August 24, 2017
Applicable law for Monday's sentencing role-play
A few folks have wisely inquired about the applicable sentencing law that the lawyers and judges ought to be considering as they approach the sentencing of Rachel Foster and Dan Schayes. If these hypothetical cases were moving forward in the hypothetical world of Oliwood, which is a Model Penal Code jurisdiction, then MPC § 1.02(2) could be used as the guiding sentencing law. (MPC § 1.02(2) appears at p. 1129 of our text.)
But given that Ms. Foster and Mr. Schayes have both committed crimes that could be federally prosecuted, and especially because Attorney General Jeff Sessions has talked about having the federal government prosecute more gun and drug cases, I like imagining these cases being subject to federal sentencing laws this year. US Code, Title 18, Section 3553(a) sets forth a detailed list of "Factors To Be Considered in Imposing a Sentence," and the first two major subsections can and should serve as a guide for sentencing advocacy and decision-making by the lawyers and judges in our role-play. (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).)
Last but not least, Ohio law has its own unique statute expressly setting forth the purposes of felony sentencing in the Buckeye State. Students can earn Berman brownie points by (1) citing in the comments the Ohio Revised Code section setting forth these purposes, and (2) discussing whether they think Ohio is more concerned with utilitarian or retributivist goals at sentencing.
August 21, 2017
Lawyers signed up for Monday afternoon's role-play
I am so pleased to have already heard from many of you to volunteer for our sentencing role-play planned for Monday afternoon. As of 3pm on Monday, I have already received requests for all the spots save for defending Dan Schayes.
UPDATE late Monday: A couple more afternoon volunteers have finalized our roster (and thanks to the extra volunteers).
Here is the full lawyering role-play run-down:
Oliwood v. Rachel Foster
Prosecutors: Conor Strait & Marcellus Mosley
Defense Attorneys: Margaret Huck & Matthew Crawford
Oliwood v. Dan Schayes
Prosecutors: Graeme Sua & Zach Marcum
Defense Attorneys: Sam Lioi & Jacob Becker
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. Below you can download a form to be used for the 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. 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, folks can get a better sense for whether and how advocacy can have an impact in this kind of setting.
In addition to the sentencing form, I am also providing here an electronic copy of the "presentence reports" handed out in class.
I will discuss the role-play a bit more during Friday's class and be available to answer any questions about what should be a fun and low-stress experience.
August 14, 2017
First assignments 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 21, you should:
1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (8th ed. 2017)
2. Obtain a copy of the course description and the course syllabus, which will be made available in front of my office (Room 313) and here the course website.
3. Read the casebook's Introduction quickly and pages 21-27, 31-34, and 605-11 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 the readings from pages 34‑76 in the text as soon as possible.
Welcome to the Moritz College of Law, Criminal Law with Professor Douglas Berman, and version 7.0 of this class blog
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 blog technology (rather than a propriety law-school-support technology like TWEN) provides for me a useful on-line tool for supporting and supplementing my courses.
I will continue my bloggy ways in the Fall 2017 semester at the Moritz College of Law through this blog to supplement our first-semester 1L Criminal Law course. As the "version 7.0" label in the title of this post highlights, I have built this "new" blog directly atop the blog I have used when teaching this very same course five times before (in Fall 2008, 2010, 2013, 2014 and 2016) and when teaching a Comparative Criminal Procedure course (in Summer 2012 as part of our great Oxford summer program). I am hopeful that some of you new 1Ls will benefit from (or at least find reassuring) seeing some of the posts and comments that were generated in this space in years gone by via these archives.
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.
P.S.: As proof that mining the blog archives can be useful, let me provide some "deep cuts" you might already find interesting or useful. Here are 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:
- Any pre-class thoughts on Dudley and Stephens?
- Does the text or spirit of the US Constitution favor any particular theory of punishment?
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: