Sentencing Class @ OSU Moritz College of Law

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  • How some Framers thought about “gradation of punishments” (and proposed sentencing guidelines) in a world before “modern” prisons

    One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:

    [STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

    [STATEMENT ABOUT THEORY OF PUNISHMENT:] And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

    And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

    For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished….

    [PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

    Whosoever shall commit murder in any other way shall suffer death by hanging.

    And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth….

    [PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder….

    [PUNISHMENT FOR SEX CRIMES:] Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least….

    [PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

    [PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

    Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

    If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

    Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

    Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured….

    [PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

    Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured….

    [PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes….

    [SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

  • Follow-up after (too little) time with the Assistant Chief Counsel for Ohio Governor John Kasich

    I am sorry we did not have more time to allow Kevin Stanek, the Assistant Chief Counsel for Ohio Governor John Kasich, to complete his tales about Ohio's fulsome history with lethal injection litigation.  But I trust you all got a flavor of some of the major themes I consider most important for our broader class's purposes: a whole bunch of distinctive (unexpected?) "whos" can and often will have a huge impact on whether, when and how death sentences actually get carried out in Ohio and elsewhere.

    For more on that front with a continued focus on lethal injection drug acquisition and litigation, it is worth checking out the WNYC's Radiolab: More Perfect program on state efforts to acquire lethal injection drugs, which is titled "Cruel and Unusual."  The 40-minute radio program covers a lot of ground in ways both familiar and unfamiliar, including a notable discussion of the political impact of the Furman ruling and its aftermath starting around the 16-minute-mark (which in turn inspired the Oklahoma legislator who came up with the medicalized three-drug lethal injection protocol).

    In addition, the constitutional litigation that has gummed up the works of death penalty in Ohio over the last decade has also gummed up the work in a lot of other states.  Here is an  a report from my main blog about a (very red) state to Ohio's south that has been dealing with similar issues: "Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade."

  • Game planning next week’s final(?) capital punishment discussions (and requests for expressions of any continued DP interest)

    As I surmise you could tell from the last few classes, I am not at all troubled that our discussions of how Teddy K.'s capital case might play out in states like Florida and Texas has gone on longer than I had initially planned.  I am hopeful you were able to get a real feel from this week's two classes concerning the various important structural and practical realities of modern death penalty decision-making that have resulted from the Supreme Court's modern Eighth Amendment "guided discretion" jurisprudence. 

    With the Teddy K. hypo and some of its lessons now covered, I want to update/clarify our plans and my expectations for next week's classes and beyond:

    Monday, Oct 10:  Guest presentation/discussion with Kevin Stanek, Assistant Chief Counsel for Ohio Governor John Kasich (and OSU Moritz College of Law Class of 2013). There is no need to prepare anything formal this class, but this Dispatch article and this part of a Wikipedia entry provides a quick overview of the Ohio execution administration issues that ACC Stanek will likely be discussing.  (And for a lighter (and not-so-tasteful) look at these issues, check out this satire video from The Onion, "Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine.")

    Tuesday, Oct 11: We will finally get to discussing McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)

    Wednesday, Oct 12:  Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons ….

    UNLESS YOU REPORT IN THE COMMENTS OR ELSEWHERE ABOUT ADDITIONAL CAPITAL PUNISHMENT ISSUES YOU WOULD LIKE TO HAVE US COVER IN CLASS.  If nobody raises any addition death-penalty issues in the comments or in other ways with me, I will assume that everyone has already had more than their fill of death penalty discussions and thus will feel all that much more confident moving on to discussions of non-capital sentencing realities ASAP.

    For those students hoping and eager for us to move on beyond our death penalty discussions, please feel free to get started on our first set of prison readings, in the form of:

    • All of Chapter 7, paying particular attention to pp. 549-558, 570-581 and 595-623 (especially Graham v. Florida)
    • A bit of Chapter 5, pp. 401-415 (especially Miller v. Alabama)

    UPDATE: ACC Stanek suggested that everyone read this DC Circuit case, Cook v. FDA, to get a flavor of some of the challenges states face when trying to acquire the drugs needed to conduct a lethal injection.

