Another potent (and hilarious) opinion from Judge Kopf
In my Sentencing Judges Hall of Fame, US District Judge Richard Kopf has earned a special plaque for consistently writing the most engaging and entertaining sentencing opinions. (Recall his fine and often amusing work in Wanning and in Tabor.) Judge Kopf has outdone himself with his opinion in US v. Bailey, No. 4:02CR3040 (D. Neb. May 12, 2005), which is available for download below.
Bailey is Friday’s must-read for everyone interested in federal sentencing issues, or for anyone interested in seeing how a well-crafted opinion can deliver drama and humor, as well as astute legal analysis. (I am tempted to declare Bailey a great legal dramedy for the sentencing set.) To provide just a flavor of Bailey, consider these opening passages:
Most of the time, we should sentence a person without regard to the pain and damage our sentence will inevitably inflict upon his or her children. The exceptions to this rule are few and far between. Indeed, when I first skimmed the motion to depart under U.S.S.G. § 5K2.0 in this case, my reaction was quick and visceral: “Are you kidding me?” The Assistant Federal Public Defender asked me to impose a nonprison sentence on Bailey, a fellow who possessed child pornography, in order to save the defendant’s little girl. No way, I thought, hell will freeze over before that happens.
I next explain how hell froze over. With Booker in mind, I also explain why normal departure theory, rather than the “mix-and-match” approach that I have previously scorned, is capable of dealing with this truly unusual case.
This opening is only one of many highlights in Bailey. Among the others are: (1) a reference to SNL’s Emily Littela in the course of responding to my comments in this post about Judge Kopf’s Tabor opinion, (2) a detailed account of departures based on family circumstances, (3) praise for a expert witness because she is “unlike the soft-headed shrinks I sometimes encounter,” and (4) a call for the Court of Appeals, which gets “paid the big money,” to address “whether Booker nullified § 3553(b)(2).”
In a closing footnote, Bailey also includes a pitch for Congress to have the “mature wisdom to wait … a reasonable period of time (say three years)” before responding legislatively to Booker. An alternative course, says Judge Kopf, could be unseemly: “By acting precipitously, Congress reinforces the (unjustified) image of a bunch of blood-starved cave dwellers looking for a fight. Sometimes one can win by waiting.”