Sentencing Class @ OSU Moritz College of Law

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  • Very excited (and a bit overwhelmed) for another blog reboot for another semester of Sentencing Law

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

    Though I closed this blog down not long after that course ended, I was pleased to see all the students' hard work as reflected in the archives still generating significant traffic and much of the posts remain timely. Consequently, when I geared up for teaching 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 yet again in Spring 2014, I decided to reboot this blog to allow the new course to build (indirectly) in this space on materials covered before. In all of these classes, I was generally pleased with how this blog helped promote a new type of student engagement with on-line media and materials. (For the record, OSU students engaged with the blog much more and better with Fordham students. Go bucks!)

    Now, circa January 2015, we all now get to work together again on Sentencing Law at the Moritz College of Law. T his time around, I am especially excited (and more than a bit overwhelmed) by all the interesting, high-profile and on-going sentencing cases, developments and projects that we will discuss and perhaps get directly involved with in  the months ahead. To highlight why I am so excited (and overwhelmed), I am going to list here just an abridged set of on-going stories we will be following on this blog and in the classroom:

    Concerning the modern death penalty:

    1. The federal capital trial of the Boston Marathon Bomber, Dzhokhar Tsarnaev, has just begun. This case will provide a great focal point for theoretical and practical discussions of death penalty decision-making (and plea bargaining).

    2. A federal court-ordered moratorium on executions in Ohio is due to expire next week and the Ohio General Assembly recently enacted a controversial new law to allow the state to acquire execution drugs in secret for future executions. These matters will provide a basis for discussing state laws and policies (and federal litigation) over administration of the death penalty.

    3. I have been asked by federal and UK lawyers to help with efforts to review cases of Pakistan defendants scheduled to be executed. This project will provide an opportunity for students interesting in international/comparative death penalty work.

    Concerning Eighth Amendment jurisprudence:

    4. The US Supreme Court (SCOTUS) recently took up the issue of whether its 2012 Miller v. Alabama Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively. I am working on an amicus brief to be filed with the Court and welcome students to help with this effort.

    5. The Ohio Supreme Court will hear oral argument next month concern whether the SCOTUS 2010 Graham v. Florida Eighth Amendment ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should applied to a lengthy term-of-year sentence. I worked on an amicus brief filed in this case and hope to attend the oral argument (with students, if interested).

    6. The Sixth Circuit recently rejected the claim that a 15-year mandatory federal sentence for an ex-felon's possession of shotgun shells was unconstitutional. I am working on an amicus brief to support a SCOTUS cert petition and welcome students to help with this effort.

    Concerning the federal sentencing law and developments:

    7. Many bipartisan bills for federal statutory sentencing reform stalled in the last Congress, and there is reason to suspect that some of these bills may get renewed attention in the new Congress. These matters will provide a basis for discussing the legislative role in sentencing law and policy.

    8. Hearings for new Attorney General nominee Loretta Lynch are likely to take place in the next few weeks, and she is sure to be asked about various criminal justice policies and practices of the Obama Administration. These matters will provide a basis for discussing the executive role sentencing law and policy (as well as some federalism issues).

    9. The US Sentencing Commission is proposing new revisions to the federal sentencing guideline and continues to monitor federal sentencing patterns a decade after the US Supreme Court made these guidelines only advisory rather than mandatory. These matters will provide a basis for discussing the judiciary's role in sentencing policy and practice.

    Concerning Ohio sentencing law and developments:

    10. Despite statutory reforms a few years ago, Ohio's prison chief is warning about severe overcrowding in our prisons and is suggesting emergency release of prisoners might soon be required. These matters will provide a basis for discussing the costs and consequences of heavy reliance on incarceration in states.

    11. The Ohio Criminal Sentencing Commission (OCSC) has a new director who is eager to give this body a refreshed agenda. I will be asking you, quite soon, to write a short memo to the OCSC director giving advice about what this Commission should be doing.

    12. There are already three distinct groups talking seriously about bringing major marijuana reform proposals to the ballot in the coming years. These realities will provide a basis for discussing the drug prohibitions and its sentencing impact as well as the virtues and vices of direct democracy as a means of criminal justice reform.

    Believe it or not, I could readily list a few dozen more topics that we likely will be discussing in the days ahead on substantive topics ranging from white-collar fraud sentencing to sex offender registration laws to  victim's rights to receive restitution at sentencing and on procedural topics ranging from mandatory minimum sentencing provisions to plea bargaining to jury sentencing procedures.  But I trust the dozen issues noted above provides you a sense of why I am so execited (and more than a bit overwhelmed) by all the stuff we can be working on in this class.

