Sunday, February 18, 2018

Unearthing federal sentencing realities under federal defendants now before SCOTUS

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. In a series of posts, I will be providing a series of suggestions about possible federal defendants you might consider examining for mini-paper #3.

In this post, for example, I thought it worth highlighting federal defendants whose cases are currently before the Supreme Court.  Sentencing issues are the focal point for SCOTUS in some of these cases, but other matters concern SCOTUS for the first five cases listed below.  Below I have provided links to SCOTUSblog materials on cases involving federal criminal defendants now pending before the Justices, along with the sentences the defendants received according to the briefs of the US Solicitor General:

Class v. United States ("sentenced to 24 days of imprisonment, to be followed by 12 months of supervised release")

Carpenter v. United States ("sentenced ... to 1395 months in prison")

Marinello v. United States ("sentenced ... to 36 months of imprisonment, to be followed by one year of supervised release")

Byrd v. United States ("sentenced to 120 months of imprisonment, to be followed by three years of supervised release")

Dahda v. United States ("sentenced to 189 months of imprisonment, to be followed by ten years of supervised release")

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Lagos v. United States ("sentenced petitioner to 97 months of imprisonment, to be followed by three years of supervised release, and ordered $15,970,517 in restitution")

Rosales-Mireles v. United States ("sentenced ... to 78 months of imprisonment, to be followed by three years of supervised release")

Hughes v. United States ("sentenced to 180 months of imprisonment, to be followed by five years of supervised release")

Koons v. United States ("sentenced ... to 180 months in prison, to be followed by ten years of supervised release")

Chavez-Meza v. United States ("sentenced to 135 months of imprisonment, to be followed by five years of supervised release")

February 18, 2018 in Class activities, Guideline sentencing systems, Supreme Court rulings | Permalink | Comments (0)

Thursday, February 15, 2018

A county-specific look at the death penalty in Ohio ... and wondering if anyone is taking a country-specific look at LWOP

I just noticed this lengthy new article from the Cincinnati Enquirer headlined "Why is a murder trial here so much more likely to end with a death sentence?".  I recommend the piece in full, and here is some of the "who" coverage:  

Hamilton County has sent more people to death row and is responsible for more executions than any county in Ohio since capital punishment returned to the state in 1981. The county has a larger death row population per capita than the home counties of Los Angeles, Miami or San Diego. And it has more people on death row than all but 21 of the more than 3,000 counties in the United States....

“There’s no question Hamilton County is and definitely was a conservative county,” said Andrew Welsh-Huggins, the author of “No Winners Here Tonight,” a book about capital punishment in Ohio. “A conservative county is going to elect conservative prosecutors, and they’re going to take their cues from that,” he said....

No politician in town is more closely identified with the death penalty than Joe Deters, the latest in a long line of Hamilton County prosecutors who have regularly sought capital murder charges.

Deters said he tries to answer the same questions before every murder trial: Is the accused eligible for the death penalty under Ohio law? Does he have the evidence to remove all doubt of innocence? Was the offense so terrible the defendant deserves to die?

If the answer is yes on all counts, he seeks a death sentence. Not because he relishes the thought of an execution, Deters said, but because that’s what the law dictates. “People in really bad cases want the death penalty,” he said. “There are certain cases that are so hideous they are just evil.”...

Victims’ relatives often feel [killers deserve to die], but it’s up to the prosecutor to decide how aggressively to pursue the ultimate punishment. Deters said he has, in some cases, sought the death penalty even when relatives asked him not to, because the law and the facts of the case demanded it.

Robert Dunham, executive director of the Death Penalty Information Center, said the approach of local prosecutors is the single biggest factor in whether a convicted killer ends up on death row. In some places, he said, “the death penalty appears to be part of the culture.”

An Enquirer analysis of data from Dunham’s group found Hamilton County's death row population ranks 22nd out of the 647 counties nationwide that have at least one person on death row. Among U.S. counties with 20 or more inmates on death row, Hamilton County ranks seventh per capita.

What’s happened here over the years is part of a broader trend that has seen death penalty cases become highly concentrated. Less than 1 percent of U.S. counties now account for 40 percent of all death row inmates.

One reason for that disparity is the growing number of states, now 19, that have banned the death penalty. Another is the uneven application of death penalty laws by the prosecutors elected to enforce them. A county with a strong death penalty proponent, such as Deters, might send killers like Tibbetts or Van Hook to death row, while a prosecutor in another county might be content to seek life without parole, or less.

