Chauvin Sentenced to 22.5 Years

Former Minneapolis police officer Derek Chauvin has been sentenced to 22.5 years in prison for the murder of George Floyd.

No sentence can bring George Floyd back to life, and hence no sentence can in itself create justice. Moreover, no sentence of Derek Chauvin can, in itself, reform the structures of policing that enabled George Floyd's murder. A single sentence, after the fact, does not change anything.

Nonetheless, the criminal sentence is important -- it is important for providing some measure of closure to Floyd's family, it is important as a signal of the seriousness with which we take crimes of this nature, and it is important as a means of communicating to other officers that this sort of behavior will be met with significant consequences. Chauvin faced a maximum of forty years; he asked for probation. The guidelines for an offender without a previous record would have been 12-15 years, but as the sentencing judge noted there were aggravating factors in this case.

Paul Butler said that taking all of that into account, an 18 year sentence struck him as appropriate. Twenty-two and a half years is more than that, but in the same ballpark. It strikes me as appropriate, proportional, and -- as far as can be achieved in unjust circumstances -- just. But my opinion is not especially important, so my main hope is that Floyd's family and community feel the same.

It Is Not "Shocking" To Ask Judges to Obey Governing Precedent: On Jones v. Mississippi (and Miller and Montgomery)

Earlier this week, the Supreme Court in Jones v. Mississippi ruled 6-3 that states can sentence juveniles to life without parole so long as the underlying state statute does not mandate such a sentence. While prior decisions (Miller v. Alabama and Montgomery v. Louisiana) suggested that juvenile offenders could only be sentenced to life without parole if they are "incorrigible", the Jones Court held that these precedents do not require the sentencing court to actually make any findings on that point. So long as the court had the discretion to consider the mitigating factors associated with youth, the constitutional mandates set out in Miller and Montgomery are satisfied. In Jones, the result of this holding is that an inmate who committed his crime at the age of 15 and whose conduct since incarceration has seemingly decisively proven that he is not incorrigible but in fact can and has reformed, will -- absent executive clemency -- spend the rest of his life in prison.

Justice Kavanaugh wrote the majority opinion -- the irony of him declaring it permissible to permanently expel a man from society for youthful wrongdoings was not lost -- and at the conclusion seemed to acknowledge that the rule he declared was harsh and perhaps even unjust to Jones. This made me think of my recent article "Sadomasochistic Judging", where I explored how judges acknowledge and lament the pain their rulings cause as a means of securing legitimacy for those rulings. Josh Blackman, though, was very unhappy to see Justice Kavanaugh make these allusions at all. "The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane."

I am on the record as being strongly in favor of judges making statements of this form, and I won't rehash all my arguments on the subject here. But I will make one point that might be an important clarification regarding my thesis in "Sadomasochistic Judging". One could mistakenly read my article and think I am criticizing judges for a form of hypocrisy or bad faith when they wring their hands about the seeming cruelties they impose. I'm not. The problem I articulate is that judges confuse the pain they wrought for proof of legitimacy, and so come to seek out painful rulings even when they're not legally compelled. Given how badly the Court butchers its legal reasoning in Jones (see below), I don't think its unfair to hypothesize that's part of what's happening here.

That said, assuming that we don't think judges will never have to mete out injustices in order to stay within the law -- and I don't think that -- then judges have to either acknowledge the injustices they enforce or ignore them. Choosing the latter may well replace "sadomasochistic judging" for plain old sadistic judging: judging where it is believed that the judges actively desire the pain they cause for its own sake, or are at least indifferent to it. That, I think, would be disastrous for the legitimacy of the courts. If Justice Kavanaugh (or any other justice) believes that his servitude to the law requires him in a given case to be a dealer of cruelty, the absolute least we can ask out of him is that he acknowledge what he's doing. This is not "virtue signaling" nor "checking one's privilege" nor any of the other tired buzzwords Blackman attributes to Justice Kavanaugh. It is having his eyes open to reality.

But Justice Kavanaugh's nod to the human costs of his decision is not Blackman's only bone to pick. In a separate post he also takes aim at a particular line in Justice Sotomayor's dissent, one that he claims to have "shock[ed]" him when he read it. Here's the offending passage:

For present purposes, sentencers should hold this Court to its word: Miller and Montgomery are still good law. See ante, at 19 ("Today's decision does not overrule Miller or Montgomery"). Sentencers are thus bound to continue applying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect to Miller and Montgomery. In other States, the responsibility falls squarely on individual sentencers to use their discretion to "separate those juveniles who may be sentenced to life without parole from those who may not." Montgomery, 577 U. S., at 210. Failing to do so violates the Eighth Amendment. 