  • Lots of significant new “who sentences” stories surrounding the death penalty

    Especially when we go a long time between classes, I trust students realize that following developments at my main blog is a good way to maintain the "low stress, high learning" experience. And especially in the last few days, we have had a lot of (educational?) "who sentences" stories relating to the death penalty.  Here are links to just some of these stories:

  • Some links to SNL skits about Teddy K.

    As promised, these are fun to check out:

  • Gameplans for finishng up our capital punishment discussions: making sure we are all on the same page(s)

    Because I have not been a model of consistency and clarity concerning what students should be reading for class and concerning what I expect to cover, let me here try to make amends with a brief outline/overview of my class plans/expectations:

    Tuesday, Sept 27: We will finish up a discussion of Furman/Gregg/Woodson/Roberts/Coker, which help explain/define modern DP relaties

    Wednesday, Sept 28: We will consider how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber (and others)

    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")

    Monday, Oct 3: No class (extra time to work on mini- or maxi-papers)

    Tuesday, Oct 4: We will discuss McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)

    Wednesday, Oct 5: Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons

  • The full McGautha…

    can be found here.  Reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.  I also think everyone should at least get started reading Furman and Gregg and subsequent SCOTUS cases in chapter 3 of our text ASAP.

  • Death penalty deterrence research and arguments that the death penalty is morally required

    As I mentioned in class, some years ago Professors Cass Sunstein and Adrian Vermeule  produced a provocative article suggesting that new deterrence evidence might make the death penalty morally required for state actors seriously concerned with value of life.   Here is a link to this article and its abstract, with one line stressed to pick up the theme developed in class that government killing is different-in-kind from other kinds of killing:

    Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs , 58 Stan. L. Rev. 703 (2005):

    Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect.  But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.  The familiar problems with capital punishment — potential error, irreversibility, arbitrariness, and racial skew — do not require abolition because the realm of homicide suffers from those same problems in even more acute form.  Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.   The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.  The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

    Alternatively, if you like digging into social science research, the modern empirical debate over the death penalty should be informed by a collection of some data-crunching on the deterrent effect of capital punishment available via this page assembled by the Criminal Justice Legal Foundation.  Notably, CJLF is supportive of the death penalty; the Death Penalty Information Center is opposed to the death penalty, and it has this webpage criticizing the studies appearing on the CJLF's page concerning deterrence.

  • Lots of interesting new buzz concerning the (sort of dormant) Ohio death penalty

    Conveniently, my week away proved to be a period in which some interesting local death penalty news and commentary emerged, as evidence by these two recent posts from my main blog:

    These topics and lots of others will be a part of our coming extensive discussion of death penalty theory, policy and practice over the next few weeks.

  • A glimpse into the hows (and whos) of federal death sentencing in a high-profile case

    This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case.  Especially because we will be jumping into the history, law and practice of capital punishment next week, I recommend everyone consider checking out the motion.

  • Basic information on the methods and madness of mini-paper assignment(s)

    As the Course Description noted, part of your formal work in this class is to author (at least) two “mini-papers” which will comprise up to 20% of your final grade.  (You can look through this blog's archives to see examples of the kinds of in-semester writings I have urged students to produce in previous years, though please know each year I tweak the topics and format of this class requirement.)

    Absent further instructions/modifications, here is my planned approach to the mini-paper assignment this time around:  Each submitted mini-papers must be no more than four pages long (and can be MUCH shorter), and should respond to my in-class prompts that I plan to provide every few weeks.  The first prompt, for example, was (formally?) delivered today in class when I encouraged all to write up your personal "sentencing topic of interest" with a particular focus/reflection on the meta-topics we have discussed our first few weeks in class (namely theories of punishment and who sentences).

    I expect to provide a new prompt for a new mini-paper every few weeks, usually right after these (Monday AM) tentative submission due dates for these mini-papers:

     • September 19 (for "topic of interest" mini-paper)

     • October 10 (for what will likely be a death penalty prompt)

     • November 7 (for what will likely be a federal sentencing prompt)

     • December 5 (for what will likely be a "SCOTUS-as-who" sentencing prompt)

    As also hinted in class, one goal for this assignment is to engender additional inter-student substantive discourse; that is why, subject to any stated objections/concerns for certain submissions, I expect to distribute everyone's submitted mini-papers back to the class for all to read and consider.

