Sentencing Law & Policy has the story. I don't know Judge Cassell well, though we've met a couple of times; but I have long respected his scholarship, of which there's been a great deal. Here are Judge Cassell's reasons:
In the past few weeks, two primary factors have led me to do something that I never thought possible -- leaving this important public service position. First, the S.J. Quinney College of Law at the University of Utah has offered me a chance to return to pursue teaching and scholarship there. Many interesting things are happening at the College of Law these days, including exciting research by the criminal law faculty and the development of the new Utah Criminal Justice Center. Returning to the College of Law will give me time to pursue research in my area of greatest scholarly interest -- crime victims’ rights. I have several important books and articles on this topic that I would like to turn to as quickly as possible.
Related to this opportunity is the coincidental offer from the National Crime Victim Law Institute to litigate crime victims cases across the country on its behalf. As you know, many indigent crime victims have unmet legal needs in the criminal justice system, particularly because the content of victims’ rights remains largely undeveloped in the courts. Because of my academic specialization on this topic, I hope to be particularly effective in advocating on their behalf.
And finally, I would be less than completely candid if I did not mention the uncertainty surrounding judicial pay as a factor in my decision. With three talented children approaching college years, it has been difficult for my wife and me to make financial plans. As you know, this year federal judges have yet to receive even a cost of living pay increase. Your much-appreciated proposal to raise judicial salaries has yet to be acted on by Congress. I would like to ensure that my children will have the same educational opportunities that I had. How to achieve that within the constraints on current judicial pay is more than a difficult task. My wife and I have concluded that we may not be able to do what we have always planned to do unless I make some changes.
The bench's loss is the University of Utah's, and the National Crime Victim Law Institute's, gain.
Utah may not pay that much more than the 160k a district judge gets but being in the academy instead of on the bench lets him do things like consult on the side.
Specifically: can someone explain the relevance of a "victim impact statement" at sentencing? (in other words, should the murder of a good family man be treated any differently than the murder of a single man? a wife-beater?)
Crime victims do need legal representation if they file tort suits, but I don't think that what this legal foundation is about.
Judge Cassell must not be as bright or as prudent as he is cracked up to be. Many, many people in this country find a way to send their kids to college on a lot less than $165K a year.
Maybe I should call his chambers and offer advice on how to draw up a family budget.
In a relative sense, given what the market pays for lawyers of his experience, reputation, and presumed skill, it's a fraction of his worth.
One can rail against the value that the market places on such individuals' time and services, but one can't dispute the arithmetic. His leaving is another data point which suggests that capable judges are finding it harder to justify staying on the bench.
That doesn't necessarily mean that his successor won't be as qualified. But his successor won't be as experienced, and thus this is not a meaningless data point.
One of what, two or three data points? What's the turnover rate for federal judges compared to private sector jobs or to jobs for government lawyers? As shown in precious threads, it's absolutely miniscule. If turnover rate is the measure a need for a salary increase, there are a ton of prosecutor, public defender and legal aid offices that need more funding before we increase federal judicial salaries.
Finally, did you actually read what he wrote? He wrote that his guaranteed-for-life $165K salary made it "difficult . . . to make financial plans." Yeah. Real difficult.
Why can't he just be honest enough to say that he wants to lead an even more lavish lifestyle, and that leading an a more lavish lifestyle is more important to him than serving as a judge?
His assertion that his salary was an impedement to sending his kids to college is utter hogwash. Anyone with an ounce of financial sense and planning could pay for college (even for three kids) on a $165K a year and still live a very comfortable life.
As to finding a suitable replacement, President Clinton or Obama will be able to find a very strong replacement.
The idea behind victim impact statements is the damage caused by the crime is one factor in the level of punishment.
Sometimes this is explicit in the charges. Attempted murder is a lesser crime than murder, even if the intent and mindset of the would be murderer is exactly the same, even if the only difference is luck (an ambulance arrives in 8 minutes instead of 14, because they were closer at the time). Because less damage was done, the crime is reduced.
Implicit in victim impact statements is that the death of someone many people liked causes more damage (to the people who liked him) than someone everyone hates (because no one will miss him).
And the legal needs of crime victims go beyond the trial itself. Obtaining and enforcing restraining orders against defendants out on bail or paroled/released criminals, dealing with 3rd parties (insurance companies, the media in high profile cases). Plus the tort suits, of course.
So there is some "room" for an advocate to address this issue. I for one applaud J. Cassell for doing so.
I like Judge Cassell's take on several issues, particularly his controversial views on exactly who constitutes "the people" for 4th Amendment purposes. But Public Defender has a point here. $165,000 a year in Salt Lake City is not sufficient to put 3 kids through college? In a city where a 3-child family is a small family, and $165,000 is well, well above the median? This is taking griping about salaries to a new level. I do believe we need to adjust — to a large degree — judges' salaries based on locality. But Salt Lake City is on the low end of the cost of living scale.