Huh? What is shocking about this? As Sotomayor observes, the Court explicitly upheld Miller and Montgomery. These cases are still good law. So yes, obviously lower courts are "bound to continue applying these decisions faithfully." That's vertical stare decisis 101.

Blackman explains his shock as follows:

Justice Sotomayor has opened an entirely new front in the battle over stare decisis: if the Roberts Court is unwilling to formally overrule a precedent, then lower courts should still follow those decisions "faithfully." Truly, this proposition is remarkable. Justice Sotomayor is inviting trial courts to engage in a judicial resistance of Jones. Yes, I used the phrase judicial resistance. Unless the Court is willing to bite the bullet and formally overrule the precedent, judges should still follow a rejected-reading of Montgomery and Miller. The antidote to stealth overruling is stealth underruling: lower courts should quietly fail to give a new Supreme Court precedent its fairest reading, in order to preserve a now-rejected reading of an older precedent.

Respectfully, I think this is the sort of passage a faithful exponent of constitutional interpretation can be legitimately shocked by. If the Supreme Court says flatly "we are not overruling, but rather applying, a precedent", lower courts absolutely should still follow those precedents "faithfully". It would be remarkable to suggest anything otherwise. To be clear, I don't deny that sometimes courts overrule cases sub silentio, or that long evolutions in law can make a prior precedent so anomalous that it seems to drop out of the doctrine and eventually ceases to be followed. But that's not what happened here. Jones did not ignore Montgomery and Miller, it did not even criticize them. It claimed to be faithfully applying them. The fairest reading of Jones is that it means what it says: Montgomery and Miller remain fully binding on lower courts.

In Blackman's defense, part of the problem here is that while Jones claims to be following Montgomery and Miller, it really makes hash out of both. In this, Justice Sotomayor (and Justice Thomas, I suppose), are correct -- the rule in Jones is ludicrous as a purportedly faithful application of these prior precedents. But nonetheless, the case says what it says, and lower courts are bound to take it at its word, which means they have to figure out how to harmonize Montgomery and Miller with Jones -- applying them all faithfully.

What does that mean? Montgomery told us that while "Miller did not impose a formal factfinding requirement", this "does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment." Justice Kavanaugh, in a show of tremendous bad faith, quotes the former part of the passage ad nauseum while ignoring the latter entirely save for a buried footnote. But again, lower courts have the holdings they have. There still is a distinction between "those juveniles who may be sentenced to life without parole [and] those who may not" -- language from Montgomery that Justice Kavanaugh says he is applying and enforcing in Jones.

The best -- possibly only -- way to harmonize Jones, Miller, and Montgomery is that sentencing courts are not permitted to "sentence a child whose crime reflects transient immaturity to life without parole" (Miller and Montgomery -- these are the juveniles in the "who may not" category), but that so long as the sentencing court is given discretionary authority to consider the constitutionally-mandatory mitigating factors (such as incorrigibility), it will be (irrebuttably?) presumed that they did consider such factors and determined they do not apply to the child if they decide to impose such a life-without-parole sentence -- even if the sentencing court makes no explicit or implicit findings on the question (Jones). This is no doubt why Justice Kavanaugh keeps stressing that what he's rejecting is a demand that sentencing courts make a "separate" factual finding of incorrigibility (in his opinion "separate", in relation to "factual finding", appears close to twenty times). The relevant "finding" is permitted to be and assumed to have been merged entirely into the court's declaration of the sentence -- no "separate" analysis, whether implicit or explicit, is required.

To be sure, the effect of Jones even read this way is to make Miller and Montgomery effectively unenforceable. But an unenforceable rule is still a rule, it just relies on the relevant actors to police themselves in adherence of it -- or put differently, it requires that such actors behave "faithfully". 

