Friday, April 24, 2015
A couple more sets of mini-papers for review and reactions
As promised, I will be posting throughout this week and next the collections of mini-papers produced by students throughout the semester. Here are two more of the collections to go along with the death penalty collection posted previously:
Tuesday, April 21, 2015
The great opportunity (and great joy) of semester review via mini-papers
Thanks to the extraordinary help of my wonderful office assistant Allyson, I now have now finally assembled more than 60 of the mini-papers submitted over the last two months into nine subject-specific collections (in pdf form) for posting here and collective review. Huzzah!
Though all the mini-papers are a whole lot to read in one sitting (running 120+ pages), I am hopeful the subject-specific organization will enable students to review topics of particular interest in smaller chunks. And, as I continue to re-read all the mini-papers, I find that they serve as an interesting and effective review of much of what we formally covered in class through the semester.
I will be posting these collections in a number of separate posts (to perhaps facilitate distinct comments concerning different collections), and I will start with the big topic of the death penalty that kept us especially busy the first half of the semester:
Download Death Penalty (pdf collection runs 31 pages)
Wednesday, April 15, 2015
If you are curious about federal child porn sentencing...
here is a link to the 400+ page report that the US Sentencing Commission published on the topic in December 2012. The report's executive summary is only about a couple dozen pages, can be accessed at this link, and here are some interesting excerpts:
[S]entencing data indicate that a growing number of courts believe that the current sentencing scheme in non-production offenses is overly severe for some offenders. As the Supreme Court has observed, the Commission’s obligation to collect and examine sentencing data directly relates to its statutory duty to consider whether the guidelines are in need of revision in light of feedback from judges as reflected in their sentencing decisions.
[A]s a result of recent changes in the computer and Internet technologies that typical non-production offenders use, the existing sentencing scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability. Non-production child pornography offenses have become almost exclusively Internet-enabled crimes; the typical offender today uses modern Internet-based technologies such as peer-to-peer (“P2P”) file-sharing programs that were just emerging only a decade ago and that now facilitate large collections of child pornography. The typical offender’s collection not only has grown in volume but also contains a wide variety of graphic sexual images (including images of very young victims), which are now readily available on the Internet. As a result, four of the of six sentencing enhancements in §2G2.2 — those relating to computer usage and the type and volume of images possessed by offenders, which together account for 13 offense levels — now apply to most offenders and, thus, fail to differentiate among offenders in terms of their culpability. These enhancements originally were promulgated in an earlier technological era, when such factors better served to distinguish among offenders.15 Indeed, most of the enhancements in §2G2.2, in their current or antecedent versions, were promulgated when the typical offender obtained child pornography in printed form in the mail....
[M]ost stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded. Those stakeholders, including sentencing courts, increasingly feel that they “are left without a meaningful baseline from which they can apply sentencing principles” in non-production cases....
The Commission concludes that the non-production child pornography sentencing scheme should be revised to account for recent technological changes in offense conduct and emerging social science research about offenders’ behaviors and histories, and also to better promote the purposes of punishment by accounting for the variations in offenders’ culpability and sexual dangerousness.
In addition, you might find intriguing and informative the lengthy discussion of child porn sentencing in the split Third Circuit panel decision in United States v. David Grober (where the majority, inter alia, faults the district court for allowing me to testify at the sentencing hearing).
Tuesday, April 14, 2015
Basic finals information (and a place for any questions or concerns)
As I mentioned in class, the final paper for this class (and the final take-home exam which is available as an alternative to completing a final paper) is due at close of business on the last day of the exam period. According to the Registrar's website, the final exam day is May 14, 2015. (Note that, because this is truly the last day, I cannot readily give any kind of extension, especially to anyone supposed to graduate the next day.)
If you are taking the take-home final, I am certain it will be available no later than April 30 (and perhaps sooner), and you have the entire exam period to complete it. In case you are wondering about the final's format, here are the general instructions I typically have for take-home finals in this class:
Typical Berman Take-Home General Instructions
1. To complete this exam you must answer at least 3 of the 4 questions.
2. As an open-book exam, you may refer to any (non-human) sources, but your answers must be prepared independently, without discussion or assistance from others.
3. Each question has a strict [1500 or 2000 or question-specific] word limit. These are limits, not goals. Great answers are possible in fewer words. Aided by your computer’s word count feature, please note the total number of words at the end of each of your answers.
4. You are not required to use sources other than class materials. You are not precluded from conducting outside research, though extra time may be best invested in reviewing course materials and revising your answers to ensure they are clear and concise.
I welcome any question or concerns about any of this expressed in class or in the (now working) comment section here. Remember my mantra: low-stress, high-learning.
