I was then spending a growing amount of time on-line reading legal blogs like How Appealing and The Volokh Conspiracy, I suggested to my coauthors that we should consider creating a dynamic blog rather than a static website as a companion to our new casebook. My coauthors thought we still needed a traditional website, but they encouraged me to play with a blog on my own. Thus, in the first part of 2004, I started developing my blog using categories that synced directly with the 11 chapters of the Sentencing Law & Policy casebook. My initial thought was that I would add a few posts with new primary materials each week, which would be linked to specific casebook chapters, and thereafter users of the text could employ my blog as a kind of on-line supplement.
But then, much to my good fortune, roughly six weeks after I started blogging regularly, the Supreme Court issued its remarkable and somewhat unexpected Sixth Amendment ruling in Blakely v Washington in late June 2004. Blakely dealt formally only with the Washington State sentencing guidelines, but the blockbuster ruling seemed to portend the eventual constitutional demise of the federal Sentencing Guidelines.
Recognizing Blakely’s potential impact, and fueled by an array of remarkable district court opinions applying Blakely in various ways to the federal system, I went from blogging a few times a week to blogging multiple times a day. And, my blog became a kind of de facto sentencing reporter throughout the summer of 2004 as each branch of the federal government struggled to figure out what Blakely had to mean for federal sentencing law and practice. Among the exciting and surprising developments was a special filing by the Solicitor General in August 2004 which urged the Justices to come back early from their summer break to hear and resolve exactly what Blakely meant for the federal sentencing system.
Though the Justices did not return from their summer vacations early, they did agree to hear the Booker case at the start of the October 2004 Term. I had a grand time reviewing and analyzing on my blog the briefing and oral arguments in Booker, and then the Justices gave me one more present by issuing a dense and arguably schizophrenic dual opinion in January 2005. This ruling, of course, declared the Guidelines unconstitutional as a mandatory sentencing system, but also resurrected the Guidelines in an advisory form. The quirky and unprecedented nature of this ruling all but ensured that there would be another critical round of divergent district and circuit court rulings about how to properly apply each part of the Booker ruling. I consistently felt excited and honored to have an “on-line front row seat” to the development of modern federal sentencing jurisprudence. In addition to daily blogging, I authored nearly a dozen law review articles and extended commentaries in a roughly two year period to try to explain and analyze what I saw as the meaning and impact and import of Blakely and Booker.
Q. A great many of your posts at SL&P serve as sentencing law aggregation rather than commentary. For practitioners, your thoughts on sentencing issues would be very much appreciated. Why not more commentary? As one of the most knowledgeable scholars on sentencing in the country, that deep dive into analysis would be enormously helpful. Is there a reason you don’t go there?
A. During the period of great jurisprudential uncertainty after Blakely and Booker, a much larger percentage of my posts were devoted to commentary and “deep dive analysis.” During that period, I had a lot of new things to say, and I felt I was in a unique position to advance and improve the development of a brand new jurisprudence. But, over time, I have come to see only limited value in repeating, over and over again on my blog, the same core analytic points I have set forth repeatedly in the past.
When there are significant new developments in the sentencing field, such as when Congress seems close to enacting major federal sentencing reforms or when the Supreme Court sets forth some notable new constitutional jurisprudence, I will generally jump back into the commentary game for a period. So, for example, after the Supreme Court’s big recent Eighth Amendment rulings in Graham v. Florida and Miller v. Alabama, I did a series of posts analyzing each of the opinions in these cases and forecasting the follow-up issues likely to divide lower courts soon thereafter.
In addition, I often consider my editorial decisions about what to aggregate/highlight on my blog to be a certain kind of on-going meta-commentary. In my selection of materials to highlight on the blog, I am always thinking about what strikes me as the most interesting and important issues for the short- and long-term future of state and federal sentencing law and policy. I feel strongly that highlighting long-term issues to keep an eye on may be one of the best services I can provide to busy practitioners necessarily focused on the short-term realities of their current cases and clients. (That all said, if and whenever a reader indicates to me in the comments or by e-mail that they are eager to hear my take on some case or controversy, I will always try to oblige.)