    Because the comments to this blog are now working, I encourage students to use the comments to ask any basic follow-up questions or to express any concerns about these assignments.  And, to be perfectly clear, though I will be providing (at least) four formal prompts for mini-paper writing, students are requires only to complete two mini-papers throughout the semester.  (But because you get this option, I will be expecting the papers to be really good, and you can earn extra credit by submitting more than the mandatory minimum number of papers.)

  • Some background reading on (various forms of) castration as a punishment for sex offenders

    Since I keep managing to end class with lingering questions about castration as a punishment for sex offenses, I figured I would use this blog space to highlight some existing literature on this topic.  Perhaps my main goal here is to be sure I do not leave the impression that I am the only one who thinks (too much?) about the potential pros and cons of castration as a punishment for sex offenders:

    • A 2005 peer-reviewed journal article, titled  "The Impact of Surgical Castration on Sexual Recidivism Risk Among Sexually Violent Predatory Offenders"

    • A 2006 press article, headlined "Some Sex Offenders Opt for Castration"

    • A 2009 student note making the case for chemical castration, titled "Chemical Castration for Child Predators: Practical, Effective, and Constitutional"

    • A 2010 press article, titled "California law mandates chemical castration of certain offenders"

    • A 2013 student note arguing against chemical castration, titled "'Off with His __': Analyzing the Sex Disparity in Chemical Castration Sentences"

    • A 2014 press article from the UK, titled "Should We Be Castrating Sex Offenders?", interviewing an expert involved in UK "voluntary" program "to chemically castrate rapists, paedophiles and other sex offenders."

    I do not expect anyone to read all these materials (or even any of them if this topic creeps you out), but perhaps one or more of you might find this topic interesting for a future mini-paper or final paper. And, speaking of topics of interest for mini/final papers, I promise on Monday to start the class by going around the room and having folks describe a sentencing/punishment topic of personal interest.  Once we have that discussion, we will then jump hard into the Williams case.

  • First week assignments, electronic copies of course documents, and links for completing questionnaire

    I have posted on the Moritz official website our first assignments, but I figured it would be useful to repost the details here, while also providing electronic copies of the basic course documents.  So….

    In preparation for our first week of classes starting Monday, August 22, 2016 you should:

    1.  Get a copy of the THIRD edition of the casebook for the course.

    2.  Download the questionnaire and fill it out before our first class.  (In addition to being posted here, the questionnaire and course description will be available in hard-copy in front of my office, Room 313.)

    3.  Find/research on your own a real sentencing issue, case or story that is of significant interest to you, and come to our first week of classes prepared to explain this issue, case or story and why it is of significant interest to you. 

    Download 2016 Course description

    Download 2016 Fall pre Class Questionnaire

     

    You will discover that a few of the questions in the questionnaire call for a bit of on-line research, and here are some links to help in this arena:

     

  • Welcome yet again to another reboot of this blog for another semester of Sentencing Law at the Moritz College of Law

    This is now the FIFTH re-launch of this blogging adventure!!

    This blog started nearly 10 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.  This first post in this space explained, way back then, that "I hope[d] that both the contents and very construct of this blog will inspire a new type of engagement with the death penalty and with on-line media for students."  Sure enough, the blog proved successful during that semester (which was when this guy was still US Prez and when this TV show was still the most popular).

    I closed this blog down not long after that first death penalty course ended, but thereafter discovered the students' hard work as reflected in the archives still was generating some web traffic and that many posts remained timely (though a whole bunch of old web links are now very dead).  So, as I geared up for teaching Criminal Punishment & Sentencing in Spring 2009 at The Ohio State University Moritz College of Law and again when visiting in Spring 2010 at Fordham School of Law and again back at the Moritz College of Law in Fall 2011 and Spring 2014, I decided to reboot this blog to allow the new course to build in this space on some materials covered before.  In all of these classes, I have been pleased with how this blog helped promote student engagement with on-line media and materials. (For the record, OSU students always engaged with the blog much more and better than Fordham students.)

