Judge Richard Posner is sui generis. The Seventh Circuit judge is a towering legal intellectual. He writes on moral theory. He founded a journal. He writes about current political controversies. He is one of the few intellectuals of our time who has “changed the world” according to Tyler Cowen – unlike such slouches as Paul Krugman, Richard Dawkins, and Noam Chomsky. He’s lectured in Second Life. He even blogs for the Atlantic.
He has been called “the world’s most distinguished legal scholar.”
He is also, most importantly, a serious bluebook hater (apologies that the link just goes to the first page of the article at JSTOR – though what a great first page it is. My favorite line comes later as advice to law students – “Make certitude the test for certainty.” It summarizes so cleanly what’s wrong with so much legal writing.).
One can empathize with a district court judge who has a case being appealed to a panel with Judge Posner. Here you sit, busier than you’d ever want to be. You’re underpaid relative to what you could make in the private sector. You have an ever-growing caseload, particularly as Obama fails to get judges confirmed at rates like past presidents. Then this intellectual – who sleeps, what, 45 minutes a night? – comes picking at your work. It has to be hard.
So, for that reason, I have some empathy for the district court judge in United States v. Robertson.
Mr. Robertson pled guilty to growing marijuana plants. He was convicted and sent to prison for ten years. When he was released, he was on supervised release for eight years.
Shortly before his supervised release was to end, he was charged with growing marijuana plants. He went before the same judge for sentencing on the new marijuana plant charge that he had before.
The district court was unhappy to see Mr. Robertson again.
He sentenced Mr. Robertson on his new charge to 30 months in prison (I assume based on the number of plants he was growing). Then he turned to sentencing for the supervised release violation.
Sentencing on a supervised release violation is always tricky. The person being sentenced has already been before the judge. He’s already gotten a second chance, and he’s blown it. He’s asking, often, for a second second chance. It can be a tough sell.
The guidelines suggest that a sentence of 12 to 18 months would be appropriate. The district court imposed a sentence of 34 months.
The district judge asked Mr. Robertson why he was still growing marijuana after spending eight years in prison. Mr. Robertson replied that “he just liked the way the plant looked” and that he “liked to smoke it.” The district court suggested that, perhaps, he could take up “growing gardenias.”
(In fairness, that suggestion really didn’t take into account that Mr. Robertson likes to smoke his crops.)
The district court repeated that it was unhappy to see Mr. Robertson again. It them imposed sentence.
Judge Posner, the prolific explainer of legal theories, was unimpressed.
Noting that a judge sentencing a person for a supervised release gets the largest possible amount of deference from an appeals court, Judge Posner held that the district court did not provide enough explanation of its sentence.
As Judge Posner said,
We cannot brush off the appeal on the ground that of course the district judge knows the statutory sentencing factors and the relevant Guideline provisions and so he must have had a good reason for imposing a sentence almost twice as long as the maximum recommended by the Sentencing Commission (34 months versus 18 months). If that response to his appeal were proper, a judge would never have to give a reason for a sentence that was within the sentencing range set by Congress. Anyway what a busy judge knows is not always present to his mind.
(sarcastic emphasis in original)
Clearly, the district court judge should have explained his sentence. One of the central values of a reasoned process in our courts is that the providing of reasons for a judges action is what gives them legitimacy. It’s the inverse of the silence we foist on to defendants. Yet Mr. Anderson didn’t get the benefit of that reasoned explanation.
Still. One suspects that, perhaps, Judge Posner realizes how much explanation he would have given if he were the judge imposing sentence.