The Curmudgeonly Clerk

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Friday, August 29, 2003
For Shame:
The Sandman takes punditry to a new low (or high, as the case may be).

More Commentary on Comments:
Last week, I commented on the merits of comment features on blogs. Like Will Baude and the folks over at Begging to Differ, I am deeply skeptical of the supposed benefits of comments. And now we all have yet another reason to add to our list of problems with comments: SPAM. I too have noticed this phenomenon on other blogs. I was reading a blog entry the other day, and lodged in the comments was a bit of completely off-topic non-commercial spam: a lawyer-activist had posted a lengthy political announcement having nothing to do with anything.

A reader wrote in after my original post on this topic with some objections thereto. He suggested, among other things, that: (a) comments are more like conversation than formal writing and that I was therefore subjecting them to standards that are inappropriate and/or inapplicable; (b) such conversations are a public service inasmuch as they potentially serve an educational function (i.e., readers may share and distribute their knowledge to others). Said reader also opined that my previous post is sneeringly elitist and that poor grammar and writing are not necessarily indicative of stupidity. He also thought my musings verged on being insulting.

At the outset, I would like to note that I do not think that there is any "right" answer as to whether to include a comment feature in a weblog. It is, more or less, a matter of personal preference. I posted my original entry on this topic in response to another blogger, who wondered if, maybe, there was something "wrong" with those who choose not to include comments on their site. I think not. And I listed a series of interrelated reasons why I personally would not choose to add a comment feature. Like many things written by lawyers, my remarks were rather qualified in nature, so I am hard-pressed to comprehend the heated nature of my correspondent's response.

Personally, I am not persuaded by my correspondent's arguments. His "public service" argument is viable to the extent that comments are actually informative. Although some comments can be so described, I do not think that most fall into this category. For example, blog posts generally feature links to original sources and/or citations; comments, on the other hand, seldom feature these details. But I have to concede that my sense that comments tend to be unhelpful is not based on formal empirical study. It is just an observation from one who spends a great deal of time in the blogosphere. Reasonable people could draw other conclusions.

My correspondent is right in likening comments to conversation. However, I do not think that this strengthens the case for comments by any means. Like conversations, comments have a tendency to drift. As a result, lengthy (and sometimes even not-so-lengthy) comment streams tend to run far off-course from the original topic in ways that aren't particularly helpful or informative. Weblogs that are primarily devoted to politics provide frequent examples of this sort of thing. Steven Den Beste once had a comment feature and abandoned it due, in part, to such drift.

I also do not think that overly conversational English makes for good reading outside of the context of, say, well-written fiction. Colloquial speech tends to be even worse in weblog comments, where standards of grammar and usage are often not above those of a Yahoo chatroom. By way of explanation, Den Beste linked to this comment thread when he put the kibosh on his own comment forum. This site needs a thread filled with sentence fragments and emoticons like it needs a midi of Stairway to Heaven playing in the background.

My correspondent is right that poor writing is not necessarily indicative of stupidity. Moreover, even well-written commentary can be woefully wrongheaded. Maureen Dowd, for example, has a Pulitzer Prize, but seems incapable of making an argument in the fashion of adults.

However, high-quality writing really is a prerequisite in the blogosphere (and in the real world). It is just a question of opportunity costs. Like all professionals, my plate is overflowing. Lawyers do not suffer from lack of work. So we have to be selective in what we choose to read. I personally am not going to read a poorly written blog any more than I am going to read a poorly written book. I just do not have the time to waste. (I believe that Eugene Volokh has pithily blogged on this general topic in connection with his book on academic legal writing) So, perhaps, you can see why I find "conversational" comments to be equally devoid of merit. If I am generally disinclined to read comments elsewhere, I am all the more disinclined to host them (at my own expense, I might add) on this site.

In addition, poor writing is also counterproductive. If the purpose of writing is to convey ideas, to inform, or to influence, then a poorly written argument or explanation is less valuable than a well-written one. It seems to me that my correspondent more or less concedes the lesser quality of the average comment, but regards my judgment as elitist. His e-mail actually referred to my supposed "sneering elitism." "Elitism" is defined as:

1: leadership or rule by an elite 2: the selectivity of the elite; esp: SNOBBERY . . . .

Merriam-Webster's Collegiate Dictionary 374 (10th ed. 2001).

I think accusations of elitism, sneering or otherwise, are misplaced. We evaluate arguments all the time. Recognition that some are better than others in form, content, or style is not the equivalent of elitism any more than distribution of grades for written work on the basis of such factors constitutes snobbery in academic settings. My decision not to host an unmediated comment feature is a form of content and quality control, but I do not think that it can be characterized as snobbery.

This really gets at the heart of the issue for me. Note what is being argued here. I concede that decisions to include a comment feature or not are matters of preference. In two fairly lengthy posts, I have attempted to demonstrate that my personal preference is a reasoned one. In the past, before I ever addressed this issue, CalPundit intimated that such decisions might be political in nature. Jivha suggested that folks like myself could be narcissists. And my correspondent has stated that I am an elitest. I am arguing that my choice is a valid, rationale one, but allow that others might reasonably choose to include comments on their blogs. Others seem to be suggesting not just that my arguments are mistaken, but that there is something indefensibly "wrong" with my decision in a greater sense. They essentially characterize my decision in terms of incorrect politics, personality disorder, or character defect. I think that's a bit much.

Thursday, August 28, 2003
Many Thanks:
Traffic has been higher than average this week, and I have many folks to thank for this fact.

May It Please The Court and Politics & Law both blogrolled this site. Similarly, Professor Eric Rasmusen has been kind enough to list The Curmudgeonly Clerk among a select number of blawgs. Thanks so much.

Comrade of the Curmudgeon Will Baude was guestblogging over at Overlawyered and sent some readers this way. And, speaking of Baude, over at Crescat Sententia Professor Randy Barnett was kind enough to mention The Curmudgeonly Clerk as a blawg that he enjoyed on occasion. It is always flattering when legal luminaries find this blog worthwhile. Pejman Yousefzadah quoted Barnett's praise and sent some folks in this direction as well.

My remarks about Proposition 12 also stirred the pot a bit. Some shameless self-promotion on my part landed a link from former Corner-ite Rod Dreher over at the Dallas Morning News's very innovative editorial blog. To my knowledge, the DMN is the only newspaper that presently has an organizational blog. Byron L. of Burnt Orange Report, which features a fantastic set of Texas-related links, has blogged on Proposition 12 once again and is blogging about the other Texas ballot measures as well. Half The Sins of Mankind also posted a follow-up on Proposition 12, and offers some further thoughts here. Tainted Law has entered the fray as well. And last but certainly not least, William Dyer has posted a very intriguing take explaining why he will most likely be voting for Proposition 12.

I'd also like to appraise folks of the fact that the very interesting Infidelworld: An American Expatriate's Opinions About American and Asian Culture and News has relocated to fresh digs.

Finally, as usual, I would like to thank those who have written in. If I have not replied yet, it is only because I have been unusually busy at work of late. Your feedback is genuinely appreciated.

Any errors of omission are purely the result of inattention, not ingratitude. Feel free to e-mail me if you have recently linked to this site and I have somehow overlooked this fact. Thanks again, everyone.

Tuesday, August 26, 2003
Proposition 12 in Texas:
A statewide "election" is scheduled for September 13, 2003 here in Texas. No major offices will be up for grabs. Instead, it consists of a referendum on several state constitutional amendments. Among those proposals on the table is Proposition 12, an amendment that would alter the Texas constitution so as to allow the legislature to statutorily cap non-economic damages (i.e., non-compensatory damages) in civil suits. Proponents of the measure argue that out-of-control medical malpractice costs that drive away doctors require the measure's passage. The amendment's detractors accurately note that the proposal would give the state legislature a free hand to limit damages in all civil matters, not just healthcare-related suits.

Over the past month or so, I have received two separate mailings from Save Texas Courts, the principal, but not the sole, organization that opposes the amendment. Interestingly, the S.T.C.'s mailouts are signed by two Republican former members of the Supreme Court of Texas. Texans Against Prop 12's tally of organizations against the proposed amendment leans heavily to the left, but the president of the conservative Texas Eagle Forum is also opposed to the ballot measure. Obviously, support and criticism of this tort reform initiative is not entirely breaking down along traditional lines.

The chief pro-amendment organization, Yes On 12 also has a presence on the web, and its site appears to focus exclusively on the healthcare issue. The site does not address the salient argument that the proposed amendment's language empowers the state legislature to cap non-economic damages in all civil suits. Nor does the site even contain the language of the proposed constitutional emendation. (The actual language may be found here.) Although Yes On 12's site currently lists no organizational endorsements, the measure undoubtedly has its supporters: the Texas Health Care Association, Texas Hospital Association, Texas Medical Association, among others.

Although the anti-amendment forces are championing their cause in the name of the common man's access to the courts and claim to be fighting the monolithic forces of "big insurance and big money," their campaign is bankrolled by well-heeled plaintiffs' lawyers and is apparently out-fundraising the measure's proponents. Of course, at least voters know who is bankrolling the anti-amendment effort. Advocates of the proposed emendation have actually designed their fundraising apparatus so as to shield the identity of contributors. Whatever the merits of the amendment and its ultimate effect on average Texans, clearly big lobbies are involved on both sides of the issue.

Even the reality of the problem is disputed. In testimony before the United States Senate Committee on Health, Education, Labor, and Pensions, the Texas Commissioner of Insurance recounted the medical malpractice-related woes ostensibly facing doctors and patients in the Lone Star State. However, opponents of tort reform, relying, in part, on data compiled by the Texas State Board of Medical Examiners, regard such assessments as being chimerical. Accordingly, it is difficult to know where the truth lies in this matter.

However, setting aside the competing diagnoses of what ails Texas, I am inclined to think that Proposition 12 is overly broad in the remedy that it prescribes. Assuming without deciding that Yes On 12 et al. are correct in their assessment regarding existence of a medical malpractice crisis, its causes, its effects, and even its solution, why propose such a radical cure? That is, why amend the Texas Constitution so as to grant the legislature power to limit non-economic damages in all areas of the law rather than in healthcare litigation alone? This particular aspect of the recommended treatment strikes me as being analogous to unnecessary surgery.


Texans in the blogosphere appear to be divided on the merits of Proposition 12. Yeas: GruntDoc, Off The Deep End 2, RangelMD, and TexasGOP. Nays: Mike at Begging to Differ, Burnt Orange Report, DepoMan, Half The Sins Of Mankind, and The Sake of Argument. Fence-sitters exist as well, such as Magnifisyncopathological.

Meanwhile, some of the major metropolitan newspapers have weighed in and they are also divided on the issue. Newspapers for: Austin American-Statesman and San Antonio Express-News. Newspapers against: Dallas Morning News, Fort Worth Star-Telegram, and Houston Chronicle.