Franklin County, about 100 miles to the north, has a larger population and more homicides than Hamilton County, but less than half as many inmates on death row with 11. Cuyahoga County, also more populous and more violent than Hamilton County, has 21 death row inmates. “The law is prosecuted differently depending on who is the elected prosecutor,” said Welsh-Huggins. “Your chances of going to death row depend on where you committed the crime.”

Geography will continue to matter for years to come in death penalty cases, and not just close to home in Ohio. Death rows in Texas and the Deep South remain crowded places, while those in the Northeast are smaller or nonexistent....

Hamilton County has seen a decline in death sentences, too, as jurors increasingly recommend sentences of life without parole instead of death. The option, which eliminates the risk of a killer one day walking free, has fundamentally changed the calculus of capital trials. "That has impacted death sentences across the country," said Abe Bonowitz, spokesman for Ohioans to Stop Executions. "If you can guarantee the guy is never getting out, why do you have to kill him?"

Sometimes, though, juries and judges still find a reason. Ohio's life without parole law didn't exist when Van Hook was convicted in 1985, but it was on the books when Tibbetts went on trial in 1998. His Hamilton County jury recommended the death penalty anyway.

Deters said that’s fine with him. He said he can't worry about what other prosecutors do or whether Hamilton County is sending more people to death row than other counties. He said the solution for those who do worry about it is simple. “If people don’t want the death penalty, I don’t care,” Deters said. “Pass a law and get rid of it.”

For a lot more information about executions by county, here is a lot of information from the Death Penalty Information Center.  And for a big report on death sentences by counties, here are Part I and Part II of a big recent report titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties.  

As the title of this post highlights, in addition to encouraging you to think about all this county-by-county examination and analysis of the death penalty, I am interested in whether you can help me find any county-by-county analysis of LWOP sentences.   The "Too Broken to Fix" report notes than "in 2015, juries only returned 49 death sentences" and that only 33 counties of 3,143 counties in the US imposed the sentence. Can anyone help me find any estimate of how many total LWOP sentences were imposed in 2015 (or any other calendar year)?  Can anyone help me find any county-by-county accounting of LWOP sentence in Ohio or anywhere else?

February 15, 2018 in Data on sentencing, Death penalty history, Scope of imprisonment, Sentencing data | Permalink | Comments (0)

Monday, February 12, 2018

Reviewing categorical limits on death penalty created by US Supreme Court

Here is a list of (and links to) rulings by the Supreme Court declaring (or suggesting in the case of Tison v. Arizona) that the Eighth Amendment places substantive categorical limits on the application of the death penalty.  Can you see a common thread or theme to these rulings?

 

Crime:

Rape: Coker v. Georgia, 433 U.S. 584 (1977)

Rape of Children: Kennedy v. Louisiana 554 U.S. 407 (2008)

Lesser Murders: Tison v. Arizona, 481 U.S. 137 (1987)

 

Criminal:

Insane: Ford v. Wainwright, 477 U.S. 399 (1986)

JuvenilesThompson v. Oklahoma, 487 U. S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)

Intellectually Disabled: Atkins v. Virginia, 536 U.S. 304 (2002)

 

If you can identify a theme to these rulings, and there additional categorical limits that should be set forth by the Supreme Court?  Suggestions have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for categorical restrictions on the death penalty.

Also, as we will discuss when wrapping up the death penalty, if the Eighth Amendment places categorical limits on death sentences, should it also place some categorical limits on other extreme sentences like life without parole?  How about life with parole? 

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And if you want to spend a lot more time reflecting on race and the death penalty, McClesky and its aftermath, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a symposium focused on "McClesky at 25."  Here are links to all the articles in the symposium:

February 12, 2018 in Death penalty history, Who decides | Permalink | Comments (0)

Westerville police shooting creates not only Ohio capital punishment case, but also interesting potential federal sentencing case

We discussed in class today some of the dynamics sure to surround a possible capital prosecution of Quentin Smith, the suspect charged with killing two Westerville police officers over the weekend.  Against that backdrop, I found notable this new local article headlined "The death penalty: Is it cheaper? Why does it take so long from sentencing to execution?". Here are some other questions this article poses (click through to see the answers given):

Q: What does a death penalty indictment mean?

Q: Will the court process be different in a death penalty case?

Q: A death sentence means the case will be cheaper because the defendant dies, right?

Q: How long after a death sentence being imposed will a person be executed?

Q: Does the jury or the judge decide if a person gets a death sentence?

Also notable, and likely to become a topic for discussion later in our class, is news of a federal prosecution resulting from this shooting.  This Columbus Dispatch article, headlined "Northeast Ohio man charged with buying gun used to kill Westerville officers," provides these basics:

A Cleveland-area man was scheduled to make his initial appearance in federal court in Columbus Monday, charged with providing a Glock semi-automatic handgun to the convicted felon accused of killing two Westerville police officers over the weekend.

