Sentencing Class @ OSU Moritz College of Law

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  • A reward for checking this blog regularly…

    in the form of being among the first to know that we do NOT have class on Friday, January 30.  (I am in Califorina for this Stanford Law Review symposium, so I have to cancel.)  I planned to annouce this at our class on Wednesday, but the snow got in our way.

    Sorry for the slow start to the semester, but you can/should make up for lost time by keeping up with sentencing news at Sentencing Law & Policy and/or by commenting on the cases flagged here.

    Stay warm and enjoy the SuperBowl.  And get geared up for an exciting sentencing February.

  • Two intersting opinions on sex and drugs from two different appeals courts

    This week we will start to apply some of our lessons about the challenges of sentencing theory (Chapter 1 of our text) to the story of who sentences (Chapter 2 of our text).  To get a running start on this topic, and also to further everyone's interest in sentencing stories surrounding sex offenders and drug offenses, I offer here links to two really fascinating opinions handed down this week from two different appellate courts.  Though reading these new cases is not technically "required," I will happily make either (or both) of these cases the focal point of discussion in coming classes if students express an interest in them.

    First, from the First Circuit, we get US v. Perazza-Mercado, No. 07-1511 (1st Cir. Jan. 21, 2009) (available here), which covers (frequently litigated) issues surrounding broad conditions of supervised release for a federal sex offender. The start of the majority opinion sets out the basic issues:

    This case requires us to address the validity of two conditions of supervised release imposed on a defendant convicted of unlawful sexual contact with a minor.  The first condition prohibited the defendant from having any access to the internet at home during the fifteen-year supervised release period. The second condition prohibited the possession of pornography generally.

    Second, from the Wisconsin Court of Appeals, we get Harris v. Wisconsin, 2009 Wisc. App. LEXIS 39 (Wisc. Ct. App. Jan. 21, 2009) (available here), in which a Milwaukee man convicted of selling cocaine got his sentence reversed because the judge who sentenced him referred to the man's "baby mama" and asked him where "you guys" find women to support them while they stay home.

  • Please turn in pre-class questionnaires ASAP

    As of this writing, I have only received eight questionnaires with ranked purposes and proposed sentences for Richard Graves and John Thompson.  Class will be aided greatly if I get more of these forms before 12 noon on Wednesday so I can calculate "results" before our class.

    THANKS!

  • Some thoughts about sentencing law and policy for Inauguration Day

    For those in an Inaugural mood today, here are some posts/links from my other blogs that might be worthy of your time and attention (and commentary):

    In addition, I have lots and lots of transition-related sentencing posts in this category archive, titled "Criminal justice in the Obama Administration."

  • Express strongly-held beliefs in the comments here…

    in order to allow everyone to read/reflect on some of the beliefs we hold as we start the class.  Ideally these beliefs will be related to sentencing and/or criminal justice topics, but other strongly-held beliefs are welcome.  Comments can be signed or anonymous, as you deem fit and appropriate. 

    I will start with two of my strongly-held beliefs to get us started: 

    1.  Very few people have completely thought through all the implications of their views about the death penalty.

    2.  Very few people are really, truly interested in sentencing equality if/when equal treatment would mean that most everyone is treated worse (but all are treated equally badly).

  • Earn extra credit: note/link/discuss sentencing topics raised during AG-nominee Holder’s confirmation hearing

    As some of you may already know, President-elect Barack Obama last month nominated Eric H. Holder Jr. to be the next Attorney General of the United States, and Holder's Senate confirmation hearings are scheduled to begin Thursday morning at 9:30 am.   The hearings can be followed via webcast through this official webpage of the Senate Judiciary Committee, where one can also find lots and lots and lots of documents and letters concerning AG-nominee Holder's background and professional history. 

    With the exception of the President and perhaps swing-vote Supreme Court Justices, the Attorney General of the United States is probably the single person most able to influence national criminal justice policy and practice.   For that reason and others, students concerns about racial and socio-economic inequality in the operation of the criminal justice systems should note that (1) Holder would be the first African-American AG if he is confirmed, and (2) that, according to this recent AP article, Holder "will earn $4.6 million from his law firm this year and next, including deferred compensation and a separation payment. "

    I have done a lot of Holder-related posts over at my main blog (many of which I have linked below).  These posts should give you a sense of some of the sentencing-related issues that may (or may not) arise during his confirmation hearings.  Students interested in earning early extra credit can/should use the comments to note and discuss any sentencing topics that arise during these hearings (and/or link to news accounts about the hearings).

    Some posts at SL&P on the Holder pick for Attorney General:

  • Any early concerns, questions, curiosities about class requirements or expectations?

