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Friday, October 31, 2014

Some (and only some) of the intricacies of ORC Chapter 2907: Sex Offenses

As I mentioned in class, I do not test on the doctrines of rape and other sex offenses in large part because (1) nearly everyone now views the Model Penal Code sexual offense provisions to be badly dated and anything but "model" for modern times, and (2) the Ohio Revised Code provisions on rape and other sexual offenses are stunningly lengthy and intricate.  You can see for yourself the enormity of ORC Chapter 2907 at this link.

Among the many interesting things to notice about Ohio's "modern" sexual offense provisions is how many different labels we now have for different types of sexual offenses:

Also of note here are the detailed "general definitions" of various key terms set out in ORC 2907.01, which gets started this way:

As used in sections 2907.01 to 2907.38 of the Revised Code:

(A) "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

(B) "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.

(C) "Sexual activity" means sexual conduct or sexual contact, or both.

October 31, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 28, 2014

All needed spots now filled (I think) for next week's drafting role play ... UPDATED 10/29

I am very pleased to be able to report that I have already had voluteers for two sets of legislative sub-committees for next week's role play.  As detailed below, here are (according to my notes) the groups that have formed to work on needed revisions to Oliwood rape law and to establish the terms of the worst offense for a model campus sexual offense code for universities in Oliwood.  I have given silly names/labels to the groups for ease of reference:

First Oliwood Rape Reform Drafting Subcommittee (FORR) is comprised of Madison Gessiotto and Jason Manion ... and Madison Troyer and Holly Cline

Second Oliwood Rape Reform Drafting Subcommittee (SORR) is comprised of Cowles Osatrander, Jogan Riley and Chris Tavenor ... and Sasa Trivunic


First Oliwood Campus Code Drafting Subcommittee (FOCC) is comprised of Jana Al-Akhras, Anthony Lelli, Cassie Pedicelli and Tara Workman 

Second Oliwood Campus Code Drafting Subcommittee (SOCC) is comprised of Clair Bullock, Kiera Ransey and Abigail Woods

If I have any of these details wrong, let me know ASAP so we can have the groups finalized ASAP.  And thanks so much to the dozen students who have so quickly volunteered to participate in what should be a fun and inforative exercise.

As for what will follow, early next week (likely on Monday), each subcommittee will have about 10 minutes to present their proposed legislation.  Proposed statutes can/should be sent my way via e-mail for posting in this space before too late on Sunday.

In the meantime, every member of the Oliwood legislature can perhaps benefit from reviewing this short (and very informative) 2003 article published in the Ohio State Journal of Criminal Law authored by Professor Deborah W. Denno titled "Why the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and Replaced."

October 28, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Saturday, October 25, 2014

Intriguing Kansas Supreme Court ruling about (full and partial) defenses in high-profile murder case

Though not precisely on-point with topics we discussed concerning intentional homicides this past week, a ruling yesterday by the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kan. Oct. 24, 2014) (available here), provides an interesting and high-profile example of an appeals court upholding a trial court's decision to preclude an intentional killer from having various full and partial defenses presented to a jury at his trial.  Here are the first two paragraphs from the start of this notable Roeder ruling to perhaps whet your appettite for reviewing the full opinion (which convers some concerpts will will be exploring is some depth come November):

On May 31, 2009, Scott Roeder executed his years-old plan to kill Dr. George Tiller to prevent the Wichita, Kansas, doctor from performing any further abortions.  After fatally shooting the doctor from point blank range during church services while the doctor served as an usher, Roeder hastily fled the premises. During his getaway,  Roeder threatened to shoot two other ushers who had pursued him outside the church. Roeder did not deny committing the physical acts underlying a premeditated first-degree murder charge and two counts of aggravated assault, and the jury convicted him of those offenses.

