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The "Rock, Paper, Scissors" Judge

Lots of people e-mailed me about Orlando federal judge Gregory Presnell's written order to two bickering civil lawyers that they resolve where to take a disposition by meeting at the courthouse and playing a game of "rock, paper, scissors."

Fed up with the inability of two lawyers to agree on a trivial issue in an insurance lawsuit, a federal judge in Florida this week ordered them to "convene at a neutral site" and "engage in one (1) game of 'rock, paper, scissors' " to settle the matter.

Childish lawyers are commonplace, but the use of children's games to resolve litigation disputes is apparently a new development. The judge, Gregory A. Presnell of Federal District Court in Orlando, wrote that his innovation was "a new form of alternative dispute resolution."

Judge Presnell is no kook. I included a lengthy section of an opinion he wrote in March in a brief I filed last week. In the opinion, he decries the disparate sentencing guidelines for crack vs. powder cocaine.

(For those unfamiliar with the issue, the mandatory minimum penalties for crack cocaine are 100 times more severe than the penalties for powder cocaine and Congress has refused to change them despite recommendations from the Sentencing Commission and a host of others. It takes 500 grams of powder to warrant a 5 year mandatory minimum sentence but only 5 grams of crack. A ten year mandatory minimum sentence applies for 5000 grams (5 kilos) of powder but only 50 grams of crack.)

Here's what Judge Presnell wrote in his opinion (don't miss the final paragraph):

United States. v. Hamilton, 2006 U.S. Dist. LEXIS 30350 (D. Fla. 2006) (decided March 30, 2006.)

The chemical compound C17H21NO4 occurs naturally in the coca leaf. This compound is usually processed for importation into the United States by dissolving the cocaine base in hydrochloric acid and water to create a salt: cocaine hydrochloride, C17H22C1NO4 (powder cocaine). Powder cocaine may then be converted back to its base form by cooking it with baking soda and water. See U.S. v. Sloan, 97 F.3d 1378, 1381-82 (11th Cir. 1996). In numerous trials before this Court, the Government's forensic chemists have testified that powder and crack cocaine are the same chemical substance, just in a different form.

Yet, there is a radical disparity in the fashioning of sentences imposed upon those defendants found guilty of crack cocaine offenses and those imposed upon defendants guilty of powder cocaine offenses. For example, there is the "100 to1" powder to crack ratio, pursuant to which a defendant who has a certain quantity of crack will receive the same mandatory minimum sentence as a defendant who has one hundred times that amount of powder cocaine. See 21 U.S.C. § § 841 (b)(1)(A), (b)(1)(B) (mandatory minimum sentences often and five years, respectively, imposed upon defendants for five kilograms of powder or fifty grams of crack cocaine (under (b)(1)(A)), and five hundred grams of powder or five grams of crack cocaine (under (b)(1)(B)). The Guidelines have incorporated this ratio, so that five kilograms of powder cocaine and fifty grams of crack cocaine are both scored at the same level.

This disparity has been widely criticized, and the United States Sentencing Commission itself has repeatedly suggested that a 20:1 ratio would be more appropriate. n11 United States Sentencing Commission, "Fifteen Years of Guidelines Sentencing," 131-32 (Nov. 2004).

The Sentencing Commission has also reported that many of the rationales originally relied upon to produce the disparity between powder and crack cocaine are unsupportable, n12 because: (1) the harms associated with crack do not justify a substantially harsher treatment; (2) the increased addictiveness of crack results not from a pharmacological difference between it and powder cocaine, but from the differing manners in which the two drugs are normally used; n13 (3) the harms associated with crack are not as severe as initially feared and no more serious than those harms resulting from exposure to powder cocaine; (4) larger percentages of the defendants subject to the increased penalties do not fit the mold of serious or high-level traffickers that Congress intended to target when initially establishing those penalties, and instead, most crack cocaine offenders receiving these harsh penalties are low-level offenders; (5) crack cocaine is the only drug for which such harsh penalties are imposed on low-level offenders; and (6) high penalties for relatively small amounts of crack cocaine divert federal resources away from high-level traffickers toward low-level dealers. n14 Id. at 132. Finally, the crack/powder disparity results in a disparate impact along racial lines, with black offenders suffering significantly harsher penalties. n15 Id.

....This arbitrary and discriminatory disparity between powder and crack cocaine implicates the Section 3553(a)(2)(A) factors. Unless one assumes the penalties for powder cocaine are vastly too low, then the far-higher penalties for crack are at odds with the seriousness of the offense. The absence of a logical rationale for such a disparity and its disproportionate impact on one historically disfavored race promotes disrespect for the law and suggests that the resulting sentences are unjust. n16 Accordingly, these statutory factors weigh heavily against the imposition of a Guidelines sentence.

.....Because more than 95 percent of all criminal prosecutions result in a guilty plea, sentencing is the most significant role played by the judiciary in the administration of our criminal justice system. Reducing the Court's role in sentencing to that of merely rubber-stamping the will of Congress as interpreted by the Executive Branch would sabotage one of the essential checks and balances envisioned by our founders.

Like I said, Judge Presnell is no kook. We need more judges like him.