    At this stage, I am most interested in getting your input ASAP about which of these various topics (or other topics) interest you the most going forward.  Consequently, I would be eager to hear in the comments to this post which of the issues mentioned above are of greater interest (or of least interest) to you as students in this class.  If there is some rough consensus among students about the topics of greatest interest, we will be sure to spend more time on these topics.

     

    WELCOME!

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  • COURSE COMPLETION REMINDERS: Turn in final AND remind me of any extra credit completed

    Just a few brief reminders for everyone still wrapping up this course:

    1.  If you are writing a final paper, I would appreciate receiving BOTH a digital and a hard-copy before the end of this week. 

    2.  If you are doing the take-home final, I think the computer system needs to have it completed by the end of the exam period on Thursday (though you can/should check with the registrar about eact timing for submission).

    3.  Whatever final you have completed, be sure also to send me an e-mail to make sure I have a record of any/all the extra credit assignments that you completed and submitted to me this semester.

    Thanks and congrats to everyone now wrapping up the class and your law school career!

  • Lots of extra credit for writing about lethal injection for JURIST

    Late last night, I received this invitation/inquiry via e-mail:

    Dear Professor Berman:

    My name is Elizabeth Hand, and I am writing on behalf of the University of Pittsburgh JURIST's Dateline service. JURIST is an ABA and Webby award-winning legal news service that reaches hundreds of thousands of readers weekly. JURIST has been cited 700 times in law reviews and briefs to the US Supreme Court, state supreme courts, and federal appellate courts. It has also been cited in nearly 500 published books, and several hundred times by the Library of Congress Website.  Dateline is JURIST's student commentary service, and we seek original opinion-based articles from law students regarding their personal and work experiences in a field of law.

    JURIST is looking for student commentary pieces covering the recent lawsuit over the state of Oklahoma's lethal injection drugs.  You can see our brief coverage of the case here: http://jurist.org/paperchase/2014/04/oklahoma-high-court-stays-executions-over-lethal-injection-drug-challenge.php.

    We are looking for student op-eds exploring the legal issues surrounding the legality of the drugs and the overarching issues of capital punishment. If you could please extend this invitation to write to the any law students that you think would be interested in contributing it would be greatly appreciated.

    Our authors, including our academic and professional authors, generally list their JURIST articles on their resumes along with journal, law review, and other publications.

    Articles are approximately 1200 words in length and do not require Bluebook citations. For examples of recent articles please see: http://jurist.org/dateline/

    I will give extra credit to any and every student who submits and op-ed, and double extra credit if you get your op-ed published!

  • Helping President Obama use his constitutional clemency powers

    In our last few classes, I want to wrap up our discussions of modern federal drug sentencing by turning attention to the work of the most powerful of sentencing "whos": the President of the United States.  There are lots of ways the President can and does make sentencing decisions, but the most historic means is through the exercise of his (constitutionally enshrined) power to grant clemency.  

    There are lots of stories to discuss and debate relating to the President's clemency power and its use throughout American history, but I will want us to focus on how it might still be used (and/or should be used) by President Obama as he heads into his final few years in office.  This new Reason.com piece by Jacob Sullum provides some useful background and context for our discussions:

    President Obama made appropriate use of his clemency powers this week, shortening the prison term of a drug offender who received a sentence that everyone agreed was too long but for which there was no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to 17.5 years in federal prison after he pleaded guilty to conspiracy and money laundering charges related to shipping marijuana from Mexico to Virginia. That term was three-and-a-half years longer than it should have been under federal sentencing guidelines because of a mistake in Cantu's presentence report, which erroneously listed his "base offense level" as 36 instead of 34. Cantu's lawyer never noticed the mistake, which Cantu himself discovered in 2012 after his family mailed him a copy of the report. By then he had missed the deadline for asking the courts to shorten his sentence….

    "It's hard to imagine that someone in the federal criminal justice system could serve an extra three-plus years in prison because of a typographical error," said White House Counsel Kathryn Ruemmler in a speech at NYU Law School on Tuesday….