Gerald A. Lawson III, 30, of Warrensville Heights, was taken into custody by federal agents just before noon at his home and faces up to 10 years in prison if convicted, according to a release from the U.S. attorney for the Southern District of Ohio.  Lawson was to appear before U.S. Magistrate Judge Kimberly A. Jolson Monday afternoon in Columbus.

His arrest came two days after Quentin L. Smith allegedly killed veteran Westerville officers Anthony Morelli and Eric Joering, who were responding to a 911 hangup call from a Cross Wind Drive residence. A criminal complaint says Smith retrieved a handgun after officers entered the residence and shot both. Joering died at the scene; Morelli died a short time later at Ohio State University’s Wexner Medical Center....

Investigators say Smith provided money and an extra $100 payment to Lawson to purchase the firearm and that Lawson knew that Smith was a convicted felon. A trace determined the gun was bought in Broadview Heights, a Cleveland suburb.

The two are longtime friends, with several photos of the two together posted online on one of Lawson’s social media accounts, according to a release.

At the risk of asking you to pre-judge the matter, I encourage you to think about what kind of punishment you might be inclined to impose upon Gerald A. Lawson III for illegally acquiring a gun for his friend that his friend used to kill two police officers.

February 12, 2018 in Class activities, Ohio news and commentary, Recent news and developments | Permalink | Comments (0)

Thursday, February 8, 2018

Wrapping up review of capital sentencing realities with some "who" review

As mentioned in class, there are many lessons to draw from our Unibomber capital sentencing exercise, so the start of our next class will be continuing our discussion of capital sentencing laws and their application in Florida, Texas and Ohio.   One lesson we have already discussed in various ways in various settings is how many different "whos" can have an impact on the administration of sentencing systems, and I thought it might be useful to link to just a small slice of a huge body of research/commentary on various "whos" impacting capital sentences.  So:

Victims:

Prosecutors:

Defense attorneys:

Trial judges:

Jurors:

Appellate judges:

Governors:

Coincidentally, Ohio's own Gov. John Kasich provided today an interesting twist on capital sentencing "whos":

     "Ohio Gov Kasich issues reprieve days before scheduled execution so clemency process can consider new juror letter"

UPDATE:  And now another sad story of another serious crime provides another "who" example:

    "Prosecutor will seek the death penalty if Westerville shooting suspect survives"

February 8, 2018 in Death penalty history, Quality of counsel, Who decides | Permalink | Comments (0)

Monday, February 5, 2018

Gearing up to represent (or prosecute) the Unibomber

As I have repeatedly mentioned in class, we will be exploring in our next few classes how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber (and others).  The essentials for preparation appear at pp. 252 to 257 of our text, though you also need to check out two Ohio statutory provisions via the web: 2929.03 Imposition of sentence for aggravated murder and 2929.04 Death penalty or imprisonment - aggravating and mitigating factors.

For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out at least some of the Unibomber's (in)famous Manifesto, "INDUSTRIAL SOCIETY AND ITS FUTURE" as well as  this lengthy Time article by Stephen J. Dubner from 1999 about Teddy K. headlined "I Don't Want To Live Long.  I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison."

And if you want to have some old-school SNL fun while preparing for this discussion, these are fun to check out:

February 5, 2018 in Class activities, Death eligible offenses, Death penalty history | Permalink | Comments (0)

Saturday, February 3, 2018

Gameplans for continuing capital punishment discussions

Because we have been moving (usefully) slowly through our discussion of capital constitutional history, I want to make sure everyone is sure about what I expect/hope to cover over the next few weeks:

Week of Feb 5: We will finish up a discussion of Furman/Gregg/Woodson/Roberts which help explain/define modern DP realities and we will explore how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber (and others).  (I will do a separate post with a lot more information about Ted Kaczynski, whom some of you will be asked to defend or prosecute). 

Week of Feb 12: We will discuss McClesky v. Kemp, paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act and thereafter try to start wrapping up DP discussions and transition to LWOP/non-capital sentencing issues for constitutional courts and other actors.

February 3, 2018 in Class activities | Permalink | Comments (0)

Thursday, January 25, 2018

The full McGautha and Furman...

are worth reading in full if you final constitutional history and/or death penalty procedure really interesting.

The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.

The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our casebook aspires to provide strategic highlights from each of the nine(!) opinions.  I will ask you in class to think about which of the nine opinions you would be most likely to join, so you might want to read the full version of the one opinion you find most appealing from our casebook.