Byron L. of Burnt Orange Report has posted a rejoinder to some of the aformentioned bloggers who have come out in support of Proposition 12. Half The Sins of Mankind also takes another crack at the issue. Tainted Law too has something to say about the measure. All three are very critical of Proposition 12.

For a more supportive view of Proposition 12, head over to BeldarBlog, where William Dyer makes an intriguing case in support of the ballot measure. Dyer's post is typically thoughtful. (Have you been reading BeldarBlog? Why not?!?) His perspective is, I think, unique. And, for those interested in Proposition 12, Dyer's remarks are must-reading.

Monday, August 25, 2003
Sex and Sentencing:
CNN has an Associated Press report posted online about a municipal judge who was offering to reduce criminal sentences of female defendants in exchange for sexual favors. The story notes that:

[Erstwhile Municipal Judge Charles] Maestas, who could have received more than 50 years in prison, was convicted of rape and bribery. Six jurors later claimed they had not meant to convict Maestas of rape, but [Judge] Vigil denied the former judge's request for a mistrial.

Prosecutor Julie Ann Meade characterized Maestas as a "serial rapist" who victimized vulnerable women who appeared in his court. "He used the very fact that he was a judge as his weapon to commit this crime," she said.

* * *

Maestas, a former police officer, probation officer and judge, probably will serve most of his sentence in solitary confinement.

Vigil sentenced Maestas to nine years in prison, with six years suspended. He could be eligible for parole in 18 months.

In a previous post, I had noted a case involving sexual misconduct between a lawyer and her criminal client. At the time I cited an article on the topic of lawyer-client sexual relations, Christian F. Southwick, Ardor and Advocacy: Attorney-Client Sexual Relations and the Regulatory Impulse in Texas and Across the Nation, 44 S. Tex. L. Rev. 307 (2002), that covers the topic in a thorough fashion. In addition, that particular article also has a brief bit on judicial sexual impropriety. See id. at 414 & nn. 575-77. Footnote 577 lists, among other cases, In re Boylan, 744 A.2d 158 (N.J. 2000) (per curiam), in which a former municipal court judge was disbarred for a federal criminal conviction related to his practice of reducing traffic fines in exchange for sexual favors.

It is interesting, indeed eyebrow-raising, that The Dishonorable Charles Maestas was actually convicted of rape for his misconduct. I have not researched New Mexico's rape law, nor does the story provide much in the way of details. It is clear, however, that, in order for a rape conviction to have resulted, more than a mere offer must have taken place. One wonders what the exact circumstances were. Philosophically and legally could a mere offer of a quid pro quo or even an accepted and consumated offer constitute rape? One wonders. Maestas's lawyer plans to appeal.


Via a Google search, I managed to locate some additional information about the Maestas case.

The Charges
A press release from the New Mexico Attorney General's office clarifies that Maestas was indicted on 28 counts: "eight counts of Criminal Sexual Penetration; two counts of Criminal Sexual Contact; nine counts of Extortion; eight counts of Official Acts Prohibited; and one count of Stalking." But the press release offers no factual details beyond the general allegation that "Maestas allegedly promised reduced sentences or the elimination of charges in return for sexual favors from women who appeared before him in his court."

CourtTV has a report from mid-June that does lay out a substantial amount of detail regarding the factual underpinnings of the case against Maestas. The allegations against the municipal judge included the following:

Charles Maestas, a "citizen" judge who handled misdemeanor cases like parking tickets, is accused of using his authority to coerce at least four women into sexual liaisons.

Suzetta Salazar, 33, the only victim who admits to having intercourse with Maestas, has provided prosecutors with audiotapes of a conversation in which the judge allegedly promised to reduce her citations if she would have sex with him. She also audiotaped one of their trysts.

CourtTV also detailed Maestas's defense:

Maestas' lawyer, Stephen Aarons, acknowledges that his client had sex with the women but denies that the physical relationships were related to his judicial powers.

"It's not illegal to have sex," he told Court TV.

* * *

Aarons said he plans to show that the four women—Salazar, Mary Martinez, Francesca Ortiz and Cheryl Sida—colluded to bring charges against the judge and are hoping to cash in with a huge settlement in a separate civil lawsuit.

The factual allegations advanced in the civil suits (and that presumably form part of the basis for the criminal charges as well) are quite disturbing. For example, one plaintiff alleges that the judge and three guards serially raped her while she was serving a 90-day sentence for driving under the influence.

The Jury Verdict
A July 31, 2003 story in the Albuquerque Journal provides some very interesting details regarding the jury's verdict in the case. To wit:

[The jury] convicted Maestas of 10 charges June 19: five counts of criminal sexual penetration, or rape, and five counts of "official acts prohibited," which loosely means accepting or offering a bribe. He was acquitted on 18 other charges.

However, the same story reports that half of the jury has since indicated that they did not intend to convict Maestas of rape:

Half the jury that convicted former Española Municipal Judge Charles Maestas has now renounced its verdict of guilty on rape charges, court records show.

* * *

It's not a matter of them feeling bad, Maestas' defense lawyer argues, but one of confusion over jury forms that a 12-member Rio Arriba County jury dealt with June 19.

* * *

"Now we are faced with a situation, unique in New Mexico jurisprudence, not of a jury impeaching an ill-advised verdict but of correcting the verdict forms to reflect their actual deliberations and unanimous verdict," attorney Stephen Aarons wrote in papers filed Monday with state District Judge Michael Vigil.

Having sentenced Maestas on those counts today, the defense attorney's motion was obviously not granted. Most likely this is the basis of his planned appeal.

The Sentencing Hearing
An Albuquerque Television Channel, KRQE, also reports on the Maestas case, but its report is likewise devoid of legally relevant factual details. It does, however, provide a little more detail on the sentencing hearing itself.

A Similar Texas Case
An article in the Santa Fe New Mexican that discusses the alleged juror confusion over the verdict form in some detail also brought to my attention a similar case from the Lone Star State:

Although rare, a case of a city judge involved in sexual misconduct is not unprecedented. In March, Mercedes, Texas, Municipal Judge Ernesto Flores Jr., was sentenced to two years in federal prison for civil-rights violations stemming from his plea.

According to a statement released by the U.S. Department of Justice, “the former judge admitted he had coerced two women in May 1999 and July 2001, respectively, to engage in sexual acts with him in exchange for reducing bonds of their family members.”

Unlike Maestas, Flores was not charged in state court with rape, but rather under a federal charge of violating the women’s civil rights. There is no indication that similar federal criminal charges are being sought against Maestas.

* * *

Martha Minnis, an assistant U.S. attorney in Houston who helped prosecute the Flores case, said cases of sexual misconduct, especially among small-town judges, might be more common than people think.

The Flores case does not appear to be available on Westlaw.

An Interesting New Blawg:
California lawyer J. Craig Williams has written to inform me about his new blawg, and I thought I would pass this development along to my modest readership as well. What is really interesting about his blawg, May It Please The Court, is that it is hosted right along with The Williams Law Firm, PC website. Although I cannot be certain, this appears to be a first: a weblog directly associated with a law firm that does not have any sort of impersonal institutional voice. Thus far, Williams is doing all the posting. However, the site also features The Honorable William W. Bedworth's wonderfully funny columns as a special feature. It remains to be seen if other members of the Williams Firm will be posting as well.

Saturday, August 23, 2003
Commentary on Comments:
In his helpful weekly roundup of things being said in the blogosphere, V. Balasubramani points to this post on blogging and comments (or the lack thereof) by Jivha—The Tongue.

The main thrust of Jivha's musings seems to be that bloggers, at least the big names in blogging, who do not have a comment feature must be narcissists. To wit:

Since I don’t know any of the people who don’t have comments personally, I cannot hazard a guess on their personality traits. But I’m guessing that Narcissistic behaviour might be one of the reasons why some bloggers are not open to comments.

To be sure, Jivha does actually list several other reasons why a blogger might not wish to have a comments feature, which he concedes might be legitimate motivating factors as well. But he also leaves the charge of "personality disorder" lingering. (Note: Jivha's post is interesting and worth reading in its entirety, so do not settle for my characterization of it. Read it for yourself.)

This is not the first time that I have seen this topic bandied about in the blogosphere. Back in early June, Calpundit had a post on this that presented the issue in terms of politics. The thesis was that left-leaning blogs were far more comment-friendly than right-leaning ones. This proposition was then subjected to debate, both in Calpundit's comments section and elsewhere.

Personally, I do not have a comments feature because I am a cheapskate. My understanding is that the free versions of Blogger and/or Blog*Spot simply will not support a comments feature. (I could be wrong about this; I have never thoroughly explored the issue.)

But even if it were possible to install a comments feature, I would not do so. Being a reader of many blogs with comments, I cannot say that I find anything useful about them as a general rule. Those who comment frequently seem to be emotionally and/or intellectually stunted and armed with a poor sense of style, grammar, spelling, and punctuation. Even when comment sections are not so afflicted, they are often littered with detritus. Consider this thoughtful comment to one of Calpundit's posts: "Mmmmmm . . . . sausage."

Am I painting with an overly broad brush? Yes, somewhat. But I think that if you simply look through enough comment sections, you will find that there is some validity to my point. Moreover, even when there is nothing particularly objectionable about comments, they are seldom terribly insightful. I think this is because those who comment simply tend to write off the cuff, without deliberation; whereas, the better bloggers actually put some thought into their posts.

Jivha finds the lack of comments unpalatable for a very understandable reason:

One of the main reasons why my interest in blogging has more or less sustained itself since February (that’s when I started) is because of the intellectual stimulation I derive from interacting with other bloggers. And the main chunk of that interaction comes from either commenting on blogs/posts that interest me, or reading/replying to comments that people post on my blog.

This is also what has sustained me. Apart from providing an outlet for writing about my particular legal interests, other knowledgable bloggers and blog-readers keep me honest and point out things that I otherwise might not have considered. I appreciate all of the feedback that I receive, both on other blogs and via e-mail. I enjoy thoughtful personal correspondence and frequently feature my readers' thoughts and comments in follow-up posts or updates. (Traffic and e-mail volume are light enough in these parts for me to operate in this manner.)

But I doubt that adding a comment feature would add much in this regard. Indeed, it would detract from my blogging, because then I would have to play "comments cop" on a regular basis and police up off-topic and inappropriate matter, rather than writing substantive posts. (As a federal law clerk who is bound by the Code of Conduct For Judicial Employees, the content of this site is, perhaps, a more central concern for me than it might be for other bloggers.)

I do not consider any of these rationales for excluding comments to be reflective of a personality disorder or to be part and parcel of my politics. I suspect that what makes this weblog worthwhile is my relative expertise as a lawyer by training and my relatively unique voice and point-of-view. Although my site is not a particularly popular Internet destination—the only time that I receive real traffic is when a bigger blogger links to one of my posts—I assume that my small, but loyal cadre of readers exists because they find my commentary interesting and useful.