On appeal, Roeder challenges both his convictions and his hard 50 life sentence. With respect to his convictions, Roeder raised numerous issues, some of which overlap, to-wit: (1) The district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; (2) the district court violated his due process right to present a defense of voluntary manslaughter based upon an imperfect defense of another; (3) the district court erroneously denied the defense motion for a change of venue; (4) the prosecutor committed reversible misconduct during closing argument; (5) the district court violated his due process right by excluding evidence to support a necessity defense and by failing to instruct on the necessity defense; (6) the district court erroneously denied his requested second-degree murder instruction; (7) the district court erroneously denied his requested defense-of-others instruction; and (8) the cumulative effect of trial errors denied him a fair trial.  Finding that Roeder was not denied a fair trial, we affirm his convictions.

October 25, 2014 in Notable real cases | Permalink | Comments (2) | TrackBack (0)

Friday, October 24, 2014

For our sex offense legislative drafting role play...

Would you rather have the exercise focused on:

1.  Drafting a new/improved rape provision for Oliwood/MPC to replace Section 213.1(1),


2.  Drafting a "most serious sex offense always requiring expulsion and prosecution" for a school campus behavior code?

Please indicate your preference in the comments.  Thanks.

October 24, 2014 in Course materials and schedule | Permalink | Comments (13) | TrackBack (0)

Sunday, October 19, 2014

Any lingering concerns or questions (other than grades) with respect to mid-term?

I just wanted to create this space for any enduring question on concerns regarding the mid-term exam.  For a host of reasons, process questions would be easier to answer than substance questions.  But I remain eager to continue the learning from an experience intended to be high-learning, low-stress (to the extent possible).  

I sincerely hope that, with the exam now in the rear-view mirror, everyone is now looking forward and gearing up for a lot of exciting homicide discussions over the next few weeks.  Though I love all parts of the course, I think the next 3-4 weeks are among the most dynamic, engaging and real-world exciting of the entire semester.

October 19, 2014 in Course materials and schedule, Preparing for the final | Permalink | Comments (5) | TrackBack (0)

Wednesday, October 8, 2014

Gearing up for homicide discussions strating with Joe Shooter role play

As I mentioned in class, next week we will begin our in-depth discussions of homicide laws and we get started with another role-play.  To get off to a running start, I will here posting the Joe Shooter facts along with an encouragement for folks to sign up (in the comments and/or via an e-mail) to play the role of either prosecutor or defense attorney on Joe Shooter's behalf next week in California (a common-law-influenced jurisdiction) or Kansas (an MPC-influenced jurisdiction) or Ohio (a little of everything).

This time around, we only really need one lawyer for each side (so 6 total voulneers, a single prosecutor and a single defense attorney for each state).  In addition to the usual offer of happy hour celebration, volunteers this time around can know that they will be rewarded for their efforts by being assured they do get called upon in class until (well) after the midterm.  In addition, as I said in class, I am confident that serving as a lawyer in this role play provides a really good pre-mid-term preparation experience.

So, review the Shooter facts and sign on up in the comments or via an e-mail to me.

Download 2014 Shooter facts

October 8, 2014 in Course materials and schedule | Permalink | Comments (1) | TrackBack (0)

Monday, October 6, 2014

Details of extreme ACCA federal felon-in-possession case, US v. Young

I mentioned in class the remarkable federal case of US v. Young, in which I filed an amicus brief on behalf of the defendant in support of his Eighth Amendment claim (and had the chance to participate in oral argument as well).  Roughly a month ago, a panel of the Sixth Circuit rejected the defendant's arguments on appeal in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here); the Sixth Circuit panel's per curiam ruling starts this way: 

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer.  He came into possession of the shells while helping a neighbor sell her late husband’s possessions.  When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition.  See 18 U.S.C. § 922(g)(1).  Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice.  Our precedent compels us to reject these claims and to affirm Young’s sentence.

There is now a pending petition for en banc review by the full Sixth Circuit, but I will be surprised if that gets grant.  Thereafter, the defendant is likely to appeal to the Supreme Court, and I will be eager to write another amicus brief in support of that appeal when the time comes (and would be eager for any and all student help at that time).   

A lot more information about this case can be found in my various posts about it on my main blog, which I have listed and linked below:

October 6, 2014 in Notable real cases | Permalink | Comments (2) | TrackBack (0)

Friday, October 3, 2014

I will be in our classroom today at 1:30 for optional discussion followed by happy hour...