As for the tremendous attrition rate: may I point readers toward the living counterargument (and a fine judge), Ruggero Aldisert of the 3rd Circuit Court of Appeals. You know, the one located in Santa Barbara, where the 87 year old jurist maintains his chambers, 2 clerks, and a secretary. Who said life on the bench is easy?
None. He just has to say what appears to be the truth--leading an even more affluent lifestyle is more important to him than serving as a judge.
This is America. There's nothing wrong with making money. But he looses points for integrity and/or for prudence when he claims he will have trouble putting his kids through college on a mere $165K a year.
And given your argument that high attrition for government lawyers should be met with pay raises, I'm sure your local PD's and prosecutors will look forward to your support the next time their budget comes up.
Just another example of "its for the children" being use to justify everything.
Anyway, doesn't working for the university get him free tuition for the judglings? That's likely a factor.
Notice that was the Judge's third reason, not the first like some of his recent colleagues. Cassell is leaving to do more of what he loves, which is teach and advocate. I believe he threw that last reason in there as a shout-out to all the other judges (and Justices - see Chief Justice Roberts' recent commentary on the matter) who are actually clammoring for the pay raises. I'm pretty sure that the district judges in SLC feel somewhat well compensated (although see the massive appreciation that has finally hit SLC these past two years in the housing market). I lived in SLC on $120k a year, and it felt comfortable, but not hugely so, especially among all the people who made lots of money out there.
I suspect that Judge Cassell added that third paragraph only to help out his fellow judges, who really should receive the pay raise vis-a-vis the massive amounts of work they do. Most judges I know, especially where I practice as an AUSA, work very hard and long hours (I know several in my district who routinely stay until 11 or 12 at night, once their clerks have left). Compared to what they should be paid, judges (and prosecutors, and public defenders) are quite underpaid. I don't think it is inappropriate for him to have said that in his resignation, especially when EVERY other judge in the country is also saying it.
As for comparisons with the pay of the general public, judicial pay is much lower today than it was in 1789.
Jim Lindgren
Your argument about "improper" pay would lead to massive raises for a lot of government lawyers.
Federal judges have REALTIVELY high pay compared to other government lawyers, including state court judges. But if we are looking at what we should pay lawyers, shouldn't we also pay the lawyers who are litigating whether people spend the rest of their lives in prison (or get killed by the State) as much as first year associates at big law firms?
I notice that you don't try make the market rationale that Bill Dyer did. The miniscule turnover rate for federal judges shows that the market doesn't demand higher pay. Contrast that to many local prosecutors offices, where people making life and death decisions cycle through quickly.
And busy AUSA, maybe you are right that Cassell wasn't sincere in his comment about sending his kids to college. That doesn't change the fact that the argument that he would have trouble sending his kids to college on $165K a year is, at best, stupid.
Out of curiosity, are torture, rape, and slavetrading cases still being pursued at a Federal level, or have those taken a back seat to the roving bands of Al Qaeda that are on every block across the country?
I do agree with Public Defender's point about the very low rate of judicial turnover indicating that salaries aren't being set too low relative to the market. The fact that district court judges now earn less than first-year big-firm associates after bonuses says more about the large law firm market than it does about federal judges. I'm taking my firm job after graduation on the theory that if people want to throw me into the top 3% or so of earners even though I have virtually no experience and no qualifications other than a government monopoly license and a degree that mostly proves I was good at the LSAT, I might as well take advantage of it. But I don't have any illusions about being in the top 3% in terms of my value to society.
In fact, we do torture cases that have a federal nexus, and I personally do a lot of alien smuggling cases, including trading into the US for sex houses, etc, but rape is generally a state, rather than federal crime.
Per Cassell, I personally believe that he is taking a pay cut to go back to the University of Utah. But because the rest of the federal judiciary are FRANTIC about the pay issue (I clearly agree with Lindgren's post), then as a brother-in-arms, he puts that in as his last parting shot to help the judiciary out. Public Defender - I'm sorry that you feel agonizingly strong about this: have you had some run in with federal judges that made you feel this way. Having practiced in front of Judge Cassell, I can vouch that he is an incredibly smart guy with integrity (even if I've lost motions in front of him before), and I truly hope that your nitpicking about his letter doesn't take away from Eugene's original point. This is clearly a loss for the judiciary, and definitely quite a coup for the University of Utah and the NCVLI. If you want to attack someone, attack current GC at Boeing (Mike Luttig) because I remember his letter being ALL about the benjamins.
