Tuesday, September 14, 2010

Nothing should have happened

You say you are "puzzled" by my statement that Mr. Figueroa's sentence was reversed "all because the judge shot his mouth off at sentencing."  I don't understand your puzzlement.  My statement is clear as a bell, and nothing other than the judge's comments were criticized on the appeal.  There was no argument that the length of the sentence was, in itself, inappropriate.  The only allegation was that his strange comments were improper, and perhaps reflected some impermissible considerations in sentencing.  If he had simply said, "the guidelines recommend a range, your conduct and circumstances are ordinary, and I sentence you within that range," there would be no case.  I did not state or imply that the judge's statements were appropriate or harmless or that the appeals court was supposed to ignore them.  Nor did I state or imply that the appeals court's decision was wrong or inappropriate.  Nor did I (intend to) convey the impression that the judge made just a single, isolated remark.  (Note that in my micro-synopsis of the case I noted "inflammatory comments about Mexico" and "colorful--and inappropriate--analogies.")  I just quoted the one paragraph from the opinoin because, frankly, I thought it was the most amusing.

But you raise some interesting issues that I'm willing to take the other side on.
First,  the Hitler analogy.  Is there really anything wrong with it?  As I understand it, the defendant made an appeal for leniency based on the fact that his family loves him very much and that he is a good family man.  The judge appropriately rejected that appeal, and for a very good reason:  whether or not a person is loved by his family is, or should be, irrelevant to his culpability for a crime and the sentence he receives.  A sophisticated way to make this argument is by analogy.  For example, imagine the most terrible crime, and the most terrible criminal:  Hitler.  Do we think it is relevant to how we would punish him that he was dearly loved by Eva Braun?  No we do not.  For the same reason, we do not care how much Figueroa's wife loves him or vice versa.  Does this mean that the judge was comparing Mr. Figueroa's crime to the Holocaust?  No, of course it does not. (By the way, Prof. Orin Kerr has an interesting post on this very topic -- the perils of arguing by analogy, at least on the Internet -- over at the Volokh Conspiracy.)

Second, the ruminations about Mexico, etc.  Admittedly, these are harder to defend or understand.  But I do understand the frustration that a judge might have about sentencing an illegal immigrant to 20 years in US federal prison, where he will be provided free food, shelter, and health care.  In that context, I can see why a judge would think about the relative superiority of US prisons, and may want to impress upon a convicted defendant how lucky he is to be a criminal in the United States rather than, say, Iran.  Now, maybe these ideas about the relative superiority of the US prison system are factually debatable.  But so what?  Asking a criminal to feel a little gratitude doesn't seem out of line to me.

Moreover, it's hard to really evaluate the judge's "inflammatory" comments based on what it reproduced Judge Wood's opinion.  No effort is made to provide any context.  Here is the relevant portion of the opinion, in full (except for the paragraph reproduced in my last post):
We do not think it is necessary to rehash every detail of Figueroa’s sentencing hearing; a few examples are enough to illustrate what went wrong. Figueroa is of Mexican descent, and the district court made a number of comments about Mexico and its perception of Mexico’s contribution to drug and immigration issues in the United States. “The southwest is being overwhelmed,” the judge remarked, and he went on to lament the factors that he believes motivate immigration to the United States. The judge also commented on the immigration status of Figueroa, his wife, and his three sisters. At various points, he lashed out at illegal immigration, occasionally referring to “you people” or “those people.” (Figueroa understood these comments to refer to persons of Mexican origin, although it is possible that the district court was referring to illegal immigrants or immigrants more generally.)
The sentencing transcript reveals an odd focus on nation-states and national characteristics. The district court linked the drug trade to Mexico, then to Colombia and Venezuela, and then to Iranian terrorists through the person of Venezuelan President Hugo Chávez. The judge commented that respect for the rule of law differentiates the United States from Mexico, Venezuela, Iran, and Pakistan. Turning to punishment, he remarked that Figueroa should be happy that he was headed to an American—rather than a Mexican or Turkish—prison, and that Figueroa’s conduct could have resulted in execution had it occurred in Malaysia or Thailand.
The sum total of the direct quotations is "The Southwest is being overwhelmed," "you people," and "those people."  I don't find these statements particularly "odd" or "inflammatory," particularly not without access to the context in which they were uttered.  Did these comments constitute discrimination on the basis of national origin?  The court explicitly refuses to decide.  Instead it appears to create a new rule that "inflammatory," "odd," and "extraneous" comments by a judge during sentencing will result in reversal if they offend the appeals court panel's sensibilities.  Notably, the opinion cites no authority for this core holding.

Third, you raise the issue of why "every time I see a sentencing . . . the judge feel[s] the need to berate the convicted defendant at the sentencing"?  I can assure you that this doesn't happen at every sentencing--not even at every sentencing by the former jurist you seem to have it out for.  Sometimes, in fact, judges take the initiative to provide for a poor defendant's cat.  More often, you'll see a judge say something like, "You are a decent man who did a bad thing, and you have to pay the price.  You may not believe me, but you are very young, and you will still be a young man when you get out.  You can turn your life around, and I hope you will."

But it's still an interesting question why the judges ever play the role of the stern father.  One reason, I think, is that many criminal defendants continue their bullshitting ways during the sentencing process.  This is really annoying to judges, for whom sentencing is the most difficult, gut-wrenching thing they do.  It is the judge's role to pass judgment, usually in an effort to impress upon an unrepentant defendant the gravity of his or her actions in the hope that it will finally sink in.  Do judges sometimes go overboard?  Sure.  But I don't think the catharsis these public tongue-lashings provide is worthless.

Finally, I want to address your opening question of "What was supposed to happen?"  My answer:  nothing.  Here's how I might have written this part of the opinion:
Defendant challenges his sentence on the basis of some odd, inflammatory, and extraneous comments the district court made during sentencing.  The sentence was within the guideline range, and we do not require an exhaustive explanation when the court chooses a sentence within the recommended guideline range.  See United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005).  The district court made references to the § 3553(a)
factors and to the arguments based on them that defense counsel raised, and his extraneous remarks do not undermine our belief that the sentence imposed is reasonable.  Nor do the district court's references to Mexico and other nations do not convince us the defendant's sentence was improperly based on considerations of his national origin.  Again, the sentence was at the low end of the guideline range.  The defendant refused to express remorse for his crime, and the district court mentioned these other countries in an attempt to convince him that he should be thankful for how good he has it, relatively speaking.

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