The weather forecast has led the OSU golf event to be postponed, so I am now eager to hang out this afternoon in class and after with whomever wants to hang out with me.  I hope to see some of you.

October 3, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

For your review and enjoyment... my (too long) 2013 Crim Law mid-term

In an effort to make up for messing up in Monday's class, I will post now the mid-term exam I gave students in this class in Fall 2013.  I think the exam was way too long and probably too hard, but that is my (problematic) tendency with most of the exams I write.  So, with that warning:

Download Berman full mid-term for 2013 crim law


September 29, 2014 in Preparing for the final | Permalink | Comments (0) | TrackBack (0)

Clarifying my mistake(s) about Rhode Island laws

So today's class proved I should stick to focusing on Ohio and Oliwood (MPC) laws, because clearly I am out of my element when I suggest I know about Rhode Island law.  I wrongly asserted that Rhode Island had not changed its law since it was interpreted in Lima, but the text of the statute (and a little post class research) proved I was flat-out wrong. 

Here is the complete and correct story via a subsequent Rhode Island ruling, State v. Sivo, 925 A.2d 901 (R.I. 2007):

In Lima, the defendant was convicted of first-degree child abuse for lowering a small child into a bathtub of scalding water, causing him to suffer permanent disfigurement or disability....  Because the child abuse statute in place at the time was entirely devoid of words of intent, we adopted a standard similar to that set forth in the Model Penal Code (MPC), requiring that “[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.” Lima, 546 A.2d at 772 (quoting Model Penal Code, § 2.02(3) at 226 (A.L.I. 1985))....

In the years after Lima, the General Assembly enacted numerous amendments to the first-degree child abuse statute.  What is most significant to the instant litigation is that, in 1995, the General Assembly added words of intent, prescribing punishment only for those individuals who “knowingly or intentionally” inflict a serious bodily injury upon a child.  These statutory words of intent effectively superseded the MPC-inspired words of intent we adopted in Lima..... [O]ur concern in Lima was the possibility that the jury convicted the defendant without finding that she had acted with a mens rea.

Id. at 913-14.  My sincere apologies for messing this up so badly in class today, and thanks to you all (especially Jason) for making sure I now got this right.

September 29, 2014 in Class reflections | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

How about having the mid-term sometime on Friday, October 17?

I would be able/eager to offer the mid-term on either the morning or afternoon of October 17, and the class that day would have an extra focus on the exam (either as prep or as immediate review).

In addition to urging folks to weigh in on that particular date, if it sounds to you like a good date please also in the comments indicate whether you would prefer the exam to be in the morning or afternoon. 

September 25, 2014 in Course materials and schedule, Preparing for the final | Permalink | Comments (6) | TrackBack (0)

Friday, September 19, 2014

Handout #2 with mens rea exercises

With apologies for not having enough copies in class, I can now provide below for download an electronic copy of the mens rea handout that I passed around on Friday.

Download 2014 Handout #2

We will discus the exercises in this handout in class on Monday and Wednesday.

September 19, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 17, 2014

Statistical support for the need to use criminal law to reduce rain-related traffic accidents

Because I surmised too little support for my proposed driving-in-the-rain criminal liability statute, I thought it would be useful to highlight some key statistics drawn from this webpage of the U.S. Department of Transportation (with my emphasis added):  

On average, there are over 5,870,000 vehicle crashes each year.  Twenty-three percent (23%) of these crashes — nearly 1,312,000 — are weather-related.  Weather-related crashes are defined as those crashes that occur in adverse weather (i.e., rain, sleet, snow, fog, severe crosswinds, or blowing snow/sand/debris) or on slick pavement (i.e., wet pavement, snowy/slushy pavement, or icy pavement).  On average, 6,250 people are killed and over 480,000 people are injured in weather-related crashes each year.

The vast majority of most weather-related crashes happen on wet pavement and during rainfall: Seventy-four percent (74%) on wet pavement and forty-six percent (46%) during rainfall.  A much smaller percentage of weather-related crashes occur during winter conditions: Seventeen percent (17%) of during snow or sleet, twelve percent (12%) occur on icy pavement and fourteen percent (14%) of weather-related crashes take place on snowy or slushy pavement.  Only three percent (3%) happen in the presence of fog.

