Sentencing Class @ OSU Moritz College of Law

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  • Continuing with clemency history … adding a bit of modern law

    As mentioned in class, your primary assignment for this week is to work on figuring out what topic will be the focal point for your class presentation and concluding paper.  In class next week, we will start our discussions by having everyone share (tentative) plans.  Thereafter, we will return to our discussions of clemency history, based in part on the articles previously circulated and based in part on continued discussions of real-world examples of (state or federal) clemency which took place BEFORE the 21st Century that may be of interest to you.  

    As we wind down what might be call the "early history" portion of our class discussion, we will then transition into a brief overview of leading federal and Ohio legal precedents on the clemency power.  In next week's class, I will be handing out a hard-copy packet with these leading US Supreme Court and Ohio Supreme Court decisions, and here are links to these cases if you are extra eager to check out this area of law ASAP:

    Herrera v. Collins, 506 U.S. 390 (1993) (the main clemency discussion is at pp. 411 to 417 of majority opinion)

    Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)

    Ohio v. Boykin, 138 Ohio St. 3d 97 (2013)

  • Some clemency news and notes from the week that was

    I may try to make a habit, perhaps consistently on the weekends, to provide a brief round-up of some of the week’s clemency news and commentary.  My Google news feed might not justify this round-up every week, but this morning these pieces very much seemed worth spotlighting, and I have below provided the jurisdiction, headline and link:

  • Follow up information and links after our first class

    As promised, here are links to the full articles that were passed around in partial hard-copy form in class today:

    If you were interested in the full documentary "College Behind Bars" that I previewed in class, here is a link to the PBS site where it can be streamed. And speaking of things to watch, here ate the IMDB pages for new criminal justice movies Just Mercy and Clemency.  I would be eager to organize a trip for class members if interested.

    Last but not least, we will be sure in next week's class to discuss the real-world example of (state or federal) clemency which took place BEFORE the 21st Century that is of interest to you.  Sorry we did not get to that today, but we will for sure next week.

    UPDATE:  It dawned on me that you all might like an electronic version of the course description and syllabus.  You will find that document (updated with our new room number) below:

    Download Revised LP3 Berman for 2020

  • Welcome the the class blog of the Moritz College of Law’s LP3: Clemency (with first week plans)

    This blog got started over a dozen years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) in order to facilitate student engagement in a Spring 2007 course on the death penalty.  Because the blog proved successful during that semester, and because the students' hard work as reflected in the archives still generates web traffic and might still be of interest to current students, I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course.  

    We are now approaching the start of a new decade, and I am very excited to be starting 2020 by gearing up teach a brand we course at the Moritz College of Law, an LP3 course on Clemency.  Ever the web-savvy dinosaur, I figured I could and would use this blog to provide electronic access to materials, to flag current events and to supplement our readings and discussions.  Because I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, students can and should be on the look out for class materials and announcements posted here.

    So, for example, here is a repeating of what is posted on the Moritz official website for our first assignment as we gear up for the first class:

    In preparation for our first class on Tuesday, January 7, 2020 you should:

    1.  Do some research on what you think is a good, clear and complete definition of "clemency."  Please bring that definition (and its source) to our first class.

    2. Find/research on your own a real-world example of (state or federal) clemency which took place BEFORE the 21st Century that is of interest to you, and come to our first class prepared to describe this clemency example and why it is of interest to you.   (We will discuss a lot of 21st Century clemency examples throughout the semester.)

    3.  Get excited about our first class, where you will get the class syllabus and the first set of readings.

     

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  • Thanks for a great class … and a few more posts to highlight the (“who”) learning never stops

    I have now officially printed out all the class submission, and I am reasonably far along at ready what all you folks had to say in mini- and final papers.  I wanted to use this space not only to say thanks again for a great semester, but also to encourage staying in touch (especially if you might want to seek to have your final paper published).  Also, I cannot resist here one last review of some interesting "whos" appearing in some of the posts from this past month on my main blog:

    Following pardon board recs, Pennsylvania Gov Wolf commutes eight life sentences

    Another round of headlines highlighting continuing controversies surrounding former Kentucky Gov Bevin's pardon flourish 

    "The progressive prosecutor movement is great — but without funding public defenders it won't work" 

    "Who should oversee implementing the First Step Act?" 

