Look out Justice Antonin Scalia – there is another judge who knows how to get some laughs from Supreme Court cases.
Nebraska U.S. District Judge Richard G. Kopf, clearly not a fan of some the high court’s recent decisions on criminal sentencing, made a David Letterman-style “Top 10” list jabbing at the Courts’ rulings and posted it on the blog of the Ohio State Journal of Criminal Law.
“As a district judge, I read with interest, and even tried to follow, the Supreme Court’s sentencing opinions in Apprendi, Blakely, Booker, Rita, Kimbrough and Gall,” Kopf wrote on the blog*. “With tongue partly in cheek, here, in descending order, are the top ten things I learned from those missives:”[DC Dicta would insert drum roll here]
10. Following the Court’s approach, always put off to tomorrow what you can do today.
9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply.
8. Footnote 9 in Blakely (“The Federal Guidelines are not before us, and we express no opinion on them.”) is the biggest practical joke in the history of American law. See lesson One below.
7. The “merits” and “remedial” opinions in Booker satisfy George Orwell’s definition of “Doublethink.” That is, the two opinions, and Justice Ginsburg’s swing vote to make both the law, reveal “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”
6. Never impose a sentence that is too harsh or too lenient. To quote Baby Bear, make it “just right” or, perhaps more importantly, to satisfy Justice Breyer, make sure it is just “reasonable.”
5. Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi.
4. In an Ivy League sort of way, it makes sense to address the “crack” question fifteen years after everyone else knew something was terribly wrong. See lesson One below.
3. Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t.
2. Sentencing judges can be divided into two groups-those who are damn sure they’re right and those (like me) who have no clue.
1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.
*Despite the fact he posted the list to a blog, being a federal judge, he still listed his preferred law journal-style citation for the funny list, and we will comply: Richard G. Kopf, The Top Ten Things I learned From Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall, OSJCL AMICI: VIEWS FROM THE FIELD (January 2008), at http://osjcl.blogspot.com.