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November 19, 2020

Reactions to our look behind the robes with federal sentencing judges?

I hope everyone enjoyed as much as I did the Zoom visit today by US District Judge Douglas R. Cole (SD Ohio) and US District Judge Robert W. Pratt (SD Iowa).  This post provides an opportunity to share comments and reactions to what we heard.

November 19, 2020 in Who decides | Permalink


I really appreciated how candid they were about their internal struggles. Call me old fashioned, but it's nice to know that even if I disagree, those in charge are trying to do their best in a very challenging field.

Posted by: Evan Lewis | Nov 22, 2020 1:47:19 PM

I honestly never considered the emotional toll that sentencing could take on a judge. I think it is valuable for attorneys to know/remember that judges are human too. Maybe this is wrong in that it perpetuates discrepancies in sentencing, but a good lawyer likely knows how to appeal to the judge's human nature to better help their clients. I thought of this when Judge Cole mentioned how defendant's often have their significant others with their babies sitting in the audience-- it's interesting to know that judge's notice these things. Judge's often seem so elevated and separate from the emotion that underlies the case and things that prosecutors are likely better situated to consider (like newborn babies). I never considered that a judge would actually be affected by something like that because I often fail to think of them as normal humans.

Posted by: Samantha Pugh | Nov 23, 2020 11:13:04 AM

I thought it was interesting that Judge Cole talked specifically about 3553(a)(6) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." I find myself considering (a)(1) "the history and characteristics of the defendant" and often forgetting the other considerations. I think we discussed in class that it was interesting that the 3553(a) factors are so broad -- and this conversation proved that for me. So like Samantha pointed out, maybe the judges are considering the personal things happening in a defendant's lives, but geez... do the 3553(a) factors really help anyone? They seem like a confusing mess to me. While they provide some direction, I do not envy the job of those judges having to determine sentences.

Posted by: Meg B. | Nov 29, 2020 6:24:13 PM

There was one answer to a question I found interesting: when asked what these two judges would like in order to help them with sentencing, Judge Cole answered that he would appreciate a central database to reference sentences imposed by other judges. This reflects his intention to focus on § 3553(a)(6), and also to include a sense of "fairness" in sentencing. I think all too often we, as both attorneys and academics, look at statistics and data and come up with our own answers to how sentencing should work, then lobby our elected officials to change the law without thinking about those on the bench doing the task itself. It makes me wonder if some of our most visible problems at sentencing (like sentencing disparities) could be improved by simply asking what judges would like in order to make their job easier, rather than just telling them they're doing it wrong and trying to legislate a problem, rather than remedy it.

Posted by: Jim Schirmer | Nov 30, 2020 6:08:25 PM

Ohio Saves the Union, 1865 and 2020

Recent headlines tell a story that should be aired in relation to the visits from the Federal Judges to our class. The concept which saved the day was the catchword "independent judiciary” and how that concept served as a firewall against a tyranny in the making. Related to this formal legal firewall is the equally important need for those who join the legal profession to understand the need for integrity in the legal profession along with an adherence to principals, ethics and the republican form of government as reigning supreme over the role of advocacy.

Note these recent headlines: (1) "Just 27 GOP lawmakers acknowledge Biden's win in the Post survey (The Washington Post). (2) "Judges turn back claims by Trump and his allies in six states as the president's legal effort founders" (NY Times). (3) "Law firm withdraws from representing Trump campaign after Lincoln Project pressure" (The Washington Examiner). This refers to the withdrawal of Columbus based law firm, Porter Wright Morris & Arthur and the Cleveland based law firm Jones Day.

While there is a legitimate debate on the ethics of placing pressure at the door of Porter Wright not to represent a client with questionable ethics (Trump), the other side of the story was the argument supported by the anti-Trump Lincoln Project supporters, who questioned why the attorneys of Porter Wright and Jones Day would work for a cabal trying to overthrow the will of the American people.

This relates to the independence of the Judiciary and the two judges who visited our classroom. We should realize that when those two major Law firms dropped Trump as their client, the judiciary gained public support needed to allow their decisions against Trumps election challenge to stand on stronger grounds and gain more public support. The three federal judges in Pennsylvania were appointed by Trump yet ruled against him and were immediately denounced by Trump's attorneys Giuliani and Ellis. In return, Giuliani and Ellis were widely mocked by the legal profession and elsewhere for their antics and amateur legal shenanigans. The withdrawal of competent legal assistance for Trump was a decisive blow to all efforts to overturn the election.

The final verdict may be yet to arrive, but for now it appears the firewall against the Trump putsch stood. The basis of that firewall depended on the independent federal judiciary with lifetime appointments for judges and was furthered by the support they received from those in the legal profession who saw the risks of continuing to serve as court jesters to the King.

Considering the above, I now realize how important it was for the class visitors to express concern for their privacy. Legal decisions should not depend on what party they belong to what a judge may say to a gaggle of law students during class. This concern also applies to law students who should not have to inhibit their expressions with a concern to have their words come back later to haunt them.

I suggest to Professor Berman that he start his next class with an assurance of future privacy for all papers submitted to him and state how that privacy will be protected. I believe laws already protect most student communications, but future judges and politicians may need more protection than typical students. Further, I suggest he could better succeed in creating discussion for the class blog if no student names were included in the posts (access by the professor would remain.) This bit of privacy should encourage more robust discussions. The last class I took with Professor Burman was loaded with different opinions, but the Zoom format comes up short when I listen for disagreements that could serve as learning tools.

Posted by: Gary Josephson | Dec 5, 2020 9:15:58 PM

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