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August 31, 2018

Examples of litigation involving Ohio Revised Code Section 2923.24

I noted in class the Ohio criminal statute structured similarly to the statute deemed unconstitutional in Proctor, Ohio Revised Code Section 2923.24 Possessing criminal tools: “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“

A few students asked about when this statute might be used, so I figured I might link to some litigation concerning this statutory provision:

Ohio v. Chappell, 127 Ohio St. 3d 376, 2010-Ohio-5991 (Ohio 2010).

Ohio v. Hicks, 186 Ohio App. 3d 528, 2009-Ohio-5302 (Ohio 2d App. Dist. 2009).

Ohio v. McDonald, 31 Ohio St. 3d 47 (Ohio 1987).

Though these cases all make for interesting reads, for lots of reasons, I think your time this weekend would likely be better much spent re-reading Jones and the voluntariness cases (or, better yet, watching football or being with family and friends).

August 31, 2018 in Class reflections, Notable real cases | Permalink | Comments (0)

August 29, 2018

Hot topics from another blog ... and a research question

Though only this blog is required reading for this course, my other blogs, Sentencing Law & Policy and Marijuana Law, Policy & Reform, may often have posts of interest to you that may relate in various ways to topics we have covered in class.  For example, the Eighth Amendment Supreme Court cases we discussed briefly in class last week have led to lots of litigation in lower state and federal courts, and here are a few recent posts reporting on some of that litigation:

And a topic we will be discussing further on Friday, namely the criminal law's refusal to allow criminalizing bad thought alone, is explored in a recent law review article blogged here:

Please know you are NOT required or expected or even encouraged to read all the material linked here or at any of my blogs.  Rather, as I discussed in class, I am just ever eager to showcase how much is available to research, read and consider on all the topics we will encounter in our review of the basics of substantive criminal law.  Let your interests and energy determine whether to check out any of these materials.

Speaking of having interest or energy to research matters discussed in class, I have an (entirely optional) research challenge based somewhat on our on-going discussion of the Proctor case.  As we will discuss on Friday, the ruling in Proctor is somewhat unusual in that courts are often willing to uphold and apply statutes that criminalize seemingly "innocent" acts coupled with nefarious intent.  In fact, there are more than a few Ohio criminal statutes structured similarly to the statute deemed unconstitutional in Proctor.  I will showcase one of these Ohio criminal statutes in class on Friday as we wrap up our discussion of Proctor, but perhaps folks can do their own research to find Ohio examples and provide a cite in the comments.

August 29, 2018 in Course materials and schedule, Notable real cases | Permalink | Comments (1)

August 27, 2018

Great performances by sentencing role-play volunteers to wrap theory ... and now on to doctrine starting with actus reus

I trust all the judges enjoyed the sentencing presentations from counsel as much as I did, and I hope our (too) short discussion of classic punishment theories whet your appetite for taking a sentencing course in the years to come.  After I wrap this unit with a few final thoughts on Wednesday, we will be on to the doctrines of basic substantive criminal law starting with the "act requirement." 

Because I so love the Proctor and Jones cases, I doubt we will get much past these cases on Wednesday.  But you should expect us to get to the voluntariness materials before the the end of the week.  You also should be sure to notice the first (of many) references to the MPC and the ORC in the list of assigned readings.  The MPC sections are to be found in Appendix B of our text, and I will be handing out key sections of the ORC in class.  (It might be a good legal research exercise to see how many different ways you can find key sections of the ORC on your own.  Here is a hint on one way: Ohio Revised Code, Title 29.)

August 27, 2018 in Course materials and schedule | Permalink | Comments (1)

August 22, 2018

Many, many thanks for (too) many, many sentencing role-play volunteers

I was so pleased to get back to my desk and already hear from so many of you about your interest in volunteering for our sentencing role-play planned for Monday afternoon.  As I mentioned, I tried to fill spots in a first-come, first-serve way, and I am sincerely sorry we had more volunteers than slots.   Here is who have been plugged into these coveted early lawyering slots based on the emails I received:

 

Oliwood v. Rachel Foster

Prosecutors: Angad Chopra & Alex Maxwell

Defense AttorneysCaitlin Langfitt & Helen Sudhoff

 

Oliwood v. Dan Schayes

Prosecutors: Cole Hassey & Evan Lewis

Defense Attorneys: Anders Miller & Silvia Francis-Bongue

 

UPDATE Below is an electronic copy of the sentencing form I handed out in class on Friday.  And remembers that for our exercise we will be using the first two subsections of  US Code, Title 18, Section 3553(a) ("Factors To Be Considered in Imposing a Sentence") as a guide for our judges and counsel.

Download 2018-judges-sentencing-form

August 22, 2018 in Course materials and schedule, Starting a career as a lawyer | Permalink | Comments (0)

What theories of punishment will be (and should be) paramount in the upcoming sentencings for Michael Cohen and Paul Manafort?

We have not yet even had our second class and there are real-world developments that we can and should work into our discussions.  Specifically, as you likely heard, Michael Cohen pleaded guilty to multiple federal felonies in New York yesterday (a few details here), and Paul Manafort was found guilty by a jury of multiple federal felonies in DC yesterday (a few details here).  Though a white-collar crime course is needed to understand the ins and outs of their prosecution, your readings this week should already given you an ability to understand and critically assess the federal sentencing law's reference to classic theories of punishment.

