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Federal Judge’s Top 10 Sentencing List Takes Aim at Supreme Court

Posted Jan 29, 2008 6:45 AM CDT
By Debra Cassens Weiss

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A federal judge has published a tongue-in-cheek Top 10 list of things he learned from the U.S. Supreme Court’s sentencing decisions that makes clear his frustrations.

The list by U.S. District Judge Richard Kopf of Nebraska is “a provocative jaw-dropper that may get Kopf scratched off the holiday card list at the Supreme Court,” Legal Times reports.

Kopf expresses frustration about the time it took for the Supreme Court to decide that sentencing guidelines are unconstitutional and then to give further guidance on how the guidelines should be used in an advisory capacity, calling the gap "seven years of waterboarding."

When the Supreme Court struck down a state sentencing guidelines scheme in Blakely v. Washington in 2004, commentators focused on a footnote by Justice Antonin Scalia: “The federal guidelines are not before us, and we express no opinion on them.” Whatever questions the footnote raised were put to rest when the Supreme Court went on to strike down the federal sentencing guidelines in 2005 in United States v. Booker, saying the federal standards were advisory.

The two decisions were foreshadowed by a 2000 Supreme Court decision, Apprendi v. New Jersey, which barred judges from increasing sentences beyond statutory maximums based on facts other than those decided by a jury.

Some of Kopf's conclusions in the list (PDF), published in an online companion to the Ohio State Journal of Criminal Law:

“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.

"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.

“Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi.

"Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t.

"Sentencing judges can be divided into two groups—those who are damn sure they’re right and those (like me) who have no clue.

"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."

The list has prompted debate at Ohio State’s Sentencing Law and Policy Blog.

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