Mimesis Law
20 October 2019

Why Do Federal Judges Send Criminals To Prison?

Sept. 9, 2015 (Mimesis Law) — I don’t know the answer to the titular question. I will try to briefly explain why this is a huge problem and why true sentencing reform needs to answer the question.

I have sent thousands of people to prison over the last 23 years. Between 2007 and 2014—just seven years—I sentenced 1,619 offenders. Almost all (roughly 92%) of them landed in a cage maintained by the behemoth that is otherwise known as your friendly Federal Bureau of Prisons.

I had my reasons. That’s for damn sure.

But now, federal sentencing reform is all the rage. That’s OK by me. My personal view (while sipping cheap white wine on the patio) is this: We have too many people in federal prisons, and we impose sentences that are frequently too long.

Yet when I put on my really cool robe and the clerk says “all rise,” I typically sentence more harshly than the national average of my colleagues. As an example, during the last two fiscal years, for drug trafficking my mean sentence was 113 months and my median sentence was 100 months.* Nationally, and for the same period of time and class of crime, the mean sentence was 70 months and the median sentence was 54 months. For all crimes during the last two fiscal years my mean sentence was 70 months and my median sentence was 51 months. Nationally, the mean was 44 months and the median was 24 months.

I comfort myself with the contradiction between my personal views and my sentencing practices by using magical thinking. I rationalize that I am doing what Congress wants me to do. But in my saner (and more honest) moments I admit that I have no clue whether I am right or wrong about my supposition. And that, dear reader, is strictly the fault of Congress.

Here’s the deal, at the federal level the goals of sentencing are hodgepodge of conflicting and contradictory philosophies. For example, the Sentencing Commission has written:

A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the principle of “just deserts.” Under this principle, punishment should be scaled to the offender’s culpability and the resulting harms. Others argue that punishment should be imposed primarily on the basis of practical “crime control” considerations. This theory calls for sentences that most effectively lessen the likelihood of future crime, either by deterring others or incapacitating the defendant.

2014 USSC Guidelines Manual, Ch. 1 Pt. A, at p. 4 (2014).

Now, consider what nonsense Congress tells sentencing judges to consider:

(a) Factors to be considered in imposing a sentence.–The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider–

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed–

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for–

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines–

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement–

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

I assert that no judge can possibly understand how to sentence a person consistent with the will of Congress given this statute. It is too vague and too long and too contradictory. It is time to junk 18 U.S.C. § 3553(a).

I would draft a far simpler statutory directive. It might read like the following (with apologies to real bill drafters):

The court shall impose a sentence that effectively lessens the likelihood of future crime, either by deterring others or incapacitating the defendant. In so doing, the sentencing judge shall consider the pronouncements of the Sentencing Commission.

I would then enact a separate statute that directed the Commission to draft new Guidelines and policy statements that reflect this directive.

Now, to be fair, the statute could be written this way too:

The court shall impose a sentence that is scaled to the offender’s culpability and the resulting harms. In so doing, the sentencing judge shall consider the pronouncements of the Sentencing Commission.

As before, I would then I would then enact a separate statute that directed the Commission to draft new Guidelines and policy statements that reflect this directive.

Congress and the Sentencing Commission seem to believe that we can have it both ways. They believe that for most sentencing decisions the application of either philosophy—“just deserts vs. “crime control”—will result in the same or a similar sentence. I used to think that was true too. But nearly a quarter century of experience tells me now that is not true.

Let’s take a real life example. Assume we have a relatively low level black male street dealer, who is 24 years old, who is an addict, who carries a gun but has never used it, who has failed in a drug treatment program, who has been raised in a poor neighborhood by a single mother who was also addicted, who can barely read and write, and who has devoted his or her life from age 15 to the sale of drugs.

If we “reform” sentencing, a “just deserts” driven sentencing scheme is likely to “recycle” this offender through the prison system fairly rapidly. In contrast, a “crime control” reform-driven sentencing scheme is likely to incapacitate the offender for a much longer period of time.

While I would select the “crime control” model, I could also accept the “just deserts” model. All I want is for Congress to be clear. As it stands, no one knows why we federal trial judges send people to prison. Unless we get at the primary purpose of sentencing, reform is not likely to change much.** From where I sit, that is a bad thing.

*The District of Nebraska is only the federal district court that makes available to the public sentencing statistics prepared by the Sentencing Commission for each judge. For my sentencing statistics, see here (scroll down to “Judge Kopf’s Practices and Recusals” and “Sentencing Data”).

**No matter what, statutory minimum sentences for the vast majority of crimes should be eliminated.

11 Comments on this post.

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  • james
    9 September 2015 at 9:12 am - Reply

    Welcome back, your honor. Sane as ever.

  • CLS
    9 September 2015 at 9:44 am - Reply

    Welcome back, Judge Kopf.

    I can’t speak for anyone other than myself, but I truly missed your writing. Getting the news from SHG that you’d joined us at Fault Lines was the first thing to really bring a smile to my day.

  • Jeff Gamso
    9 September 2015 at 10:11 am - Reply

    Judge,

    Welcome back. I hated that you left, I’m delighted you’ve returned – albeit in a different venue.

    And I’m honored that I get to blog on the same venue you’re on.

    As you’ve so often said to me,

    All the best,

    Jeff

  • Shon Hopwood
    9 September 2015 at 10:25 am - Reply

    Welcome back Judge RGK. The legal blogosphere missed you.

  • Jake DiMare
    9 September 2015 at 2:26 pm - Reply

    Not sure why this is so complicated, the same countries that score highest for criminal justice score highest for order and security in the annual WJP Rule of Law index. When we get serious about justice in this country, I’m sure we have Finland’s number. If Finland doesn’t want to talk to us, I’m sure Denmark, Singapore, or Hong Kong will be happy to share the secret to their success.

  • Brett Olmstead
    10 September 2015 at 12:43 pm - Reply

    Sentencing is, and should be, a balancing of competing and conflicting interests. I’m just a lowly state court judge, and I’ve only been on the bench for 2 months, but after practicing law in criminal courts for 20 years, I have never understood why many judges seem to have such difficulty understanding the sentencing decision, which is a simple concept: The judge has to determine how, in relation to this specific person and this specific offense, to achieve the best balance between deterrence (general and specific), incapacitation, rehabilitation, retribution and restitution. Simple, right? Of course not. The concept is simple, but the decision is very hard to make in any individual case, and it should be, because a person’s liberty is at stake. Like so many other decisions in the law, it requires a balance between competing interests. That’s what judges do.

    Judge Kopf opposes statutory minimum sentences for the vast majority of crimes, as I do, so I presume that he shares my view that the sentencing decision cannot be made effectively without knowing the specific facts of the crime at issue and the individual defendant’s circumstances. How can all these interests be balanced properly without that information? Statutory minimums make a one-size-fits-all determination in an emotional, heated legislative chamber, without any information specific to any one case, except perhaps one anecdotal horror story that sparked the call for the minimum sentence. That’s short-sighted, poor decision-making. But Judge Kopf’s suggested alternatives for 3553(a) make the same mistake.

    The first suggested alternative, deterrence and incapacitation as the only goals, would result in life terms for everyone. The problem with these goals in isolation is that they don’t tell a judge when to stop. If 5 years will deter others, 10 years will deter better, and life will deter best of all. Incapacitation, by definition, is accomplished better the longer it lasts. That’s one-size-fits-all justice, an oxymoron.

    The second suggested alternative, retribution and restitution as the only goals, at least has limits, vague as they may be, but it binds the hands of the judiciary no less than statutory minimums because it blinds us to other relevant factors. Take the drug dealer example Judge Kopf gives, except remove the “can barely read and write” characteristic, which is irrelevant to either of the proposed alternatives anyway. Now imagine two defendants who share all of those circumstances, except one dropped out of high school and has never shown any desire to do anything but sell drugs, while the other is in college on an academic scholarship and trying to lift himself out of the drug trade. Think that second guy doesn’t exist? I assure you from experience that he does. Should they both get the same sentence? The second alternative would do just that. The crime was the same, and its effect was the same.

    Judges have hard calls to make, and sentencing is no different. 3553(a) takes the many conflicting goals of criminal punishment and requires that judges consider them all. It’s a balancing act and that’s the way it should be. Removing some sentencing factors throws the decision out of balance and forces judges to look at a case with tunnel vision, just like statutory minimums do. That doesn’t make the decision better, it just makes it less informed.

  • Thoff
    11 September 2015 at 6:17 am - Reply

    True our judicial system must change. First lets take into account that throwing the non violent drug addict in prison is never the answer. I mean truly what crime has taken place they were found in possision? Oh dear what a horrible thing. Throwing them in prison is just not the answer. That just means that the addict must wait years before they get out to use again. That solves nothing except they lost there car, job, home and now with a felony won’t be able to get the job to buy the car or home again. This needs to stop. Most of the judges that sentence these people drink alcohol. Alcohol is by far the worst drug there is. If we take a step back is the way we should handle the issue as a whole concedering that one drug is legal and others are not? After years of ruined lives and families torn apart do to the way we currently handle sentencing of drug offenders, it is nice to see some kind of a change even being talked about. By all means I am glad to see something happening. Lets not kid around we are talking about drug offenders and the problems we have created by how we deal 38th those drug users. Let me say for one lets not think of all drug users the way they have been depicted for years. Most of that is just bullshit. I know several users myself and they can all read and write they all have some type of employment. I am not saying that using drugs is right but who are you to say to others what they should or shouldn’t do. I am left with the saying there by the grace of god go I.
    So don’t be mistaken the law is unfair. A change must happen before we create a society of separation those who have been to prison and those who haven’t. Look at what we created with this war on drugs. This war needs to end and it let the P.O.W’s go home and get treatment for those who want it and there by ending this cycle. Because the laws have created most of the problems.

  • Elliott Schwartz
    14 September 2015 at 12:42 am - Reply

    Judge Kopf,

    Seeing you back to writing just made my day. Thank you, as always, for your insight.

    I was convinced by your article until reading Brett Olmstead’s response. Your request for coherent and simple sentencing guidelines seems very reasonable, but so does Brett’s criticism that your suggested simpler guidelines would often result in unfairly long sentences. What am I missing?

    Perhaps a solution is some set of mandatory maximum rules. For example: Did the crime involve a weapon? If not, no more than 5 years. If a weapon was involved but no attempt was made to use it, no more than 10 years. I know it’s not so simple in the real world, but does that sort of idea make sense? Perhaps judges could override the guidelines in exceptional cases, but only with an especially good justification.

    Thanks again for your return to writing. It’s great to have you back. I hope you’re in good health, and I wish you and your family all the best.

    Elliott

  • Keith
    17 September 2015 at 10:53 am - Reply

    The court shall impose a sentence that effectively lessens the likelihood of future crime…

    Forgive my ignorance when it comes to criminal law, but does the Sentencing Commission issue another set of guidelines (as opposed to an independent evaluation of each defendant’s extenuating circumstances and crimes)?

    What would the ramifications be if we allowed juries to weigh in on the sentence, like we do in capital cases?

    p.s. Very happy to see Judge RGK back writing.

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