Sunday, April 12, 2015
Final weeks to focus on purposes, offense, offender, sentencing and post-sentencing for sex offenders
A number of stories I have recently covered on my blog leads me to conclude we would usefully bring our semester to an informative and challenging close by giving special attention to the uniquely dynamic purposes, offense/offender, sentencing/post-sentencing issues raised by an array of sex offenses and offenders. Though I will assign some formal readings from our casebook on these topics on Tuesday, I will kick off this final segment of the course by urging everyone to cruise through the Sex Offender Sentencing archive on my main blog looking for stories they find especially interesting and thus worthy of in-class discussion.
To highlight how dynamic and challenging sex offender sentencing issues can be, consider these posts concerning notable sex offender sentencing rulings and stories making headlines just in the past few weeks and months:
Distinct goals/purposes issues:
- Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable
Distinct offense considerations:
- Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion
Distinct offender considerations:
- Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?
Distinct post-sentencing consequences and concerns:
- Can a sheriff prohibit sex offenders from a church that is sometimes a school?
- First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing
I would be especially grateful if student come to class on Tuesday having reviewed many of these linked stories and with an opinion about which aspect(s) of sex offender sentencing they would like us to focus particularly upon in the final weeks of class.
Thursday, April 9, 2015
Understand the terms of USSC debate over the fraud guidelines
As mentioned in class on Wednesday, and as detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.
I doubt the actual USSC meeting will be a must-see event, though I still urge you to tune in. But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases."
Monday, April 6, 2015
Two projects for a week with possibly just one class
Much to my chagrin, I fear this week our class will only be able to meet on Wednesday (4/8), and I fear that much of that class will involve going over current events and making sure the last few weeks of class are productive. To that end, I have two potential projects for students to work on/think about which (1) could be the basis for additional mini-papers OR (2) the basis for a final paper OR (3) the answer to one of the question(s) likely to show up on the take home final. Here are the basics, with more explanation to come during Wednesday's class:
Possible paper/project #1. After the drug war: keys terms for the treaty (or reparations, or a Marshall Plan, or a truth and reconciliation commission or....)?
As we have discussed in class, the so-called "war on drugs" has played a huge role in criminal justice developments over the last 40 years, and it has play an important role in debates over modern sentencing reform and mass incarceration. Now that there is a growing consensus that the harshest sentencing aspects of the drug war need to be reformed (and a remarkable move toward reform of marijuana and other criminal laws), a growing question is what the essential elements and terms of the post-drug-war sentencing and corrections system. Should past marijuana (and other drug) convictions be expunged? Should some kind of formal reparations be a critical part of modern reforms? And who --- legislatures, sentencing commissions, judges, executive officials --- should be principally charged with designing the terms of the "post-drug-war treaty"?
Possible paper/project #2. Drafting new formal federal guidelines for the consideration of (one, a few, many?) offender characteristics.
In this (relatively short) law review article, a former Chair of the US Sentencing Commission criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear that these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct." He suggested factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new formal "guidelines that encourage consideration of those characteristics where appropriate." Do you agree that new guidelines would be fitting for these (or other) offender characteristics, and what might these guidelines look like?
Saturday, March 28, 2015
Working text of Amended RID bill for reducing drunk driving crimes and harms
As you should recall, we ended class on Thursday with a working draft proposal for new drunk-driving legislation. Here is what has made it through our drafting committee so far:
First Offense DUI: imprisonment from minimum term of zero to five years max
Second Offense DUI: imprisonment from minimum term of six month to seven years max
Third (or Greater) Offense DUI: imprisonment from minimum term of two years to ten years max
In addition, a sentencing judge should (must?) give the minimum term for any DUI offense if and only when the defendant's BAC was .10% or lower and no tangible harm result from the offense. A sentencing judge should (must?) impose a sentence above the minimum if the defendant's BAC was above .10% or tangible harm resulted from the offense.
We could (and perhaps should) continue to discuss and debate other offense-related provisions to incorporate into this sentenceing --- e.g., we might provide more specific guidance/mandates concerning what other BAC levels or types of harms should/must result in a certain amount of jail time. But, in order to reduce the risk of potential unwarranted disparity, I think it may be even more important that we consider whether and how to provide some offender-related instructions to judges for the exercise of their sentencing discretion in this setting. And to get the discussion started, here are some proposals for consideration:
Proposal 1. A judge generally should (must?) sentence an offender at or near the applicable minimum term if and when the defendant has no criminal history, has pleaded guilty and accepted responsibility and shown remorse, and has demonstrated a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.