UPDATE In addition to continuing our discussion of capital constitutional history in this coming week, we will migrate to a discussion of how capital punishment is now administered.  That will, of course, take us back to a discussion of "who sentences," and it also will perhaps have us focused on our own state of Ohio which now is scheduled to have the next US execution.  With Ohio and who in mind, folks might be interested in this recent post from my other blog:

Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?

January 25, 2018 in Class activities, Death penalty history, Who decides | Permalink | Comments (0)

Monday, January 22, 2018

A timely example of a victim seeking sentencing leniency

In many high-profile cases, one hears about a crime victim advocating for a particularly harsh sentencing outcome.  But as I mentioned in class, there are plenty of example of a crime victim advocating for a more lenient sentencing outcome.  One notable current example appears in this new posting via the Death Penalty Information Center in a case from Texas.  Here is part of the posting:

Kent Whitaker, who survived a shooting in which his wife, Tricia and younger son, Kevin were murdered, has asked the state of Texas to spare the life of his only remaining son, Thomas “Bart” Whitaker (pictured), who was convicted and sentenced to death for their murders.  Kent Whitaker told the Austin American-Statesman, “I have seen too much killing already. I don’t want to see him executed right there in front of my eyes," he said. The petition for clemency filed on January 10 by Bart Whitaker's lawyers asks the Texas Board of Pardons and Paroles to recommend commuting his death sentence to life without parole, saying the execution — scheduled for February 22 — will “permanently compound” Kent Whitaker's suffering and grief. The petition asks the Board: “Is killing Thomas Whitaker more important than sparing Kent Whitaker?” ...

The clemency petition, Kent Whitaker wrote, "tries to correct the district attorney's over reach in pursuing the death penalty and how it will once again hurt all of the victims. For 18 months pre-trial, every victim — my wife's entire family, me and all of my family—actually begged the district attorney to accept two life sentences and spare us the horror of a trial and an eventual execution.  But we were ignored.”  Kent Whitaker writes that the clemency petition "is asking the board to acknowledge that Texas is a victim's rights state, even when the victim asks for mercy.”  

January 22, 2018 in Who decides | Permalink | Comments (6)

Thursday, January 18, 2018

Diving deeper into "who" and "how" with a little help from a new Massachusetts case

Next week we will continue to discuss the Williams case in order to continue to unpack the relationship between theories of punishment and the "who" and "how" of sentencing.  And, before we wrap up our Williams discussion, I will review what doctrines from Williams remain good law and what do not.  That discussion may lead us to discuss the more modern McMillan and Blakely cases, so be sure to have read those cases for next week.

The McMillan case also brings up the "why" and "who" and "how" of mandatory minimum sentencing.  So be sure to read (and re-read) the selection from the US Sentencing Commission about the debate over mandatory minimums (MMs) and think about who ends up with the most sentencing power in a jurisdiction that makes regular us of MMs.

Last but not least for next week, I hope we can take about the role of crime victims at sentencing and you have a reading selection in the text that covers this part of the who story.  But, conveniently, the Massachusetts Supreme Judicial Court handed down a notable short ruling on these issues just today: Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here).  Because I so enjoy bringing "hot new cases" into our discussions, I encourage everyone to read this new McGonagle case instead of (or in addition to) the victim-input section of the text.

January 18, 2018 in Class activities, Interesting new cases, Who decides | Permalink | Comments (1)

Tuesday, January 16, 2018

How can and should "why punish" issues influence the "who" and "how" of sentencing?

As we transition to a discussion of the "who" and "how" of sentencing — beginning with a deep dive into the 1949 case Williams v. New York — you should be giving particular thought to how a sentencing system can and should integrate its basic "why punish" commitments into its sentencing process.  You should see how the Williams ruling was driven in part by the punishment theories of the time: the "prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime" and "the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship." 

The class survey indicated a strong affinity for prioritizing rehabilitation and deterrence as theories of punishment.  If Ohio was to make these punishment theories predominant, which actors in the criminal justice system should have the most sentencing authority?  Which should have the least?  Should the answer to "who" sentences change if a jurisdiction prioritizes retribution or incapacitation?  What if it does not prioritize any particular theory?

January 16, 2018 in Class activities, Who decides | Permalink | Comments (0)

Monday, January 8, 2018

How would Thomas Jefferson sentence Richard Graves (or John Thompson)?

One of my favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and a few provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [MY EDITORIAL COMMENTS ARE IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] 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.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] 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....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging....