Again, as a claim of being a mere application of Miller and Montgomery, Jones makes a mockery of legal reasoning. It does not apply the prior precedents, it hollows them out. So any attempt to harmonize these precedents is going to generate tension, because in terms of its legal reasoning Jones is barely better than gibberish. If there are portions of Jones which seem to suggest that lower courts are permitted to simply ignore the mandates in Miller and Montgomery, all that demonstrates is that Jones is at war with itself, and in particular the parts that swear up and down that Miller and Montgomery remain perfectly intact. Shoddy reasoning by SCOTUS leads to unclear guidance for lower courts.

Still, the Supreme Court in Jones could have overturned Miller and Montgomery. It didn't -- not just "formally", but explicitly. It was very emphatic that it didn't. Blackman's opening statement -- that "Going forward, Justice Kennedy's 5-4 progressive decisions should no longer be treated as precedential," even where they are not overturned, is not an option lower courts are permitted to indulge themselves in. Justice Kennedy's decisions, progressive or otherwise, 5-4 or otherwise, are precedential up to and until the Supreme Court says otherwise. 

Lower courts are not empowered to do the Supreme Court's wetwork for it. The lower courts' obligation is to follow all the active, binding precedents faithfully. What that means in this context, in practice, is that lower courts, when given the discretion to decide whether to sentence a juvenile to life without parole, are obligated to mete out such a decision only when it is compatible with the holdings set out in Miller and Montgomery, even if they know that thanks to Jones nobody will be looking over their shoulder to check on their work.

One final note. Blackman raises the following hypothetical, which he says is "invit[ed]" by Sotomayor's dissent:

Let's say a sentencer declines to sentence a juvenile defendant to LWOP because the defendant is not incorrigible. That decision can be baked into the broader element of "discretion." Could an appeals court reverse a sentence, because the Supreme Court held that incorrigibility was not required? Of course not. A factor may not be required, but a judge, in his discretion, can still consider that factor. In other words, sentencers can get away with ignoring Jones, and probably will.

This I think gets Jones entirely backwards. Miller and Montgomery set out some constitutionally-mandatory limits on when LWOP can be imposed on a juvenile offender. Jones says that the only constitutional enforcement-mechanism for these rules that the sentencing judge must be given discretion to consider the issue. If a sentencing judge, in using that discretion, determines that a juvenile defendant is not incorrigible and so declines to impose the LWOP sentence, that's doing exactly what Jones (and Miller and Montgomery) say she should be doing. If the judge believes the defendant is not incorrigible but acted with "transient immaturity" yet sentences him to life without parole anyway, defying Miller and Montgomery secure in the knowledge that Jones will insulate her decision from review, that's thwarting the logic of Jones (not to mention Miller and Montgomery). Ironically, such a judge would not even be reading Jones faithfully, to say nothing of Miller or Montgomery. 

Jones is predicated on the belief that, so long as the sentencing judge is given discretion to consider the constitutionally-mandatory factors "necessary to separate those juveniles who may be sentenced to life without parole from those who may not," the judge will consider these factors -- whether they make any "separate" findings or not. A judge who simply refuses to engage in that consideration, knowing that there's no possibility their exercise of "discretion" can be reviewed, is behaving in bad faith. And Justice Kavanaugh alludes to that very point in footnote seven, where he raises the possibility that "if a sentencer considering life without parole for a murderer who was under 18 expressly refuses as a matter of law to consider the defendant’s youth ... then the defendant might be able to raise an Eighth Amendment claim under the Court’s precedents." Of course, any judge who is not an idiot will quickly learn that if he wants to completely ignore the nominally mandatory requirement that they consider the factors related to the offender's youth before imposing LWOP, all he needs to do is say nothing -- an option the Court expressly endorses in Jones. This is why Jones renders Miller and Montgomery a practical nullity. But we could and should still say that a judge who did that -- who exploits the option the Supreme Court gives him to defy without consequence the rules set out in the Supreme Court's binding precedent -- is not acting "faithfully."

It is doubtful that such a faithless judge will be paused by Justice Sotomayor's dissent either, of course. And I can't even claim to be "shocked" that they won't be. But I perhaps still can be shocked to see a legal professional openly object to a judge's straightforward admonition that lower courts should apply precedents faithfully. Miller and Montgomery and now Jones are all binding law, and lower courts now are tasked to make something edible out of the hash that is Kavanaugh's majority opinion.

In Praise of Miserable Judges

Senior United States District Judge (D. Neb.) Richard Kopf talks about what it means to be a judge in today's criminal law environment:

The best way to think about it [becoming a federal judge] is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?” Those who covet a federal trial judgeship should think hard about this truth before pursuing the job.