I realize that my proposed driving-in-the-rain criminal law will not prevent most weather-related crashes (just like I know that existing drunk driving and texting-while-driving criminal laws do not prevent lots of other crashes). But if this proposed new criminal law just reduced the number of weather-related crashes by even just 10%, it would likely save dozen of innocent lives and reduce by hundreds the number of Oliwood citizens injured on the roadways each year.

If you remain disinclined to support my proposed driving-in-the-rain criminal liability statute — which, to be clear, does not call for punishing people for driving in the rain, but only for crashing in the rain — I hope you will be able to explain in some detail why you do not share my interest in using the criminal law this way to help achieving an important public safety mission.

September 17, 2014 in Class reflections, Travel | Permalink | Comments (0) | TrackBack (0)

High-profile cases in which nuances of mens rea make all the difference

As we get back into action this week, we will be transitioning away from our relatively brief discussions of rare and unusual cases in which the act requirement (also called actus reus) is at issue.  We will move to relatively lengthy discussions of common and usual cases in which the act requirement is indisputably satisfied but criminal charges and guilt turn on an actor's mental state (also called culpability or mens rea).  

Examples of such cases are in the news every day, and sports fans should realize that the fate and future of two high-profile sports stars will turn on mens rea determinations.  There is, I believe, no dispute that NFL running back Adrian Peterson engaged in the act of whipping his son.  Likewise, there is no dispute that renown racecar driver Tony Stewart caused the death of another driver.  At issue in both cases for the applicability of the criminal law is these stars' mental states when committing these acts.

In order to test your developing legal research skills, I encourage everyone to try to find the applicable criminal statutes in Texas (for Peterson) and in New York (for Stewart) that set forth the mens rea that a prosecutor will need to prove for a criminal conviction in these cases.  (As an incentive, for the rest of September I will not call on whomever is first to identify and provide a link to the applicable state statutes in these high-profile cases.) 

September 17, 2014 | Permalink | Comments (3) | TrackBack (0)

Sunday, September 14, 2014

While I am away, on Monday go lunch event in Saxbe at 12noon

Especially since I know you have finished all your Crim Law reading for the coming week, you should make sure to go to this big event on Monday in Saxbe Auditorium (even if you have not registered!):

Fifty years after the Civil Rights Act of 1964 was signed into law, the topic of race relations remains at the forefront of our cultural conversation. From debates over affirmative action to the recent events that occurred in Ferguson, Missouri, it’s as crucial as ever to discuss what the Civil Rights Act meant in 1964 — and what it means today.

On September 15, from 12-1:30 p.m., a panel of experts will address the history, legacy, and future of the Civil Rights Act — including the challenges that lie ahead in achieving its promise of racial equality. Panelists include:

Martha Chamallas, Robert J. Lynn Chair in Law at Moritz. Chamallas is a leading scholar in employment discrimination law and legal issues affecting women.

Hasan Kwame Jeffries, an Associate Professor of History at Ohio State. Jeffries specializes in 20th century African American history and has an expertise in the Civil Rights and Black Power movements.

Molly J. Moran, Acting Assistant Attorney General, Civil Rights Division at the U.S. Department of Justice (invited). Moran is leading the U.S. Justice Department’s Civil Rights Division on an acting basis, and recently traveled to Ferguson, MO with Attorney General Eric Holder.

Carter Stewart, the U.S. Attorney in the Southern District of Ohio. Stewart was appointed U.S. Attorney for the Southern District of Ohio in 2009.

Lunch will be provided to those who register.  A reception will be held in Lou's Cafe following the event.

September 14, 2014 in Advice | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

An interesting real indictment in a sad high-profile (omission?) homicide case

Though probably not of central concern to our in-class discussions until we reach the homicide materials next month, I could not resist posting via this link here an indictment issued today in Georgia v. Justin Ross Harris, No. 143124 (Cobb Superior Court, Georgia).  This CNN report, headlined "Dad indicted on murder charges in son's hot car death," provides these details about this high-profile case:

Whether the prosecution will seek the death penalty in Justin Ross Harris hot-car death case will be decided in two to three weeks, Cobb County District Attorney Vic Reynolds said Thursday. Reynolds' statement came hours after the Georgia father was indicted by a grand jury on eight counts, including malice murder and two counts of felony murder.

