Federal Judge's 'Top 10' List Takes On Supreme Court's Sentencing Decisions

One way to get a rise out of usually reticent federal judges is to ask them about sentencing -- and particularly the Supreme Court's role in muddying the waters with a series of difficult-to-follow sentencing decisions since the beginning of this century. Now, U.S. District Judge Richard Kopf of the District of Nebraska has channeled his own frustration into a David Letterman-style Top 10 list. Kopf says he devised the list "with tongue partly in cheek," but it still makes for a provocative jaw-dropper.

Tony Mauro

Legal Times

2008-01-29 12:00:00 AM

One way to get a rise out of usually reticent federal judges is to ask them about the sentencing mess -- and particularly, the Supreme Court's role in muddying the waters with a series of difficult-to-follow sentencing decisions since the beginning of this century. Frustration and anger will often spew forth.

U.S. District Judge Richard Kopf of the District of Nebraska channeled that frustration into a remarkable David Letterman-style Top 10 list, just published along with articles by other judges in the inaugural online companion to the Ohio State Journal of Criminal Law.

Kopf, a 1992 appointee of President George H.W. Bush, writes that he devised the list "with tongue partly in cheek" and declined to comment on it when we called him on Friday.

But it's a provocative jaw-dropper that may get Kopf scratched off the holiday card list at the Supreme Court.

Here's just a sampling from what Kopf calls, "The Top Ten Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough and Gall."

10. Following the Court's approach, always put off to tomorrow what you can do today.
9. You don't need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply.
8. Footnote 9 in Blakely ("The Federal Guidelines are not before us, and we express no opinion on them.") is the biggest practical joke in the history of American law...
5. Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi...
3. Justice Scalia's dictum should be rewritten this way: The rule of law is the law of rules except when it isn't...
1. There are a lot of really good, hard-working people "in the field" plus tens of thousands of defendants who deserved far better than the seven years of "water boarding" that ensued between Apprendi and Gall."

A lively debate over Kopf's list is already underway at the authoritative Sentencing Law and Policy blog also housed at Ohio State.

First reported in The BLT: The Blog of Legal Times