Sentencing Class @ OSU Moritz College of Law

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  • Should Washington Gov. Jay Inslee be praised or condemned for unilaterally suspending executions in his state?

    I am intrigued to have learned right after class that  Washington Governor Jay Inslee decided to take his state's death penalty into his own hands today by declaring a moratorium on executions while he serves as Governor.  I have blogged about this notable decision here at my main blog; and these comments from Governor Inslee’s remarks announcing his execution moratorium (which can be accessed in full at this link) seemed especially notable in the wake of our conversations in class recently:

    Over the course of the past year, my staff and I have been carefully reviewing the status of capital punishment in Washington State.

    We’ve spoken to people in favor and strongly opposed to this complex and emotional issue, including law enforcement officers, prosecutors, former directors of the Department of Corrections, and the family members of the homicide victims.

    We thoroughly studied the cases that condemned nine men to death. I recently visited the state penitentiary in Walla Walla and I spoke to the men and women who work there. I saw death row and toured the execution chamber, where lethal injections and hangings take place.

    Following this review, and in accordance with state law, I have decided to impose a moratorium on executions while I’m Governor of the state of Washington.

    Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred….

    I have previously supported capital punishment. And I don’t question the hard work and judgment of the county prosecutors who bring these cases or the judges who rule on them.

    But my review of the law in Washington State and my responsibilities as Governor have led me to reevaluate that position….

    In 2006, state Supreme Court Justice Charles Johnson wrote that in our state, “the death penalty is like lightening, randomly striking some defendants and not others.”

    I believe that’s too much uncertainty.

    Therefore, for these reasons, pursuant to RCW 10.01.120, I will use the authority given to the Office of the Governor to halt any death warrant issued in my term.

    Is this move further proof of the astuteness of the Marshall Hypothesis? And that "death is different"?

    That Governor Inslee is (foolishly? rightfully?) much more concerned about equal justice than about individual justice?

    That Governor Inslee lacks the stomach needed to faithfully execute his state's laws?

    That Governor Inslee has the courage to be a statesman and not merely a politician?

    UPDATE:  This post over at Crime and Consequences by Kent Scheidegger takes apart the statement by Gov Inslee to express the view that concerns about equal justice should not preclude application of individual justice to carry out existing death sentences.

  • Some background and basics on capital punishment history and practices in Ohio and US

    We could easily spend months discussing the history and modern specifics of the death penalty in specific jurisdictions like Ohio or the US.  I will sometime reference this history and modern practices in class over the next few weeks, but here are some links of note concerning both jurisdictions to provide everyone with a (low-stress, high-learning) chance to discover a lot more on these topics:

    Links with background on Ohio's history and practices in the administration of the death penalty 

    Links with background on US history and practices in the administration of the death penalty 

  • Yet another round of notable “who” developments concerning the death penalty and federal mandatory minimums

    This coming week we are going to get much more focused on the particulars of capital punishment laws and doctrines and practices.  But, as you may already realize, my obsession with "who" issues will persist in class and elsewhere.  And these posts from my other blogs since our last meeting highlights this reality from various perspectives concerning both the death penalty and mandatory minimums:

    Some death penalty stories:

    Some federal mandatory minimum stories:

  • Other than the defendant, which “whos” would you say should be considered most responsible for the death sentences in…

    Williams?

    McGautha?

    Furman?

    Tsarnaev?

    The principal goal of our pre-sentencing conversation about the Williams case on Wednesday was to shake everyone away from the (incomplete) view that a trial judge imposing a sentence is the most responsible (or even most important) decision-maker in the sentencing process.  

    A sentencing judge (or, in some cases, a sentencing jury) is often the most visible decision-maker in the sentencing process, but all the formal and informal criminal justice players who act before the official moment of sentencing (as well as many that act later) can often be, both formally and practically, much more responsible for the sentence that is actually imposed and served than the sentencing judge.

    So, with these thoughts in mind and our "who" insights and radar now heightened, I would love to start a discussion here about which "whos" you would be inclined to say should be considered most responsible for the death sentences in any or all of the high-profile cases referenced above.