    Now, circa August 2016, I am gearing up to teach Sentencing Law again at the Moritz College of Law.  And because a lot of new exciting sentencing developments seem likely in the weeks and months ahead, I am hopeful that this space will stay active as I flag current events for class discussion.  In addition, I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, and so you can/should be on the look out for class materials posting in this space soon.

     

    WELCOME!

     

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  • Final sets of mini-papers for review and reactions

    Well timed for the middle of the first week of final is the last set of student mini-papers for student review:

    Download Sentencing Reform

    Download Sex Crimes_Offenders

    Download War on Drugs

    Remember that if you are looking for a great way to earn some final extra credit, say smart things about one or more of these mini-papers in the comments.

     

  • Still more sets of mini-papers for review and reactions

    As promised (and threatened), I am now continuing to post collections of mini-papers produced by students throughout the semester.  Here are three more of the collections:

    Download Marijuana Reform

    Download Juries

    Download Drunk driving

     

  • A couple more sets of mini-papers for review and reactions

    As promised, I will be posting throughout this week and next the collections of mini-papers produced by students throughout the semester.  Here are two more of the collections to go along with the death penalty collection posted previously:

    Download The Prison Experience

    Download Child Pornography Sentencing

     

  • The great opportunity (and great joy) of semester review via mini-papers

    Thanks to the extraordinary help of my wonderful office assistant Allyson, I now have now finally assembled more than 60 of the mini-papers submitted over the last two months into nine subject-specific collections (in pdf form) for posting here and collective review.  Huzzah!

    Though all the mini-papers are a whole lot to read in one sitting (running 120+ pages), I am hopeful the subject-specific organization will enable students to review topics of particular interest in smaller chunks.  And, as I continue to re-read all the mini-papers, I find that they serve as an interesting and effective review of much of what we formally covered in class through the semester. 

    I will be posting these collections in a number of separate posts (to perhaps facilitate distinct comments concerning different collections), and I will start with the big topic of the death penalty that kept us especially busy the first half of the semester:

    Download Death Penalty (pdf collection runs 31 pages)

  • If you are curious about federal child porn sentencing…

    here is a link to the 400+ page report that the US Sentencing Commission published on the topic in December 2012.  The report's executive summary is only about a couple dozen pages, can be accessed at this link, and here are some interesting excerpts:

    [S]entencing data indicate that a growing number of courts believe that the current sentencing scheme in non-production offenses is overly severe for some offenders.  As the Supreme Court has observed, the Commission’s obligation to collect and examine sentencing data directly relates to its statutory duty to consider whether the guidelines are in need of revision in light of feedback from judges as reflected in their sentencing decisions.

    [A]s a result of recent changes in the computer and Internet technologies that typical non-production offenders use, the existing sentencing scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability.  Non-production child pornography offenses have become almost exclusively Internet-enabled crimes; the typical offender today uses modern Internet-based technologies such as peer-to-peer (“P2P”) file-sharing programs that were just emerging only a decade ago and that now facilitate large collections of child pornography.  The typical offender’s collection not only has grown in volume but also contains a wide variety of graphic sexual images (including images of very young victims), which are now readily available on the Internet.  As a result, four of the of six sentencing enhancements in §2G2.2 — those relating to computer usage and the type and volume of images possessed by offenders, which together account for 13 offense levels — now apply to most offenders and, thus, fail to differentiate among offenders in terms of their culpability.  These enhancements originally were promulgated in an earlier technological era, when such factors better served to distinguish among offenders.15 Indeed, most of the enhancements in §2G2.2, in their current or antecedent versions, were promulgated when the typical offender obtained child pornography in printed form in the mail….

    [M]ost stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded.  Those stakeholders, including sentencing courts, increasingly feel that they “are left without a meaningful baseline from which they can apply sentencing principles” in non-production cases….

    The Commission concludes that the non-production child pornography sentencing scheme should be revised to account for recent technological changes in offense conduct and emerging social science research about offenders’ behaviors and histories, and also to better promote the purposes of punishment by accounting for the variations in offenders’ culpability and sexual dangerousness.

    In addition, you might find intriguing and informative the lengthy discussion of child porn sentencing in the split Third Circuit panel decision in United States v. David Grober (where the majority, inter alia, faults the district court for allowing me to testify at the sentencing hearing).