Obviously, there is a lot of emphasis on me in the preceding paragraph. But my thoughts are the heart of this blog after all. And that's true of all blogs, even those with comments. So if this a narcissist makes, then we bloggers are all engaged in a fairly narcissistic enterprise.

Finally, I do not think that the narcissism thesis makes much sense in terms of how the blogosphere actually functions. The definitions quoted by Jivha make it clear that narcissists cannot tolerate criticism. But to operate a blog is to subject oneself and one's arguments to nearly illimitable scrutiny, counter-argument, and criticism. Anyone can start up a blog at no cost (as I did) and then link to and criticize anyone else's posts. Tools like Technorati make it almost impossible for such criticism to go unnoticed by others. InstaPundit, for example, may not have a comments feature, but the entire blogosphere effectively serves as one. (Have you ever noticed how much Professor Reynolds is criticized?) The blogosphere is not a refuge for the thin-skinned among us.

Friday, August 22, 2003
Professor Volokh reports that FOX News Channel's suit against Al Franken has effectively been dismissed. The Honorable Denny Chin's summation of the lawsuit was, to use a word that Bill O'Reilly favors, pithy:

"There are hard cases and there are easy cases," the judge said. "This is an easy case. This case is wholly without merit, both factually and legally."

Judge Chin merely denied Fox's request for an injunction today, but, as the Associated Press story notes, today's ruling paves the way for dismissal. Given the judge's rather unequivocal language, one wonders if we can expect Franken's inevitable motion to dismiss to be accompanied by a motion for sanctions as per Fed. R. Civ. P. 11(b)(2)-(3), (c).


Ernie the Attorney, whose take is posted over at, lends some further credence to the possibility of sanctions:

I didn't see the briefs so I can't comment on that, but I did read the complaint that was filed in state court and I can say it was, not only devoid of legal merit, but also highly unprofessional. I invite you to read the complaint, in particular the allegations in paragraph 77. It is obvious, to me at least, that this lawsuit was brought because of the documented disputes between Franken and Bill O'Reilly. . . .

(Link via InstaPundit.)

Thursday, August 21, 2003
Good and Evil:
Professor Yin has passed along precisely the sort of Internet hokum that I thought I could use to my advantage: The Gematriculator. In short:

The Gematriculator is a service that uses the infallible methods of Gematria developed by Mr. Ivan Panin to determine how good or evil a web site or a text passage is.

According to the Gematriculator's penetrating analysis of my weblog, I am 76% good and a mere 24% evil. I am not going to names any names, but that is considerably better than some. (Blawgrollees, repent!)

Apropos my recent struggles with the Code of Federal Regulations, I ran the text of 20 C.F.R. § 416.927 through the Gematriculator, which readily confirmed that its drafters are also less virtuous than me.

Ah, the pastimes of a clerk who ate too heavy a lunch . . .

Wednesday, August 20, 2003
Comprehending the Incomprehensible:
Unfortunately, I remain at the mercy of the Code of Federal Regulations. Meanwhile, the ever-knowledgable Timothy Sandefur supplemented Judge Hines's observations on the Social Security Act with those of one my favorite jurists, Judge Friendly:

As program after program has evolved, there has developed a degree of complexity in the Social Security Act and particularly the regulations which makes them almost unintelligible to the uninitiated. There should be no such form of reference as "45 C.F.R. s 248.3(c)(1)(ii)(B)(2)" discussed below; a draftsman who has gotten himself into a position requiring anything like this should make a fresh start. Such unintelligibility is doubly unfortunate in the case of a statute dealing with the rights of poor people. An indispensable service is performed by attorneys like those representing the plaintiffs here, who advance tenable claims with clarity and courtesy even if, as in this case, not with success.

Friedman v. Berger, 547 F.2d 724, 727 n.7 (2d Cir. 1976), cert. denied, 430 U.S. 984 (1977).

Of course, the government does not have a monopoly on circumlocution. Consider these specimens from academia, as reported in The National Post:

[From the biography of a Canadian film-maker:] "We can see a socio-sexual parallel between the geography of the wilderness and the topographies of narrative in this genre, which organizes a particular spatial itinerary and social anatomy."

* * *

[From a book about poetry:] "It is the moment of non-construction, disclosing the absentation of actuality from the concept in part through its invitation to emphasize, in reading, the helplessness—rather than the will to power—of its fall into conceptuality."

* * *

Mass culture now attracts the most bizarre theorizing. When moviemakers changed James Bond's brand of vodka, Aaron Jaffe of the University of Louisville wrote that this "carries a metaphorical chain of deterritorialized signifiers, repackaged up and down a paradigmatic axis of associations."

* * *

[From the book Empire:] "In the logic of colonialist representations, the construction of a separate colonized other and the segregation of identity and alterity turns out paradoxically to be at once absolute and extremely intimate."

(Saw the Post article on Arts & Letters Daily.)

Even the C.F.R. is not that bad. One must be grateful for small favors in life, I suppose.

Tuesday, August 19, 2003
The Day The Blog Stood Still:
As you might have noticed, there has been no posting today. Who is to blame for this national tragedy? The Commissioner of Social Security. Well, actually, Jo Anne B. Barnhart isn't responsible in the most literal sense. But her agency's regulations are giving your intrepid clerk a dickens of a time. As United States Magistrate Judge Earl S. Hines once put it:

One is hard-pressed to imagine a more abstruse set of rules than those embodied in the Social Security Act, its voluminous implementing regulations, and multitudinous and constantly-evolving policy interpretations found in Social Security Rulings.

Welsh v. Barnhart, No. 1:01-CV-220, 2002 WL 32073076, at *6 (E.D. Tex. Dec. 23, 2002).

With any luck, yours truly will shortly be back in action.

Monday, August 18, 2003
Send in the Clowns:
Let's get this straight.

One candidate (out of 135) in the recall has past associations with an organization that thinks that California rightfully belongs to another country.

A plethora of candidates have even more in common with whores than the average sitting member of Congress. One is a porn starlet who promises to use adult film stars as ambassadors of good will for the state if elected. But a porn actress as candidate is fitting. If management can get into the game, why not labor? And she's hardly the sole self-promoting tart in the race. This particular breed of candidate is so commonplace that they are barely distinguishable from one another. And yet this genre of candidate somehow allowed itself to be outmaneuvered by a novitiate who is offering a signature thong for sale as a method of filling her campaign coffers.

Add to this parade of horribles a candidate who has a haircut that screams "unfit for public appearance," let alone public office. (Query: Has anyone seen this candidate and Lenny Kravitz's drummer simultaneouly apart?) Nor is this aspiring politician the only "bad hair candidate" to materialize.

And, of course, more than one has-been actor has entered the race, one of whom has hired another B-list actor who played a political operative in a television series to perform a similar role in real life.

What's frightening is that the two top-tier candidates are included among the aforementioned electoral undesirables.

Current Governor and political pariah Gray Davis has characterized the recall situation as a dangerous carnival. I can understand the temptation to link the recall to carnivals: both feature an inordinate number of (scary) clowns. However, on balance, I think that Davis's characterization is insulting—inasmuch as it is an affront to the comparative quiet dignity of hard-working carnies. That's the scale of the grotesquery that is the California recall.

Serious commentary and links to important stories on the recall can be found on Professor Hasen's wonderful site. But I have to admit that I personally won't be getting my recall news and opinion at that venue. Instead, I will be tuning in to The Daily Show and reading The Onion. At this point, parody news sources seem more fitting.

[Note: Some links liberally borrowed from Life, Law, Libido.]

Friday, August 15, 2003
Don't Link This—Or Else!
(Or Else What?)
Eugene Volokh and Steve "X" of Begging to Differ are having some fun at the expense of these halfwits over said halfwits' permission-only Internet linking policy.

I have previously discussed such policies in another context. Amazingly enough, the Pennridge School District is not alone. Professor Sorkin of The John Marshall Law School once maintained a site devoted to tracking such linking policies. And Sorkin's former site is not filled with clueless school districts either.

Thursday, August 14, 2003
Copynorms: The Continuing Debate
Professor Weatherall, an Australian academic who calls Melbourne University Law School home, was kind enough to point to my recent attempt to contribute to the debate over copynorms. Intellectual property and information technology are Weatherall's areas of interest and expertise, so anyone interested in these issues should head over there and take a look. The professor's site closely follows these issues and has multiple posts on the subject.

My prior post generated some interesting mail from two thoughtful readers that is well worth considering. I excerpt and comment on each below.

Copynorms and the Rule of Law
Reader A wrote in to suggest that my concern that lack of respect for copyright might erode respect for the law in general is misplaced. To wit:

Laws must reflect actual human behavior or they don't work. You cannot enforce a law in a country of 300 million unless at least 99%+ will obey. By the time voluntary compliance is down to 95% it is hopeless. 90% is a joke. At 80% compliance no one cares.

Now figure there are 60 million file traders. What [are] you gonna do?

One can quibble with the numbers, of course. The recent Pew Internet & American Life Project data states that "35 million U.S. adults download music files online," of which "26 million share files online." But, of course, these figures pertain solely to adults, which does not capture the full pool of file-sharers by any means. Nor do Pew's figures extend beyond the United States's borders. Of course even Pew's lesser numbers would run afoul of Reader A's precepts. And, even if one rejects the percentages suggested, I think Reader A has a fairly intriguing point in concept.

One potential theoretical problem with the notion of "voluntary compliance" is the nature of "voluntariness." Consider taxes, for example. I gather that most people do pay their taxes each year without much fuss. That is, the government does not have to compel us in the most literal sense of the word. But surely few are paying taxes voluntarily. We pay because the Internal Revenue Service will do exceedingly unpleasant things to us if we do not. (Note to readers who are gladhearted about paying taxes: simply change the hypothetical to include a governmental requirement less to your liking.) Law is compulsion.

Although the RIAA is taking a broad approach right now by suing individual file-sharers, it has no doubt occurred to it that it cannot sue all 26+ million Americans who do so. The costs are too great. What the RIAA presumably aims to do is make an example of some folks and thereby create a legal (and financial) disincentive for disregarding copyrights. If successful, it seems to me that the RIAA will have achieved the very same form of "voluntary" compliance that ensures that the I.R.S. hears from us each April 15.

Now some laws we voluntarily comply with in a truer sense. For example, most would decline to murder their neighbors for their wallets even if the law did not prohibit it. (Of course, if we would do what the law dictates on our own anyway, are we really "complying" or does our behavior just coincide with the law?) The thought fills typical members of society with moral disgust.

But for far more morally ambiguous matters or matters utterly lacking in moral content, the law and the penalties for violating the law are precisely why we comply. For example, each morning I get in my car to go to work. Although I would decline to travel at increasingly excessive speeds at some point out of self-interest and concern for others, the only thing that keeps me less than 10 miles over the limit each morning is the patrolmen who will otherwise fine me. The potential sanction does not keep me or most others at the precise speed limit, but it does shape our behavior behind the wheel and keeps traffic flowing along smoothly enough. Might the RIAA be aiming for the same result in copyright?