[PUNISHMENT FOR SEX CRIMES:] 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....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] 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....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

What theory or theories of punishment do you think was foremost in the mind of Thomas Jefferson when writing this document?

Would his proposed punishment for male rapists like Richard Graves — "castration" — properly serve his likely punishment goals? Would it reasonably serve the punishment goals you wish to prioritize?

Where would a modern drug offender like John Thompson fit into the schema here for "Proportioning Crimes and Punishment"?

January 8, 2018 in Alternatives to imprisonment, Death penalty history, Theories of punishment | Permalink | Comments (1)

Saturday, December 30, 2017

Welcome the the class blog of Sentencing Law @ Moritz College of Law (with first week details)

This blog got started over 10 years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) to facilitate student engagement in a Spring 2007 course on the death penalty.  Because the blog proved successful during that semester, and because the students' hard work as reflected in the archives still generates web traffic, I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course.  

On the eve of 2018, I am excited again to be gearing up again to teach Sentencing Law at the Moritz College of Law and to be again planning to use this blog to flag current events and cases to supplement our class readings and discussions.  Because I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, students can and should be on the look out for class materials and announcement posted here. So, for example, here is a repeating of what is posted on the Moritz official website for our first assignments (along with electronic copies of the basic course documents):

In preparation for our first week of classes starting Monday, January 8, 2018 you should:

1.  Get a copy of the THIRD edition of the casebook for the course, along with the course description/syllabus.

2.  Access the questionnaire and fill it out before our first class.  (In addition to being posted below, the questionnaire and course description/syllabus are available in hard-copy in front of my office, Room 313.)

3.  Find/research on your own a real sentencing issue, case or story that is of significant interest to you, and come to our first week of classes prepared to explain this issue, case or story and why it is of significant interest to you. 

Download 2018 Course description

Download 2018 Fall pre Class Survey 

 

You will discover that the last item in the questionnaire references recent clemency activity by recent presidents, and here are a few links with background:

Background on President Obama's Clemency Initiative

"Obama used clemency power more often than any president since Truman"

An Analysis of the Implementation of the 2014 Clemency Initiative

 

"Trump commutes sentence of kosher meatpacking executive"

"Trump Did a Good Thing: In praise of the president’s decision to commute Sholom Rubashkin’s sentence."

"Immigration hawks protest Trump giving Sholom Rubashkin first prison commutation"

December 30, 2017 in About this blog, Class activities, Clemency, Course requirements | Permalink | Comments (0)

Sunday, December 11, 2016

Last call for mini-papers submission, first call for final paper inquiries/meetings/review

As explained in this prior post, an essential element of completing our course for credit is the submission of at least two mini papers, and the due date for these papers is the start of this coming week. ANy student struggling to meet this requirement should contact me ASAP.

With mini-papers now being wrapped up, students are welcomed and encouraged to meet with me or reach out in others way with any questions or concerns or desire for feedback concerning the final paper. I should be around the law school and generally available through Dec 23 (which is when the final paper is due), and I am eager to help anyone wanting/seeking help with the final paper assignment.

December 11, 2016 in Class activities | Permalink | Comments (3)

Sunday, December 4, 2016

Reviewing the final fulsome mini-paper opportunities

In a coming post, I will try to clarify any lingering questions students have about completing the final paper.  But as classes technically are not yet done, I want to first clarify student mini-paper opportunities/expectations.

First, to complete the course is a satisfactory manner, a student has to have submitted at least two mini-papers.  (If I have not received at least two mini-papers from a student by Dec 12, I will notify the student of the deficiency and its consequences.)

Second, every student is encouraged to earn extra credit by submitting more than the two-mini-paper minimum.  But all mini-papers need to be submitted no later than Dec 12 to receive full credit/extra credit for your work.

Third, I put forth the following three final mini-paper possibilities:

  1. Reviewing Prez Obama's sentencing reform legacy
  2. Recommending activities/concerns for Attorney General designee Jeff Sessions
  3. Assessing the sentencing history/views of one (or more) of the 21 persons on Prez-Elect Donald Trump's SCOTUS short-list

Among the benefits/challenges of completing a mini-paper on this topics is the possibility that I may ask to publish your analysis on my main blog or maybe even in the Federal Sentencing Reporter.

Any questions?

December 4, 2016 in Class activities, Who decides | Permalink | Comments (0)

Sunday, November 27, 2016

A formal agenda for our final THREE classes to ensure we stay on task and cover the federal guideline sentencing system

Despite this prior post intended to help ensure we stayed on task in class, the energies of the post-election period — and my own struggle with figuring out what should be a sentencing priority in a Trumpian world — led me to fail badly in this regard before Turkey Day.  But a personal and temporal break, and especially the (sad) reality that we only have a final three classes together, should help me be a sentencing task master in our remaining minutes together.  