I doubt they will. Instead, they will say to themselves, “I’m different. I am not weak. I am strong-minded.” Or, “I’m just doing what the law requires.” Or, “They did it to themselves. They deserve it.” Or, “Someone has to do it, and maybe I can improve things.” The rationalizations are endless.

But stripped of the BS that allows good people to do bad things, here is the essential truth: When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis. So, I have a bit of advice for those who wish to replace Judge Bataillon. Be careful what you ask for. You have no idea what the hell you’re getting into.

Will Baude and I had the exact same instinct, which was that this sounds a lot like Robert Cover's famous declaration that "judges deal pain and death." I doubt Judge Kopf, a Reagan appointee, has typically been mistaken for Professor Cover, which makes this all the more striking.

Judge Kopf's sense is one I shared when I was clerking. For the most part during my clerkship, I did not feel like I was "doing justice" in any real sense, particularly in criminal law. This was not a knock on my judge or co-clerks, or anybody else on the Eighth Circuit. But doing law the way law is done, I felt like I was ruining far more lives than I was validating. At many times, it felt to me like I was making the world a worse place. It was not a good feeling.

On the other hand, I also cringe at Judge Kopf's suggestion that candidates for judgeships "think hard" about the truth of federal sentencing. Not because I oppose hard thought, but because however hard it is to be a judge who is miserable in her role as a "judicial executioner," I think it would be far worse if the only judges we had are those who ask themselves if they're willing to take on that role, and answer with a hearty "hell yeah, I am!"

Bad Lawyering Moves

If you're a defense attorney, don't appeal a sentence that was mistakenly given below the statutorily required mandatory minimums. That's the lesson Judge Reinhardt gives in this 9th Circuit opinion. The lawyers in question are very lucky their appeal was denied -- if they had "won", the case would have been remanded and their clients would have faced considerably more jail time.

Should We Allow Prisoners To Vote?

A few days ago, I wrote a post on what I termed "quiet injustices" -- things that pretty clearly implicate questions of ethics and morality in our society, but yet rarely seem to bother us. My main example was D.C. disenfranchisement. Another is felon disenfranchisement (after their sentences have been served). Neither, I think, is in any remote way justifiable, and neither are particularly salient political issues.

But the more I think about it, the more I question whether even disenfranchising felons while they're in prison is justifiable. So, I've decided to spend some time exploring that issue.

In the field of legal philosophy, there are two primary justificatory models for why we can punish criminals. The first is "utilitarian"; we punish people because it leads to better social outcomes when we do. Deterrence, for example, is a utilitarian consideration, as is preventing the criminal from committing more crimes. The second model is "retributive"; essentially, giving criminals their just deserts. Those who commit crimes deserve to be punished (to varying degrees, depending on the crime). But the flip side of the retributive model is that you can't punish people more (or less) than they deserve, even if society would benefit (from the deterrent aspect, say). Hence, the two models are somewhat in tension with each other. Sometimes, society as a whole would be better off if a criminal was punished more (or less) severely than they "deserve". In such situations, we are forced to pick which model we prefer. Hence, I'll analyze prisoner disenfranchisement under both models, then examine several additional pragmatic considerations outside punishment theory that might advise against allowing prisoners to vote.

I. The Utilitarian Model

The utilitarian position forces us to weigh the benefits of prisoner disenfranchisements against its costs. We'll start with the costs, which should be obvious: denying someone the franchise is an extraordinarily serious breach of normal civic procedures. The harms are aggregated when it is a particular class of individuals (in this case, prisoners) who are so disenfranchised, because whatever interests they have as a class will be erased from our collective deliberations. And prisoners do have several exceedingly important interests that deserve hearing: combating prison rape and prison reform more generally, the availability of reintegration programs for non-lifers, even the simple mechanisms to prevent family dissolution during imprisonment. Moreover, prison disenfranchisement leads to the 0/5 compromise wherein mostly minority prisoners are transferred to White locales, who then gain increased voting power without additional voters. This creates a perverse incentive to deliberately jack up the incarcerated population, particularly via laws which target minority populations, and has the effect of creating unjustifiable asymmetries in political power, privileging White communities over communities of color.