  • A weekend full of interesting who news

    As you may already be discovering, once one starts to focus on current-event stories with a "who sentences" lens, the context and complications of sentencing decision-making can take on a new view.  With that reality in mind, consider these recent posts from my other blogs concerning some notable recent events:

  • Who should have the least sentencing power in American CJ systems?

    In addition to closely reviewing the 1949 Williams v. New York case (which can be read in full here and is worth the time to read in full), we will discuss in class next week which particular institutional players tend to exercise the most formal and informal sentencing power, and whether and how you think these institutional players should have their powers limited and regulated.  Long story short: legislatures, prosecutors, trial judges, and parole/prison officials have historically wielded the most sentencing power, but many modern reforms have given larger roles to sentencing commissions and appellate judges.

    As suggested in class, I am eager to have everyone consider this issue from the other side of the equation: that is, I want to hear whether and why you might think certain institutional players should have little or no formal or informal sentencing power.  Again, history is somewhat instructive: victims, police, juries (except in capital cases) and appellate judges have historically wielded little sentencing power, but many modern reforms have given larger roles to victims and appellate judges.

    As we will discuss, every institutional player that actively seeks to be involved in the sentencing process usually can have some input or impact.  But that practical reality should not prevent a sentencing system (or us) from exploring how to limit the authority of those players we believe should have the least power to impact sentencing outcomes.  (There are lots of general reasons why we might want to limit and/or regulate a particular player's sentencing power: e.g., we fear that particular institutional player has a certain problematic/systematic bias, or will too often pursue a disfavored punishment purpose or form, or will be too subject to undue influences by other actors, or will tend to make less-than-thoughtful or even discriminatory decisions.)

    So, who do you think should have the least sentencing power?  Why?

  • Low-stress, high-learning opportunities via TV, radio and blogs

    I made reference to a lot of current events stories to follow at the start of class, in part because the development of these stories highlight how many distinct and distinctive "who"s play a role in criminal justice reforms and ultimately in the operation of modern sentencing systems.

    For example, the NFL can have a huge impact on social and political views and developments throughout the United States, especially this time of year.  Thus, I think folks ought to check out tonight's episode of HBO's Real Sports examining pot use in the NFL.

    Similarly, doctors and medical groups have come to play a large role in modern discussions of execution methods, and this fact should be on display during the 10am Wednesday morning segment of All Sides with Ann Fisher on WOSU.

    And the role of victims in the criminal justice system generally, and especially at sentencing, will be front-and-center before the U.S. Supreme Court tomorrow morning during the oral argument in the Paroline case.  This SCOTUSblog post provides a lengthy preview of the issues before SCOTUS in the case.

    As the title of this post is meant to highlight, I see watching TV and listening to the radio and reading blogs to be great low-stress, high-learning opportunities.  I hope you all agree.

  • Some past (and present) MLK-inspired perspectives on sentencing

    As perhaps is already clear from our first full week of discussion, issues of race and class are necessarily important concerns when we consider the law, policy and practices of modern sentencing systems.  In part because of that reality, I have often through the years emphasized a number of MLK-inspired themes on my main sentencing blog, and here are some links to some of my favorite past MLK Day posts (as well as the one I did today):

  • Sincere marijuana reform question: exactly what are DEA officials “scared” of?

    The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level."  Here is the context:

    The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

    “It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan.  “Every part of the world where this has been tried, it has failed time and time again.”

    Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism….

    Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay.  “There are more dispensaries in Denver than there are Starbucks,” he said.  “The idea somehow people in our country have that this is somehow good for us as a nation is wrong.  It’s a bad thing.”

    Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”…

    Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said.  “It’s going to cost us in terms of social costs.”

    Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.

    That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere.  Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual.  Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."

    This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States.  The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming.  These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.

    It is quite possible, as the DEA official suggests, that "this is a bad experiment."  But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared."  More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:

    • roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;

    • roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.

    I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal.  But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments.  Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.

    But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.

    I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.

