Powered by TypePad

« December 2014 | Main | September 2016 »

August 29, 2016

Two "extra credit" answers noting provisions of Ohio law similar to the law struck down in Proctor

I am pleased to be able to report that two students have already sent me answer to my in-class question about Ohio criminal statutes structured very similarly to the statute deemed unconstitutional in Proctor:

  1. Ohio Revised Code Section 2923.241 Hidden compartments in vehicles, Sub-section (B): “No person shall knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance.”  (Added student note: This all works on the theory that modifying your car to have a “hidden compartment” and possessing a “hidden compartment” are the same thing. But with my neophyte knowledge of the law and common reasoning I would say they probably are.)

  2. Ohio Revised Code Section 2923.24 Possessing criminal tools, Sub-section (A): “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“

I was thinking/referencing the Ohio possessing criminal tools statute in class, but I am pleased a student also flagged the Ohio hidden compartment crime (which, if you look at the code sections, is really numbered as a kind of subsection/extrapolation on possessing criminal tools).

A few years ago, the Ohio Supreme Court issued a lengthy split opinion in Ohio v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991 (December 15, 2010), on the meaning/reach of the term "criminally" in the Ohio possessing criminal tools statute.  (But, for lots of reasons, I think your time this week would likely be better spent re-reading Jones and Martin (or watching Dave Chappelle bits on YouTube) than reading Ohio v. Chappell.)

UPDATE: Another student just sent me another possible addition to the list of Proctor-like laws in Ohio:

Ohio Revised Code Section 2925.041 Sub-section (A):  "No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code."  (Added student note:  Thus, this statute is making it illegal to possess a chemical that otherwise would be legal to possess when the possession is coupled with the intent to use the chemical in the making of a controlled substance. This appears to be a nearly identical situation as was presented in Proctor. Then, right before prohibition when alcohol was viewed as extremely problematic, this coupling line of reason was used to aid the prevention of speakeasies. Today, ORC 2925.041 is using the coupling line of reason is being used to aid in the prevention of the manufacturing of what we consider problematic, drugs. Let me know if this was the answer you were looking for.)

August 29, 2016 in Class reflections, Course materials and schedule, Notable real cases, Reflections on class readings | Permalink | Comments (1)

August 28, 2016

Some background on drug dealers being criminally responsible for causing overdose deaths (and its possible theoretical justification)

Friday's in-class discussion and debate over the sentecing of (very fictional) Oliwood drug dealer Dan Schayes raised the interesting and controversial (very real) issue of whether persons involved in drug dealing can and should be held criminally liable for the death of a customer.  As the prosecution in the Schayes case noted, federal criminal law already speaks to this issue through a provision in 21 U.S.C. §841(b)(1)(C): it states that a convicted drug dealer involved with serious drug substances generally  "shall be sentenced to a term of imprisonment of not more than 20 years," but that such a drug dealer, "if death or serious bodily injury results from the use of such substance, shall be sentenced to a term of imprisonment of not less than twenty years or more than life."

Toward the end of September, we will looking at the basic substantive criminal law rules that generally apply for determining when and how a defendant can be held responsible for causing a result, and a few years ago this issue in federal law dealing with overdose deaths made it all the way up the US Supreme Court in the case of Burrage v. United States.  I would urge you all NOT to read the Burrage case closely (or at all) at least until we get to our causation discussions in class (though, at that time, you will be able to earn more extra credit for engaging with the Burrage SCOTUS ruling).

On the topic of earning credit, I am now pretty sure I have figured out how to get the comment section of this blog open, and that means every class member can earn some credit ASAP by using the comments here to share thoughts on what theory or theories of punishment might support holding drug dealers criminally liable for the deaths of their customers.  Notably, just a few weeks ago this lengthy and interesting AP article, headlined "Prosecution trend: After fatal OD, dealer charged with death," discussed this kind of criminal action as a growing trend.  And I stirred up some interesting commentary on the trend with this post about that AP article on my main blog titled "Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?"