    Because I got so into our collective introductions and overview dialogue, I forgot to leave time for students to ask any questions or express any concerns about the class requirements and my expectations.  Most of the basics should be covered in the course description, but I will be sure to start our next class next Wednesday by providing an opportunity for course questions/concerns.

    In the meantime, any and everyone is welcome to post questions or concerns in the comments to this post.  And if the questions or concerns center on the assignments for next week, let me just reiterate that everyone needs (1) to finish and then submit the pre-class questionaire, (2) consider posting comments to the newer posts on this blog, and (3) read (and re-read) as much of Chapters 1 and 2 in the text as possible before our class on January 21.

  • 2008 Supplement for Sentencing Law and Policy casebook available here

    As noted in the course description, an 2008 on-line supplement providing additional materials to accompany our Sentencing Law and Policy casebook can be download from this blog/website. 

    Specifically, the SL&P 2008 supplement can be downloaded at this link.  Though this supplement includes lots of notes covering various sentencing developments through summer 2008, its most critical materials are the edited versions of Kimbrough and Gall (which we will not discuss until probably mid-Frebruary).

  • Welcome to the reboot of this blog for another semester of punishment and sentencing

    Welcome to the re-launch of a this blogging adventure.  This blog started two years ago, with the uninspired title of Death Penalty Course @ Moritz College of Law, to facilitate student engagement in the Spring 2007 course on the death penalty that I taught at OSU's Moritz College of Law. 

    Though I formally closed this blog down not long after that course ended, I have been pleased to see all the students' hard work as reflected in the archives still generates significant traffic and much of the posts remain timely.  Consequently, as I gear up for teaching Criminal Punishment & Sentencing in Spring 2009 at the Moritz College of Law, I decided to reboot this blog to allow the new course to build indirectly in this space on some of the materials covered before.

    I was generally pleased with how this blog helped promote a new type of engagement with the death penalty and with on-line media with students in the 2007 class.  (Even after nearly five years of focused blogging at my main blog, I continue to be amazed by what can be discovered through the process of blogging.)  But because I did not assign a text in the Death Penalty Course, this blog was truly the focal point for reading materials in the 2007 course.  We have a traditional text for our 2009 Criminal Punishment & Sentencing course, this blog likely will play a less fundamental role in course activities.

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  • This course is closed, but call DPIC for teaching this topic

    Fpo2
    As the absence of recent posts reveals, the course that was the focal point of this blog ended during the first part of 2007 and I have not had occassion to post anything new in this space for many months (even though I have lots and lots of capital coverage on my home blog).  Still, in part because this website keeps generating a bit of traffic, I am going to keep it active (and may still link here from my Sentencing Law and Policy blog because of the great resources my students helped me asemble in this space).

    On the topic of great resources, folks at the Death Penalty Information Center sensibly suggested that I link over to its teaching project, known as Capital Punishment in Context, as I close up shop here.  Through links and other terrific resources, this DPIC project incorporates detailed teaching notes, sample syllabi, and a variety of supplementary materials to support instructors from multiple disciplines such as sociology, criminology, legal studies, literature, writing, statistics, and religion.  Anyone seriously interesting in any number of capital punishment topics should be sure to check out Capital Punishment in Context.

  • Posting and/or sending out white papers to named audience

    After a long few weeks to finish grading and to deal with other commitments that stacked up in the Spring, I am now ready to get serious about polishing, publishing and propagating all of the great white papers that were produced for this course.  I hope at least a few of you are interested, and have a little time, to turn your white paper into more than just a required assignment for our class.

    If you are still interested in having your white paper posted on the blog and/or polished for sending to your chosen audience, please let me know via a comment here or e-mail.  Though a little work may be involved to update and formalize the presentation, I doubt more than a few hours of effort would be required to make anyone’s white paper post-worthy.  (Consider the cool double meaning: post-worthy means worthy of posting on this blog and worthy of putting in the post (mail).)

  • Power(Point) to the people

    Here are the PowerPoint files I have received to date from students/presenters.  Thanks again to Caitlin Chamberlin for the suggestion to share.

    False Confessions: Download false_confessions_powerpoint2.ppt

    Actual Innocence: Download actual_innocence.ppt

    McClesky: Download mccleskey_presentation_314.ppt

    UPDATE:  Here are some more of the powerpoints:

    Capital Child Rape: Download child_rape_death_penalty_presentation.ppt

    Victim Considerations: Download victim_presentation.ppt

    MORE:  And here is a straggler powerpoint:

    Women and DP: Download women_and_dp_presentation.ppt

  • Readings and questions for April 19 on impact on victim’s family

    Jim Rogowski and Brandon Crunkilton have provided these readings, along with a few questions for Blog discussion, in conjuction with their coverage of victim impact issues:

    Questions for Blog Discussion:

    1. Do you personally believe in the death penalty?
    2. If a member of your family were murdered, would you want their attacker executed?
    3. Would you want to witness the execution?
    4. Even if you would not personally want to witness the execution, do you think other victims’ family members should be allowed to witness the execution?