    Obama should [not] be so stingy with commutations, which he so far has issued at a slower rate than all but three other modern presidents: George W. Bush (11 commutations in 96 months), George H.W. Bush (three in 48 months), and Ronald Reagan (13 in 96 months). Obama has now issued 10 commutations in 64 months, which by that measure makes him about 26 percent more merciful than Bush II, 46 percent more merciful than Bush I, and 14 percent more merciful than Reagan. (Obama still lags all three on pardons, which clear people's records, typically after they have completed their sentences.) But surely a man who has repeatedly criticized excessively long prison sentences should aspire to do more than surpass these truly awful commutation records. Obama is still a long way from Nixonian levels of mercy, since Tricky Dick shortened 60 sentences…

    A few months ago, Deputy Attorney General James Cole indicated that Obama planned to pick up the pace, which was encouraging. Not so encouraging: Cole, whose department had at that point received about 9,000 commutation petitions since Obama took office, asked for help in finding worthy applicants, which suggested the government's lawyers are either lazy or extremely picky. Cantu's case seems to fit the latter theory….

    By the president's own account, there are thousands of other clear injustices that he has the power to remedy. He could start with all of the crack offenders sentenced under pre-2010 rules that almost everyone now agrees were unreasonably harsh. The Smarter Sentencing Act would make the shorter crack sentences enacted in 2010 retroactive. But if Congress fails to approve that bill, Obama still has the authority to act on his own, which would be consistent with the statements he and his underlings have made regarding our excessively punitive criminal justice system.

    "The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in her NYU speech. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories." Probably more than 10. The president's pitiful performance so far falls far short of these aspirations.

    UPDATE: This brand new post at my main blog provides more explanation for how timely our discussion on clemency now is as a result this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith."  I highly recommend reading the full Yahoo piece.

  • Lunchtime sentencing activities on 4/17 and 4/18

    As briefly mentioned in in class earlier this week, you can have still more sentencing fun in the coming days during the lunch hour.  Here are the details:

    April 17 at 1pm:  Federalist Society Teleforum Conference Call involving Profs Berman and Cassell on "Controversial Sentencing in the Antwuan Ball Case"

    April 18 at 12noon in Drinko Room 244: ACS Chapter presents "Lethal Injection and Legal Problems with New Drug Combinations" with Allen Bohnert and Jessica Felker of the Federal Public Defender Capital Habeas Unit, Southern District of Ohio, to discuss some of the legal issues surrounding recent changes in drug combinations used for lethal injections.

    UPDATE:  A podcast recording of the Federalist Society Teleforum Conference Call is now available at this link. 

  • Comparing two federal drug offenders and the (now just amended) federal drug guidelines

    To aid our discussion of drug sentencing under the existing federal sentencing guidelines (which were, as reported here, amended just yesterday) based on various offender and offense factors, let me briefly describe two notable federal drug offender:

    Offender #1 was, at the time of his offense, a 21-year-old man in his second year at college and got involved in an ecstacy conspiracy through a friend.  This fellow himself used various drugs and served as a middle-man dealer of thousands of ecstacy pill for seven months, earning personally between $30,000 and $40,000.  Afraid of getting apprehended, this offender thereafter decided the drug business was not for him: he withdrew from the conspiracy on his own, graduated from college, stopped using drugs, and began lawful work in another state.  But, a few years later, when the ecstacy conspiracy was disrupted, and Offender #1 was indicted on various federal drug charges.  Offender #1 thereafter pleaded guilty and truthfully provided authorities with all the information he had about his offense and others involved in the conspiracy.

    Offender #2 was, at the time of her offense, a 19-year-old woman who dropped out of high school when she got pregnant as a teenager.  Her half-sister got her involved in a methamphetamine conspiracy as a way to make money while she cared for two children and their mother.  She made at most a few thousand dollars as a drug courier, and was apprehended at a bus station by police during her third run as a courier with 2.35 kilograms of methamphetamine in her possession.  While on pre-trial/sentencing release, Offender #2 got married, had another child started, taking GED classes and got a low-paying job.  Offender #2 also pleaded guilty and truthfully provided authorities with all the information she had about her offense and others involved in the conspiracy.

    Can you guess which of these two offenders faced a higher guideline sentencing range? 

    Can you guess what federal sentence was ultimately imposed on these offenders?

    Answers to both these questions are revealed by reading Gall v. US (in our text at pp. 415-423) and US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   Please review both these cases to facilitate our class discussions on Monday and Wednesday.

  • Military service in the federal sentencing guidelines, then and now (and in the future?)

    As a follow-up to our class discussion about military service and to provide a specific proposal to debate in our next class, I thought it would be useful to review the history of how the federal sentencing guidelines have treated military service.

    For starters, the original federal sentencing guidelines promulgated in 1987 said not one word about military service.  Then, in 1991, the following provision was added to the guidelines:

    § 5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works (Policy Statement)

    Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.

    Then, in 2010, § 5H1.11 was amended so that it now reads:

    Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.

    Civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.