The benefits of punishment in general, in the utilitarian model, are those of deterrence, and pre-empting potential future criminal activity by the imprisoned person. But outside cases where the crime itself is election-related (and in those few cases, I think disenfranchisement is justifiable), neither seems to apply. Allowing prisoners to vote would not give them any more opportunity make it any more likely that they will commit more crimes. Indeed, if anything it may make it less likely: insofar as criminal activity is positively correlated with marginalization from general social practices, integrating people into socially mainstream acts (such as civic participation) should be a bulwark against recidivism. Deterrence, too, to be inapplicable -- I have trouble imagining the prospective criminal for whom prison is not a deterrent, but loss of voting privileges is. Whatever marginal gain (if one exists at all) in deterrent force disenfranchisement offers is more than outweighed by the aforementioned costs.

II. Retributive Model

The retributive model allows for punishment as "just deserts" for criminal activity. This, obviously, is a bit fuzzy: what is "just deserts"? Obviously, we can recognize the poles: death for jaywalking is not just deserts, nor is a fine for murder. But there still remains the "how many grains of sand make a pile" problem. The line at which a punishment becomes too severe or not severe enough is blurry and contested.

However, one thing that can aid us in the present discussion is that we have, by and large, at least a metric for measuring the relative severity of punishments: prison. We can debate which crimes are the worst, and we can debate where each crime should specifically be placed on the spectrum. But we do agree that, abstractly, the worse the crime, the longer you (deserve to) spend in prison. And in the public imagination, that sentence is exhaustive of just deserts. Simply put, I think that the decision on imprisonment length alone is the reflection of what we imagine just deserts to be.

Consider a crime that we all agree should, in our status quo system, be punished by 20 years in jail. Imagine now that we agree that the prisoner should be enfranchised while he's serving his sentence. Do we now think the sentence should be 30 years instead of 20? If we do not believe that (and I don't think most people do), then we're implicitly saying that enfranchisement/disenfranchisement is not part of our internal weighing mechanism for determining just deserts. And if it doesn't meet that threshold, then under the retributive framework it is not a punishment we can legitimately impose on offenders.

Of course, one might take the opposite stance on my hypothetical, and say that both factors (enfranchisement and sentence length) are relevant considerations for measuring just deserts. At that point, the question shifts to whether disenfranchisement is an inherently unjust punishment. For example, if in the previous hypothetical we replaced the variable of "enfranchisement" with the variable "tortured daily", I might agree that we should adjust the sentence length downward to make up for the increased severity of the punishment. But prior to that I'd hold that torture is not a just punishment -- inherently it can never be considered part of just deserts, because it represents a extreme violation of human dignity. The question is whether voter disenfranchisement occupies a like category. I think that there is a solid argument that it does. Voting is an absolutely bedrock, fundamental part of being a person in a democratic citizenry. To be barred from voting is to be rendered a non-person in our political community. Whatever else prisoners are, I think they remain persons and citizens. They are not "men without countries", and they should not be treated as such.

This, I recognize, is more of a judgment call. But particularly since I believe we can affect just deserts via imprisonment alone, without disenfranchisement, I do not believe we have good grounds to add disenfranchisement as a punishment options outside of very special circumstances (where the felon's crime was election related).

III. Pragmatic Considerations

Having dealt with the question at a level of theory, the final issue is whether there are any pragmatic bars that would advise against allowing prisoners to vote. I think a few present themselves, but they do not strike me as sufficient to outweigh the arguments laid out above.

The first potential problem is both the most intuitively obvious (to me, anyway) as well as the most easily dispatched. That is that prisoners, already having demonstrated themselves to have anti-social tendencies, will vote for policies that sanction their sociopathic activities (i.e., all the robbery inmates will get together and vote to legalize robbery). This strikes me as an unfounded fear, in part because I don't actually think most robbery convicts actually believe that robbery should be legal, but primarily because there aren't enough prisoners to accomplish such an end. Prison enfranchisement is important because it allows prisoners to form political alliances with like-minded interest groups who also are concerned with their problems. But while there are voices on the outside who care about the problem of prison rape, there are very few, I'd imagine, which believe we should legalize robbery. The only way this could be circumvented is if prisoners actually became a democratic majority, in which case I'd argue we have bigger problems on our hands. Particularly since I think prisoners should still be considered "residents", for voting purposes, of their hometowns, and not where the prison is located, it strikes me as unlikely that prisoners will ever gain a working democratic majority.