  • Readings for April 18 on women and the death penalty

    Andrea Esselstein, Stephanie Fortener and Janean Weber have created a terrific little "reading packet" for their coverage of the topic of women and the death penalty. This packet can be downloaded here:

    Download selected_readings_for_women_and_the_death_penalty.doc

    Enjoy and feel free to start the conversation with comments to this post (especially if you are worrying at all about the class participation part of your grade as we approach our last week of class).

  • Reading on capital child rape for April 11 and 12

    Jordan and Brett are in command this week, addressing the very interesting and very timely topic of whether child rape can and should be a capital offense.  Here is their reading list (with links I found):

    • Coker v Georgia, 433 U.S. 584 (1977) (available here)
    • State v Wilson, 685 So. 2d 1063 (La. 1996) (exceprts here)
    • A note by Joanna D’Avella at 92 Cornell L. Rev. 129 (2006) (available here)
    • An article by Corey Rayburn at 78 St. John’s L. Rev. 1119 (2004) (available here)

    I have lots of thoughts about categorical rules concerning the application of the death penalty that I will try to (briefly?) set out to begin our discussion.

  • Notable local capital sentencing analysis

    Sunday’s Columbus Dispatch has this intriguing article entitled "Death sentences rare for local juries: Murderers convicted in Franklin County more likely to get life in prison."  In addition to the article, the Dispatch has this fascinating review "of the last 100 aggravated murder indictments [in Franklin County which] shows that juries are becoming more reluctant to impose the death penalty."

  • Webcast of the Sixth Circuit argument in Reynolds habeas case

    In addition to the parties’ briefs, you can now access here the webcast of the Sixth Circuit argument today in the complicated federal habeas case in which an Ohio death row prisoner is challenging the Ohio state court proceedings that resulted in his death sentence for a murder committed in Summit County, Ohio in the mid-1990s.

    Both the briefs and the webcast provide a great set of materials for further gearing up for our discussions of habeas review in capital cases in this week’s classes (readings here and here).

  • A week for reviews

    I hope everyone is as excited as I am for the week of capital review we will be having to kick of April:

    Everyone should feel free to express pre- or post-event comments here.

  • Readings for April 5 on Herrera and innocence

    Here is the note from Kurt Copper from his team explaining their reading choices and plans:

    I have attached two files which are edited copies of Herrera v. Collins, 506 U.S. 390 (1993), and House v. Bell, 126 S.Ct. 2064(2006). I tried to do textbook style edits on the cases so people would be more apt to read them and get the point. I would suggest to the class that they might like to read the entire cases to more fully understand the Justices’ arguments, but these edited versions give a decent synopsis in about 15 pages total.

    Also, we suggest a law review article, "SIMPLE MURDER: A COMMENT ON THE LEGALITY OF EXECUTING THE INNOCENT", 44 BFLR 501 (1996).  We will show a short video clip in class and try to spur the discussion on innocence claims, the role of the federal courts, and the effectiveness of clemency. 

    Also, could you post on the blog a short explanation that the difference between a "Herrera" claim and a "Schlup" or "gateway" claim is that the herrera claim is a purely constitutional one (i .e. "it is unconstitutional for you to hold and execute me because I am innocent") and the gateway claim is a procedural one ("though my claims of constitutional violations in my state trial have been procedurally defaulted and thus normally wouldn’t be heard, the federal courts should excuse this and hear them because i am actually innocent"). I think just getting that basic concept before reading the cases will help frame them better for the reader.

    It should be interesting.

    Download edited_version_of_herrera_v. Collins.doc

    Download edited_version_of_house_v. Bell.doc

  • Readings for April 4 on habeas review

    Alexander Smith has sent along this note along with the readings that are available for downloading below:

    Because there are two groups going in the same week, I have limited readings to two journal articles that give a solid overview of the complex procedures relating to Federal habeas review. My presentation will attempt to navigate the many rules and requirements surrounding such review in order to create a better understanding of how this process fits into the larger appeal system for death penalty cases.

    Students may also want to glance at 28 USC 2241-2266, where the right of habeas review is codified.