    Alice Marie Johnson and Mark Holden provide their perspective on FIRST STEP and next steps

    Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State

    Noticing that little has been done since Prez Trump's executive order to establish a "Commission on Law Enforcement and the Administration of Justice" 

    Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? 

    SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 

    "Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

    AG William Barr announces "Operation Relentless Pursuit" to combat violent crime in seven US cities

    After serving more than 13 years in federal prison, former WorldCom CEO Bernie Ebbers secures compassionate release thanks to FIRST STEP Act

    Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum

  • Mini-paper submission review

    I have reviewed my inbox and files to check my records on how many mini-papers I have so far received from each student.  My current cumulative accounting has me with 45 total submissions to date, with the following particularity:

    Mini #1: What topic interests you and might be basis for final paper — 18 submissions so far

    Mini #2: Advise a real official on expedited DP for mass shooters (or advise DeWine on Ohio issues) — 8 submissions so far

    Mini #3: Reflections/take-aways from the death penalty until — 4 submissions so far

    Mini #4:  Do we need a functioning US Sentencing Commission — 7 submissions so far

    Mini #5: Are drug offenses/offenders different  — 8 submissions so far

    In addition, as of this writing, my records show that 16 students have already completed the required two or more mini papers.  An additional 9 students are half way to that goal, and 10 students have not yet turned in any minis.  Feel free to follow up by email if you have any uncertainty about where you fall among these categories.

  • Previewing “College Behind Bars”

    This recent USA Today article, headlined "'Undoing a mistake': Ken Burns film looks inside the push to bring college education back to prison," provides some important backstory on a notable new documentary about a notable prison education program in New York.  I suspect the full documentary with be worth watching/streaming, and I think just the preview serves as a potentially useful watch before our special guest scheduled for a visit on Monday.  Check it out:

  • An interesting slice of data thanks to South Dakota being on meth

    Download (4)I trust some of you have seen the (widely lampooned) new anti-drug campaign in South Dakota under the banner “Meth: We’re On It.”  Beyond thinking about how these campaigns get developed, I was really intrigued by this New Republic article that highlighted some data about drug crimes and punishments in South Dakota.  The piece is headlined "Locking People Up: South Dakota’s On It: South Dakota's viral meth prevention campaign masks a punitive, racist reality."  Here are the excerpts that struck me as blogworthy in the wake of our recent discussions (links from the original):

    South Dakota has a penchant for putting people in jail.  Specifically, South Dakota jails drug offenders, and particularly Native citizens, at rates that boggle the mind.  And it’s the state’s lock-em-up approach to what is, at its core, a public health and economic crisis that shows not just the absurdity, but also the disingenuousness, of this new campaign.

    Looking at the incarcerated population, 64 percent of the women in South Dakota prisons are there for drug arrests; 28 percent of men are locked up for the same reason.  Both of those rates are at least double the national average.  The soaring rates of drug arrests — up 148 percent from 2010, with over 3,000 meth-specific arrests in 2018 — unsurprisingly coincide with the state citizenry’s soaring rate of drug use and substance abuse.  In the first six months of 2019 alone, the Drug Enforcement Administration seized 78 pounds of meth in South Dakota; it grabbed just 66 pounds in all of 2018.

    Within these already alarming statistics exists another trend: Natives make up 8.7 percent of the South Dakota population but account for half of all arrests in the entire state. On the whole, Native citizens are thrown in jail at a rate 10 times that of white South Dakotans.  State officials recently estimated that if one were to add the reservation crime stats to those kept by the state — tribal law enforcement is handled by a combination of the Native nation’s own police force and federal law enforcement — South Dakota’s crime rate would double.

    All of the above trends continue despite the fact that, in 2013, the state legislature passed legislation aimed at addressing prison overcrowding by, theoretically, reducing penalties for nonviolent offenders.  However, the South Dakota ACLU found in August that, six years out from the legislative updates, the overall prison population was just barely smaller than it would have been without the bills: a difference of 281 people.