The second potential problem is that of independent agency in a prison environment. Prison is a institution of power and control, both among prisoners, and between the guards and the prisoners. But voting demands the free exercise of one's own autonomous faculties. This creates tension. But I think the tension can be overcome. The biggest risk for intimidation comes where the prisoners are all voting in the same jurisdiction. But where the prisoners are spread out of many jurisdictions (because they hail from different hometowns), the potential for adverse influence dissipates. It doesn't go away entirely (statewide and national elections will see significant overlap in interests), but then again, the potential for voter intimidation always exists anyway. So long as ballots are secret, the risk strikes me as minimal.

The third potential problem is how to organize an election in prison. Prisoners should be given access to news, so they can make informed decisions (I do not think utter isolation from current events is justified by either utilitarian or retributive considerations). And since I envision the prisoners as being registered in their home jurisdictions, rather than residents of whether the prison is located, the election itself would be standard absentee ballot fare.

IV. Choice of Punishment: A Middle Ground

A middle ground option, alluded to early, that exists within the retributive framework would be to give prisoners an option of taking a reduced sentence that includes disenfranchisement, or a lengthened sentence that allows one to vote. But that would entail figuring out an exchange rate between enfranchisement and time-served (how many years of a sentence is the right to vote worth?). Pragmatically, it is simpler to use prison length on its own as a metric of just deserts. Moreover, insofar as a just democratic polity incorporates (to the greatest degree possible) the voices of the entirety of the citizenry, we should promulgate policies that encourage people to vote, and be particularly wary of discouraging voting amongst particular classes or groups of the citizenry. But since I suspect few prisoners would choose voting rights over a reduced sentence, adding voting rights as a punishment consideration would cut against the benefits of inclusion that I've articulated.

V. Conclusion

So in conclusion, I believe that it is difficult to justify disenfranchising prisoners, under normal circumstances, under either a utilitarian or a retributive model of punishment. Furthermore, the pragmatic arguments against prison voting are similarly lacking in merit. Meanwhile, allowing prisoners to vote would benefit society by making it more democratically legitimate, by including pertinent voices on deliberations of great social import, and even by potentially reducing recidivism rates.

Padilla Gets 17 Years

Jose Padilla was sentenced to 17 years and 4 months in prison today after being convicted of terrorism related charges. A "terrorist enhancement" which increased the sentencing guidelines to between 30 years and life, but Judge Marcia Cooke then used her discretion to downwardly depart from the guidelines, citing explicitly his treatment while in US military detention for three years.

"I do find that the conditions [for Padilla as an enemy combatant] were so harsh that they warrant consideration," Cooke told a crowded courtroom of attorneys, family members and media.

Padilla was expected to receive life in prison, and the government plans to appeal his sentence. Though the crimes Padilla was convicted of were serious, serious as well was his brutal treatment while in American custody. Judge Cooke was absolutely right to take that under consideration, and those apathetic to human rights standards should be made to deal with the consequences of that sort of abuse.

Daddy Always Told Me: Never Become a Trial Judge

District Court judging is boring and frustrating. Appellate courts are where the action is. The Deseret Morning News has an interesting article on Paul Cassell, a 42 year old Bush appointee who just retired from his lifetime position as a federal judge for the District of Utah.

Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that.

"One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation."

Becoming a legal advocate is a better fit, he said. "I felt like for the rest of my life, I wasn't sure I could stay in one place doing one kind of thing. There were some issues I wanted to pursue, particularly working on crime victims' rights, which is an area that I felt very passionately about."

Another interesting part of the article is how Cassell's experience on the bench has motivated him specifically to speak out on certain parts of the legal system he considers broken -- areas not normally associated with a Bush appointee. For example, Cassell has blasted out of control mandatory minimum sentencing, and has written vigorously against the crack/powder cocaine sentencing disparity. I don't know if Cassell was involved in these issues prior to his appointment, but it appears that being on the bench side of these cases has definitely influenced his thoughts on the matter.

All via Orin Kerr, who notes that Cassell is one of five hot-shot young(ish) judges who have left the bench at a relatively early point in their careers.

PS: My dad really did, in fact, advise me never to become a Federal District Court judge. If that doesn't give you insight into what type of family I have, nothing will.