The Precipitous Decline in Reasoning and Other Key Abilities with Age and Its Implications for Federal Judges

U. S. Supreme Court justices and other federal judges are, effectively, appointed for life, with no built-in check on their cognitive functioning as they approach old age. There is about a century of research on aging and intelligence that shows the vulnerability of processing speed, fluid reasoning, visual-spatial processing, and working memory to normal aging for men and women at all levels of education; even the maintained ability of crystallized knowledge declines in old age. The vulnerable abilities impact a person’s decision-making and problem solving; crystallized knowledge, by contrast, measures a person’s general knowledge. The aging-IQ data provide a rationale for assessing the key cognitive abilities of anyone who is appointed to the federal judiciary. Theories of multiple cognitive abilities and processes, most notably the Cattell-Horn-Carroll (CHC) model, provide a well-researched blueprint for interpreting the plethora of findings from studies of IQ and aging. Sophisticated technical advances in test construction, especially in item-response theory and computerized-adaptive testing, allow for the development of reliable and valid theory-based tests of cognitive functioning. Such assessments promise to be a potentially useful tool for evaluating federal judges to assess the impact of aging on their ability to perform at a level their positions deserve, perhaps to measure their competency to serve the public intelligently. It is proposed that public funding be made available to appoint a panel of experts to develop and validate an array of computerized cognitive tests to identify those justices who are at risk of cognitive impairment.

Supporting Responsive Federal Drug Sentencing Through Education in the Workshop on Science-Informed Decision Making

On the federal level, judicial education in sentencing has been focused primarily on preparing judges to calculate and apply the Federal Sentencing Guidelines. But in an advisory guidelines context, making individualized assessments in drug cases requires education in the science of addictions, the drivers of behavior, and the prospects for behavior change when substances are involved. Neuroscience and the sciences of human behavior provide clarifying insight into substance-driven behaviors and cognitions that are routinely encountered in federal drug cases. These disciplines support individualized sentencing by shedding new light on the nature of inhibitory control, the reasonable expectations for relapse, and the distinctions that can be drawn based on science between different treatment interventions. In this Article, we report on the Workshop on Science-Informed Decision Making, an education initiative in the federal judiciary. Since 2016, it has provided education in neuroscience and behavioral science, as well as skills training in individualizing sentences using insights from that science, to U.S. district judges, magistrate judges, and pretrial services and probation officers in thirty-two federal districts. We describe the case-study-based instructional approach of the workshop, including some of the misconceptions about addiction behavior it addresses, and explain why we believe that this kind of education helps federal judges, and pretrial services and probation officers, craft more responsive sentencing decisions and recommendations.

Sentencing Federal Drug Offenders

The Drug War ushered in harsh sentencing practices in the United States. The severity in penalties has been particularly salient in the federal criminal justice system. Increased statutory penalties and U.S. Sentencing Commission guidelines led to drug users and traffickers serving longer periods of incarceration. As a result, the federal correctional system is overburdened. A noticeable change in attitude is evident. Congress has offered leniency for certain first-time drug offenders in the form of a statutory safety valve. While a progressive step, the safety valve applies to relatively few individuals. Importantly, federal judges have some discretion to reject what they might consider to be overly lengthy sentencing mandates. This Article provides an empirical study of sentencing statistics for drug offences. The sample derives from the U.S. Sentencing Commission’s fiscal year 2019 dataset of over 20,000 cases sentenced for drug crimes. Results show that judges employed various mechanisms to reduce statutory- and guidelines-based penalties. Strategies by judges include avoiding mandatory minimums (using the safety valve and otherwise), giving greater point reductions than permitted, and rejecting Commission policies. Over 60% of sentences were below the guidelines’ minimum recommendations. The consequences are beneficial in alleviating strain on the federal prison population, but create inconsistency in sentencing practices. A qualitative component supplements the quantitative. Judges, when issuing their statement of reasons for the sentence, may include textual comments. These comments provide valuable contextual information in how judges articulate their concerns with sanctions for drug offenders. Overall results present important policy considerations.