Specifically, US Code, Title 18, Section 3553(a) sets forth a detailed list of "Factors To Be Considered in Imposing a Sentence" for federal judges, and in class we may talk about about the different punishment theories referenced in various ways in subsection (a)(2) of 18 USC 3553.  I do expect to talk in class about how you think these factors ought to be applied to Cohen and Manafort, but I would welcome commentary on this question in the comments to this post or on my main blog.

August 22, 2018 in Notable real cases | Permalink | Comments (0)

August 20, 2018

Do constitutional limits on punishment reflect the embrace of one theory of punishment or the rejection of another or ... ?

The poorly articulated question in the title of this post stems from my effort to connect our coming exploration of (A) the US Supreme Court's modern Eighth Amendment jurisprudence and (B) a ballot initiative (Issue 1) aiming to amend the Ohio Constitution this fall, the 2018 Ohio Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment

Though I am happy to talk about any and all Eighth Amendment cases decided by the Supreme Court, I will want to give particular attention to the concepts of proportionality as they relate to theories of punishment as articulated by the Supreme Court in cases like Graham v. Florida and Ewing v. California.   (If anyone wants more detail concerning how Terrance Jamar Graham received a life without parole sentence, I recommend reading this unedited version of the start of Justice Anthony Kennedy's opinion in Graham.  I always find interesting how the sentencing judge justified his LWOP decision.)

At the federal level it is very hard to amend the Constitution (which is one reason we fight so much about SCOTUS appointments).  But constitutional amendments are much more common at the state level.  This fall, voters in Ohio are being asked to approve a propose Ohio  constitutional amendment that would impact drug sentencing and prison time in various ways and which includes this notable limitation on punishment:

With respect to state laws that make possessing, obtaining, or using a drug or drug paraphernalia a criminal offense, in no case shall any offense be classified higher than a misdemeanor.  The misdemeanor classification may be a general classification or a special classification for the offense.  The sanctions authorized may not exceed those of a first-degree misdemeanor, and, for an individual’s first or second conviction within a twenty-four month period, the sanctions shall not exceed probation.  If an individual has more than two convictions within a twenty-four month period, then sanctions may include jail time or probation in lieu of jail time.

When a limit is placed on available punishments, do you think this usually reflects the embrace or the rejection of a particular theory of punishment?  More generally, do you think there are political and social issues influencing constitutional jurisprudence and ballot initiatives that are entirely distinct from classic theories of punishment?

August 20, 2018 in Course materials and schedule, Current Affairs | Permalink | Comments (0)

Do constitutional limits on punishment reflect the embrace of one theory of punishment or the rejection of another or ... ?

The poorly articulated question in the title of this post stems from my effort to connect our coming exploration of (A) the US Supreme Court's modern Eighth Amendment jurisprudence and (B) a ballot initiative (Issue 1) aiming to amend the Ohio Constitution this fall, the 2018 Ohio Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment

Though I am happy to talk about any and all Eighth Amendment cases decided by the Supreme Court, I will want to give particular attention to the concepts of proportionality as they relate to theories of punishment as articulated by the Supreme Court in cases like Graham v. Florida and Ewing v. California.   (If anyone wants more detail concerning how Terrance Jamar Graham received a life without parole sentence, I recommend reading this unedited version of the start of Justice Anthony Kennedy's opinion in Graham.  I always find interesting how the sentencing judge justified his LWOP decision.)

At the federal level it is very hard to amend the Constitution (which is one reason we fight so much about SCOTUS appointments).  But constitutional amendments are much more common at the state level.  This fall, voters in Ohio are being asked to approve a propose Ohio  constitutional amendment that would impact drug sentencing and prison time in various ways and which includes this notable limitation on punishment:

With respect to state laws that make possessing, obtaining, or using a drug or drug paraphernalia a criminal offense, in no case shall any offense be classified higher than a misdemeanor.  The misdemeanor classification may be a general classification or a special classification for the offense.  The sanctions authorized may not exceed those of a first-degree misdemeanor, and, for an individual’s first or second conviction within a twenty-four month period, the sanctions shall not exceed probation.  If an individual has more than two convictions within a twenty-four month period, then sanctions may include jail time or probation in lieu of jail time.

When a limit is placed on available punishments, do you think this usually reflect the embrace or the rejection of a particular theory of punishment?

August 20, 2018 in Course materials and schedule, Current Affairs | Permalink | Comments (0)

August 16, 2018

First assignments and electronic copies of the course description and class syllabus

I am here posting electronic copies of the basic course documents and our assignment for the first week of class.

In preparation for our first class on Monday, August 20, 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 are available in front of my office (Room 313) and on the course website (linked below).

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.

Download 2018 syllabus

Download 2018 Course description

August 16, 2018 in Course materials and schedule | Permalink | Comments (0)

August 15, 2018

Welcome to the Moritz College of Law, Criminal Law with Professor Douglas Berman, and version 8.0 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. I find that blog technology (rather than a propriety law-school-support technology like TWEN) provides a useful on-line tool for supporting and supplementing my courses.

I will continue my bloggy ways in the Fall 2018 semester at the Moritz College of Law through this blog to supplement our first-semester 1L Criminal Law course. As the "version 8.0" 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 six times before (in Fall 2008, 2010, 2013, 2014, 2016 and 2017) 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 provide the means for me to share required and optional materials and ideas.

WELCOME!

 

 

 

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August 15, 2018 in About this blog | Permalink | Comments (0)