  • Follow-up items from our class today on crime, alternatives and collateral consequences

    Here are additional materials/links to follow up some matter discussed in class on Monday.  First, here are links to unpublished materials from our casebook for those really eager to dig deep into alternatives:

    • Electronic Chapter 8: Non-Prison Punishments (see pp. 119-139 for coverage of the SCOTUS case Padilla and related discussions of collateral consequences)

    • Electronic Chapter 10: Alternatives to Criminal Sentences (see pp. 31-62 for coverage of asset forfeiture, a topic that SCOTUS addressed in its recent Timbs ruling)

    Second, here is  a link to the full huge new report from the US Commission on Civil Rights has today released in June titled "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities."   The report runs over 150 pages and provide a comprehensive modern accounting of collateral consequences along with reform recommendations. and here is part of the introductory letter from the Commission Chair:

    This report provides an overview of the relevant data and arguments for and against the imposition of collateral consequences on people with criminal records.  Each year, federal and state prisons release more than 620,000 people to return to their communities.  While these individuals have often completely exited criminal supervision (for example, through a prison sentence or probation), individuals with criminal records still face potentially thousands of collateral consequences upon reentering society.  These collateral consequences are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history.  For example, individuals with criminal histories can face barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.  The reach of each collateral consequence extends past people with criminal records to affect families and communities.

    Third, here is a recent report from the National Center for Missing and Exploited Children about the problem of child sexual abuse images (aka child porn). It starts with this accounting of its data:

    At the National Center for Missing & Exploited Children® (NCMEC), our CyberTipline® has received more than 50 million reports of suspected child sexual exploitation from its launch in 1998 through June 2019 – 18.4 million in 2018 alone. The vast majority of these reports contain child sexual abuse images – a stunning indictment of the insatiable demand for this abusive imagery on the internet. In the last decade, there’s been enormous progress made to disrupt the distribution of these images and prosecute those who share the experience of victimizing children with other offenders. In large part, this progress is due to technological advances to find these images online, leading to an increase in the number of reports to NCMEC’s CyberTipline.

  • Timely “offender characteristic” news and notes from SCOTUS and from NJ

    As we continue to discuss offender characteristics at sentencing, we have two notable new current events to add to the discussion:

    A.  The US Supreme Court added another criminal history/ACCA case to its docket this afternoon.   Here via this post at SCOTUSblog is a link to the briefing and a brief description:

    In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

    The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case.  He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.  The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

    B. The New Jersey Criminal Sentencing and Disposition Commission yesterday issued a big interesting report, available at this link, with all sorts of interesting recommendations including a call for the state to eliminate mandatory minimum sentences for all non-violent drug and property crimes.  And on the offender characteristic front, there was this:

    Recommendation #5: Create a New Mitigating Sentencing factor for youth.

    When determining a defendant’s sentence, the judge must consider a number of statutorily-defined aggravating and mitigating factors.  The CSDC recommends that the Legislature create a new mitigating factor that allows judges to consider a defendant’s youthfulness at the time of the offense.  The members of the Commission recommend that the mitigating factor read as follows:

           The defendant was under 26 years of age at the time of the commission of the offense.

    It would be within the court’s discretion to determine the weight to be given to the factor in any given case.  If a juvenile prosecuted as an adult, after consideration of this mitigating factor, is nevertheless sentenced to a term of 30 years or greater, he or she would have the same right to apply for resentencing after 20 years with the required consideration of the factors established by the U.S. Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012), in light of the inmate’s record while incarcerated (e.g., evidence of rehabilitation, greater maturity, etc.

  • Other than criminal history, is there any “offender characteristic” that you think must be considered at sentencing? Aside from race, is there any “offender characteristic” that you think must not be considered at sentencing

    As we continue digging into the  challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing.  As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).

    Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing.   Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.

    Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statement that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Notably, in 2013 the Ohio General Assembly amended Ohio Revised Code § 2929.12 to add Section (F) providing that the "sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses."

    Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of any kind of community service (and not just military service)?  If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing?  For example, should honorably military service for a number of years earn a presumptive 10% or 25% sentence reduction?  Should being under 25 and thus still having a developing brain lead to, say, a 10% or 25% sentence reduction? 

