Judging With One Eye
May 18, 2016 (Mimesis Law) — Scott Greenfield, our mean-ass editor, is the real deal. He reads everything and changes posts to make them much better. Sometimes he is gentle, and at other times, well, not so much.
Last week I sent him a post with the word “Nebraska” misspelled. The following e-mail exchange (slightly edited to protect the children) ensued:
SHG: Just read your post, and was almost inclined to let your misspelling of Nebraska “slip” through. But I won’t.
RGK: The day after I wrote the piece, I had an entropion repair of the left eye and look like I’ve gone one short round with Mike Tyson. They cut the lower eyelid pull on it with stitches and the eyelid no longer turns in on the cornea.
It would have hurt like a bitch but for the Michael Jackson drug, Propofol that was administered just before surgery so they could inject painkillers into the eye without screaming. Cuts down on the pain of those preoperative injections, but allows you to reawaken during surgery so you can respond to commands as they stitch and pull and compare the left eye with the right one.
So, sure make fun of an old man who was fucking blind when he wrote the post! Asshole.
SHG: It’s a good excuse. Not great, but good.
That got me to thinking about judging with one eye. In some ways, that’s exactly what I do. Let me explain.
I am more and more convinced that I need, somehow, to involve the jury when I sentence a criminal defendant. I hunger for some rough sense of the community’s attitude. I am particularly concerned about how the jurors, after hearing the case, view the seriousness of the offense, what sentence they think will promote respect for the law and what sentence they believe will provide just punishment for the offense. See 18 U.S. Code § 3553 (a)(2)(A). But, I remain convinced that I must be the ultimate decision maker, considering far more things than the jury is competent to consider.
Might I employ an informal hybrid where the jury advises me in a non-binding and informal fashion? Now, to be clear, I am not talking about a formalized model like what we see in federal death penalty cases. See 18 U.S. Code § 3593 (special hearing to determine whether a sentence of death is justified). The “advisory jury” format in Federal Rule of Civil Procedure 39(c) is roughly comparable to what I am thinking about, but even that is far too formal.
What I want is something informal, simple and quick. What I really want is the jury’s impressionistic point of view imbued with their sense of humanity derived from the community from which they come. So, I have begun thinking about a “straw poll” if you will.
If, in a non-capital federal criminal case, the jury were to return a verdict of guilty, I would bring them back into the courtroom and each juror would receive a form and envelope.
Let’s take a case where there is a statutory minimum.
The form (which I would also read to the jury) might look something like the following:
Ladies and Gentlemen, you have found the defendant guilty. Before I excuse you, I would like your advice about how long each of you think the defendant should serve in prison. (I will not be bound by your advice.)
The statutory sentencing range in this case is from X to Y in prison. Probation is not an option. Keep in mind that there is no parole in the federal system. Thus, any prison sentence that is imposed will be the sentence actually served by the defendant less no more than 54 days per year of “good time” if the defendant earns “good time.” After the defendant leaves prison the defendant will be supervised by a federal probation officer for a period of time.
In providing me with your advice, you may wish to consider the seriousness of the offense. You may also wish to consider what sentence will promote respect for the law. Additionally, you may wish to consider what sentence will provide just punishment for the offense.
Based solely and only upon the evidence that you have heard during trial, what I have told you herein and your common sense, I ask each one of you individually: How long should the prison sentence be?
Write your answer here __________________________
Print your name ___________________
Sign your name ___________________
After you have completed the foregoing, each of you should place your form in the individual envelope given to you. You may, but are not required to, discuss your views with the other jurors.
If you do not wish to express an opinion, simply print your name and sign the form without giving your advisory sentence. That is, leave the advisory sentence line blank.
You have one hour to complete this task. The courtroom deputy will return to the jury room and collect your forms in one hour and at that time I will excuse you. Do not leave before I excuse you.
This is just a germ of an idea. The are tons of problems with it. For example, should counsel or the defendant be given the opportunity to address the jury? (I think not.) I could give you a list of the specific difficulties, but the purpose of this post is not to get into those weeds even though they may be tall ones.
In short, I’m tired of judging with only one eye. That is particularly true now that I look like the guy in the photo that appears next.
Tell me what you think about my embryonic (and perhaps moronic) idea. Please.
Richard G. Kopf
Senior United States District Judge (Nebraka)*
*Ed. Note: I’m not falling for it this time. Nope.