  • How Thomas Jefferson would have sentenced Richard Graves

    I suggested in Tuesday's class that, if incapacitation was a key goal/purpose when sentencing convicted rapist Richard Graves, that castration would seem likely much more effective than any term in prison. (Indeed, given ugly statistics concerning prison rape, a trip to prison might be the worst way to prevent Graves from raping again.) But I surmised that some (many? most?) members of the class have a visceral negative reaction to castration as a form of punishment. But why?

    If you had a visceral negative reaction to castration, I urge you to read and reflect on Michel Foucault's astute insight (reprinted in Chapter 1 of the text) that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment. In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.

    Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes. This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages (with my emphasis added):

    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.

    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….

    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….

    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….

    I highly encourage everyone to read (and then comment upon) the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

  • Early Class Questionnaire for completion — and discussion along with pop-culture references

    My sincere apologies for failing to bring enough hard copies to today's class of the Class Questionnaire I would like completed (and submitted to me) by everyone ASAP. I have now uploaded a pdf of this document below for anyone who needs or wants this form electronically:

    Download 2014 1st Class Survey

    As suggested in class and in the title of this post, I welcome discussion in the comments to this post about the questions/issue in the survey.  I also welcome discussion about what pop-culture references I can reasonably make without confusing too many folks about the reference.  (Absent good pop-culture reference material, I will probably end up making too many sports references instead.)

  • Welcome yet again to another reboot of this blog for another semester of Sentencing Law

    Welcome to the FOURTH re-launch of this blogging adventure. This blog started over seven 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, as when 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, I decided to reboot this blog to allow the new course to build indirectly in this space on some of the 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.)

    Now, circa January 2014, I am Sentencing Law again at the Moritz College of Law. Because we have a new revised version of the casebook for the 2014 class, I am not yet sure how much of a role this blog will play in course activities. But, especially because a lot of new exciting sentencing developments seem likely in the weeks and months ahead, I suspect this space will stay active just by trying to keep up with current events (as well as as a place to post information about class activities and plans and assignments).

    WELCOME!

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  • Latest (greatest?) working amicus draft

    After having read the Miller and Jackson merits briefs, I did not find too many places where I thought tweaks of our working draft was needed.  Nevertheless, I have now created a revised draft with all the latest suggested additions appearing, and that can be downloaded below.  I am out of pocket most of today, but late tonight and tomorrow AM I can keep working on revisions if/when folks send me ideas/suggestions for more to add.

    Download Latest jlwop amicus brief 1-12

  • Merits brief for Jackson and Miller…

    finally arrived in my in-box this morning.  Here they are:

    Download Kuntrell Jackson USSC Brief 01-09-12

    Download Evan Miller USSC Brief 01-09-12

    UPDATE:  The Jackson brief appears to have the most "action" of these two, though both are worth a close read as we think about how we might further refine our amicus.  I hope tonight to be able to work in some cites/ideas and post a new draft by 10am on Thursday.  Then, perhaps, any/all who might like to meet to discuss final plan can come by my office Friday afternoon.

  • Outline/draft of SCOTUS-focused amicus draft for Jackson and Miller

    My efforts at making a mega-draft by stitching together pieces of the submitted amicus drafts created something of a Frankenstein monster: by seeking to preserve different parts of different texts, I produced an ugly creature that seemed unlikely to be able to do much good.   Consequently, I turned to developing a detailed outline/draft that was "inspired by" the class efforts rather than working too hard trying to preserve language used in submitted drafts.

    I am now posting below the outline/draft that I produced for collective discussion and reflection. This outline/draft is now only a little over 3000 words, so we could (and likely should) add a lot more stuff.   In addition, this outline/draft is for now focused only on SCOTUS Eighth Amendment doctrines/cases: materials concerning brain science, international law and state cases have not (yet) been incorporated, but they all might readily find (various) places in this outline/draft.

    Starting later today, I should be around most weekday afternoon this week and next. I would be eager to work with any and all students (1) interested in moving forward with the outline/draft I have posted here OR (2) interested in revising their initial draft to produce their own distinctive amicus brief for potential filing.   But because the briefs need to be close to finalized over the next 8-10 days in order to enable actual filing in the Supreme Court by January 17, I need to hear from folks ASAP about any serious interest in moving ahead on any of these SCOTUS fronts.