August 28, 2016 in Class reflections, Current Affairs, Notable real cases | Permalink | Comments (11)

August 24, 2016

Lawyers signed up for Friday afternoon's role-play

I am so please to have already heard from many of you as volunteers for our sentencing role-play planned for Friday afternoon.  Here is the current run-down:

Oliwood v. Rachel Foster

Prosecutors:  Emily Cashell & Sophie Daroff

Defense Attorneys: Ali Najaf & Alex Szaruga

 

Oliwood v. Dan Schayes

Prosecutors: Miki Someya & Kaiqin Huang

Defense Attorneys: Joe Barton & Matt Brinzo

For these lawyers, it is useful to try to be a bit cued into your respective roles: Prosecutors do not represent any individual party, but the state as a whole, and they thus tend to embrace the obligation to argue for whatever sentence they believe will be just and effective as a punishment. Defense attorneys, in contrast, have an individual client, and their role is typically understood to require them to seek and advocate for the most lenient/defendant-friendly sentence as seems possible under the circumstances.

The rest of you, as I mentioned in class, get to serve as sentencing judges.  Available below is a form all judges should use for sentencing.  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 Friday.   As you will see when you download the form, judges are encouraged to develop tentative ideas about what sentence they might impose before coming to class to hear the advocates' presentations.   By doing so, you all can get a better sense for whether and how advocacy can have an impact in this kind of setting.

Download 2016 judges sentencing form 

August 24, 2016 in Course materials and schedule | Permalink | Comments (0)

August 23, 2016

Electronic copies of Handout #1 and materials for Friday afternoon's sentencing role-play

Available below for downloading are:

(1) Handout #1 (Excerpts of Remarks by President Obama at the July 2015 NAACP Conference), and

(2) Materials for our Friday afternoon sentencing role play (PreSentencing Reports (PSRs) for Rachel Foster and Dan Schayes). 

These materials will also be available in hard-copy in class on Wednesday.  In the meantime, think hard about whether you would like to volunteer to serve as a prosecutor or defense attorney in our afternoon role play (earning a free drink and immunity from being called upon in class for most of September).  As will be explained in class on Wednesday, those not serving in a lawyer-advocacy role will serve as judges in the role play.

As I will explain in class, for purposes of our sentencing role-play exercise, 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 sentencing 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 the subsequent sections of 3553(a).)

Download Prez NAACP speech

Download 2016-role-play-psrs

August 23, 2016 in Course materials and schedule | Permalink | Comments (0)

August 18, 2016

First day assignment and electronic copies of the course description and class syllabus

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

In preparation for our first class on Monday, August 22, you should:

1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (7th ed. 2012)

2. Obtain a copy of the course description and the course syllabus (part 1), which are available in boxes outside my office (Room 313) and below.

3.  Read the casebook's Introduction quickly and pages 21-27, 31-34, and 573-79 closely. Because the next set of readings provide theoretical background, can be read quickly, and should enhance your appreciation of our initial discussions, I encourage you also to SKIM pages 34‑77 in the text as soon as possible.

Download 2016 Course description

Download 2016 Criminal Law Syllabus (Part 1)

 

August 18, 2016 in Course materials and schedule | Permalink | Comments (0)

August 10, 2016

Welcome to the Moritz College of Law, Criminal Law with Berman, and version 6.0 of this class blog

As some of you may already know, I am a big fan of law blogs and I make a regular habit of using 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 2016 semester at the Moritz College of Law through this blog to supplement our first-semester 1L small-section Criminal Law course.  And, as the version 6.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course four times before (in Fall 2008, 2010, 2013 and 2014) 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 2013 and Aug-Dec 2014 to see some of the "action" in this class from the last two 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 will certainly provides the means for me to share required and optional materials and ideas.

WELCOME! 

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 10, 2016 in About this blog | Permalink | Comments (0)