  • Understanding the challenges of criminal history through the Armed Career Criminal Act

    Thanks to everyone for being a great audience for our special guest today, and now we get back to our regular programming.  As promised, we are starting a turn toward a discussion of whether, when and how "offender circumstances" should to be considered at sentencing.  Though I mentioned age in class, we will start with slightly less controversial topics like criminal history and plea/cooperation discounts.  I suspect we will only get through the criminal history discussion on Wednesday, in part because the issue is a lot harder than you might first imagine.

    The Supreme Court's ruling in Johnson v. United States in particular, and the operation of the Armed Career Criminal Act (ACCA) in general, provide a great setting to unpack the challenges of criminal history.  The Johnson case is excerpted in our casebook at pp. 295-300, and you may find it helpful to first focus on the general provisions of ACCA at 18 U.S.C. § 924(e), which provides (with key language emphasized):

    In the case of a person who violates section 922(g) [prohibiting certain kinds of illegal possession of a firearm] and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

    In other words, commit a firearm possession offense when already having three significant priors and there is a mandatory minimum prison term of 15 years.  This US Sentencing Commission document provides some basic data about the sentencing of firearm offenders that shows ACCA's dramatic impact:

    • The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 186 months.
    • The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 59 months.

    In other words, for the same basic offense conduct and convicted of the same criminal statute, federal defendants on average receive more than a decade longer in prison (roughly three times longer) due to having certain types of prior offenses.

    ACCA was one part of the massive Comprehensive Crime Control Act of 1984 (the Act which also created the US Sentencing Commission), so this distinctive mandatory minimum sentencing statute was never voted on independently.  Imagine being a member of Congress right now being asked to sign on to a bill proposing to repeal ACCA in its entirety (as a partial response to Johnson).  Would you support outright repeal or instead seek to amend 924(e)?  What kind of amendment would you seek?

  • Thinking about the work of prosecutors as we gear up for our special guest

    I am hoping you are as exited as I am for our special guest during our usual class time this afternoon.  One way to gear up might be to come to the American Constitution Society's panel on Progressive Prosecution which just happens to be taking place this today at 12:10PM in Room 244. (I have been told lunch will be from Hot Chicken Takeover at the event!)

    An event about the work of prosecutors serves as a fitting prelude to our discussion with our special guest (though much of our discussions throughout the entire semester have been in some way about the work of prosecutors).   This CNN piece highlights some of our special guest's 35 years of legal experience, most of which has been served in the role of a prosecutor.  Here is our special guest's bio page at the large NYC firm where she now works.  

    It is my understanding that our guest only plans to talk for a few minutes about her experiences and then will be eager to answer questions.  I urge everyone i the class to think about questions for our guest, which can be substantive about the federal sentencing system and the role of prosecutors therein or can also be career-oriented about topic like how her own career path developed or advice she would give to law students today concerning careers in government service and/or the criminal justice system.

  • Remember to attend Professor Kreit’s class on drug sentencing in Room 344 at 3pm on 10/30

    I missed seeing everyone this week at our usual Monday time, and I just waned to post this quick reminder that you should be sitting in on Professor Alex Kreit's class at our usual Wednesday time to hear him talk about sentencing drug crimes.  I handed out the Chapman case from his casebook last week, but I am also going to post his class materials here as well:

    Download Kreit_10_30_ClassReading

    As always, students are welcome and encouraged to use the comments here to share their take on readings or class discussions.

  • Can you see any problems with “The Prohibiting Punishment of Acquitted Conduct Act”?

    As we turn to discuss the (little discussed) Supreme Court ruling in US v. Watts upholding the constitutionality of the use of so-called acquitted conduct in the calculation of the sentencing guidelines, in bears remembering that US Sentencing Commission or Congress could seek to preclude the use of this conduct as a matter or guideline or statutory rule.  In fact, just last month, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, today introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

    Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

    Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

    One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

    The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

    • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
    • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

    Do you think this statutory proposal works functionally to overturn the ruling in Watts at least for federal defendants? Do you see any possible problems administering this statutory change if it were to become law? And if acquitted conduct is worrisome, how about so-called dismissed or uncharged conduct (and do we need to worry that prosecutors will move to dismiss charges mid-case in order to avoid limits on sentence enhancements for acquitted conduct)?