    Now, circa 2014, I propose mendment to the first paragraph of § 5H1.11 to read as follows:

    If the defendant served in the active military prior to the commission of the offense, and if evidence suggests that personal or professional issues resulting from military service played any role in contributing to the commission of the offense or impacted the defendant's mental or emotional condition at the time prior to or during the offense, reduce the otherwise applicable guideline sentencing range by one third.

    REAL-WORLD UPDATE: Here is a timely press report on an interesting and on-going federal case raising these issues and other offender-circumstances for consideration at sentencing:

    A federal judge next week will re-start the sentence hearing for an Iraq combat veteran with PTSD who pleaded guilty to trying to hire the KKK to kill a black neighbor.  Chief U.S. District Court Judge Karon Bowdre on Wednesday set Monday, April 14, as the date for continuing the sentencing hearing for Allen Wayne "Big Dad" Morgan. The hearing will begin at 1:30 p.m. at the Hugo L. Black U.S. Courthouse in downtown Birmingham.

    Bowdre had started the sentencing of Morgan on Feb. 27 but after it began she continued it to give prosecutors time to respond to a witness Morgan's attorneys planned to call. The hearing continued on Monday with testimony about Morgan's drug addiction, his alleged sexual abuse as a child, and his diagnosed PTSD from his combat missions. Defense attorneys argue that the Federal Bureau of Prisons is not equipped to handle combat veterans with PTSD. Bowdre announced that she would continue the hearing after more than four hours.

    Morgan, 30, pleaded guilty to using and causing someone else to use interstate facilities and travel — a telephone and a motor vehicle — with the intent to commit a murder-for hire. He is charged with trying to hire the KKK to kill a neighbor, who is black, because he believed the man had raped his wife.

  • Other than criminal history, is there any specific “offender characteristic” that you think must be considered at sentencing? If so, how?

    As we start 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 statment that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Relatedly, as discussed in this recent post on my main blog, a number of states have enacted laws or considered bills to require consideration of military service and/or PTSD at sentencing.

    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 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.

  • With three weeks left, how are we doing on “low stress, high learning” on sentencing issues?

    Sadly (at least from my perspective) we only have three more weeks together before classes conclude on April 23.  That means eight classes, and a mere 400 minutes, because we do not have class on Tuesday 4/15.  (Fortunately, as I will explain in class, this week and next we can have some extra time together through lots of extra-curricular sentencing activities on the calendar.)

    As explained in prior posts and in class, we will be focused in our final few weeks on drug sentencing, offender characteristics and the back end of the (non-capital) sentencing system (e.g., parole and clemency).  In so doing, I hope to continue fulfilling my start-of-semester promise/desire to create a "low stress, high learning" environment for students.  And as we head into this final stretch, I want to provide this blog venue for expression of concerns, complaints, suggestions and any other feedback before it is too late for me to respond effectively.  (Obviously, you will all get a chance to share your views on the course in the formal evaluations at the very end of the semester, but at that point it will be too late for me to do anything in response that you will benefit from.)

    In other words, I would be grateful for any/all student comments in response to this post about any subject related (or even not related) to the substance and style of our course.

  • With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums

    As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff.  (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence.   Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact?  Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)

    We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence.  Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case:  should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)?  How about her status as a newlywed?  Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?   

    But rather than continue to obsess over the killer bride  (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms.  Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:

    • Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this informative speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.”  It provides great background on the past and present of federal drug sentencing.

    • US District Judge James Browning  provides a defense of the federal sentencing status quo in a lengthy opinion in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.

    • An on-going legislative sentencing reform debate developing around heroin in Louisiana, which is well covered in this notable news article headlined, "In heroin debate, a detour from sentencing reform." 

  • Some background and sentencing readings related to Ninth Circuit CJ Alex Kozinski

    Kozinski-alexAs I have mentioned, on Wednesday April 2, we will have the honor and pleasure of having Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, visit our class. For basic background on this renown jurist, check out his Wikipedia entry and/or this (dated) Unofficial Judge Alex Kozinski Site and/or this 2005 Legal Affairs profile.  That profile has this headline and subheading: "THE BIG KOZINSKI; If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster."

    Because he has written opinions and commentaries on every subject under the legal sun, it would be almost impossible to read even a small sample of all his views.  Fortunately, though, he has written a few especially high-profile (though now somewhat dated) pieces about death penalty jurisprudence and federal sentencing jurisprudence.  Here are links to a few highlights from this part of CJ Kozinski's corpus:

    Concerning the death penalty, check out this lengthy co-authored 1995 op-ed in the New York Times given the headline "For an Honest Death Penalty." It starts this way:

    It is a staple of American politics that there is very strong support for the death penalty; in opinion polls, roughly 70 percent consistently favor it. Yet the popular will on this issue has been thwarted.