Of course, none of this suggests that the RIAA will be successful. It's grasp may well exceed its reach. Reshaping the existing copynorms may simply be a bridge too far. As Reader A also suggested, the technology involved in recording and distributing music may have changed so dramatically that the RIAA's efforts are futile, inasmuch as the music industry's business model purportedly no longer makes sense. But I am not certain that its business model need make any sense if copyright law remains unchanged and courts go on enforcing it. The existing state of the law could easily safeguard an otherwise economically unviable enterprise. (Programs that require government subsides come to mind.) And the sanctions that file-sharers face may well deter.

Copynorms and Technological Parallels
Although I have indicated some level of moral discomfort with the prevailing copynorms, people in general do not seem to consider file-sharering as being a morally culpable act. Apart from my concern regarding the potentially corrosive effect of our copynorms on respect for the law generally, I have previously equated file-sharing with theft and drawn parallels between tangible property and the intellectual variety. Even those who also consider file-sharing wrong in some moral sense generally reject my property parallel. For example, Professor Solum writes that he:

. . . believe[s] that illegal music downloading is wrong; a virtuous citizen obeys the laws even when she disagrees with their correctness—except in extreme cases.

But however unvirtuous file-sharing might be under present circumstances, Solum does not regard it as theft:

But the norms against unauthorized copying of music have broken down, or maybe they never existed in the first place. Again, why? One source of the breakdown is the manifest legality of similar copying. After the Supreme Court's decision in the Betamax case, most lawyers and certainly most lay people believe that copying television programs for personal use is legal. The Audio Home Recording Act includes a provision that makes analogy copying of music recordings virtually legal; you cannot be sued for making an analog compilation tape of copyrighted music.

And the average music downloader understands that if you shoplift or steal a CD, you deprive the owner of the use of the CD. But copying an MP3 files does not have the same effect. Economists would describe this difference using the concept of rival versus nonrival consumption. The social norm against theft of tangible property is supported by widespread understanding of the purpose of law's against theft. But the general public does not seem to have a similar grasp of the underlying rationale for copyright laws.

Solum has expressed this same distinction between tangible and intangible property before:

. . . . I think that part of the industry's problem is that file sharing is not like theft. Everyone understands that consumption of intellectual property is not "rivalrous" in the economic sense. When I copy an MP3 file, I don't preclude you from copying or listening to the your own version of the work (whether on CD, record, MP3, or reel-to-reel tape), but when I steal your car, I preclude your use of the resource. That's why social attitudes towards filesharing are different than social attitudes towards shoplifting CDs. The case for intellectual property rests on a more complicated story about incentives.

I think this distinction between tangible and intellectual property has real explanatory power in terms of how people think about the issue. I am less certain that this is how people ought to think about the file-sharing, however.

At any rate, Betamax got me thinking about how VHS technology is similar and not so similar to file-sharing. VHS copying strikes me as an apt parallel with a single exception: scope. Armed with a mere VHS and some tapes, an individual could do only so much damage. The costs of tapes and reproduction time inhibited gratuitous copying and distribution. But the potential ability of a single file-sharer to share MP3 files over the internet is several orders of magnitude greater. File-sharers may distribute innumerable copies and without the production time and costs associated with prior technologies.

Nonetheless, it is clear that drawing parallels between file-sharing and other technologies might help explain why copynorms are what they are. So the question is: What technologies seem close enogh to be instructive? And is there a parallel technology that also posseses the same scope as file-sharing?

In my previous post on this matter, I referenced libraries. I wrote:

Of course, a similar argument might be made regarding books. After all, if I were to check out a book from the library, reproduce it in .pdf, and make it freely available over the Internet, I also would not have precluded anyone from the use of the work.

This musing provoked the following response from Reader B:

Your library example brings up, to my mind, the best argument that the RIAA's agressive take on file sharing is out of line. A library buys one copy of a book and then lets others use it for free. That's basically what file sharing is: someone buys a copy of a song and lets others use it for free. Same if I lend my copy of the Wall Street Journal to you. You have gotten the IP for free, through someone who originally acquired it by paying a fee. And obviously, the creator/owner of the IP would prefer that each user/consumer purchased a new copy, but that's not the law or any reasonable interpretation of it.

File sharing technology obviously makes it possible to lend out a piece of IP to many users, but how is it, except in scope, different from what a library does? . . .

Now it may well not be different in any fashion other than scope. But perhaps scope is enough. After the all, with the increased scope comes far different financial implications for the owner of the intellectual property. I do not think that calls for the RIAA et al. to come to terms with the new technological realities are entirely misplaced. But by the same token, perhaps, the law ought to come to terms with it as well. Perhaps, the scope problem renders all otherwise similar technologies distinguishable?

My discussion of this issue with Reader B led me to pose another technological parallel: the photocopier. During my undergraduate years, many of my professors liked to issue bundled packets of articles, book excerpts, etc. of works authored by others. Notwithstanding the fact that we were not getting any fancy packaging (i.e., it was just photocopies of the originals), these packets were quite expensive—due to copyrights. And they always had a copyright notice on them and declared that it would be against the law for us students to buy one copy and then photocopy them at next to no expense for others, notwithstanding our ability to do so. Is file-sharing more akin to this forbidden photocopying than the library analogy I attempted? It certainly replicates the "multiple-copies-derived-from-one-purchased copy" aspect of file-sharing. And it may come closer in terms of scope.

Reader B's response was apt enough:

I think your copy machine analogy is better than the library, but still isn't satisfactory. It does get at one aspect of file sharing that's a problem—people can sell/give their licensed version to someone else without having to give up their own copy (unlike the library). But you didn't see publishers and authors suing Xerox for making copiers available, did you? Same thing with VCRs.

Reader B's point has merit. Though, of course, his remarks do not address the liability of those doing the copying. In this regard, Denise Howell pointed out this very interesting case: Lowrey's Reports, Inc. v. Legg Mason, Inc., Civil No. WDQ-01-3898, 2003 WL 21635302 (N.D. Md. July 10, 2003). In this case, copyright infringement liability actually resulted, in part, from distributing photocopies of copyrighted material. The maker of the photocopier was not sued, but the persons who did the copying were liable. Perhaps, the only reason less litigation regarding photocopying of copyrighted material has taken place or been threatened—if indeed that is the case—has to do with problems of detection rather than a differing copynorm. If so, what does that say about file-sharing?


Denise Howell has subsequently linked to a newsletter called Legal Bytes compiled by one of her coworkers at Reed Smith. In the current issue of the newsletter, attorney Joe Rosenbaum discusses Lowrey's Reports, Inc. and offers some interesting background. Among the more interesting details is this bit:

Years ago, in American Geophysical Union v. Texaco, Inc., a similar controversy over the use of scientific publications erupted and the parties stipulated facts to present a test case to the court: Was the photocopying of eight scholarly articles from separate issues of the same trade journal by a Texaco research scientist “fair use” under the Copyright Act? Before the case settled, the court concluded such photocopying by corporate researchers for their own files was archival, not fair use and violated copyright laws. Although some archival copying can be fair use, institutional, systemic copying to make them available to scientists, avoiding the purchase of additional subscriptions is not.

And don’t be misled by quantity versus quality. In 1993, a Florida court held a bulletin board owner liable for copyright infringement when subscribers uploaded and downloaded pictures from Playboy Magazine. Defendants argued portions from each magazine were insubstantial compared to the total and should be entitled to fair use protection. The court noted even a small amount of copying is not fair use if the portions copied are “essential.” The court was certainly not implying “people do not read the articles,” but the pictures were obviously central to the magazine’s importance.

Wednesday, August 13, 2003
A Fellow Curmudgeon:
In the process of meting out a truly humbling amount of praise to yours truly, Houston lawyer William Dyer, a relatively new blogger, reflects on his own clerkship experience with The Honorable Carolyn Dineen King:

When I clerked in that same building in a pre-PC era, the state of our technology was that we had two massive, brand-new "word-processors"—each about the size of a Volkswagen—on which the judge and her three law clerks' written output was transcribed from longhand by two secretaries. There was one dedicated Lexis/Nexis terminal in the building law library for the use of all the Houston-based district and circuit court judges and their clerks, but I was one of the very few who used it regularly. We had telephones in chambers—but no fax machine. I am reasonably sure that they'd run off all the carrier pigeons already.

And to think that the failure to use computers in one's legal research might actually land one in ethical trouble under the right circumstances these days. Personally, I am so accustomed to computerized research and wordprocessing that when I actually have to use a set of books like Shepherd's, I have to relearn how. This comes as something of a surprise to me, given that the first time that I ever really used a personal computer was my second year of college. Now PCs are practically indispensable. The other day a computer worm temporarily shut the court's computers down and I actually went home to work on my computer.

Thank Ye:
Many Thanks to JD2B for the link; The Curmudgeonly Clerk enjoyed an appreciable bump in traffic as a result. And it's little wonder: JD2B is an excellent site that features many useful links for pre-law and law students, as well as lawyers.

I also note that the (apparently) tireless Jerry Lawson has set up another blog: Resources and Networking for Federal Agency Lawyers, which has also blogrolled this site.

And, last but certainly not least, thanks to those folks who have taken time out of their busy schedules to e-mail me. I am behind on my blog posting and correspondence, but promise to move forward as expeditiously as possible.

P.S. I am behind, in part, because I continued to singelmindedly follow the Ashcroft/DOJ memorandum brouhaha again today. A couple more updates have been affixed to the original post.

Tuesday, August 12, 2003
One-Track Mind:
Allow me to extend my apologies to anyone who stopped by hoping for some new material today. I have been devoting all of my time of late on the latest firestorm surrounding our Attorney General. I have written a detailed essay on the topic, in an attempt to clarify why I think that Ashcroft's conduct is so wrongheaded. I have also added updates as my debate with Stuart Buck on this issue progressed. Comments and criticism are, of course, more than welcome.

Monday, August 11, 2003
Contra Buck: Ashcroft, Sentencing, and Discretion:
I have written at some length to express my displeasure with the Attorney General's stance on the Sentencing Guidelines and judicial discretion thereunder. In two posts, see here and here, Stuart Buck, whose blog I daily enjoy, has offered a defense (of sorts) of Ashcroft.

I say "of sorts," because Buck's two commentaries have been principally devoted to demonstrating the hypocrisy of Senator Edward Kennedy and the incoherency of The New York Time's arguments respectively, both of which have leaped upon Ashcroft with their customary ferocity. Nonetheless, it is clear that Buck views Ashcroft's July 28, 2003 internal sentencing policy memorandum as being innocuous enough. For the following reasons, I do not find Buck's reasoning persuasive.