  • Basic finals information (and a place for any questions or concerns)

    As I mentioned in class, the final paper for this class (and the final take-home exam which is available as an alternative to completing a final paper) is due at close of business on the last day of the exam period.  According to the Registrar's website, the final exam day is May 14, 2015.  (Note that, because this is truly the last day, I cannot readily give any kind of extension, especially to anyone supposed to graduate the next day.)

    If you are taking the take-home final, I am certain it will be available no later than April 30 (and perhaps sooner), and you have the entire exam period to complete it.  In case you are wondering about the final's format, here are the general instructions I typically have for take-home finals in this class:

    Typical Berman Take-Home General Instructions

    1. To complete this exam you must answer at least 3 of the 4 questions.

    2. As an open-book exam, you may refer to any (non-human) sources, but your answers must be prepared independently, without discussion or assistance from others.

    3. Each question has a strict [1500 or 2000 or question-specific] word limit.  These are limits, not goals. Great answers are possible in fewer words.  Aided by your computer’s word count feature, please note the total number of words at the end of each of your answers.

    4. You are not required to use sources other than class materials.  You are not precluded from conducting outside research, though extra time may be best invested in reviewing course materials and revising your answers to ensure they are clear and concise.

    I welcome any question or concerns about any of this expressed in class or in the (now working) comment section here.  Remember my mantra: low-stress, high-learning.

  • Final weeks to focus on purposes, offense, offender, sentencing and post-sentencing for sex offenders

    A number of stories I have recently covered on my blog leads me to conclude we would usefully bring our semester to an informative and challenging close by giving special attention to the uniquely dynamic purposes, offense/offender, sentencing/post-sentencing issues raised by an array of sex offenses and offenders.  Though I will assign some formal readings from our casebook on these topics on Tuesday, I will kick off this final segment of the course by urging everyone to cruise through the Sex Offender Sentencing archive on my main blog looking for stories they find especially interesting and thus worthy of in-class discussion.

    To highlight how dynamic and challenging sex offender sentencing issues can be, consider these posts concerning notable sex offender sentencing rulings and stories making headlines just in the past few weeks and months:

    Distinct goals/purposes issues:

     

     Distinct offense considerations:

     

    Distinct offender considerations:

     

    Distinct post-sentencing consequences and concerns:

    I would be especially grateful if student come to class on Tuesday having reviewed many of these linked stories and with an opinion about which aspect(s) of sex offender sentencing they would like us to focus particularly upon in the final weeks of class.

  • Understand the terms of USSC debate over the fraud guidelines

    As mentioned in class on Wednesday, and as detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.  

    I doubt the actual USSC meeting will be a must-see event, though I still urge you to tune in. But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases."

  • Two projects for a week with possibly just one class

    Much to my chagrin, I fear this week our class will only be able to meet on Wednesday (4/8), and I fear that much of that class will involve going over current events and making sure the last few weeks of class are productive.  To that end, I have two potential projects for students to work on/think about which (1) could be the basis for additional mini-papers OR (2) the basis for a final paper OR (3) the answer to one of the question(s) likely to show up on the take home final.  Here are the basics, with more explanation to come during Wednesday's class:

    Possible paper/project #1.  After the drug war: keys terms for the treaty (or reparations, or a Marshall Plan, or a truth and reconciliation commission or….)? 

    As we have discussed in class, the so-called "war on drugs" has played a huge role in criminal justice developments over the last 40 years, and it has play an important role in debates over modern sentencing reform and mass incarceration. Now that there is a growing consensus that the harshest sentencing aspects of the drug war need to be reformed (and a remarkable move toward reform of marijuana and other criminal laws), a growing question is what the essential elements and terms of the post-drug-war sentencing and corrections system. Should past marijuana (and other drug) convictions be expunged? Should some kind of formal reparations be a critical part of modern reforms? And who — legislatures, sentencing commissions, judges, executive officials — should be principally charged with designing the terms of the "post-drug-war treaty"?

    Possible paper/project #2.  Drafting new formal federal guidelines for the consideration of (one, a few, many?) offender characteristics.

    In this (relatively short) law review article, a former Chair of the US Sentencing Commission criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear that these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct." He suggested factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new formal "guidelines that encourage consideration of those characteristics where appropriate."  Do you agree that new guidelines would be fitting for these (or other) offender characteristics, and what might these guidelines look like?

  • Working text of Amended RID bill for reducing drunk driving crimes and harms

    As you should recall, we ended class on Thursday with a working draft proposal for new drunk-driving legislation.  Here is what has made it through our drafting committee so far:

    First Offense DUI: imprisonment from minimum term of zero to five years max

    Second Offense DUI: imprisonment from minimum term of six month to seven years max

    Third (or Greater) Offense DUI: imprisonment from minimum term of two years to ten years max

    In addition, a sentencing judge should (must?) give the minimum term for any DUI offense if and only when the defendant's BAC was .10% or lower and no tangible harm result from the offense.  A sentencing judge should (must?) impose a sentence above the minimum if the defendant's BAC was above .10% or tangible harm resulted from the offense.

    We could (and perhaps should) continue to discuss and debate other offense-related provisions to incorporate into this sentenceing — e.g., we might provide more specific guidance/mandates concerning what other BAC levels or types of harms should/must result in a certain amount of jail time.  But, in order to reduce the risk of potential unwarranted disparity, I think it may be even more important that we consider whether and how to provide some offender-related instructions to judges for the exercise of their sentencing discretion in this setting.  And to get the discussion started, here are some proposals for consideration:

    Proposal 1.  A judge generally should (must?) sentence an offender at or near the applicable minimum term if and when the defendant has no criminal history, has pleaded guilty and accepted responsibility and shown remorse, and has demonstrated a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

    Proposal 2.  A judge generally should (must?) sentence an offender at or near the applicable maximum term if and when the defendant has a significant criminal history, has refused to accept responsibility and shown remorse, and has failed to demonstrate a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

    (Contrary) Proposal 3.  A judge generally should (must?) not in exercising his sentencing discretion consider in any way a defendant's criminal history, whether he has shown any remorse, or whether any substance abuse or personal problems may have contributed to the offense. 

    As these proposals are written, it is possible (but not essential) to favor both Proposal 1 and Proposal 2.  But Proposal 3 is intended to be directly contrary to the Proposal 1 and my goal here is to explore whether and how you favor (or oppose) the consideration of some common offender-related sentencing factors.

    I would encourage students to use the comments to discuss any part of this on-going debate over our new sentencing bill, and folks should feel especially free to propose any additional amendments and modifications to the bill.  We will build on what we have done to date in our class discussion on Tuesday and Wednesday.

  • Intriguing federal fraud sentencing raising distinct offense and offender issues

    As mentioned in class, this week we will continue to unpack the challenging question of exactly what are the essential aspects of the "offense" to be assessed and punished at sentencing, and next week we will focus on whether there are any essential aspects of the "offender" that must (or must not) be assessed and punished at sentencing.  With both topics in mind, a story of an upcoming federal fraud sentence blogged at SL&P struck me as especially interesting: You be the judge: what federal sentence for modern sheriff playing Robin Hood?.

     

    Here are the basics of the offense based on press accounts:

    Charge(s) of conviction: federal mail fraud, carrying a statutory range of 0 to 20 years in prison

    Real conduct: "created hundreds of fake police reports [over and 18 month period] for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit."   Main victim seems to be the credit company Equifax, and there is not tangible evidence the offender received any money for his fraudulent behavior (but his friend in the credit repair business made thousands of dollars from the scheme and may have paid the offender cash for his assistance).

     

    Here are the basics of the offender based on press accounts:

    Characteristics at time of 2012-13 crime: Male, heavy-set, 37 years-old, sheriff of southern county.

    Background: "no criminal record, … has suffered from depression and anxiety the past four years [and] has migraines, high blood pressure and insomnia."   The now-former sheriff "was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden [while they] resided in a poverty-stricken area."  The offender joined the county "in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010."

     

    Today and for the next few classes, we will talk about offense and offender sentencing issues using this real case (rather than the fake Rob Anon case) as a focal point.  Consider and be prepared to discuss whether and how you think sentencing law could and should require (or preclude) consideration some of the facts listed above at sentencing.  Also, consider whether there are any additional facts about the offense or the offender you would like to know before sentencing.

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