LawPulse

Judge Michael McCuskey made the rare journey from the state to the federal bench and back again - and he's happy to leave federal court behind.

Judge Michael McCuskey began practicing law in his hometown of Lacon on the Illinois River. His career has now come full circle. The Illinois Supreme Court appointed McCuskey to fill the seat of retiring Marshall County Judge Kevin Galley.

According to Supreme Court Justice Thomas Kilbride, McCuskey "comes back to the state court in the local circuit with more experience than you can custom order." Andy Kravetz, Retired Federal Judge Michael McCuskey Appointed to Fill 10th Judicial Circuit Vacancy, Peoria Journal Star, June 16, 2014. McCuskey began his career in Lacon as a partner at Pace, McCuskey, and Galley from 1975 to 1988. He was also a public defender in Marshall County for nearly that entire span.

In 1988, McCuskey was elected to the Tenth Judicial Circuit. He held the position from 1988 to 1990. In 1990, he was elected to the Illinois Appellate Court, sitting in the third appellate district from 1990 to 1998.

In 1997, President Clinton nominated McCuskey for a seat on the United States District Court for the Central District of Illinois. He was confirmed by the U.S. Senate in 1998, and remained on the federal bench until he retired last May 31. His retirement was short-lived as he began his term in the Tenth Circuit in June.

Working 'for the U.S. Attorney's office'

Attorneys may wonder why a judge would give up a lifetime appointment to the federal bench. McCuskey says that "everyone thinks being a federal judge is special…until you're a federal judge."

He says that the Central and Southern Districts of Illinois are very different from the Northern District. The counties are smaller - more than half contain fewer than 30,000 people.

Also, there are different caseloads in the Central and Southern Districts. The majority of criminal cases that could be tried under state or federal law go to federal court in the Central District. According to McCuskey, this is because prosecutors want to get bigger sentences under the federal sentencing guidelines. He sees the practice as a "perversion" of the federal criminal courts because prosecutors are taking "small time, street-level drug dealers" to federal court as if they were big cartels. Moreover, due to the federal sentencing guidelines, "federal judges are left with no latitude" when it comes to sentencing.

This was especially problematic in Urbana, where McCuskey sat, he said. Because so many street-level drug crime cases were heard in his courtroom, he felt he had no means to "give people appropriate sentences for their first mistake in life." Because of federal sentencing guidelines, a college student who took part in a $200 drug transaction would end up a felon, even if the conviction resulted in no jail time.

"In state court, the same person would have no felony if given a supervised release," he said. Moreover, even though the guidelines provide mitigating factors for, e.g., providing cooperation and assistance to the government, "they do not necessarily do away with the mandatory minimum sentencing."

McCuskey points to two different types of defendants least likely to benefit from cooperation and assistance mitigation: college students and Mexican nationals. In the case of college students, while some cooperate, many are unwilling to give up their friends, he says.

In the case of Mexican nationals, most of them are caught driving trucks that they did not load, and do not know the contents of. "They usually won't cooperate because their families in Mexico are at risk of being killed by cartel members."

The inflexibility of the sentencing guidelines left McCuskey unable to give people a break. "Even the Globetrotters let the Generals win every 10 to 15 years," he observes. He eventually came to the realization that he "worked for the U.S. Attorney's office. When you realize the difference in the room is the U.S. Attorney, and not you, the robe shrinks."

Little room for civil cases

Judge McCuskey says that in his 16 years on the federal bench, he heard almost no civil cases because there was "very little time" for them. For instance, in 16 years McCuskey did not hear oral argument on any motions for summary judgment filed in his courtroom. Civil attorneys practicing in the Central District "had better write well" because they most likely won't get oral argument on motion hearings.

McCuskey also says that 40 percent of the civil cases he heard were lawsuits filed by prisoners complaining about their treatment and prison conditions. This is because the prisons are located in the central and southern parts of Illinois. On average, McCuskey says that he tried one civil case a year.

"I do not miss federal court; I did not feel like a worthwhile judge in the system." Back on the state bench, McCuskey hears all kinds of cases, including motion arguments; he does not have to make felons out of college students, he says. His flexibility in sentencing allows him to give people punishments that better fit the facts of the case.

In state court, McCuskey says, he is using all of his abilities as a jurist. "Tomorrow I'll hear anything from name changes to murder cases, from divorce to medical malpractice." He acknowledges that "it may be scary to some," but he is now back to doing what he likes best.