    To be sure, we have many capital trials, convictions and death sentences; we have endless and massively costly appeals; and a few people do get put to death every year. But compared to the number of death sentences, the number of executions is minuscule, and the gap is widening fast.

    Note that, back in the early 1990s when this op-ed was authored, thoughtout the US there were often 300 death sentences imposed and only about 30 executions each year. Lately, in contrast, we have had in the US only about 75 death sentences and 40 executions each year.

    On the topic of federal sentencing, I succeeded way back in 1999 to get CJ Kozinski to author this article for the Federal Sentencing Reporter a full five years before Booker made the Guidelines advisory.  It starts this way:

    Once or twice a year I sit as a trial judge, usually in a criminal case. I've been doing it for many years and never cease to learn something new. I started before the Sentencing Guidelines, so I have sentenced defendants both with and without the Commission's guidance. I've had my doubts about the Guidelines; I even wrote an opinion saying they were unconstitutional. Doubts sometimes resurface when I sit as an appellate judge, but I have no doubts when I sit as a trial judge: I like the Guidelines and hope they're here to stay.

    I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison. Some judges may have the wisdom of Solomon in figuring out where in that range to select just the right sentence, but I certainly don't. Would too heavy a sentence destroy a young life and snuff out any chance of rehabilitation? Would too light a sentence embolden the defendant, endangering the lives of innocents? What deterrent effect will the sentence I impose have on others?

    Deciding whether someone spent the next twenty years in prison or got straight probation was a burden almost too heavy to bear. Somehow I felt it was wrong for one human being to have that much power over another. Imposing sentence was, for me, almost an act of sacrilege.

    Nor did it help that there was no appeal from the sentence. On the contrary, the very finality of the decision made it all the more difficult. If the sentence had been subject to appeal, someone else could have told me if I was way off the mark. But with no sentencing appeals, the burden lay entirely on my shoulders, and I didn't like it a bit.

    Enter the Sentencing Guidelines and all this changed for the better. Gone are the wide open spaces for sentencing discretion. Sentencing ranges are narrow and presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition–they're all engineered into the machine; all I have to do is wind the key. The Probation Officers in the Central District of California, where I mostly sit, do an excellent job and there are seldom disputes over the accuracy of the PSR. When there are, I do what I am competent to do–make factual findings.

    Once I have figured out the range, I always sentence at the very bottom; I never depart up or down, unless it's a guided departure like substantial assistance or acceptance of responsibility. This is true whether a defendant has pleaded guilty or proceeded to trial; generally, I have found that the bottom end of a given Guideline range sufficiently captures a defendant's criminal culpability, and I very seldom run across a case so unusual as to warrant departure. If the sentence seems too harsh or too light, I no longer feel responsible.

  • Sentencing submissions in US v. Graham: YOU BE THE SENTENCING JUDGE (and/or predict what the real judges will do)

    As promised, here are links to the sentencing submission in US v. Graham (D. Montana):

    As I mentioned in class, I am VERY interest in having students review these submissions and then comment/opine about (1) what sentence they would give if the sentencing judges in this case, and/or (2) what sentence they predict the actual federal sentencing judge will give on Thursday at the actual sentencing.

    For anyone who makes a judgment/prediction that is spot on, I will reward with a special surprise prize.

    UPDATE: Outcome is detailed over at SL&P: Remorseless killer bride gets sentenced to 30+ years in federal prison

  • Seeking engagement on “offense” for sentencing purposes (with or without emphasis on “acquitted/uncharged conduct”)

    In this post from my main blog, titled "As a matter of law, policy and practice, what should be the 'offense' a sentencer considers?," I set out some ideas that I referenced in last Wednesday's class and that I am eager to review during our two classes this coming last full week of March. (Remember, class does not meet on 3/26; I suspect I have already conducted a make-up class with the extra minutes I have run class late some days.)

    In that post (which I urge students to review), I explain why many challenging and controversial issues of modern sentencing can often relate to the consensus viewpoint that (1) offense(s) of conviction are a necessary and critical part of the "offense" to be considered at sentencing, but also that (2) at least some non-conviction, offense-related factors (such as a defendant's motive and role and the impact on victims) should also be considered sentencing.  The constitutional issues considered by the Supreme Court in Watts and the broader debate over whether sentencing guidelines should focus mostly/exclusively on the "charged" offense or the "real" offense depend to a large extent on whether concern (1) or concern (2) is considered most important at sentencing.