    Download Working (outline) JLWOP Amicus Brief (1-3)

  • Update on amicus draft (and draft text of the summary of argument)

    I am making slow and steady progress on our collective amicus efforts (more slow than steady, but still progress is being made).  I hope that no later than Tuesday to be able to post a full working draft of the document I am putting together.  For now, I can start with this (too?) brief passage that is now serving as the "summary of argument" section:

    Interpreting the Eighth Amendment’s prohibition on cruel and unusual punishments, this Court has repeatedly stressed that juveniles, especially young juveniles, are a special and unique class of criminal offenders with a distinct level of maturity, mental capacity, and vulnerability to negative influences. In addition, this Court’s Eighth Amendment jurisprudence has repeatedly recognized that not all homicide offenses are constitutionally equivalent; because murders can and will differ in their severity, a constitutional scheme of punishment must sometimes differentiate between and among murder offenses of differing severity.   And, last but not least, this Court’s Eighth Amendment jurisprudence has identified constitutional problems with certain aspects of certain mandatory sentencing schemes.  Collectively, these established principles of this Court’s Eighth Amendment jurisprudence connote that any and all statutory schemes which mandate that a juvenile offender convicted of a certain class of homicide must be sentenced to life without the possibility of parole, without any consideration of the offender’s age or any other potential mitigating offense circumstances, violate the Eighth Amendment’s prohibition on cruel and unusual punishments.

    Thoughts?

  • Student guest-post asks “Shaming as a punishment… is society too soft to re-embrace it?”

    Here is the final "top-flight" guest-post material I received before the holidays.  Though I will not be posting any more guest-posts for extra credit, students can keep earning class participation credit by commenting on this and other posts until the start of classes in January:

    We no longer recognize just the first place winner, but also the second, the third, the fourth…well you get the idea.  We have gone soft and part of that softness means we no longer like to shame people for their mistakes.

    However, Texas State District Judge Kevin Fine has a different idea.

    Daniel Mireles and his wife, Eloise Mireles, stole $250,000 from the Harris County Crime Victim’s fund. They were sentenced to each spend six months in jail—one month a year for six years, pay restitution and 400 hours of community service.

    But that was not all.  Judge Fine also decided as part of the sentence that they must both wear signs for five hours every weekend, him on Saturday and her on Sunday, near the Galleria mall in Houston. The sign says: “I am a thief.  I stole $250,000 from the Harris County crime fund. Daniel Mireles” -– here is a link to video

    But wait…Judge Fine was still not done with them. They must also post signs outside their residence stating “The occupants of this residence are convicted thieve. They stole $250,000 from the Harris County Crime Victim’s fund.  Signed, Judge Kevin Fine.”

    The prosecutor said he will conduct random drive-bys in order to ensure compliance. More story here.

    I for one say good job Judge Fine.  I think it is high time that public shaming become a more common form of sentencing alternative.  Obviously this will not work in all cases, but with first time offenders and people who are members of the community it can be more effective than a few weekends in jail, a fine or community service.

    Just a couple of the obvious benefits in my opinion:

    1) Help reduce prison overcrowding and save money

    2) Effectively informs the public about crimes and punishments—general deterrence

    3) Creates a greater long-term impact on the offender then a fine or community service—specific deterrence

    Questions:

    Is society capable of toughening back up and embrace public shaming or is it for naught in today’s world of no one should be ridiculed in public—no matter how just the cause.

    Can public shaming be transferred to the online community where an offender must post a status on Facebook weekly about his crime? Would this be more effective for juvenile and young adult offenders?

    Ohio requires in certain circumstances special yellow colored license plates for drivers to display who have been convicted of DUI. Is this OK because it is less personal and likely not even noticed by others, whereas the shaming in Texas might be less tolerable because it is in the public’s face?