"We're pleased with the pace and thoroughness of this investigation, which continues on today," Reynolds said. "The evidence in this case has led us to this point today. Whether it leads us to anyone else remains to be answered."

The next step will be to put Harris' case on Superior Court Judge Mary Staley's arraignment calendar, which should happen within three weeks, the prosecutor said. Motions will then be filed before the case goes to a trial calendar. Reynolds declined to take questions or comment further, saying, "This case will be tried in a court of law," and not in the media.

If Reynolds seeks the death penalty, it will be for the malice murder charge, which alleges that Harris, who has claimed his son's death was an accident, premeditated the child's killing....

The other five charges are: first-degree cruelty to children, second-degree cruelty to children, criminal attempt to commit a felony (sexual exploitation of a minor) and two counts of dissemination of harmful material to minors.

According to the indictment, the grand jury found that on June 18, Harris "did unlawfully, and with malice aforethought, cause the death of Cooper Harris ... by placing said Cooper Harris into a child car seat and leaving him alone in a hot motor vehicle."

The two felony murder charges allege that Harris killed his 22-month-old son while committing the felonies of first- and second-degree cruelty to children. One count states he killed Cooper "maliciously," while the other felony murder count says Harris killed him "with criminal negligence."

Harris faces a mandatory sentence of life in prison if convicted on any of the murder charges. By leaving Cooper in the car, Harris caused the boy "cruel and excessive physical pain," the cruelty to children charges allege.

The criminal attempt to commit a felony and dissemination of harmful materials charges are not related directly to Cooper's death. They involve allegations that Harris requested a nude photo of a minor's genitalia and sent the same minor descriptions of "sexual excitement and sexual conduct," according to the indictment.

A Cobb County detective testified at an earlier probable cause hearing that while Cooper was in the car at his father's workplace, Harris was sexting with numerous women and sent one of them, who was underage, a photo of his erect penis....

Harris pleaded not guilty to murder and child cruelty charges in June. Cobb County Chief Magistrate Frank Cox signed off on the charges, stating Harris would've had to notice that "the stench in the car was overwhelming" when he got in it as he left work and "drove it for some instance" before stopping to check on the boy. Charges filed in an indictment supersede the previous charges. Harris has been held without bond since Cooper's death this summer.

Authorities have painted Harris as a terrible father who, after admittedly looking up online how hot a car needed to be to kill a child, purposely strapped his son into his sweltering SUV to die. His motivation? The prosecutor has characterized Harris as an unfaithful husband who wanted a childless life.

[Harris' attorney, H. Maddox] Kilgore has argued his client tragically forgot his child in the car. Friends described Harris as a doting dad, not a malicious one, who loved to show off his blond, bright-eyed boy and talked about him incessantly.

September 4, 2014 in Notable real cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2014

Details/follow-up on some of the real cases discussed in class today...

via links from my Sentencing Law & Policy Blog:




I would be eager to discuss any of these sentencing issues with anyone at any time, via comments here or during happy hour or anywhere else we can find the time/place. 

September 3, 2014 in Notable real cases | Permalink | Comments (1) | TrackBack (0)

Monday, September 1, 2014

Women, opioids, and Ohio problems with (hidden?) punishment theory at issue

With luck, our class discussion last week of recent Supreme Court cases and AG Eric Holder's speeches provided everyone with perspectives on how punishment theories, both expressly and implicitly, play a role in constitutional jurisprudence and national criminal justice policy conversations.  This weekend, I noticed this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," which provides a more localize discussion of some recent criminal justice developments and concerns that implicate punishment theories in various ways.  

I encourage everyone to read the Blade editorial in full to see how, expressly and implicitly, one prominent paper is incorporating punishment theory into its call for reforms focused on a particular demographic.  Here is an excerpt from the editorial (which perhaps can stimulate some discussion of punishment theory or the fairness of a gendered call for reform in the comments):

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women.  From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854 ....  Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright.  Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade.  Altogether, Ohio’s 28 prisons hold more than 50,000 inmates.