    Usefully, an interesting and notable variation on the Watts case was decided by the DC Circuit less than 10 days ago in a multi-defendant case involving one defendant named Antwuan Ball.  I discussed the background and ruling in the Antwuan Ball case in this SL&P post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims."  Here are the factual basics:

    Ball put the government to its burden of proof concerning allegations of his involvement running a massive drug conspiracy in Washington DC; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

    At sentencing, federal prosecutors urged the district judge to rely heavily on all sorts of alleged wrongdoing by Ball to impose a (statutory maximum) sentence of 40 years on the crack charge/conviction.  Relying on the prosecution's allegations that Ball was the leader of a huge crack conspiracy (claims which the jury concluded were not proven beyond a reasonable doubt), the district calculated Ball's guideline sentencing range to be 292 to 365 months (whereas Ball's guideline range would have been only 51 to 71 months absent consideration of "acquitted conduct").

    District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy," and he ultimately decided to give Ball a (below-guideline-range) 225-month prison sentence for his conviction based on the 2001 hand-to-hand drug transaction. In other words, like the defendants in the Watts case that came before the US Supreme Court, Antwuan Ball's calculated guideline range and his actual sentence was significantly impacted by "real offense conduct" considered by the sentencing judge but not the basis for a conviction. But, as was likewise true for at least on of the Watts defendants, Antwuan Ball ultimately was eligible for and received a much lower sentence than he would have gotten had been convicted of all the offenses with which he had been charged. (Ball likely would have been facing a statutory mandatory LWOP if he had been convicted by the jury of being the leader of a big crack conspiracy.)

    I have strong (but quite nuanced) views about what is wrong and what is not-so-wrong with how federal sentencing law now deals with defendants like Antwuan Ball, and you can become more informed and insightful than 99% of practitioners if/when you can understand why these issues are so philosophically and doctrinally challenging. And, to aid analysis, my post about the Ball case generated a pair of thoughtful posts at The Volokh Conspiracy:  Professor (and former federal sentencing judge) Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?". And then Professor Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence." 

    Among the reasons you might want to invest time/energy thinking through this case is because I likely will be authoring an amicus brief this coming summer in support of a cert petition if/when the lawyers for Antwuan Ball and his co-defendant decide to pursue further appeals.  I would welcome any and all student help and input now or later concerning such a project.

  • Make sure you work on (and are ready to discuss) FSG sentencing of Rob Anon

    Monday's first post-break class will involve lots of catching up on events since our last gathering and lots of gearing up for our final six week of classes. It will help if everyone has already gone through the Rob Anon guideline sentencing experience, and having done so will be essential to getting the most out of our classes the rest of this month.
    If you have already done this exercise, do it again and/or review your work. If you have note done it yet, please do ASAP. And everyone is encouraged to discuss the experiences in the comments here.

  • Basketball, baseball, brews and professional bonding in the weeks ahead….

    Now that March Madness and baseball's spring training are finally in full swing (and golf season and The Masters are on the horizon), I am likely to be grumpy any and every Thursday and Friday afternoons for the next month if/whenever I am in my Moritz office working rather than over at Eddie's watching sports of some sort.  But I always feel guilty (and lame/lonely) if I go over to EG's alone, and thus I mean through this post to encourage/bribe students to rescue me so I can rationalize a trip out of my office as a form of work/professional bonding with whomever comes and gets me.

    As some of you know, I always buy the first round for any/everyone who pulls me out of my Moritz office at a convenient/appropriate time on a Thursday or Friday.  Today, for example, in addition to being Pi Day (3.14), I am especially eager to watch the Big Ten tournament (at least when the Buckeyes are playing; tip at 2:30pm).  

    In subsequent weeks, there will be the NCAA Tourney, the official start of baseball season, and then The Masters to distract me from other (more productive?) endeavors.  If (when?) I start feeling guilty about too much afternoon time watching sports, I may have to take back this open invitation for professional bonding; until that time; PLEASE feel free to take advantage of my open-door EGs migration policies.  

  • If you want to spend a cold day in a warm appellate courtroom…

    I will be driving down to Cincy this Thursday morning in order to participate in oral arguments before the Sixth Circuit in US v. Young.  Details about the case is available here at my main blog, and the arguments are slated third for session (as set forth on this calendar) scheduled to begin at 9am.  The panel hearing the case is composed of Judges Griffin, White, and Stranch in Room 403 of 540 Potter Stewart US Courthouse Building.