Setting aside Buck's criticism of the Kennedy and the Times, Buck's substantive defenses of the Ashcroft memorandum can accurately be characterized as follows:

(1) There is no evidence that Ashcroft is compiling a "blacklist" of judges;

(2) Even if Ashcroft were compiling such a list, it could not have any impact on the independence of the federal judiciary.

In the process of defending his first argument from prior criticism that I lodged, Buck writes:

I'm not sure that the Ashcroft memo really represents a new policy at all. From what I can tell, it might more accurately be described as a reminder to make sure that the existing policy on appeals is followed in every case.

I think that Buck's arguments are contradicted on their face by Ashcroft's own memorandum, statements made by apparent subordinates of the Attorney General, and the context in which these events have transpired.

Ashcroft's Memorandum & The PROTECT Act
The AG's memorandum purports to be an effort to bring DOJ practice in line with the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), not to reiterate preexisting policy.

Although one might initially have thought that an act whose acronym stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today" might concern children, the legislation goes far beyond that in content and purpose. Of particular relevance to the topic at hand, Congress amended 18 U.S.C. § 3742(e), which now generally requires appellate courts to review downward departures under a de novo rather than an abuse of discretion standard. See § 401(d) of the PROTECT Act; see also United States v. Dyck, 334 F.3d 736, 739 (8th Cir. 2003) ("Section 401(d) of the PROTECT Act, however, requires us to consider de novo if the factor upon which the district court based its departure '(i) does not advance the objectives set forth in section 3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not justified by the facts of the case.'" ). The Act also requires that the United States Sentencing Commission promulgate new sentencing guidelines within 180 days that will "ensure that the incidence of downward departures are substantially reduced." See § 401(m)(2)(A). Notwithstanding that this latter measure in the legislation in question imparts the responsibility for curtailing downward departures upon the Sentencing Commission, the AG views passage of the PROTECT Act as an occasion "to provide clear guidance" on downward departures to the DOJ before the Commission has even acted on Congress's directive. So even though Ashcroft suggests that he is attempting to bring the DOJ into compliance with the PROTECT Act, he is, in fact, riding out ahead of it in some respects.

The section of Ashcroft's memorandum that has particularly caught the attention of the media is the seventh item in the memorandum's appendix, which amends the United States Attorneys' Manual as follows:

(7) Recurring illegal departures: An adverse decision must be reported if the following two criteria are met:
(a) the court improperly departed downward in a manner that is not otherwise required to be reported; and
(b) the basis for departure has become prevalent in the district or with a particular judge.

I think that Buck is rather mistaken in his assessment that the AG is merely reiterating DOJ standard operating procedure. As an initial matter, one does not generally amend a policy manual in order to draw attention to preexisting policy, but rather to alter existing policy. Moreover, the de novo appellate standard of review effectively increases the odds of appellate reversals by substituting a less deferential standard of review for a more restrictive one, which creates an incentive for the DOJ to pursue a more aggressive appellate practice. Ashcroft opens his memorandum by referencing the reforms of the PROTECT Act. It is reasonable to assume that he intended DOJ policy to change in accordance with Congress's reforms. Indeed, the AG suggests as much in the memorandum:

Because it is a party to every federal sentencing proceeding, the Justice Department has a duty to ensure that its future actions fully support the important reforms enacted by the PROTECT Act.

A Judicial Blacklist?
Buck maintains that the memorandum does not provide for a blacklist. In the most literal sense, this is true. There is nothing in any of this that even remotely suggests a formal Nixonian "enemies list." However, it does seem clear that individual judges are to be targeted.

It is indisputable that some form of information-gathering, however informal it might be, must take place. Under the seventh emendation to the U.S. Attorneys' Manual, excerpted supra, information about district court departures not approved of by the Government must first be gathered at the local level and then relayed to superiors in Washington. Of particular note is that the emendation refers to departures that have become routine within a given "district or with a particular judge." Now this information-gathering is supposedly soley for appellate purposes. Nonetheless, it has occasioned much trepidation. Why is this so?

I suggest that The Honorable James Rosenbaum's recent ordeal before Congress suggests an answer. As related by the American Judicature Society:

[A legislative amendment designed to curtail downward departures] followed a threat by a House committee to subpoena documents concerning the sentencing practices of Chief Judge James Rosenbaum of Minnesota. In May 2002, Judge Rosenbaum, a former prosecutor who was appointed by President Reagan, testified in opposition to a bill that would have reinstated tougher sentences for first-time drug offenders. That testimony evidently upset committee Republicans, and a year later, notwithstanding numerous efforts to defuse the situation, Judge Rosenbaum remains under the cloud of a House investigation.

* * *

. . . . [I]t is difficult to regard the effort as other than an attempt to intimidate both Judge Rosenbaum and his colleagues on the federal bench. That is a tactic openly professed by at least one member of the Republican leadership in the past.

Rosenbaum's predicament was so precarious that he actually had to obtain counsel to defend himself from Congress:

DRCNet reported last week that Republicans on the House Judiciary Committtee were about to subpoena Minnesota federal court Chief Judge James Rosenbaum in an effort to punish him for speaking out against harsh federal drug sentences and for allegedly sentencing at least two drug defendants to less time than the law required. But the Wall Street Journal, the only major media outlet to cover the story, reported on March 13 [, 2003] that committee Republicans have agreed to hold off on the subpoena after Rep. John Conyers (D-MI), the ranking Democrat on the committee, offered to mediate the dispute.

The tussle between Rosenbaum and the committee Republicans had simmered for months before being brought to a head two weeks ago, when Rep. Howard Coble (R-NC) said in a letter seeking the subpoena that Judge Rosenbaum had "imposed illegal sentences in at least two cases" and that he was seeking a subpoena to "reveal further illegality on his part in sentencing additional criminal defendants."

The judge's attorney, former US Attorney Victoria Toensing, argued that he neither misled the committee in his testimony last year—in which he argued that federal law required him to impose harsh and unfair sentences on defendants with minor roles in drug cases—nor violated sentencing laws. Rosenbaum had indeed sentenced some defendants to less time that required by federal sentencing guidelines, Toensing told the Journal, but those were lawful "downward departures." Toensing also said that the committee's move to subpoena Judge Rosenbaum's sealed transcripts and other court records overstepped congressional authority.

And thus we are presented with the unseemly spectacle of a Democrat safeguarding a Reagan nominee (and former U.S. Attorney) from Republicans.

Ashcroft's memorandum certainly resonated in Minnesota, the state in which Judge Rosenbaum sits:

"This will have a chilling and intimidating effect on judges, and this is why I no longer draw criminal cases,'' said Paul Magnuson, a senior federal trial judge in Minnesota who now handles mostly civil cases. "I predict that the number of departures by federal judges from sentencing mandates will fall to virtually zero.''

The Chief Justice himself has stated unequivocally that this judge-by-judge information gathering tactic is quite troubling:

The second topic I would like to address is the recent efforts by some in Congress to look into downward departures in sentencing by federal judges, in particular our colleague Judge James Rosenbaum. We can all recognize that Congress has a legitimate interest in obtaining information which will assist in the legislative process. But the efforts to obtain information may not threaten judicial independence or the established principle that a judge's judicial acts cannot serve as a basis for his removal from office.

It is well settled that not only the definition of what acts shall be criminal, but the prescription of what sentence or range of sentences shall be imposed on those found guilty of such acts, is a legislative function—in the federal system, it is for Congress. Congress has recently indicated rather strongly, by the Feeney Amendment, that it believes there have been too many downward departures from the Sentencing Guidelines. It has taken steps to reduce that number. Such a decision is for Congress, just as the enactment of the Sentencing Guidelines nearly twenty years ago was.

The new law also provides for the collection of information about sentencing practices employed by federal judges throughout the country. This, too, is a legitimate sphere of congressional inquiry, in aid of its legislative authority. But one portion of the law provides for the collection of such information on an individualized judge-by-judge basis. This, it seems to me, is more troubling. For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges may not be removed from office for their judicial acts.

* * *

But the principle that a judge may not be impeached for judicial acts does not mean that Congress cannot change the rules under which judges operate. Congress establishes the rules to be applied in sentencing; that is a legislative function. Judges apply those rules to individual cases; that is a judicial function. There can be no doubt that collecting information about how the sentencing guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. There can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties. We must hope that these inquiries are designed to obtain information in aid of the congressional legislative function, and will not trench upon judicial independence.

Although Buck acknowledges Rehnquist's remarks, he downplays their import regarding the present debate. I think that Buck misreads the Chief Justice, and he does so because he fails to place the Chief Justice's remarks in context. Rehnquist may have ended his speech with talk of impeachment, but he began the segment on judicial independence with a clear reference to Judge Rosenbaum. The Rosenbaum imbroglio and information-gathering directed at individual judges is the proper framework for construing Rehnquist's remarks. He ended with impeachment of judges because he viewed that as a disturbing potential end result of such endeavors, not because he regarded impeachment as the sole credible threat to the independence of the judiciary.

Observers have every reason to believe that Ashcroft's sentiments mirror those of Congressman Coble. For one, Ashcroft, like Coble takes a rather rhadamanthine view of criminal justice. Morover, his subordinates have been entirely plain in their intentions:

Justice Department lawyers, who had championed even tougher measures to limit judicial discretion in sentencing, said the change is needed because of the increasing willingness of some judges to ignore sentencing guidelines.

That nearly all departures from the guidelines have resulted in more lenient sentences further angered Ashcroft and his conservative-minded attorneys, officials said.

"Some judges felt they were not bound by any guidelines," one senior Justice Department official said. "They were ignored out of some sense that the judge was not beholden to them. . . ."

Department spokesman Mark Corallo said that under the previous system, officials in Washington were alerted to problematic sentences on an "ad hoc" basis. By requiring U.S. attorney's offices to report the lighter sentences in a systematic way, Corallo said, Ashcroft and his advisers will be able to identify judges and jurisdictions that deviate from legislative mandates on sentencing.

"Illegal" Sentences
Buck and others insist that the DOJ has every right to appeal illegal sentencing decisions. That's a statement that is impossible to disagree with. But that's the problem with verities: they do not really say much of anything. To begin by assuming that Ashcroft et al. are, in fact, confronted with a bevy of illegal sentencing is, per force, to conclude that Ashcroft is in the right. But no such assumption is warranted.

It is clear that the "law and order" Congress and Department of Justice view most downward departures as unwarranted and illegal. But stop and reconsider the facts for a moment. Under the regime that existed prior to the PROTECT Act, the DOJ appealed almost none of the complained of downward departures:

According to statistics compiled by the U.S. Sentencing Commission, 35 percent of the sentences handed down in federal court in fiscal 2001 fell below the range set in the sentencing guidelines. Almost half of those involved plea bargain agreements or other cases of "substantial assistance" to prosecutors, but 18 percent of the "downward departures" were for other reasons. Federal judges imposed sentences that exceeded the guidelines in less than 1 percent of the cases; the Justice Department appealed 19 of more than 11,000 "downward departure" sentencing decisions.