  • Lurking mandatory minimum statute for consideration as we imagine the modern federal sentencing of Rob Anon

    I hope everyone has now had the chance to work through the sentencing of Rob Anon under the modern federal sentencing guidelines, perhaps with the help of some of the materials linked in this post).  If you made an effort to do independent research in order to try to figure out how on your own all of the federal sentencing laws relevant to Rob Anon, you may realize that I left out of my prior posting an important statutory provision, namely 18 U.S.C. § 924(c), which imposes mandatory minimum sentences for people who use or carry a firearm during the commission of certain crimes.  Specifically, this statutory provision states:

    (c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —

    (i) be sentenced to a term of imprisonment of not less than 5 years;

    (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

    (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

    Think about how this additional mandatory minimum statute, which would seem to be applicable to Rob Anon, should impact the work of various sentencing actors at various sentencing stages in this case.  

  • Some FIRST STEP Act basics for Friday’s lunch and future use

    The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by President Donald Trump into law on December 21, 2018. Many have rightly called this law the biggest federal criminal justice reform legislation in a generation, and yet others have rightly called this law a very small modification of the federal criminal justice system. Among the good question to reflect on is whether the FIRST STEP Act is a big deal or much ado about very little.

    Because lots of disparate provisions got rolled into the FIRST STEP Act, it is hard to readily summarize all its elements. The Congressional Research Service produced this intricate 20-page overview of Act, which is initially summarized this way:

    The act has three major components: (1) correctional reform via the establishment of a risk and needs assessment system at the Bureau of Prisons (BOP), (2) sentencing reform via changes to penalties for some federal offenses, and (3) the reauthorization of the Second Chance Act of 2007 (P.L. 110-199). The act also contains a series of other criminal justice-related provisions.

    The advocacy group FAMM has this webpage about the Act, which includes these general (multi-page) summaries:

    FAQ: First Step Act

    FAQ: First Step Act Risk and Needs Assessment

    Read a full description of the bill here

    The federal Bureau of Prisons and the National Institute of Justice also have useful webpages about the FIRST STEP Act, and their pages provide a particular focus on the work these agencies are doing under the Act (aka "Who sentences").

  • Hints and help for sentencing Rob Anon under the modern federal sentencing guidelines

    As stressed in class, much of the rest of the class is going to involve detailed discussions of non-capital (and mostly federal) sentencing policies and practice before and after modern guideline reforms.  Our work will start and advance through a deep discussion of the sentencing realities faced in sentencing Rob Anon in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text).  In addition to imagining how you, as a judge, would sentence Rob Anon in this world, think also about how prosecutors and defense attorneys would approach sentencing in such a (pre-guideline and largely lawless) world. 

    As we turn to sentencing Rob Anon under the modern federal sentencing guidelines, I continue to encourage class members to try to figure out how to identify and assess federal guideline sentencing laws relevant to Rob Anon with just the help of on-line search materials or traditional legal research resources (and feel free to use the comments to express frustration).  Consider that a federal defendant or a novice lawyer taking on his or her first federal criminal case will not likely have access to any perfect guide (or even "Guidelines for Dummies") to enable ready understanding of the federal sentencing guidelines.

    If and when you would like some basic guideline sentencing help, you can turn to these links which take you to key guideline provisions for Rob Anon appearing in the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

     

     

     

    I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (again feeling free to use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want or need even more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

    As you work through this assignment, give particular thought to the array of challenges that modern federal sentencing law may present for modern federal sentencing lawyers.   If you want to think particularly about the import and impact of sentencing law for the work of defense attorneys, perhaps check out this article I wrote some years ago seeking to highlight "the array of challenges that the Federal Sentencing Guidelines create for defense counsel."

  • Use your free time to start reading about federal sentencing system…. UPDATE on Oct 14

    Just a quick post to remind you we do not have class this Monday, but we will make up for lost time on Wednesday by jumping into our review of the federal sentencing system. So get started on the readings from the syllabus, and get excited about coming discussions about the operation of the federal sentencing guidelines!

    If the FSG don't quite keep your interest while I am away, note that SCOTUS gets back in action on Monday with two notable criminal cases.  I collect some previews of the action in this post at my main blog.