    I will be driving down to Cincy in my Prius, which can hold up to 3 passengers. I already have one student scheduled for a ride, whom I plan to pick up in the Moritz parking lot at 7:20am on Thursday morning. Anyone ease eager to come along should let me know ASAP so I look for you at that time.

  • Hints and help for federal guidelines sentencing of Rob Anon

    With apologies for the delay, I will through this post provide some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines.  I will begin with a few links to 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 (and then use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want/need some more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

    If (when?) you still want/need still more help, a bit of effective google sluething should help you track down a free U.S. Federal Sentencing Guidelines calculator that was developed by a lawyer eager to help lawyers do quick and dirty guideline calculations for their clients. Unfortunately, that calculator does not appear to be updated after 2011, so I cannot vouch for its accuracy circa 2014.

    As you work through this assignment (especially as it carries into the Spring Break), please feel free and encourage to express your perspective on what it feels like to sentence in the federal system now that a whole lot of law has been brought into the process.

  • REMINDER: for high learning and low stress this week…

    everyone should be doing the first part (i.e., the first page) of the sentencing exercises ASAP:  after reading (or even while reading) the Frankel excerpt and the notes that follow at the start of Chapter 3, everyone should imagine herself as a federal judge at the time of Judge Frankel and come up individually with an exact pre-guideline sentence for Rob Anon (the federal back robber described at the start of Chapter 4).

    Students are welcome to also try to figure out (both procedurally and substantively) how Rob Anon would be sentenced now in the modern structured sentencing era, but that will not be essential for our conversations during the first few classes this week.  After class on Tuesday, I will post some materials here on the blog that should make it somewhat easier to do the guidelines part of the exercise before Wednesday's class.    

  • Scheduling “tours” of Eastern State Penitentiary and related prison history

    As mentioned in class, I am very eager to get as many folks as possible to watch the video about Eastern State Penitentiary and to learn more generally about the history of American prisons through that means.  Ergo, I hope folks will use the comments below to identify afternoon times on Thursday and Friday afternoons (2/27 and 2/28) when they could give an hour to watch this video. 

    I am going to proposed a 4pm showing on Thursday and a 3pm showing on Friday (with me buying drinks after both showings).   I hope folks will say if/when they can make one of the showing (which will be in our usual classroom unless otherwise reported in this space).

    In addition, I realized I could facilitated learning more about Eastern State by encouraging folks to check out this terrific website (and especially the pages linked here).    Moreover, as the ESP video highlights, there are lots of stories about lots of (in)famous prisons that tell lots of stories about not only American crime and punishment, but also about America.  A number of notable Ohio-centric stories to be found within in this history, as documented by a relatively recent book entitled "Central Ohio's Historic Prisons."  Here is a snippet from the book:

    With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States."  The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class."  However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.

    Excerpts from this book can be accessed at this link.  The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site (and also where the great movie The Shawshank Redemption was shot).  I urge everyone to take a virtual tour via this huge photo gallery.

    And especially if you are looking for some weekend web-surfing fun, check out these additional links to some good sites about some of the United States' most famous or most interesting prisons and jails:

    UPDATE:  I was very pleased six fine students found time to take the ESP tour on Thursday afternoon (and even more pleased that two of us got free beers when we migrated over to Eddie George's thereafter).  I hope a few more folks might be able to make it Friday at 3pm, and I will loan out the DVD thereafter to whomever might want to watch it on their own time.

  • Links to SCOTUS briefing in Hall v. Florida (and extra credit opportunity)

    The issue presented to the Supreme Court in Hall v. Florida is "Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia."

    Here are the top-side briefs:

    Here are the bottom-side briefs:

  • “Parolable Lifers in Michigan: Paying the price of unchecked discretion”

    The title of this post is the title of this February 2014 report by the Citizens Alliance on Prisons and Public Spending concerning the sentencing policies and practices in a state that, as this article notes, "abolished the death penalty on March 1, 1847, making it the first U.S. state and possibly the first in a democratic country in the world to do so."

    I thought it useful to spotlight this new report as we begin our transition from capital to non-capital sentencing as a reminder that (1) not all US states and localities are impacted by modern capital punishment debates and doctrines, that (2) all US states and localities are impacted by modern non-capital sentencing debates and doctrines, especially with respect to the impact and import of "unchecked discretion," and that (3) there might be a variety of dynamic and complicated relationships between how states with and without the death penalty approach modern non-capital sentencing debates and doctrines.