These statistics give rise to a reasonable question that no one has yet even attempted to answer: if the DOJ was heretofore confronted with a myriad of illegally imposed sentences, why did it not appeal more of them? As has been pointed out, whatever this information-gathering program will accomplish, it will not alter the basic mechanics of the DOJ appellate process. Therefore, whatever Ashcroft hopes to achieve via the new policy that he announced in his July 28, 2003 memorandum, its prior nonexistence does not seem to account for the lack of previous appeals. That is, Ashcroft's new policy does not appear to be intrinsically designed to effecuate more appeals.

Moreover, consider the fact that Congress had to substantially change the law, directing the Sentencing Commission to change the downward departures provisions, in order to achieve the results that the AG and Congress seek to obtain. Now if the departures in question were always "illegal," why is it that Congress had to amend the law to prevent them rather than resorting to the ordinary appellate process? Ashcroft and company seem to suggest that it's because they were faced with massive resistance from the bench. Such a theory is not beyond the realm of imagination. Certainly judges have no love of the results dictated by the Sentencing Guidelines. In a recent speech:

Justice Kennedy seemed to join the growing debate over Attorney General John Ashcroft's directive that federal prosecutors report to him data on judges who levy sentences lower than federal guidelines dictate. "The federal sentencing guidelines should be revised downward," Justice Kennedy said in arguing that discretion remain in judges' hands rather than with a federal prosecutor "often not much older than the defendant."

Yet Ashcroft was not willing to submit this thesis of his to the courts. It seems to me that Ashcroft et al. employ the word "illegal" with reference to the sentencing decisions in question in the same fashion that speakers sometimes use the word "unconstitutional" with reference to disliked policies—i.e., as an argumentative claim rather than as a descriptive statement about the law. By allowing the AG to frame the debate in terms of "illegal sentences," Ashcroft's supporters are effectively allowing him the benefit of simple ipse dixit. In addition, they are allowing Ashcroft to denigrate the integrity of federal judges without demanding any genuine proof.

The existing, pre-PROTECT version of Section 5K2.0 of the U.S. Sentencing Guidelines indicates that there is nothing inevitable about the correctness of the AG's position that judges were illegally departing downward. In relevant part, Section 5K2.0 provides that:

Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guidelines, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Circumstances that may warrant departure from the guideline range pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis. . . .

The legally binding commentary to this particular guideline provision elaborates that:

The United States Supreme Court has determined that, in reviewing a district court’s decision to depart from the guidelines, appellate courts are to apply an abuse of discretion standard, because the decision to depart embodies the traditional exercise of discretion by the sentencing court. Koon v. United States, 518 U.S. 81 (1996). . . .

In the face of such discretion, it is difficult to see why one should just take Ashcroft's word for it that "illegal" sentences were involved when he was not willing to put the DOJ's resources and reputation at stake in defense of that contention prior to having the law amended so as to render it more amenable to proof of his claims.

As with so many other topics, reasonable people can disagree on this one. And, as usual, some of Ashcroft's critics have done themselves and this issue a genuine disservice by making claims that they cannot substantiate. But that failing strikes me as being at the heart of Ashcroft et al.'s arguments as well.

I am also concerned about the unwillingness of Ashcroft's defenders to concede that there is some potential for abuse here. I previously brought Judge Baer's ordeal, see here, here, and here, to Buck's attention, and was met with this rather unsatisfying, I think, response:

. . .. [W]hat does [Baer's] example prove? That there has been one solitary case in the past decade in which a federal judge went off the deep end, but then corrected himself after furious criticism and threats of impeachment from Congress and the President who appointed him. But why is Baer's situation even relevant? . . .

I think that to ask this question is to answer it. And that other lawyers do not share this recognition troubles me a good deal. Unlike legislators and executive branch officials, Article III judges are not political actors and should not be subject to the political process. Indeed, Article III was crafted so as to guarantee this result to the extent possible. It is a risky business to seek extra-judicial redress regarding individual judicial outcomes. In Baer's case, as in almost any other conceivable case, the alternative is appeal rather than politicking. I would just as soon not see federal judges treated, on an individual basis, as poltical targets of opportunity. The prospect of information-gathering on individual judges led the Chief Justice to opine about Judge Rosenbaum's not altogether disimilar treatment and the illegitimacy of impeachment as a remedy for unwelcome judicial decisions. I think that Rehnquist's concerns were dead-on in this regard.

Of course, one may pursue legislative reform after the fact as well. The aforementioned provisons of the PROTECT Act are the result of such effort. But the notion that this legislation was enacted to rein in unruly judges is mere assertion. Just as likely, its proponents were displeased with the results that the law yielded, so they simply changed the law so as to produce the desired outcomes.

The pre-PROTECT version of the Sentencing Guidelines and its provisions on downward departures acknowledge that the Sentencing Guidelines are a mere manual, and that, no matter how complex, it cannot hope to match the compexity of real life. It leaves substantial discretion in the trial courts so that just sentences might be imposed in individual cases. Even with this mechanism, the Guidelines are, as Justice Kennedy's remarks supra suggest, widely regarded as draconian in many respects. See also United States v. Davern, 970 F.2d 1490, 1502 (6th Cir. 1992) (Merritt, Chief J., dissenting) (“The facts surrounding his arrest and conviction illustrate with clarity the unjust and ultimately indefensible system effectuated by the application of the Sentencing Guidelines.”), cert. denied, 507 U.S. 923 (1993); United States v. Shepherd, 857 F. Supp. 105, 111 (D.D.C. 1994) (“This Court, along with many others, has repeatedly expressed its dismay at the restraints Congress and the Sentencing Commission have hoist upon sentencing courts in recent years.”), remanded by 102 F.3d 558 (D.C. Cir. 1996). Any "reform" that threatens to not only perpetuate this state of affairs but to exacerbate it by curtailing discretion in sentencing is bound to diminish the level of justice in our criminal justice system. But to couple such an effort with demonization of the judiciary and information-gathering on particular judges or districts threatens the very system itself. In short, Ashcroft's proposed implementation of the PROTECT Act is even more pernicious than the Act's substantive provisions.


[1] Professor Yin has commented on this issue, citing an instance in which a district judge was apparently less than faithful to the Sentencing Guidelines. There is no doubt that other such instances exist. See, e.g., United States v. Reynolds, Nos. 01-1202L, 01-1253XAP, 2001 WL 1486198, at *3 (2d Cir. 2001) (unpublished opinion); United States v. Blackwell, 127 F.3d 947, 957 n.9 (10th Cir. 1997). However, it is not even remotely clear that the incidence of such instances is epidemic. Ashcroft and his defenders have not even bothered to offer evidence in this regard.

Professor Yin has also provided an updated rejoinder, in which he indicates that Ashcroft's incipient information-gathering program may be an attempt to gather the data that I maintain has not been marshaled. This is not a meritless position. However, I must confess that I would rather have another entity doing the data collection and analysis, if it must be done. Keep in mind that the DOJ is an interested party in the litigation in question, not a neutral fact-seeker. And Ashcroft, as detailed below, is more "interested" than most. In addition, I think that the updates below give some indication as to why the minimal data that Ashcroft proposes to collect will not suffice to make his case at any rate.

[2] Professor Turley had an op-ed in yesterday's L.A. Times, in which he condemned Ashcroft's memorandum. As with all newspaper commentary, Turley's piece is less than perfect, but it does contain the following noteworthy passages:

In matters of faith and law, Atty. Gen. John Ashcroft generally distrusts the role of discretion—it is uniformity, if not rigidity, that defines his vision. . . .

* * *

Ashcroft is seeking to prevent judges from tailoring sentences to fit individual crimes. If successful, sentences in the United States would be meted out with all the speed and care involved in calculating a mortgage rate on the Internet. Judges are resisting this robotic approach to sentencing and are fighting to preserve a tradition of judicial discretion that runs to the early days of our country. In a system without such discretion, pleas for mercy or extenuating circumstances would be considered immaterial to justice.

* * *

. . . . Denounced as a kind of blacklisting, the new policy is particularly troubling because of Ashcroft's history of attacking judges who don't fit his vision of justice. One of the most notorious incidents was addressed in his close confirmation fight.

As a senator from Missouri, Ashcroft blocked the elevation of Missouri state Supreme Court Justice Ronnie White to the federal Court of Appeals. A widely respected African American jurist (he recently was made chief justice of the Missouri Supreme Court), White was considered a natural for the federal court. Ashcroft, however, led a vicious campaign against White's confirmation and labeled the judge as "pro-criminal." In particular, Ashcroft insisted that White was hostile to the death penalty, even though White had voted to uphold 41 out of 59 death sentences that came before him.

Now, Ashcroft believes that federal judges who lower sentences are violating the intent of the federal law. However, the Supreme Court has ruled that such decisions are the very essence of independent judicial review and has held that the sentencing guidelines anticipate such departures. Justice Anthony Kennedy, a conservative on criminal matters, held that this country had a long "tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in human failings that sometimes mitigated, sometimes magnify, the crime and punishment."

But what makes Turley's commentary noteworthy, quite apart from its content, is that Turley is a conservative who had publicly supported Ashcroft's confirmation to the position of AG. Support for Ashcroft and his policies appears to be on the wane in all quarters.

[3] Stuart Buck has offered another potential defense of Ashcroft's memorandum and policy: the perceived need for uniformity in sentencing. Buck writes:

Consider this chart (PDF) from the Sentencing Commission. One column lists the percentages of cases in which judges granted downward departures for reasons other than providing "substantial assistance" to the court. These percentages are provided by circuit and district throughout the entire country.

Thus, we can see that in 2001, there were vast disparities in how the Guidelines were applied across the country. In Pennsylvania, the highest percentage of downward departures was in the Middle District—9.3% of all cases. In South Carolina, only 2% of cases involved downward departures for "other" reasons. (You see similarly low percentages in other southern states.) The Western District of Texas, however, granted such departures in 25.7% of all cases. The Ninth Circuit as a whole granted such departures in 38.7% of all cases, while the Southern District of California granted them in 50.5% of cases.

* * *

. . . [M]aybe Ashcroft is right in suggesting that the Guidelines are not being applied consistently across the country. (See p. 4 of his memo, which mentions the "goal of reducing unwarranted disparities in sentencing among similarly situated defendants.") That is the whole point of the Guidelines, after all—to make sure that equally situated defendants are treated equally no matter where they are standing trial.

Although I do not think that this point is entirely devoid of merit, I also do not think that it will bear too much scrutiny. As an initial matter, I doubt very much that anyone would arrange their personal affairs on the basis of such statistical analysis because these figures tell an observer nothing about the reasons for such differences.