In an interview with The Blade’s editorial page, a 28-year-old drug offender from Hardin County (population 32,000) said heroin and illicit prescription painkillers are easy to get in her rural community.  As with most other opioid addicts in Ohio, she started using prescription painkillers — in her case, Percocet.  She eventually graduated to heroin because of its lower cost and availability.   “The pills swept me off my feet,” she said at the Ohio Reformatory for Women. “It got to the point where I couldn’t even get out of bed without using a pill. I went straight from Percocet to heroin. Everyone was saying: ‘Why don’t you just do heroin? It’s so much cheaper.’”

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs.  To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court.  The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction.  Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

September 1, 2014 in Crime data, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Materials for sentencing role play ... and seeking voluteers to represent the state and the defendants

Below for downloading is a copy of the PreSentencing Report (PSRs) for Rachel Foster and Dan Schayes.  I will also bring a few hard-copy versions for distribution in class on Friday.  

Please use the comments to this post (or send me an e-mail) to volunteer to be prosecutors or defense attorneys in this (fun) exercise.  First-come, first-serve for volunteers for particular positions, and I will assign persons to these roles on

Also available below is a form all judges should use for sentencing Rachel Foster and Dan Schayes (everyone who is not serving as a lawyer in this role play gets to be a judge).  There is no need (or place) to put a name on the form, but I will collect them after our sentencing hearings in class on Wednesday, Sept 3. 

As you will see when you download the form, I wish to encourage judges to develop tentative ideas about what sentence before coming to class to hear the advocates' presentations.  By doing so, judges can get a better sense for whether and how advocacy can have an impact in this kind of setting.

Download 2014 Role Play PSRs

Download 2014 Sentencing Form

UPDATE:  As I mentioned in class on Friday, for purposes of our sentencing role-play exercise on Thursday, both the lawyers and judges of Oliwood should assume that the great state of Oliwood has adopted the first two subsections of US Code, Title 18, Section 3553(a) as a guide for sentencing advocacy and decision-making by Oliwood judges.   (In other words, lawyers and judges should focus on the substantive provisions of 3553(a)(1) and 3553(a)(2), but should not worry about all the subsequent sections of 3553(a).)

August 27, 2014 | Permalink | Comments (6) | TrackBack (0)

Monday, August 25, 2014

Interesting prior posts from prior years discussing theories of punishment

To proidve still more proof that a lot of interesting materials (and interesting student commentary) can be found by mining the archives of this blog, I have mined the archives to provide these links to posts from prior years discussing the theories of punishment we are (too) quickly reviewing this week:

From 2010:

From 2013:

I realize that I have now already provided two links to the same post asking if the US Constitution favors any particular theory of punishment, but that perhaps is a fitting way to help us getting a running start on our coming discussion of Graham v. Florida.  

August 25, 2014 in Class reflections | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2014

Welcome to the Moritz, Criminal Law with Berman, and version 5.0 of this class blog

As some of you may already know, I am a big fan of law blogs and I now make a pretty regular habit of use blogs to support and supplement my instruction in law school classes.  Sometimes class blogs serve my purposes and goals well; other times, not so much.  Undaunted, I remain convinced (but not entirely confident) that the blog technology (rather than a propriety law-school-support technology like TWEN) provides the best on-line tool for supporting and supplement law school courses.

I will continue my bloggy ways in the Fall 2014 semester at the Moritz College of Law through this blog to supplement our first-semester 1L small-section Crim Law course.  And, as the version 5.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course thrice before (in Fall 2008, Fall 2010 and Fall 2013) and when teaching a Comparative Criminal Procedure course (in Summer 2012).  

I am hopeful that some new 1Ls will benefit from (or at least find reassuring) seeing some of the posts (and comments) that were generated in this forum at other times.   Current users might focus especially on the archives from Aug-Dec 2008, Aug-Dec 2010 and Aug-Dec 2013 to see some of the "action" in this class from the last three times I taught it.  