To that end, I am here presenting a formal agenda for our final classes to ensure everyone knows where I want us to be headed and also to make sure you all can do the essential out-of-class work/reading:

Monday, Nov 28:  Briefly review my "textbook" behavior; review option(s)/deadline(s) for final mini-paper(s); discuss the pre-modern reform sentencing of Rob Anon.  Remember for the last item on this agenda, you must all come to class with an exact sentence you wish to impose on Rob Anon assuming you are a sentencing judge sentencing him under federal sentencing law in 1975.  Remember that in 1975 federal prisoners were eligible for parole but only after serving at least 1/3 of the formal sentence announced at initial sentencing and when there were no federal mandatory minimum sentencing terms.

Tuesday, Nov 29: Answer questions regarding option(s)/deadline(s) for final mini-paper(s); review rules for final paper; review lessons from pre-modern reform sentencing of Rob Anon and start unpacking intricacies of pre-Booker federal guideline sentencing of Rob Anon (say circa 2000).  Figuring out what Rob Anon's federal sentencing guideline range would be under applicable laws can be aided by some of the discussion and links in this prior blog posting which inspired(?) students in March 2015 to work through Rob Anon's guideline calculations.

Wednesday, Nov 30:  Discuss insights and lessons from pre-modern reform and pre-Booker federal guideline sentencing of Rob Anon; unpacking the why and how of Booker's changes to the substance and style of federal sentencing, especially with respect to "Who-ville."  If time permits, focus on the particulars of the BridgeGate defendants' upcoming federal sentencings (some background here).....

AND IF TIME PERMITS Wrap up all course themes; review final class requirements; map out a plan for effective sentencing analyses and reform in a Trumpian world; reflect on low-stress, high-learning environments.

 

UPDATE:  I had the last entry pegged for Monday, Dec. 5, but Ashley in the comments clarified that next Monday is a constructive Thursday.  Ergo, it seems we only have 150 minutes left together, and so I will need to be even more focused throughout the next three classes.

November 27, 2016 | Permalink | Comments (1)

Tuesday, November 15, 2016

Staying on task and clarification of MP3 options

Remember, wonderful and patient and understanding students, that we are finally going to (try to) return to our usual programming by working on the sentencing or Rob Anon.  Specifically, it is very important that you come to class today (Tuesday) with an exact sentence you wish to impose on Rob Anon assuming you are a sentencing judge sentencing him under federal sentencing law in 1975 when federal prisoners were eligible for parole but only after serving at least 1/3 of the formal sentence announced at initial sentencing and when there were no federal mandatory minimum sentencing terms.

In addition to talking about your sentencing decision(s), I also will try to clarify the mini-paper options (and the reasons you have options), which are based a bit on these two recent posts on my main blog:

November 15, 2016 | Permalink | Comments (0)

Tuesday, November 8, 2016

Gearing up for figuing the (right?) sentence for the various convicted "Bridgegate" federal criminals

As I mentioned in class today, our coming exploration of the federal sentencing system will be based in part on using the real-world "Bridgegate" case into a real-world sentencing exercise.  To get started in preparation to that end, I recommend some review of at least the following two links:

This Wikipedia page, titled "Fort Lee lane closure scandal" provides lots of background on the scandal, at it provides this very helpful initial summary of the crime and the three protagonists now facing federal sentencing:

The Fort Lee lane closure scandal, also known as the George Washington Bridge lane closure scandal, or Bridgegate, is a U.S. political scandal in which a staff member and political appointees of New Jersey Governor Chris Christie (R) colluded to create traffic jams in Fort Lee, New Jersey, by closing lanes at the main toll plaza for the upper level of the George Washington Bridge.

The problems began on Monday, September 9, 2013, when two of three toll lanes for a local street entrance were closed during morning rush hour. Local officials, emergency services, and the public were not notified of the lane closures, which Fort Lee declared a threat to public safety. The resulting back-ups and gridlock on local streets ended only when the two lanes were reopened on Friday, September 13, 2013, by an order from Port Authority Executive Director Patrick Foye. He said that the "hasty and ill-informed decision" could have endangered lives and violated federal and state laws.

The ensuing investigations centered on several of Christie's appointees and staff, including David Wildstein, who ordered the lanes closed, and Bill Baroni, who had told the New Jersey Assembly Transportation Committee that the closures were for a traffic study.