    Download the_theories_of_federal_habeas_corpus.doc

    Download the_writ_of_habeas_corpus_a_complex_procedure_for_a_simple_process.doc

  • The power of the personal

    I was certainly moved by the stories of Ohio exonerees Gary Beeman and Dale Johnston, and I trust everyone else was, too.  If folks want to express reactions or other thoughts, feel free to use the comments.  (My own first thought was that I should have had the good sense to formally invite Governor Strickland and Attorney General Dann to attend.)

    Both Dale and Gary gave me their contact information, which they encouraged me to share with students.  In addition, Julie Przybysz gave me a binder with lots of information from Ohioians to Stop Executions (OTSE) that I am happy to copy for anyone interested.

  • Recent articles on prosecutorial tunnel vision

    I mentioned in class that some of the latest scholarship on wrongful convictions and false confessions is focused on the idea of prosecutorial tunnel vision.  Here are two articles discussing this idea:

    Abstract:  The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent.  The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision.

    Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system.  This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review.  The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies – cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal.  Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule.  This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

    Abstract:  This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision.  Specifically, it asks why prosecutors become loyal to a particular version of events – the guilt of a particular suspect – even when that version of events has been discredited.  The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor’s office. It then considers the prosecutor’s divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system.  Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one’s beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.

  • Initial reactions to white-paper outlines

    I have reviewed all the submitted white-paper outlines, and I am in the midst of preparing class-wide substantive feedback and suggestions.  In this post, let me just detail some of my initial reactions and thoughts:

    1.  Thanks for providing such interesting Spring Break reading.  I really enjoyed seeing how everyone approached this novel assignment, and I learned a lot from your outlines.  Though a lot of you (understandably) expressed concerns about the scope and coverage of your outlines, my review of all your efforts confirmed my instinct that this assignment is proving to be much more valuable than any exam or even a traditional research paper I could have assigned.

    2.  The thoughtfulness and diversity of your efforts was quite impressive.  Even the shortest outline — which ran just over a page double-spaced — revealed thoughtful reflection on this project.  The longest outline — which ran just under seven pages single-spaced — revealed how dangerously easy it will be for this project to consume you.

    3.  I will mark-up submitted outlines only upon request.  As noted above, I am preparing a long memo with general feedback for everyone.  I am happy to provide individual feedback through conferences or by marking up an outline upon request.  A number of you stressed that the outline was a work in progress; I would rather spend time helping you move forward than marking up an effort you have already revised.

    4.  I am excited about the importance and possible impact of this project; I am thinking dynamically about how we can and should disseminate the class’s efforts.  Of course, I hope to post (with permission) the completed white papers on this blog.  But I am also thinking about (1) whether and how we might foster (and fund) sending the white papers directly to the official intended audience, and also (2) whether and how we might publish all the papers in some kind of compiled book form.

    UPDATE:  I have now completed a detailed memo with class-wide substantive feedback and suggestions, which can be downloaded here: Download recommendations_for_dp_white_papers.rtf

  • Special class session Thursday, March 29

    As mentioned before Spring Break, we will have a set of very special guest speakers in our Thursday class next week: two Ohio death row exonerees and the public defender primarily responsible for Ohio’s lethal injection litigation.  More details about the speakers scheduled to appear can be found in the flier available for downloading here: Download exoneree_announcement.doc

  • Class readings on “False and Coerced Confessions and the Death Penalty” (for just before after Spring Break)

    Though I doubt we will get to these materials before Spring Break, I wanted to post now the materials and ideas that Caitlin, Mags and Kelly have for us to explore after we examine race and the death penalty (which should be prompting more blog buzz here).

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    False and Coerced Confessions and the Death Penalty

    False and coerced confessions present a two-fold problem: the wrong person is convicted of a crime and the true perpetrator remains free.  Thus, justice is not served. 

    We want our topic to open the class up to the idea that confessions can be derived because of other reasons. Perhaps it has been suggested to the Defendant that if he confesses, he will be spared the death penalty.  Perhaps the Defendant is undereducated or has a low IQ, and confesses just to appease the police.

    The following article provides insight into false confessions. It is co-written by a professor of sociology at Berkley that is an expert in the field of false/coerced confessions.  Please use the citation to pull the article on-line: 88 J. Crim. L. & Criminology 429 (Winter 1998) Journal of Criminal Law and Criminology "THE CONSEQUENCES OF FALSE CONFESSIONS: DEPRIVATIONS OF LIBERTY AND MISCARRIAGES OF JUSTICE IN THE AGE OF PSYCHOLOGICAL INTERROGATION" by Richard J. Ofshe & Richard A. Leo.

    In addition, this link provides a brief description of a case where a man falsely confessed to avoid the death penalty, in exchange for a life sentence.

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