As Buck acknowledges elsewhere in his post, differences in docket may well explain much of the variance. For example, why should one think that districts overwhelmed with drug and immigration cases (such as S.D. Cal. and W.D. Tex., both of which Buck references), which are quite unique in nature, would have statistics comparable to districts whose criminal docket is not so burdened? I suggest that this docket-related surmise has more explanatory power than Ashcroft's accusation to the effect that renegade judges are flouting the Sentencing Guidelines at will and must be brought to heel.

Compare, for example, the "other downward departure" rates of Texas's two border districts, S.D. Tex. (17.5%) and W.D. Tex. (25.7%), with the E.D. Tex. (9.9%) and N.D. Tex. (6.5%). Confronted with these figures, one might conclude either that (a) the judges in South and West Texas flout the law, or (b) that the factual scenarios applied to the statutes and sentencing guidelines for the crimes endemic to the border simply produce different departure rates than for those districts confronted with differing crimes and a wider diversity of criminal sentencing issues. Why credit Ashcroft's assertion that the former is the case? Similarly, comparisons between districts with a high volume of criminal cases and those with far fewer criminal matters may also be less than revealing. No doubt there are far more variables than I am accounting for in this brief post.

Consider also the two busiest circuits in terms of criminal appeals. The "lawless judges" thesis seems even less plausible when one considers that the law and order Fifth Circuit Court of Appeals has one of the higher overall circuit departure rates (18.1%). The Ninth Circuit, with a genuinely remarkable "other downward departure" rate of 38.7% skews the overall statistics for all of the circuits. Aside from having the immigration cases generated by its border districts, the Ninth Circuit has a whole host of variables that might account for its general statistical deviancy. Although plagued by charges of ultraliberalism, (almost) everyone also acknowledges that the Ninth is simply too large, and this institutional infirmity, in conjuction with the border cases, may suitably account for the high rate of downward departures. It's not clear tht the Ninth Circuit can profitably be compared to the others at all given its uniqueness.

In short, these varying statistics do beg many questions, but they provide no answers. Serious inquiry might be a more useful response than DOJ collection of data on individual judges. (Doesn't everyone agree that the prospect of an evenhanded study by the United States Judicial Conference, the Sentencing Commission, or academics would be preferable to Ashcroft's less-than-neutral, agenda-oriented information-gathering?) The supposition that these statistics necessarily reveal that similarly situated defendants are being sentenced at variance from one another rests upon the assumption that these statistics, which stretch across across divisions, districts, and circuits, do, in fact, pertain to similarly situated offenders. Nothing in these statistics supplies any basis for such an assumption.

Finally, although the Guidelines were enacted to impose some uniformity in sentencing, the provisions also provided for judicial discretion in some measure. The Guidelines merely institutionalized, formalized, and channeled discretionary decision-making. Is there really any reason to think, in the abstract, that departure rates ought to be roughly equivalent across the districts, given individualized discretionary assessments? In addition, the jurisprudence of the various circuits often diverges from circuit to circuit. This is equally true with reference to interpretations of the provisions of the Sentencing Guidelines. Thus, even application of the very same provision might vary in different districts across the nation, without even accounting for discretionary assessments. How much of the variation in departure rates may be attributed to differing judicial construction at the appellate level? It seems to me that no one has even bothered to consider this particular issue.

[4] Buck has updated his latest posting and makes two basic points. The first is that:

The Clerk keeps insinuating that Ashcroft has made wild accusations about the federal judiciary. But as far as I can tell, Ashcroft has not himself "accused" anyone of anything. The only thing I've seen with Ashcroft's name on it is a bland and innocuous memo telling prosecutors to make sure that they initiate the appeals process if judges issue decisions that are "not supported by the facts or the law," if such decisions occur. (p. 4 of the memo). . . .

Ashcroft has wisely chosen not to step into the firestorm that erupted when his memorandum became public. So he has not made any specific statements in this regard. However, Ashcroft has a lengthy record of public service. While the text of the memorandum may be bland, when juxtaposed with Ashcroft's longstanding and deeply held views regarding the judiciary, there seems to be little doubt about his motives. Ashcroft's views in this regard have been well known since before his confirmation to the position of AG. As USA Today reported in January of 2001:

It is the choice of Ashcroft that means the most to court watchers. His name is synonymous with the outer reaches of conservatism, and he, more than just about any other senator, made judicial selections his business.

It is well known that Ashcroft obstructed the nomination in 1999 of Ronnie White, an African-American judge in Missouri, to a federal trial court. Ashcroft said White was "pro-criminal" in death penalty cases. Ashcroft also used Senate procedures to single-handedly block action on other nominees he said were too "activist," and repeatedly decried jurists who he said "believe their role is to make laws, not merely apply them."

His tenure as AG has also been marked by this view. This is not the first time as AG that Ashcroft has vigorously opposed the judgment of sentencing courts. No one disputes this about Ashcroft, including his defenders. Mark Levin, president of the Landmark Legal Foundation, has contrasted Ashcroft with those who "fight for the appointment of liberal judges who coddle the worst kind of criminals." Addressing the matter of Ashcroft's opposition to Ronnie White's nomination to the bench, Clint Bolick of the Institute For Justice argued that "Ashcroft opposes liberal judges no matter if they are black or white."

Given Ashcroft's own location along the political spectrum, the term "liberal" ought to be liberally construed. Even well-respected Republicans affiliated with the current administration are often well to the left of the AG. All of which is to say that it would not take much to be regarded as a lawless, liberal judge by an ideologue like Ashcroft.

Moreover, as noted above, the original Washington Post story on this issue cites and quotes some of Ashcroft's DOJ subordinates to the effect that Ashcroft intended this measure as a crackdown on lawless judges. Given that Ashcroft has remade the DOJ in his own image staff-wise during his tenure, there is little reason to think that the comments of these DOJ sources, one of whom was a senior official, are unrepresentative of Ashcroft's thinking on the issue.

So I am flummoxed by Buck's argument. Are we to read Ashcroft's latest memorandum divorced from everything we know about the man and his law enforcement philosophy? Are we to disregard the statements of his own subordinates regarding the AG's motives and the impetus behnd the DOJ's new policy?

Buck also revisits the issue of the statistical variance in downward departures:

As for the differing dockets, let's take a quick look at some statistics: The Southern District of California's docket is 42.2% drugs and 44.1% immigration, and grants downward departures 50.5% of the time. The Eastern District of Virginia's docket is 38.2% drugs and 3.3% immigration, and grants downward departures 3.5% of the time. So even though SD Cal has a lot more immigration cases, that fact alone can't possibly explain the disproportionately high number of downward departures it grants. . . .

Although I am not sure why one would choose to compare S.D. Cal. and E.D. Va. and expect equivalent results, the disparity is admittedly remarkable at first blush. Why the variance? I can only suggest reasons that seem plausible.

First, the far larger number of immigration cases in the S.D. Cal. probably contributes to the differing "other downward departures" statistics. Second, although both districts devote a similar percentage of their docket to drug cases, the actual drugs involved are quite different. For example, 80.7% of the E.D. Va.'s drug docket concerned hard drugs (i.e., powder cocaine, crack, and heroin), while a mere 15.5% of the district's drug caseload concerned marijuana. In contrast, the S.D. Cal.'s drug docket consisted of almost all marijuana cases (76.8%), while a mere 12.9% of the district's drug cases concern the aformentioned hard drugs. Why is this important? Because the federal drug statutes and the Guidelines treat the same amounts of cocaine and marijuana, for example, rather differently. Hard drugs are frowned upon a great deal more by both the law and social mores, the latter of which will no doubt influence judges' willingness to contemplate discretionary departures. This different treatment helps explain why the mean average sentence for drug trafficking crimes in the E.D. Va. is 129.4 months (median sentence of 120), while the mean average for the same category of crime is a mere 24.5 months (median of 15.0) in the S.D. Cal..

And this is just one of many variables lurking beneath the surface of the very broad, nearly meaningless statistics that Buck relies on. Lost in the general statistics that he cites are the actual drug quantities involved in individual cases, the prior criminal history of particular defendants, and the specific offense characteristics for any given crime, all of which shape a sentence and the possibility of departures. One could just compare the mean/median averages for drug trafficking sentences of the S.D. Cal. and E.D. Va. and conclude that Virginian jurists are the dragonmen of the Drug War or that Californian federal district judges are soft on drug crime. But given the numbers beneath the surface that illumine the nature of each district's drug docket, there is every reason to believe that neither characterization is accurate.

I would suggest that comparisons of the "other downward departure" rate between districts will frequently be this complex, and that Buck wildly underestimates the complexity of the task that he sets for himself when he attempts to justify the interrelated notions that there should be (relative) uniformity in sentencing across dockets/districts, that there is not such (relative) uniformity, that this lack of uniformity is amenable to correction, should be corrected, and that Ashcroft is merely attempting to do so. In short, building a credible statistical case for disregard of the Sentencing Guidelines on the federal trial bench is an extremely complex task that must take into account a host of variables, one which no one has yet undertaken. Certainly, neither my nor Buck's brief foray into this area suggest any definitive answers.

[5] Mark H. Allenbaugh, a former staff attorney for the United States Sentencing Commission has a nice column over at FindLaw today. (Link via How Appealing.) Among many interesting tidbits, Allenbaugh shares the following:

. . . Last week, Chief Judge Marilyn Hall Patel of the Northern District of California attacked the PROTECT Act and Ashcroft memo in a published opinion. She complained that, under the new regime, "the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is chucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches."

Unfortunately, Judge Patel's opinion does not appear to be online yet.

Allenbaugh also mentions that, for those who find the PROTECT Act and Ashcroft's memorandum to be appealing, there is still more good news:

Now circulating in Congress, but not yet introduced, is the Vital Interdiction of Criminal Terrorist Organizations Act of 2003, or the VICTORY Act. (Ironically, or appropriately, the 'Y' is missing.)

The Act does have one redeeming feature: It would reduce the much derided 100-1 sentencing ratio between crack and powder cocaine to 20-1. That, at least, is a step in the right direction. But this small softening is accompanied by a large crackdown: With respect to the sentencing of drug offenders, the Act would reduce the impact of certain mitigating factors, and increase the impact of certain aggravating factors—predictably leading to longer sentences.

Otherwise, the VICTORY Act continues the assault on the federal judiciary that the PROTECT Act and the Ashcroft memo embody. It would further reduce the discretion of federal judges when sentencing drug offenders. It would also make it more difficult for federal judges to invoke the "safety valve"—a legal mechanism whereby judges can sometimes sentence a first-time drug offender below the mandatory minimum sentence. (Technically, the "safety valve" is not a downward departure mechanism, though it has the same effect.)

Much like the PROTECT Act, which was purportedly about protecting children, it is interesting to note that Congress is looking into further limitations on judicial discretion in the name of combatting terrorism. One wonders if such measures could pass Congress if they weren't wrapped up in the flag and accompanied by anguished cries of "But what about the children?!?" These efforts are shameless and dishonest.

Allenbaugh's megaphone just got bigger: Ken Lammer's has pointed out that the former's commentary has also been placed on the CNN website as well.