  • Update on my latest thinking on juve LWOP amicus project

    I continue to enjoy and learn from reading and re-reading the seven juve LWOP amicus brief efforts sent my way.  And the more I think about what might be most useful to say to the Court, the more I am finding myself drawn to the idea that the mandatory nature of the LWOP sentences in Jackson and Miller are what make them especially constitutionally problematic given both the young age of the defendants and the (many?) other mitigating factors involved in the murderers for which they were convicted.

    A number of the draft briefs (though not all) focus in whole or in part on assailing the mandatory nature of the LWOP sentences in Jackson and Miller.  And even the drafts that do not have this particular focus still have at least a few passages that could be incorporated into a brief with that focus.  Consequently, I am thinking/planning in the next few days to take a stab at assembling sections/passages from all the drafts I now have in hand to make a "mega-draft" with the focus on the mandatory nature of the LWOP sentences.

    This plan should not preclude (or even slow down) those folks who have not yet completed a full draft brief from getting me a full draft, and it also should not preclude (or even slow down) those folks with a full draft from coming to talk with me about how to refine their full draft for possible SCOTUS filing.  But this plan should allow those of you eager now to work collectively on something of a "class" brief to know that, within the next few days, you can review a "mega-draft" that may become the focus of our collective briefing activities over the next few weeks if there is continued student interest in completing and filing a "top-flight" amicus brief.

  • Student guest-post discusses “Wide Receiver Busts (Non-Draft Edition)”

    A couple more students got me some more "top-flight" guest-post material in time to get a little credit for the effort. I will post the entries periodically, and start with this sports-related sentencing post for all those who have (like me) already spent a little too much time watching football since classes ended:

    It’s no great surprise to learn that an athlete is in legal trouble, but the recent investigations of (now former) Bears receiver Sam Hurd and Bengals receiver Jerome Simpson break the mold of DUI’s and t-shirt thefts.  Simpson and Hurd were both investigated for drug distribution crimes that carry major federal sentencing consequences, yet Simpson is still reeling in passes for Cincinnati’s playoff drive while Hurd was quickly waived by Chicago.

    Hurd wasn’t just waived because he isn’t as good a player -– 8 catches for 109 yards to Simpson’s 40 catches for 629 yards and 3 TD’s –- his situation is far more dire.   Both cases are federal and implicate the sentencing guidelines. Simpson received a shipment of 2.5 pounds of Northern California marijuana while Hurd told an undercover federal agent that he wanted to buy between 5 and 10 kilograms of cocaine and 1,000 pounds of marijuana per week.

    Hurd has been charged with conspiracy to distribute 500 or more grams of cocaine, and his case has been transferred to Texas. Under the federal guidelines § 2D1.1(c), that amount carries a base offense level of 26.   This is raised to 38, however, for a conspiracy of a continuing criminal enterprise under § 2D1.5 and a mandatory minimum of 20 years under 21 U.S.C. § 848.  Hurd could face life imprisonment under the same statute if his gross receipts over 12 months were over $10 million and he was a principal administrator.   Given that Hurd had offered to pay around $2.8 million a month for drugs, it seems likely he would meet these thresholds. It is an enormous jump under the statute from the base level 38 which would result in a sentence of 235-293 months (20-25 years) without any criminal history adjustments.

    By contrast Simpson’s marijuana package would carry a base offense level of 10, and 6-12 months with no criminal history, though he may be subject to mandatory minimums if he is found to be part of an ongoing conspiracy and other packages were found in his home could lead to a higher base level. California federal prosecutors have taken over his case, and he is yet to be charged.   These facts indicate that Simpson may be cooperating to reduce his penalties and to help investigators go after drug suppliers in Northern California’s “Emerald Triangle.”

    Given the penalties faced by Hurd, he is incentivized to follow Simpson’s lead (if he is in fact cooperating).   Though his lawyer has indicated that a guilty plea is not immediately forthcoming, the mandatory minimums provide a huge reason for him to identify bigger fish for the federal prosecutors to fry.