  • Review of mid-term paper basics

    As you all should know, every student is required to submit a very short paper (around 2+ pages, single or double spaced) in the next few weeks concerning a law or policy or article or book or movie or big idea related in some way to sentencing law, policy or practice that you think it will be valuable for me and your classmates to know more about. I emphasize the "you" in this post because I want and expect this paper will reflect your personal perspective on an issue of sentencing law, policy or practice that you consider interesting and/or important and that you wish to share with others in the class.

    I would be grateful to get as many of these papers as possible before Spring Break so that I can read them during the break. And I would be especially grateful to get BOTH a hard copy AND an electronic copy of the paper from you.

    If folks have questions or concerns about this (low-stress, high-learning?) assignment, please feel free to use the comments to raise them.

  • Doesn’t EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

    After a final review of what we should take away from the McClesky ruling, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence which places categorical limits on what crimes cannot result in capital sentence and what criminals can not be executed for their crimes.  Here, in order, are the major rulings in this series:

    Offense-based Eigth Amendment categorical prohibitions on the death penalty:

    Coker v. Georgia, 433 U.S. 584 (1977) (precluding imposition of the death penalty for offense of adult rape)

    Tison v. Arizona, 481 U.S. 137 (1987) (precluding imposition of the death penalty for homicide accomplice lacking reckless indifference to life)

    Kennedy v. Louisiana, 554 U.S. 407 (2008) (precluding imposition of the death penalty for offense of child rape)

    Offender-based categorical prohibitions on the death penalty:

    Thompson v. Oklahoma, 487 U.S. 815 (1988) (precluding imposition of the death penalty on offenders under age 16 at time of crime)

    Atkins v. Virginia, 536 U.S. 304 (2002) (precluding imposition of the death penalty on offenders who suffer from mental retardation (reversing 1989 ruling holding otherwise))

    Roper v. Simmons, 543 U.S. 551 (2005) (precluding imposition of the death penalty on offenders under age 18 at time of crime (reversing 1989 ruling holding otherwise))

    As I asked at the end of last week, given that the Supreme Court's Eighth Amendment jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender with have individual circumstances considered by the sentencing judge and/or jury, what justifies another set of Supreme Court rulings that preclude legislatures from ever being allowed to even consider the death penalty for certain crimes or offenders?

    Contextualizing these matters, consider the qusry in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker. For a reminder, here is how the lead dissent in Coker v. Georgia describe the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:

    On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently.  Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.

    The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner — as well as others in his position — will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.

  • Lots of interesting reflections on McClesky a quarter-century later

    As I mentioned very briefly in class, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a lead symposium focused on "McClesky at 25."  Here are links to all the articles in the symposium:

    McClesky at 25 OSJCL Symposium Articles:

    Anyone interested in the intersection of race and the death penalty should consider taking a quick peak at all of these article.  But, especially for future class discussion purposes, the final two pieces linked above (the long Mosteller piece and the short Scheidegger piece) may be most worth your extra reading time and attention.

  • “Let’s put the political correctness aside and debate this issue on the grounds that we really want to: is the death penalty moral or not?”

    The title of this post is the final senitment expressed by Gus L. in conjunction with the terrific comment discussion that is now energized in response to this post noting Washington Governor Jay Inslee's remarkable decision to take his state's death penalty into his own hands by declaring a moratorium on executions while he serves as Governor.  Though I do not want to distract from discussion about Governor Inslee's decision, I wanted to "tee up" the fundamental question Gus identifies while also contextualizing it with my usual who and how concerns.

    I am grateful to Gus for cutting to the heart of the issue in all capital punishment debates and discussions, namely whether one believe the death penalty is moral (or just or righteous or legitimate or approrpiate or whatever other word one wants to adopt for this ultimate normative question).  I am grateful because I hope and assume that everyone in the class realizes and recognizes (1) that one's own views on this ultimate issue inevitably colors one's perspective on all other capital punishment questions/debates, and (2) that reasonable people with reasonable and diverse views on theories of punishment reach reasonable and diverse conclusions concerning whether the death penalty is moral/just.

    With this critical background, the who and how questions we are discussing in class take on an extra dimension in modern American society committed to democratic rule structured by a Constitution designed to safeguard some individual rights against majoritarian preferences.

    1.  If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?   

    2.  If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

    3.  If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

    4.  If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

    Arguably, if you have a very strong opinion on the morality of the death penalty and a very strong belief that "death is different" so that matters of life and death are to be treated different in kind than all other matters, then the answer to these four questions might be identical: you should use all your legal, political and social powers to further your moral vision no matter what your role in American society.  But, if you think one's role in American society should influence the answer to the questions above, then arguably you think that there are moral considerations of even greater importance that the question Gus highlights as to whether the death penalty moral or not.

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