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    Re: The "Rock, Paper, Scissors" Judge (none / 0) (#1)
    by scribe on Fri Jun 09, 2006 at 03:44:34 AM EST
    Yup. Sometimes lawyers are the knuckleheads, and sometimes the clients, but it takes a good judge to get them to resolve their issues and clear the docket. I once settled a breach of contract case on a coin flip. The two clients were $1,000 apart and both would not budge - ego in the way. To satisfy these, uh, clients, we had to sit down and haggle out the rules of flipping a coin and then write them down - this took a four lawyers (2 on each side) half an hour. We considered "rock, paper, scissors" but decided this was too susceptible to allegations of cheating ("You waited until I moved", "is that misshapen hand a rock, paper or scissors", etc.) and settled on flipping a f'g quarter. My client won, by the way. On the 100-1 ratio, you're absolutely right. The only thing that judge could have done to better ensure justice was refuse to follow the ratio, but that would be "activist" and not "modest", even though it would be just. I saw an interesting note the other day - it is now coming up on the 20th anniversary of Len Bias' death. You may remember, he was the college basketball star who celebrated getting drafted into the NBA with some coke and wound up on a slab, providing the shocking propaganda incident that engendered the whole war on crack, and all the attention to the "scourge" of crack and so on. It's funny, sort of. Regardless of how draconian the penalties get, even after 20 years of them people still use coke and crack.

    Re: The "Rock, Paper, Scissors" Judge (none / 0) (#2)
    by TChris on Fri Jun 09, 2006 at 07:27:40 AM EST
    Fortunately, Judge Presnell doesn't have to live with the Seventh Circuit, which strongly implied in a decision a couple of days ago that judges are powerless to correct the injustice of the crack-powder disparity.

    Re: The "Rock, Paper, Scissors" Judge (none / 0) (#3)
    by squeaky on Fri Jun 09, 2006 at 08:55:23 AM EST
    Wow, I knew that the demographics of prison population reflected power in america as it wildly out of whack with the demographics in the general population. This is not surprising although totally unfair. I also knew that crack and powdered cocaine had different mandatory sentences that also reflected users status in america, where the poor who were more likely to use crack got worse treatment. I imagined that the difference was 5 to 1, or at worst 10 to 1, which is bad enough, but 100 to 1 is totally outrageous. How can this be allowed. Clearly the ones who should be in jail are the ones who made up this criminal law. Nothing could be a more obvious indication of endemic racism in Amerca. Even if the lawmakers were to wear white sheets and pointy hats, this sentencing disparity is more damning.

    Re: The "Rock, Paper, Scissors" Judge (none / 0) (#4)
    by scribe on Fri Jun 09, 2006 at 09:07:58 AM EST
    How is this possible? People got all bent out of shape by the spectre of crack-addled colored people coming, like the zombies in Night of the Living Dead, to take whatever from them they could, then sell it to get crack. Until the late 80s, no one had really gotten bent out of shape over coke because it was deemed expensive and a rich white guy's drug. Crack changed all that. Mix in gangs selling it, a few machinegun battles and car chases, Len Bias' death, and the perennnial desire to be "tough on crime" and there you go. To read what some congresscritters who voted for it say, they were buffaloed, yadda, yadda.

    Re: The "Rock, Paper, Scissors" Judge (none / 0) (#5)
    by Talkleft Visitor on Fri Jun 09, 2006 at 10:10:36 AM EST
    The numbers don't match, each of these crimes would get you five years in prison: Possession with intent to distribute under §2D1.1; At least 100 G of Heroin at $1,000 per gram equals $100,000 At least 500 G of Cocaine at $100 per gram equals $50,000 At least 5 G of Cocaine Base; at $100 per gram equals $500 At least 100 KG Marihuana at $1,000 per KG equals $100,000 But if the crime is §2B1.1. Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States You would need to have embezzled, stolen, frauds or deceives, forged or counterfeited 7 million dollars to receive the same sentence. How does Congress justify this disparity!!!! Judge Presnell orders children to play chilren's games to settle disputes, I only wish he could order Congress to stop playing games with peoples lives.

    Re: The "Rock, Paper, Scissors" Judge (none / 0) (#6)
    by Patrick on Fri Jun 09, 2006 at 12:19:36 PM EST
    $1000 per kilo of Marijuana? You're buying schwag. Try $3000-3500 per pound. Even at those weights (100+ Kilos) you're still paying more than $500 per pound.

    Re: The "Rock, Paper, Scissors" Judge (none / 0) (#7)
    by Talkleft Visitor on Mon Jun 12, 2006 at 01:01:04 PM EST
    There's also an error in the post. You wrote
    A ten year mandatory minimum sentence applies for 500 grams of powder but only 50 grams of crack.)
    By the judge's own words, that should read 5000 grams of powder (or 5 kilograms), not 500. Also, to Patrick: judges don't order Congress how to do their jobs. The Supreme Court can declare an act of Congress unconstitutional... as can a trial judge... but not unless they have a reason under Article III to actually do so. Saying something's unfair is not enough. Saying Congress was stupid is not enough. Someone would have to bring a claim, and unlike the Seventh Circuit result, you'd have to persuade a judge that the disparity wasn't just moronic, but actually unconstitutional. [TL: You are correct, the last zero was missing, it's now fixed. Much appreciated.]