    Background links:

  • Juve LWOP amicus brief project update

    As of this writing (4:30pm on Wednesday, December 21), I now know of seven distinct groups(!) of students that have developed and/or are still developing a draft amicus brief for possible submission in the SCOTUS juve LWOP cases.  Four of these groups involve just a pair of students working together, one group is a trio, one is a quartet, and one group needed six cooks to complete their amicus brief stew.

    I am very pleased and quite impressed that 21 students took up the amicus brief project/challenge (which amounts to almost exactly 1/2 of the class), and I can already tell from a quick scan that much impressive and important work is reflected in the drafts that have been so far submitted.  I hope that everyone learned a lot about the substance of these cases and the process of collaborative brief writing along the way.  I also hope many students remain interested in actually getting their briefs filed, although I trust everyone appreciates how hard (and costly) it would be to try to submit seven briefs and ensure that they are all top-flight efforts.

    Here is my plan going forward:  I will be reviewing all of the draft briefs closely over the next few days in order to see if I can develop a tentative plan for refining/consolidating these various efforts.  I will aspire to provide an update on my review efforts and plans no later than next Monday (the day after X-mas). 

    In the days ahead, students are HIGHLY ENCOURAGED via the comments to this post and/or via e-mails to me to let me know if they are (1) eager to spend (lots of?) time? after X-mas and before the start of classes on revising briefs for potential SCOTUS submission, OR (2) eager to call it quits and not give any more time/energy/attention to these matters.  (I will probably try to convene a meeting of any/all eager beavers who will be around after X-mas to discuss in person plans for moving forward on this project.) 

  • Student guest-post asks intriguing questions about HIV crimes (and sentencing?)

    A second student has now sent me guest-post material which I consider "top-flight" in terms of being an interesting topic, but the materials seems to me to be more suited to a Criminal Law Class blog than a Sentencing Law Class blog.  Nevertheless, this student will still get some credit for this effort:

    Topic: "Having HIV may get you 25-years in prison"

    In fact, 34 states and 2 U.S. territories have HIV-specific laws on their books that state if a person (knowingly) living with HIV has sexual relations without prior disclosure of his or her HIV-positive status, then that person is committing a crime.  Some of these laws permit sentencing a person living with HIV up to 25 years imprisonment for having consensual sex with someone who is HIV-negative (or does not know his or her HIV status) without prior HIV disclosure. A person may even be convicted if a condom is used and no HIV is transmitted, while some convictions occur with absolutely no sexual conduct, but rather the transmission of bodily fluid, such as saliva.

    This link connects to an interesting article and video at the Huffington Post regarding this topic, entitled "HIV Is Not a Crime… Or Is It?":

    —

    Follow-up questions are as follows (some are aligned with the article):

    1. Is this crime synonymous to attempted murder?

    2. The article addresses the following concern: the CDC estimates that up to 20% of HIV-positive Americans do not know they are living with HIV.  Because the laws absolve untested individuals, does this provide an incentive for the sexually promiscuous (those at the greatest risk of contracting HIV) to abstain from getting tested for HIV?

    3. Should people living with HIV have to register as sex offenders? (If so, should this registration be required before or after the potential transmission of the HIV virus?)

    4. Should people living with HIV be able to be sentenced up to 25 years in prison for a sexual act that did not result in the transmission of the HIV virus?

    5. Should there be some responsibility (e.g. contributory negligence) on the victim if s/he did not ask whether the infected person had any diseases before engaging in sexual conduct with the infected person?

    I am inclined to describe this issue and these queries as not quite sentencing issues because I have not heard/read any reports about defendants getting a harsher sentence based on HIV status alone.  (Interestingly, I know that many HIV-positive defendants will request shorter prison terms by asserting the likelihood of poor medical care and/or a larger chance of dying in prison because of the disease.)

    The Huff Post piece linked above reports some data on charges involving so-called HIV crimes:

    Prosecutions against HIV-positive individuals have occurred in at least 39 states (some states have used non-HIV-specific laws for sexual assault), invoking a spectrum of charges including attempted murder, sexual assault, and assault with a deadly weapon.  Yes, ignorance has led to defining blood, semen, vaginal fluid, vomit, and saliva of people living with HIV as "deadly weapons" by the courts — and has even led to claims of "bio-terrorism" — even though HIV is now considered a chronic manageable disease.  In five states alone more than 500 people have been charged under these laws.