I will say that I sometimes consciously shy away from adding strong commentary right away concerning breaking stories because I always want to make sure all my personal commentary is fully informed, thoughtful and reflective. Both in the traditional and new media, I find myself distinctly frustrated and disappointed when seemingly smart people author what I consider dumb commentary because they were too quick to say something provocative about an issue or a case before they reviewed information essential to be fully informed on that issue or case. (The recent hullabaloo over the seemingly too lenient sentencing of Brock Turner is a great example of a case I am not eager to comment about until I first had the chance, at the very least, to review the original presentence report and the full sentencing transcript.)
Q. You seem to try very hard to steer between the defense and prosecution perspectives in your posts, and yet you’ve ended up on the receiving end of staunch partisans like Crime & Consequences’ Bill Otis. What happened with Otis? Do you get the sense that there is no middle ground, where one can try to be thoughtful about sentencing theory without being overtly partisan? What is it about sentencing that makes otherwise intelligent people get their back against the wall?
A. On the political and criminal justice spectrum, I think of myself as a libertarian-leaning moderate. My posts just tend to reflect that perspective rather than being the result of a conscious effort to steer between partisan extremes. That said, I have a particular affinity for calling out and questioning the rhetoric and reasoning of those embracing partisan extremes. So, I will at times criticize some of what I see as extreme positions and claims made by some death penalty abolitionists, and that will often subject me to considerable criticisms from some folks in that community.
Similarly, I will at times criticize what I see as extreme positions and claims made by Bill Otis representing the “tough on crime” crowd. And because Bill and I both seem to enjoy “mixing it up,” and both seem eager to always get in the last word, we will often “go at it” at great length in some comment threads. But I consider Bill a genuine friend, and I greatly appreciate his willingness and eagerness to so aggressively assert his perspective. I am hopeful (and somewhat confident) that these feelings are mutual.
As for middle grounds, I think we all actually occupy in the sentencing arena in the vast majority of cases. I think there is considerable consensus in general about what kinds of crimes and criminals should get mild, moderate or severe punishments. But every so often, a particular case or issue will get linked to other partisan social issues and then “all hell” can break loose (especially on the interwebs).
Interestingly, and I think tellingly, when I challenge my students and others to express their views on the “right” sentence in any complicated case, there is often a lot of reservations and uncertainty about just what should be called the “right” sentence. But, in contrast, it seems a lot of folks become very confident and very vocal whenever they believe they see an obviously “wrong” sentence. Because I am myself never fully confident that I uniquely know what must be the right sentence in any case, I also find myself disinclined to quickly assert that I uniquely know what must be the wrong sentence in any case.
Q. Having written the hornbook on sentencing law, getting your second endowed chair professorship, and being the acknowledged sentencing scholar on the internets, what’s next for you? Are you a professor for life? Dean someday? What about a seat next to Judge Calabresi? What’s the next step for Doug Berman? And will SL&P last forever?
A. In part because I have become somewhat depressed by some of the enduring politics and practices of modern sentencing reform, I have of late been giving a lot more attention to the (right-now-less disappointing) politics and practices of modern marijuana reform. So, rather than regularly looking to change my role in the academy by seeking, say, to become a Dean, I am generally more inclined to change the substantive focus of my teaching and research and service. Also, as my current Deans and also my family could confirm, I am not very good at dealing with administrative matters in a timely way. For that reason and others, I am not so confident I would be a very good Dean.
I am always happy to take calls from any government officials inclined to ask me to become a public servant again, and I do think I might be able to make a useful contribution to an appellate court. But all my mentors were right when they said being a law professor was a very “good gig,” and I am a strong believer in the “if it ain’t broke, don’t fix it” philosophy. Ergo, I could certainly see myself as a professor for life. And I genuinely suspect that my blogs will live on in some form as long as I have a job that benefits from my blogging.