[6] I have located the Patel opinion referenced in the previous update on the website for the Northern District of California. The case is styled United States v. Kenneth Mellert, No. CR 03-0043 MHP (N.D. Cal. July 30, 2003). Judge Patel's opinion is worth quoting at length:

In 1984 Congress established the United States Sentencing Commission “as an independent commission in the judicial branch of the United States” to set “sentencing policies and practices for the Federal criminal justice system.” 28 U.S.C. §991. Among the considerations spelled out in the statutory enactment are the “nature and circumstances of the offense and the history and characteristics of the defendant” including the seriousness of the offense, just punishment, adequate deterrence, protection of the public from further crimes of the defendant and the need to provide the defendant with educational or vocational training or other effective correctional treatment. 18 U.S.C. §3553(a). The Commission is directed to adopt such guidelines as would avoid “unwarranted sentencing disparities” among defendants with similar records, convicted of similar crimes “while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.” 28 U.S.C. §991(b).

While many federal judges have chafed at the notions behind and the strictures of the guidelines, they try mightily to comply with them and to assure that the sentences they impose comport with the principles guaranteed by the United States Constitution.

The Sentencing Commission, pursuant to its statutory mandate, regularly reviews the guidelines, the data and material submitted by the District Courts, and other information it gleans from its research, hearings and advisory groups. This last category represents a broad group of professionals and practitioners with extraordinarily varied experiences within the criminal justice system. One would be hard-pressed to find a greater wealth of wisdom and experience that could be brought to bear upon the issues related to sentencing.

Nonetheless, some who are less dispassionate, far less experienced, and imbued with a sense of mission have set about to change the guidelines directly, not through the thoughtful and careful deliberative process informing the adoption of the Sentencing Guidelines by the Sentencing Commission. For example, the Protect Act, Pub.L. No. 108-21, 117 Stat. 650 (2003), was amended after twenty minutes of discussion on the floor of the House of Representatives. The amendments added not only statutory provisions for mandatory minimums with respect to certain crimes, but also actually added or amended the guidelines themselves. Before this Congressional tinkering with the actual guidelines, the Commission, pursuant to its mandate, thoroughly reviewed the data and research it had accumulated, consulted with the advisory groups, solicited comment and, then, amended, added or deleted guidelines providing reasons, commentary and explanations for the changes.

The Protect Act represents a significant departure from this dispassionate, deliberative process. It appears that it is the harbinger of future legislation. For example, a proposed bill entitled the “VICTORY Act”, appears to be lurking in the halls of Congress. This piece of legislation would add not only more mandatory minimums, but also insinuate Congress even further into the process of actually drafting and promulgating Sentencing Guidelines, thus taking over the role of the Sentencing Commission as well as the judiciary’s traditional role of sentencing. Indeed, section 401(n) of the Protect Act amends 28 U.S.C. section 991(a) changing the composition of the Sentencing Commission to delete the requirement that “at least three” of the members of the Commission be “Federal judges” to “not more than three”, further diluting the judiciary’s input and decision making with respect to the guidelines.

It appears that much of Congress’ effort is prompted and advised by the Department of Justice or persons within that Department without the benefit of the accumulated wisdom of the Sentencing Commission or the Judiciary. The thrust of the legislation is to remove more and more of the determination and discretion in sentencing from an independent judiciary and the Commission and vest it in the
Department of Justice, which, of course, is a partisan in our system of justice.

Under this new regime not only will the government determine the charges to be filed, whether the indictments will undercharge or overcharge the criminal conduct, or, whether it will engage in pre-indictment or post-indictment maneuvering to bring about the government’s desired result, but it also will be the only voice heard when adopting statutory sentences and Sentencing Guidelines with less and less discretion afforded to the courts and the Sentencing Commission. To put it more bluntly, the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is shucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches.

Hear! Hear!

[7] Professor Frank O. Bowman III, a former federal and state prosecutor and special counsel to the U.S. Sentencing Commission, has a nice balanced piece on this issue in the Washington Post. See Frank R. Bowman III, When Sentences Don't Make Sense, Washington Post, Aug. 15, 2003, at A27. Among many interesting observations, Bowman writes that:

. . . [R]oughly 80 percent of the more than 19,000 downward departures granted each year are requested by the government as a result of the defendant's cooperation or for some other reason. Moreover, the government consents to many of the departures even though it has not affirmatively requested them. The real story on departures is not that judges sometimes depart against the wishes of prosecutors but that prosecutors and judges agree to reduce sentences by departure in more than 25 percent of all federal criminal cases.

. . . [D]epartures are only one piece of a pervasive national pattern of manipulating the guidelines. A departure below the guidelines range will certainly reduce a defendant's sentence. But a sentence can be reduced equally effectively by manipulating the fact-finding process that decides where a case goes on the "grid." To give a crude example, if a defendant actually sold five kilograms of cocaine but is found for sentencing purposes to have sold only four, his sentencing range will be 8 to 10 years instead of 10 to 12. This reduction can be accomplished if the prosecutor stipulates, as part of a plea agreement, to less cocaine than he could prove, or if the judge finds that, despite evidence of five kilos, only four have been proven. As my colleague Michael Heise and I have shown in a pair of studies in the Iowa Law Review, the length of the average federal drug sentence has been declining since the early 1990s, largely as a result of choices made by both prosecutors and judges during plea bargaining and sentencing. And sentence manipulation is not confined to drug cases.

The Justice Department is well aware of its own people's complicity in evading the guidelines. . . .

* * *

The flaw in both the Ashcroft memo and the PROTECT Act of 2003—which seeks to restrict departures and to which the Ashcroft memo was a response—is that they dogmatically insist sentencing law be followed to the letter, without pausing to ask why hard-nosed federal prosecutors and crusty federal judges (at least half of whom were appointed by Republicans) are colluding to evade that law on a massive scale. The truth, as Supreme Court Justice Anthony Kennedy told the American Bar Association recently, is that federal sentences are harsher and the guidelines less flexible than they should be. For over a decade, the legal professionals who apply the guidelines to real people have been expressing this truth through their behavior. But efforts by the Sentencing Commission to amend the guidelines accordingly have been blocked by right-wing Republicans and Democrats determined never to be outflanked to the right on law- and-order issues.

For reasons that I will hopefully have time to express in a future update, I am not sure that I agree with Bowman's assessment that what is going on here can be characterized as "manipulation" on average given that the Guidelines expressly provide for departures, a fact that Bowman notes in an unexcerpted portion of his editorial. However, his thesis is certainly plausible in many respects. And I have yet to read either of the articles that he references. See Frank R. Bowman III & Michael Heise, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa L. Rev. 1043 (2001); Frank R. Bowman III & Michael Heise, Quiet Rebellion II: An Empirical Analysis of Declining Federal Drug Sentences Including Data From the District Level, 87 Iowa L. Rev. 477 (2002).

[8] Howard Bashman points to this article by Jonathon Groner over at Among other things, Groner makes the following interesting observations:

The Sentencing Commission is caught in the middle of this controversy.

* * *

The commission, four of whose members are federal judges, is legally required to follow the lead of Congress. It is part of the judicial branch and has no separate legislative authority. Yet indications abound that several of its members are not convinced that the nation's federal courts have a problem with overly lenient sentences that needs to be fixed.

* * *

The commissioners declined requests to be interviewed about their views before the hearing. But people who have spoken with them say that at least two panel members—Vice Chairs Ruben Castillo and William Sessions III, both U.S. district judges—are skeptical of the intent of the Feeney Amendment and of the data supporting it.

Castillo, who sits in the Northern District of Illinois, and Sessions, who sits in the district of Vermont, are both Bill Clinton appointees to the bench.

Commissioner Michael O'Neill, a former aide to Sen. Orrin Hatch, R-Utah, last month criticized the process under which the Feeney Amendment was passed, telling The Wall Street Journal that there should have been "a lot more debate" on the measure.

* * *

There already is some bad blood between Congress and the commission. In another part of the Feeney Amendment, Congress limited the number of judges who can serve on the panel to three—a slap at the commission that stung many judges.

How bad is the blood involved? According to Groner, the Federal Judges Association is apparently counseling mutiny:

Another alternative for the commission is to openly defy Congress, dropping the next move squarely back in the legislature's hands.

That's the approach proposed by the Federal Judges Association, an independent group that represents more than 90 percent of the nation's 850-odd federal district and appeals judges.

The FJA told the sentencing commission in a July 31 comment that the Feeney Amendment should be repealed. It did not suggest any form of compliance with it.

"Change can be for the better. These changes were not. We believe that if the usual legislative process had been followed, this troubling amendment . . . would not have taken place," the FJA wrote.

The minimal amount of text of the FJA comment quoted by Groner does not give the impression that it suggested anything quite so dramatic, however. It's hard to believe that the FJA advised outright non-compliance. Unfortunately, the Federal Judges Association website does not appear to contain anything regarding its stance on the Feeney Amendment. The Sentencing Commission's site also does not appear to contain a copy of the FJA's comment.

[9] Howard Bashman also points to another article over at by Evan P. Schultz entitled Who's Hard On Sentencing? John Ashcroft May Be Targeting Judges And Prosecutors, But Congress Told Him To Do It. Schultz writes:

And this brings up the second point from the prevailing wisdom: that it's Ashcroft and the Justice Department that are off on a renegade rampage against the judges and prosecutors. Of course, they are on a rampage, but it's not renegade. It's the law, duly passed by Congress and signed by the president.

There is, of course, some merit to this contention. However, having laid out his plausible thesis, Schultz then proceeds to refute his own argument to a large degree:

Of course, this doesn't get Ashcroft off the hook completely. Justice loudly supported passage of the Protect Act, and might even have had a hand in crafting it. But Justice didn't turn that bill into law—Congress and the president did. Ashcroft is definitely an accomplice in helping dupe lawmakers into "fixing" a problem of lenient sentencing that doesn't exist (in 2001, it was the prosecutors who asked for 79 percent of the downward departures that the judges granted). But Congress and the president are guilty for pulling the trigger.

By the way, Congress is on the verge of considering another bill that Ashcroft is hyping on his current 10-city tour. It's the modestly named Victory Act (that's short for Vital Interdiction of Criminal Terrorist Organizations Act). Like the Protect Act and the sentencing guidelines, it will further limit judges' discretion in sentencing. Do you want to blame Ashcroft for it later, or stop Congress now before the lawmakers strike again?

Again, Schultz's point is well-taken, but it's clear that Ashcroft is a prominent part of the problem in this effort to quash judicial discretion in sentencing. The nation's top law enforcement officer can hardly be absolved of liability for pushing for the passage of certain laws just because he can play no formal role in their passage. And given his prior role as a U.S. Senator, it is not unlikely that he can and does play a very active informal role in pushing desired legislation. Certainly, his previous employment must impart him a certain additional access that an AG might otherwise lack in the legislative process.