The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants

In the aggregate, racial inequality in criminal sentencing is an empirically well- established social problem. Yet, data limitations have made it impossible for researchers to systematically determine and name the most racially discriminatory federal judges. The authors use a new, large-scale database to determine and name the observed federal judges who impose the harshest sentence length penalties on Black and Hispanic defendants. Following the focal concerns framework, the authors (1) replicate previous findings that conditional racial disparities in sentence lengths are large in the aggregate, (2) show that judges vary considerably in their estimated degrees of racial discrimination, and (3) list the federal judges who exhibit the clearest evidence of racial discrimination. This list shows that several judges give Black and Hispanic defendants double the sentences they give observationally equivalent white defendants. Accordingly, the results suggest that holding the very most discriminatory judges accountable would yield meaningful improvements in racial equality.

Debevoise’s Holloway Project and “Second Looks”

The president’s power to grant clemency is but one feature of a sentence-correction ecosystem. But the abolition of federal parole in the 1980s left the clemency power as the only way to correct lawfully imposed sentences for the simple reason that they are too damn long. This article is about another way to correct sentences for that simple reason, one that has been right there all along but was moribund for decades, and about a 2018 statute and a Debevoise & Plimpton pro bono project that breathed life into it. And it is a critical Article III complement to the Article II clemency power. For the past five years, the Holloway Project at Debevoise has advocated for federal prisoners, overwhelmingly men of color, who were given bone-crushing sentences pursuant to the cruelest mandatory sentencing law the federal system had to offer. The typical Holloway Project client is a middle-aged man who was sentenced decades ago for robbery sprees in which a firearm was used but no one was hurt and little was stolen. In almost all of their cases, the indefensible sentences—often as not the equivalent of life without parole—had nothing to do with their culpability and everything to do with their refusals to cooperate and/or plead guilty. This article describes the Holloway Project and how it has used what has become known colloquially as the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A), and 2018’s First Step Act to persuade federal judges to undertake holistic, compassionate reevaluations of the men these incarcerated individuals have become after all their years in prison, and inject some humanity and justice into a sentencing regime that is still in desperate need of both.

The misguided quest for a constitutional right to education

The Supreme Court ruled in San Antonio Independent School District v. Rodriguez (1973) that there is no constitutional right to education, but that has not stopped families and education activists from arguing that this right is implicit in the Fourteenth Amendment. Nicholas Tampio contends that, based upon the history of federal involvement in education, a constitutional right to education would likely lead to an increase in high-stakes testing. The way to prepare young people for citizenship is to raise them in communities, including communities of color, that govern the schools themselves without the oversight of federal judges.

Black Federal Judges and Civil Rights in the Age of Obama

We examine the demographics of the federal judiciary and the impact President Obama had on diversifying the federal bench. We discuss the record-breaking number of women and minorities Obama appointed to federal courts at all levels. Considering the historic and current struggles of African Americans in attaining civil rights, we focus our discussion on the appointment of Black federal judges. We highlight the historic firsts for African American appointees and the continuing need for Black federal judges, particularly in the South. We also discuss the inclusionary dilemma in the context of President Obama’s selections for staffing the federal judiciary. We discuss Obama’s decision not to appoint a third African American justice to the Supreme Court, but we examine his record-breaking number of African American appointments to the lower federal courts. Despite these historic appointments, President Obama’s appointment power was not unfettered. In the end, we assess the impact of Obama’s appointees in view of voting rights litigation. Voting rights are particularly pertinent for racial minorities who have been historically denied these rights but have made gains in electing minorities to public office. In the conclusion, we discuss the racial implications of the Trump administration’s attempts to reverse Obama’s judicial legacy.

1968: One Year In the Life of the Mexican Federal Judiciary

1968 is considered a mythical year in many parts of the world. In Mexico, it has acquired an almost sacred status. The student movement is com¬monly viewed as the beginning of the prolonged process of democratic transition that has unfolded in the last decades. Although there is very abundant literature about the events of that year, the role that the Mexican Federal Judiciary (MFJ) played in them has practically not been examined. The article analyzes the si¬tuation and performance of the Supreme Court of Justice and the MFJ during that single year. For this purpose, the essay examines the following aspects: the composition, organization and resources of the federal courts; judicial statistics; judicial precedents; judicial ideology and public perception on the justice system; and finally, the intervention of federal judges in the judicial proceedings instituted against the students and other leftist political dissidents. The article concludes that the MFJ was subject to many constraints and limitations that, for good measure, hampered its role in the defense of constitutional order. Twenty years later the reforms leading to the transformation of the Supreme Court of Justice into a constitutional court were started, favoring a more active intervention of judges and courts in the protection and defense of fundamental rights.