So, welcome to the latest re-launch of this 1L Crim Law blogging adventure. I am always pleased when this blog helps to promote a distinct type of student engagement, and it also provides an effective means for me to share both required and optional materials and ideas.




P.S.:  To provide proof that mining the blog archives can be useful, here are some items from deep in this blog's archives you might already find interesting or useful.  For example, two prior posts and the student comments thereto (one from Aug 2008 and the other from Aug 2010) might be worthwhile as you gear up for our first week of class discussions:

In addition, in the archives from 2008, one can find these links to another of my favorite law blogs providing lots and lots of (old but still timely) advice for incoming 1Ls:













August 15, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

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.

March 14, 2014 in Advice | Permalink | Comments (0) | TrackBack (0)

Thursday, January 16, 2014

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:

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 hominen 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.

January 16, 2014 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 18, 2013

Congrats, Crim Law extra credit, and (paid) research break opportunities and topics

Kudos to putting the final exam of the first semester of law school in your rear-view mirror.  Now do whatever you can to forget about exams and enjoy the holiday season with family and friends.

If you have done some of the extra credit tasks (and/or hope to get one last one in), I have two pieces of advice: (1) make sure you send me any not-yet-submitted work ASAP and not later than 5pm on Dec 19, AND (2) before the end of the year, send me an e-mail "reminder" of how many EC documents you completed.  (I think I have good records on who submitted what, but it is valuable to confirm matters, especially if there is some chance a submission ended up in my spam filter.)

Last but not least, I think you are now officially permitted to do paid research for me from now until Jan. 8 when classes start again.  If you are interested in such an opportunity, here are a few tasks that I am eager to have explored over the next few weeks:

1.  Significant lower-court state or federal rulings in the last 3 years in which adult offenders sought a ruling that the Eighth Amendment precluded an extreme prison sentence.

2.  Detailed analysis/summary of the nature and background of the offenders and offenses that have resulted in the 3000+ LWOP sentences discussed in this recent ACLU report.

3.  Significant recent lower-court state or federal rulings in which non-prison sentences imposed on sex offenders were found unconstitutional or unlawful (which special attention to cases in which female sex offenders were bringing the legal challenge).

4.  Any and all lower-court state or federal rulings in which a court justified a lesser or reduced prison sentence at least in part based on the imposition of a significant fine or economic sentence.

If any of these topics interest you, please (a) send me an e-mail indicating your interest in doing research on this topic, and (b) figure out what you need to do to get on my "research payroll," which involves filling out a form with the right person(s) in the Deans' suite of offices.

December 18, 2013 in Starting a career as a lawyer | Permalink | Comments (1) | TrackBack (0)

Friday, December 13, 2013

Relaxation, celebration and reasons to feel lucky Berman Crim Law 2013 is over

If memory serves, I believe 1Ls finish up their second exam today, and I want to encourage everyone to take a deep breath after the exam and enjoy a well-deserved afternoon of relaxation.  No matter how much you feel you need to do to study for your final exam next week, taking at least a few well-earned hours off to recharge your batteries is always a wise and sensible exam-time strategy.

I will be in my office at Moritz after about 3pm this afternoon, and I would be happy and eager to celebrate (and toast) your achievements so far.  In fact, because I have lots of (non-pressing) work to do, I could be readily lured away from my office to cover a round of celebratory drinks just about anytime late Friday afternoon.

Last but not least, and to have a little fun with a Daft Punk lyric, even if you have been up all night 'til the sun, and up all night to study some, you should feel you've gotten lucky that my exam is already over.  That is because, if my exam was still on tap, I would have a really hard time resisting adding a question concerning some of the amazing real-world crim law stories from this week covered on my other blog in these posts:

Especially because I hear some students are eager to pursue the idea of a Cordle-inspired e-book, the first story linked above provides a sad and useful reminder that issues relating to the the appropriate prosecution and punishment for deadly drunk drivers are sure to be timely for many years to come.

December 13, 2013 in Class reflections, Course materials and schedule, Preparing for the final | Permalink | Comments (0) | TrackBack (0)