The United States Attorney for the District of New Jersey Paul J. Fishman launched a massive federal investigation, resulting in a sweeping nine-count indictment against Bridget Anne Kelly, the deputy chief of staff, Baroni and Wildstein. Wildstein entered a guilty plea, and testified against Baroni and Kelly, who were found guilty on all counts in November 2016.

The copy of the plea agreement in which Mr. Wildstein agreed to plead guilty and which also has a copy of his charging "information."

November 8, 2016 in Aggravators and mitigators, Class activities, Guideline sentencing systems, Offense Conduct, Scope of imprisonment | Permalink | Comments (1)

Friday, October 28, 2016

Two timely new commentaries in light of our Graham-based discussions of "legal" adulthood

I have been quite amused to see these two headlines on two notable commentaries published since our last class:

The first of these articles starts this way:

Consider three young people: An 18-year-old who can vote, but can’t legally buy a beer; a 21-year-old who can drink, but is charged extra to rent a car; and a 25-year-old who can rent a car at the typical rate, but remains eligible for his parents’ health insurance.

Which one is an adult? All of them? None of them? Some of them? Or does it depend on the individual?

These questions are newly salient in the criminal justice system.

October 28, 2016 in Aggravators and mitigators, Class activities, Theories of punishment | Permalink | Comments (2)

Monday, October 24, 2016

The full opinions in Graham and Miller....

are worth checking out if you are eager to think deeply about the future of Eighth Amendment limitations on extreme prison sentences.  And here are links to the original SCOTUS slip opinions:

October 24, 2016 in Scope of imprisonment, SCOTUS cases of note, Supreme Court rulings, Who decides | Permalink | Comments (0)

Saturday, October 22, 2016

Eastern State Penitentiary and other (in)famous US prisons past and present

This post is to facilitate discussion an reflection on prison history in the United States, building on the video about Eastern State Penitentiary and more generally about the reality that time in jail or prisons is now something of a modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website.   Notably, in recent years Eastern State Penitentiary has been trying to incorporate more modern art and education into its tours; it recently has been working on an ambitious exhibit titled "Prisons in the Age of Mass Incarceration."

In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America.  A number of notable Ohio-centric stories are to be found within in the history, as documented by this book entitled "Central Ohio's Historic Prisons."  That book is summarized this way:

With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States."  The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class."  However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.

The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site.   I urge everyone to take a virtual tour via this huge photo gallery.  And if you are ever looking for some web-surfing fun, check out these additional links to some good sites about some of the United States' most (in)famous prisons:

Notably, a few years ago, students had a lot to say in the wake of watching the ESP video, and you might be interested to read these 2011 student comments about prison history. This coming week, we will be shifting back into a discussion of sentencing law and the (non-capital) sentencing process, but everyone should keep thinking about both the theory and practices of imprisonment as a form of punishment as we get into the nitty-gritty of modern sentencing doctrines.

October 22, 2016 in Race and gender issues, Scope of imprisonment | Permalink | Comments (0)

Thursday, October 20, 2016

Some more "who sentences" stories from my main blog, now focused on non-capital sentencing

In this post earlier this month, I flagged a number of "who sentences" stories relating to the death penalty on my Sentencing Law & Policy blog.  Here is now a similar round up of some recent non-capital sentencing stories and commentaries that provide some more "who" perspectives:

October 20, 2016 in Class activities, Current Affairs, Who decides | Permalink | Comments (0)

Monday, October 17, 2016

Lies, damn lies and federal prison and commutations statistics

As I mentioned in class, as we turn our attention more to the history and modern realities of non-capital sentencing and especially to the history and modern realities of incarceration, having a basic understanding of a lot of number becomes important.   The title of this post is designed to make sure, before you dive too much into these data, that you keep in mind perhaps the most famous quote about statistics.  Once you have that quote in mind, consider some of the data and their sources.

The latest detailed breakdown of the federal prison population comes from this terrific "Quick Facts" document released this month by the US Sentencing Commission titled "Federal Offenders in Prison – March 2016."  Here are just some of the data therein that caught my eye:

• A large majority of offenders in the federal prison population are male (93.3%).

• Hispanic offenders make up the largest group of the federal prison population(35.2%), followed by Black offenders (34.4%), White offenders (27.0%), and Other Races (3.5%).

• More than three-quarters (77.9%) of these offenders are United States citizens.

• The majority of offenders pleaded guilty (88.5%).

• Nearly one-quarter (23.9%) of all offenders serving a sentence for a federal conviction possessed a firearm or other weapon in connection with their offenses.

• Half of all offenders (50.2%) in the federal prison population were sentenced to more than ten years in prison, while 5.2% were sentenced to 30 years or longer, and 2.7% were sentenced to life in prison.