     

    UPDATE:  Remember that we are going to be starting our discussion of the Rob Anon sentencing exercise this week.  We will start with a focus on what it was like to sentence in the federal system before modern guideline reforms and what it is like to sentence under the modern guideline system.  It is CRITICAL that you have started working on the Rob Anon exercise and done the associated reading (e.g., Frankel and then Booker).

  • Second-look materials for review and (competitive?) repackaging

    Many thanks to the whole class for your terrific engagement with David Singleton in today's class.  I trust you enjoyed as much as I did hearing a lot from him (and not so much from me).  And, as we discussion, the issue of "second look" sentencing mechanisms in Ohio and elsewhere is a hot topic.  Here are some more background and links to some materials I briefly referenced in class:

    The newly revised sentencing provisions of the Model Penal Code includes "second look" authority through § 305.6 urging legislatures to authorize "a judicial panel or other judicial decisionmaker to hear and rule upon applications for modification of sentence from prisoners who have served 15 years of any sentence of imprisonment."  MPC § 305.6, titled "Modification of Long-Term Prison Sentences; Principles for Legislation," and its engthy commentary can bel reviewed at this link.

    Inspired in part by this MPC proposal, just this past July, US Senator Cory Booker (D-New Jersey) and Representative Karen Bass (D-California) introduced a federal second look bill named the Matthew Charles and William Underwood Second Look Act of 2019.   This press release discusses the essential elements of the bill and its full text can be found at this link.  The advocacy group FAMM has been a big supporter of these proposals, and it released the following materials in conjunction this the bill's introduction:

    As mentioned in class, David Singleton and I are eager to bring "second look" interest and energy to Ohio in the form of a student legislative drafting competition.  I would be very grateful for comments here (or in person) about how we might run such a contest for maximum interest and impact.  Would law students be more interested in a (small) cash prize or a chance to get published and/or present their work to important people?  Any and all feedback on the basic idea of a contest or on how best to structure its particulars would be greatly appreciated.

  • Reading up on “Beyond Guilt” before David Singleton visits

    Cropped-bg_ojpc_gavelAs mentioned in class, on Wednesday October 2, we will have the pleasure of a visit from David A. Singleton, Executive Director and Attorney at Law at the Ohio Justice & Policy Center.  (He will also be speaking at lunchtime in Drinko Hall 245 from 12-1pm on Oct 2.)  Though there are many topics that David could usefully discuss, I have encouraged him talk about his new project "Beyond Guilt".  The initiative, in this recent New York Times article, is focused on excessive punishment of those who have admitted guilt and were convicted of more serious offenses, including violent crimes.  In preparation for his visit, I encourage you to look around the OJPC/Beyond Guilt website, and here is how the project is described on this "Our Mission" page: 

    Our Mission

    The mission of Beyond Guilt is to transform our punitive legal system to one focused on justice, redemption, and humanity for those over-punished. 

    Strategies

    Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence. Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement—freeing innocent prisoners and people convicted of low-level, non-violent offenses. Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released. The project will do so in four ways:

    First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release. The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released. Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

    Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes. The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website. The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws. The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

    Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

    Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety. Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.

  • As we wrap up death penalty unit, some recent reminders of all the “who” stories

    On Friday, as discussed in this post over at my main blog, the Pennsylvania Supreme Court decided to decline to exercise a form of extraordinary jurisdiction in order to avoid considering on the merits a challenge to the state's death penalty system. Among the many notable aspects of this story is who was arguing for and against the state's death penalty system: among those arguing that the state's capital system is unconstitutional were (a) lawyers in the capital habeas unit at the Federal Community Defender Office in Philadelphia and (b) lawyers in the Philadelphia District Attorney’s Office, while among those arguing in support of the state's capital system were (y) lawyers for the Pennsylvania Attorney General’s Office and (z) lawyers for the Pennsylvania District Attorneys Association.  The article from my blog also recounts how PA legislators and the PA Governor have been engaging with capital punishment in recent time.