I haven't had an unfortunate run-in with a federal judge, but, as someone who has budgeted to support a family on a salary that resembles Cassell's (minus the "1" at the beginning, and then still less), I have zero tolerance for whining from federal judges about the their difficulties in supporting a family. I'd be glad to sit down with any of them to help them come up with a workable budget.
As to Judge Cassell's letter, he chose to include that line. If it's an honest reflection of his opinion, he deserves criticism for that opinion. If the line isn't true, it shouldn't be there. You wouldn't consider it a defense to perjury if a defendant said, "All of my testimony was true except for that one sentence with the lie."
Many of the arguments that Roberts, Cassell, and other federal judges give for increased salaries are either stupid or dishonest ("we need the money to support our families" and "we can't attract and keep good people at $165K"). And they apply much, much more strongly to other government positions. Compare the turnover rate of federal judges to the turnover rate in your local prosecutor's office. Compare your local prosecutor's ability to pay for his kids' college to Judge Cassell's.
Even the first-year-assoicates-make-more applies at least as equally strong to lawyers who handle serious felony cases. Do you want the best and brightest lawyers working at MegaFirmX editing the third set of interrogatories from Company X to Company Y. Or do you want the best and the brightest working for a prosecutor's office fighting to keep a rapist in prison as long as the law requires or avoiding the conviction of an innocent man of rape while leaving the real perpetrator free to rape?
Federal judges whine a lot about their pay, but they are at the top of the government lawyer heap. If by some moral calculation they "deserve" a pay raise, many, many more "deserve" one first.
Surely, if more judges followed Cassell's footsteps, your argument that there is no market problem breaks down. Why, then, cannot Cassell make his own financial calculus clear? In your preferred world where federal judges just shut up when resigning, we would be deprived of useful information. How is this a good thing?
What made Cassell's letter whining is that he suggested that his salary made it difficult to send his kids to college. Judges who claim that they are having a hard time supporting a family on $165K are whining. (Maybe I have a financial opportunity in putting together seminars for federal judges on how to draw up a family budget.)
Setting salaries for government lawyers, including judges, is hard. Market forces don't entirely work. You can get warm bodies with law degrees to take jobs for a lot less than you can get quality lawyers to take jobs. My guess is that you could fill the federal judiciary at $30K a year, but you wouldn't be happy with the quality.
So sometimes you have to set pay higher than the market demands just to fill a slot. But how much higher? High turnover is one sign that the pay is too low, but federal judges have one of the lowest turnover rates of any job. If turnover is a rationale for giving raises to judges, it's even more of an argument to give even bigger raises to local prosecutors' offices across the county.
Do we need to pay more for quality judging? I'm sure every litigator who reads this could name a bunch of excellent state court judges for whom $165K would be a significant and welcome pay raise. If the need to pay more to attract quality is needed, it's even more of an argument to give even bigger raises to defense lawyers across the country. Shouldn't everyone accused of rape have the opportunity to challenge the accusation as vigorously and as skillfully as the Duke Lacross players did?
So we're left with some sort of squishy argument that judges "deserve" a pay because first year associates make a ton of money. But if that's the case, shouldn't we equalize the entry-level jobs? Why should a big firm attorney make four to ten times as much for editing interrogatories than a prosecutor gets for prosecuting a rape case (or a defense attorney gets for defending a rape case)?
A standard rule of thumb is that the various and sundry governments take 50% of our salary.That would leave $82,500. Out of that must come health insurance and savings for retirement so as not to be a burden on society, life insurance, utilities, mortgage and so on. His children will not get any breaks on tuition due to his salary. I had friends whose combined income was about 70 thousand a year with 2 children. Their daughter was recruited by Washington University in St. Louis. The school's estimate of what the parents could pay was $28,000 per year. They would pick up the rest. Her parent's begged to differ and she went elsewhere. Being brilliant, the University she attended paid her to go to school. However, the Judge may not be blessed with such brilliant children or perhaps he or they want to go to a private college. I doubt that they will manage to do that on what is left over of his salary after taxes and expenses.
You assume that the Cassell is so dimwitted or imprudent that he didn't see college coming and put money aside. Federal judges should do what my colleagues and I do-- start saving for college from birth.
Many parents who make far, far, far less than $165K find a way to get their kids through college. It's not the taxpayers' fault if Judge Cassell failed to plan for his kids' college education.
Many of us other government-paid lawyers would love to be able to put our kids through college with current income while leading a big-firm lifestyle. Just because we want it doesn't mean we're entitled to it.
Regarding the earlier question on victim impact statements, I don't know how it works in every state, but in Texas they're only admissible AFTER all the verdicts are in, or at least only after the jury has left to deliberate. They're more to give the victims and their families the opportunity to confront the defendant and speak their peace, sort of a healing process. What evidence is admitted during trial is only during the punishment phase, and only to establish the victim as a genuine human being while the defendant is putting up all of his childhood and character evidence.