• Approximately 17,000 offenders (9.9% of all incarcerated offenders) have served more than 10 years in prison.

• More than half (56.8%) of offenders in the federal prison population were convicted of an offense carrying a mandatory minimum penalty.

The data in the USSC report is already significantly dated because it analyzed a federal prison population of 195,676 "offenders in the custody of the Federal Bureau of Prisons on March 27, 2016."   But, just a little more than six months later according to the Federal Bureau of Prisons latest inmate population report, it is now only in charge of 191,322 total federal inmates.  In other words, in just the last 6 months alone, there has been more than a 2% decline in the overall federal prison population!

Speaking of changes over time in the population levels in the Federal Bureau of Prison, check out this BOP year-by-year report of the past federal prison population in modern times, which includes these numbers:

Fiscal Year      BOP Population

1983                 33,216

1993                 88,565

2003                 172,499

2013                 219,218

In other words, in just the last 20 years up to 2013 (12 of which had a Democrat in charge in the Oval Office and his appointees running the US Department of justice), there was 250% increase in the overall federal prison population!

As you may now realize, the number of federal prisoners for fiscal year 2013 was the year with the highest ever federal prison population (it was also, of course, the first year of Prez Obama's second term in office and the fifth year of the US Department of Justice being run by former US Attorney General Eric Holder). 

Also, as of the end of Fiscal Year 2013, this webpage from the Office of the Pardon Attorney reports that Prez Obama had received well over 8,000 federal commutation petitions and had granted a grand total of 1 commutation.  (If you are running the numbers, this means that as of the end of 2013, Prez Obama had granted only about .01% of commutation petitions received from federal prisoners.)

Of course, Prez Obama has picked up the pace on commutation grants: as this White House website highlights, by having now granted a total of 774 commutations, Prez Obama "has granted commutations to more prisoners than the past 11 presidents combined."  But his actions here ought to be put in some other statistical context, as does this webpage from the Office of Pardon Attorney, which reports that Prez Obama has received 29,078 commutation petitions during his time an office.  So, by having now granted 774 commutations from among the 29,078 commutation petitions received, Prez Obama has now upped his granted rate to about 2.5% of all commutation petitions received from federal prisoners.

As always, a great way for students to earn extra credit for the class would be to mine these numbers for further insights and data points worthy of highlighting in the comments to the blog (or in class).  And any student who can find good data on the race/gender of the 774 persons to have received commutations from Prez Obama and compares them to the general federal prison population will be sure to receive extra, extra, extra credit.

October 17, 2016 in Class activities, Clemency, Data on sentencing, Race and gender issues, Scope of imprisonment, Sentencing data, Who decides | Permalink | Comments (0)

Wednesday, October 12, 2016

How some Framers thought about "gradation of punishments" (and proposed sentencing guidelines) in a world before "modern" prisons

One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] 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.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] 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....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging.

And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth....

[PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder....

[PUNISHMENT FOR SEX CRIMES:] 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....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] 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....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

October 12, 2016 in Alternatives to imprisonment, Class activities, Death penalty history, Theories of punishment, Who decides | Permalink | Comments (0)

Monday, October 10, 2016

Follow-up after (too little) time with the Assistant Chief Counsel for Ohio Governor John Kasich

I am sorry we did not have more time to allow Kevin Stanek, the Assistant Chief Counsel for Ohio Governor John Kasich, to complete his tales about Ohio's fulsome history with lethal injection litigation.  But I trust you all got a flavor of some of the major themes I consider most important for our broader class's purposes: a whole bunch of distinctive (unexpected?) "whos" can and often will have a huge impact on whether, when and how death sentences actually get carried out in Ohio and elsewhere.

For more on that front with a continued focus on lethal injection drug acquisition and litigation, it is worth checking out the WNYC's Radiolab: More Perfect program on state efforts to acquire lethal injection drugs, which is titled "Cruel and Unusual."  The 40-minute radio program covers a lot of ground in ways both familiar and unfamiliar, including a notable discussion of the political impact of the Furman ruling and its aftermath starting around the 16-minute-mark (which in turn inspired the Oklahoma legislator who came up with the medicalized three-drug lethal injection protocol).

In addition, the constitutional litigation that has gummed up the works of death penalty in Ohio over the last decade has also gummed up the work in a lot of other states.  Here is an  a report from my main blog about a (very red) state to Ohio's south that has been dealing with similar issues: "Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade."

October 10, 2016 in Death penalty history, Execution methods, Who decides | Permalink | Comments (0)