    In addition to being a fascinating story about the administration of capital punishment in a neighboring state and challenges thereto, this Keystone state tale serves as a useful reminder of all the overlapping "whos" that the death penalty brings into focus.  Continuing that theme, consider taking a few moments to notice all the "whos" in play in these additional recent death penalty posts from my main blog on recent death penalty developments and commentary:

  • Background on race and death sentencing for our discussion of McClesky and Racial Justice Act

    Next week, we will start the final part of our death penalty discussions by exploring the issue of race in the application of the death penalty.  I (too briefly) mentioned in class some data on race and the death penalty, and I thought I would link to some resources related to this issue to get a running start to our discussion of why this kind of data has not prompted much of a constitutional or policy response:

    From the ACLU: "Race and the Death Penalty" (somewhat dated)

    From the Death Penalty Information Center: "Executions by Race and Race of Victim" (up-to-date)

    From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies)

    Recent news article following announcement of federal execution dates: "Death Penalty Makes a Comeback in US as Racial Disparities Persist."  An excerpt:

    The most telling statistic when talking about discrimination in capital punishment is the race of the victim and how the courts’ attitudes change when the victim is white versus when the victim is a person of color, said Robert Dunham, the executive director of the Death Penalty Information Center.

    Race of the victim plays a significant role in whether the death penalty is pursued by jurors. In Alabama, fewer than five percent of murders involve a black defendant and a white victim, yet over half of black death row prisoners have been sentenced for killing someone who is white. In Louisiana, the odds that a defendant will receive a death sentence are 97 percent higher if the victim was white

    Also, for anyone really engaged by these issues, consider checking out the Fall 2012 issue of the Ohio State Journal of Criminal Law which had a symposium focused on "McClesky at 25."

  • Materials (and fun) for considering the representation of Ted Kaczynski

    As I have mentioned in class, we will be exploring in coming classes how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber, Ted Kaczynski.  You should imagine yourself preparing for getting a jury to recommend a life sentence rather than a death sentence for Teddy K.  The essentials for preparation appear in our handout, although you also need to check out two Ohio statutory provisions via the web:

    For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out at least some of the Unibomber's (in)famous Manifesto, "INDUSTRIAL SOCIETY AND ITS FUTURE" as well as  this lengthy Time article by Stephen J. Dubner from 1999 about Teddy K. headlined "I Don't Want To Live Long.  I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison."

    And if you want to have some old-school SNL fun while preparing for this discussion, these are fun to check out:

  • Notable statements by Gov DeWine spokesman and defense lawyer in wake of lethal injection ruling

    As mentioned in this prior post, the Sixth Circuit panel ruling in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), sets up the "next big question" of whether Ohio Gov DeWine will now be eager to move forward with the scheduled executions that he previously stayed.  This local article about the ruling ends with an interesting discussion of this matter:

    Following Merz’s ruling [not overturned by the Sixth Circuit], DeWine ordered a review of the state’s execution protocol and to search for new drugs to use.  The state so far has been unable to find alternative drugs, though, and the governor has asked state lawmakers to consider finding an altogether different way to put condemned inmates to death besides lethal injection.

    DeWine’s apprehension stemmed from the concerns Merz laid out in his opinion. With the 6th Circuit saying that Merz was mistaken and that attorneys for the condemned inmate didn’t prove the method is unconstitutional, it was unclear whether DeWine’s thinking will change on the issue.

    Gubernatorial spokesman Dan Tierney, when asked whether Wednesday’s ruling affected DeWine’s apprehension about Ohio’s lethal-injection protocol, said that the governor, who’s currently in Japan as part of a trade delegation, and other administration officials are still reviewing the ruling.

    However, Tierney noted that the governor has previously expressed concern about other aspects of Ohio’s execution method besides constitutional issues — including the ongoing difficulty Ohio has had buying lethal-injection drugs from pharmaceutical manufacturers that have become increasingly reluctant to sell the drugs (most of which have other, medicinal uses) for use in executions.

    Since taking office in January, DeWine has deflected questions about whether he continues to personally support the death penalty.  Rather, he has answered such questions by saying capital punishment is the law in Ohio….

    David Stebbins, a federal public defender representing Henness, said Wednesday’s opinion “does not reflect the known facts about how the three-drug protocol acts upon the human body.”

    “We are hopeful Governor DeWine continues to thoughtfully consider how to implement capital punishment in Ohio and will not reinstate executions using the torturous midazolam method of execution," Stebbins said.

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