    Obviously, being charged in special ways because of HIV status can have serious plea bargaining and sentencing consequences.  But the concerns and questions raised by this issue still stike me as more fundamental criminal law concerns than distinct sentencing issues (even though, of course, every criminal law concern becomes a sentencing issue at some point).

  • Student guest-post asks great questions about prison labor

    LaborSo far, one student has succeeded in earning extra credit by sending me "top-flight" guest posting material.  Here is the content of this guest-post (along with the picture) that was sent my way this past weekend:

    One topic that we have not had time to discuss in detail in class this year has been prison labor.  See, for example, this article from the New York Times, published earlier this year and headlined "Enlisting Prison Labor to Close Budget Gaps."  And this article from the Dayton Daily Newss published about a month ago, which is headlined "Bureaucracy, politics hinder prison labor force," and explains problems with Ohio’s prison labor force.

    As the first article explains, nearly all states have some form of prison labor, and the use of prison labor seems to be rising in response to cuts in federal financing and decreased tax revenue. Supporters of prison labor say that this could be a win-win for prisons because it could (1) allow prisons to use the labor to reduce their own costs and (2) help inmates develop skills which will help them to re-enter society. Because of these advantages, coalitions supporting prison labor have included both conservative budget hawks and liberal humanitarian groups.

    But prison labor continues to have its share of critics as well (e.g. labor unions and civil rights advocates).  What do you think?  

    Is prison labor a good idea?  

    Does it matter whether it is required or voluntary?

    Should it only be available to some inmates?

    Other comments?

    Students should remember that they can earn class participation by simply commenting on this effective post.  And the offer to send me guest-post fodder for extra credit remains open at least through this week.

  • Hey sports fans, lots of federal sentencing stories to follow

    As a big sports fan, I tend to get a kick out of being able to follow federal sentencing stories via the sports page.  And now, as detailed in these two recent posts from my main blog, there are two timely stories worth watching closely:

    The second story, concerning the Chicago Bears receiver Sam Hurd and his alleged involvement in a big cocaine distribution scheme, provides a particularly good opportunity for students to think about plea bargaining practices and high-profile defendants.  Should Hurd's defense attorney and/or the federal prosecutors handing the case be talking about trying to put together a quick plea deal before all the details of Hurd's alleged  offense conduct become the topic of ESPN debate?  Or should both sides be already thinking about the "fight to the death" approach that Jerry Sandusky's lawyers have adopted?

    Anyone eager to talk more about these issues at a sports bar over drinks can/should come get me from my office late on Friday night.  In addition to working late this Friday to follow the Bonds' sentencing from the West Coast, I am a free agent through the evening because my family has a "girls night out" without me at a holiday cookie party.

  • Plans for me and the blog during the exam period

    Just a quick post to note (1) I should be in or around my office most late afternoons during the exam period, though a quick e-mail to set up a meeting time (or happy hour plans) is always recommended if you want to be sure to find me, and (2) I expect to do a few substantive posts during the period, in part because I want everyone to be able to continue to earn class participation credit via thoughtful comments to postings.

    And for anyone who is extra interested in earning some extra sentencing excitement during the exam period, here is an offer: I will give extra credit to anyone who sends me high-quality, cut-and-paste-ready material for this blog (or for my main blog).  The key to earning credit is this (vague) adjective "high-quality".  Though all blog-oriented materials sent my way will earn my respect, extra credit will only be earned by those who prepare and present "top-flight" guest-post content.

  • Constructing happy hour for constructive Friday

    Today is Friday at Moritz, which for me means an excuse for a last-minute happy hour. I need to do real work until about 5pm today, but then would love to be dragged to EGs anytime after that until 7:30pm when I will have to head home. Rescue me from my office and I will buy the first round…

    P.S. I was encouraged to do one last movie showing, but I was not able to get access to a great movie at the last minute. If others have suggestions for Today or anytime later this month, I am still game.

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