Proposal 2. A judge generally should (must?) sentence an offender at or near the applicable maximum term if and when the defendant has a significant criminal history, has refused to accept responsibility and shown remorse, and has failed to demonstrate a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.
(Contrary) Proposal 3. A judge generally should (must?) not in exercising his sentencing discretion consider in any way a defendant's criminal history, whether he has shown any remorse, or whether any substance abuse or personal problems may have contributed to the offense.
As these proposals are written, it is possible (but not essential) to favor both Proposal 1 and Proposal 2. But Proposal 3 is intended to be directly contrary to the Proposal 1 and my goal here is to explore whether and how you favor (or oppose) the consideration of some common offender-related sentencing factors.
I would encourage students to use the comments to discuss any part of this on-going debate over our new sentencing bill, and folks should feel especially free to propose any additional amendments and modifications to the bill. We will build on what we have done to date in our class discussion on Tuesday and Wednesday.
Wednesday, March 25, 2015
Intriguing federal fraud sentencing raising distinct offense and offender issues
As mentioned in class, this week we will continue to unpack the challenging question of exactly what are the essential aspects of the "offense" to be assessed and punished at sentencing, and next week we will focus on whether there are any essential aspects of the "offender" that must (or must not) be assessed and punished at sentencing. With both topics in mind, a story of an upcoming federal fraud sentence blogged at SL&P struck me as especially interesting: You be the judge: what federal sentence for modern sheriff playing Robin Hood?.
Here are the basics of the offense based on press accounts:
Charge(s) of conviction: federal mail fraud, carrying a statutory range of 0 to 20 years in prison
Real conduct: "created hundreds of fake police reports [over and 18 month period] for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit." Main victim seems to be the credit company Equifax, and there is not tangible evidence the offender received any money for his fraudulent behavior (but his friend in the credit repair business made thousands of dollars from the scheme and may have paid the offender cash for his assistance).
Here are the basics of the offender based on press accounts:
Characteristics at time of 2012-13 crime: Male, heavy-set, 37 years-old, sheriff of southern county.
Background: "no criminal record, ... has suffered from depression and anxiety the past four years [and] has migraines, high blood pressure and insomnia." The now-former sheriff "was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden [while they] resided in a poverty-stricken area." The offender joined the county "in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010."
Today and for the next few classes, we will talk about offense and offender sentencing issues using this real case (rather than the fake Rob Anon case) as a focal point. Consider and be prepared to discuss whether and how you think sentencing law could and should require (or preclude) consideration some of the facts listed above at sentencing. Also, consider whether there are any additional facts about the offense or the offender you would like to know before sentencing.
Tuesday, March 24, 2015
National and Ohio drunk driving harms data for sentencing exercise
There are lots of sites worth checking out concerning the scourge of drunk driving, and this webpage from The Foundation for Advancing Alcohol Responsibility has lots of helpful links to lots of helpful data. For example,this page has a really nice simple chart highlight that drunk driving death nationally in recent years have been around 10,000 per year, which is about 1/3 less than the yearly average a decade ago. This decline in deaths arguably proves that tougher criminal laws work as this decline correlates with more states adopting .08% BAC as the legal limit AND with more states requiring ignition locks as punishment for DUI offenses.
But "only" 10,000 DUI deaths each year still means that, on average, more than 25 persons are killed by a drunk driver every single day in the US. This website with official Ohio highway stats reveals that Ohio has averaged more than 400 drunk driving deaths per year (meaning more than one per day). As I mentioned in class, these number are only slightly lower than the total number of deaths from intentional homicide: roughly, the US has averaged about 14,000 murders and Ohio has averaged around 500 murders per year in recent years.
Ohio's current penalties for drunk driving (called OVI) are effectively outlined on this webpage, and Senator Madd, the new head of the Judiciary Committee, made reducing drunk driving deaths and injuries a centerpiece of his re-election campaign. He also knows that, as explained on this MADD webpage, roughly "one-third of the drunk driving problem – arrests, crashes, deaths, and injuries – comes from repeat offenders. At any given point we potentially share the roads with 2 million people with three or more drunk driving offenses. Taking away their licenses isn’t enough; 50-75% of them drive anyway."
Senator Madd is eager to work with any and everyone on legislation to make Ohio's roads and all its citizens safer. He sees some potential merit in both the RID and TOUGH bills that have been proposed, but he is eager to get some additional input from fellow legislators about the best ways to move forward on these fronts.
Sunday, March 22, 2015
Reminders and updates ... about class and sentencing cases we have been following
I hope everyone enjoyed Spring Break as much as I did and also that everyone is looking forward to an exciting final month of our sentencing class. This post provides a couple of reminders about on-going activities as well as some updates that might be of interest as we close out March sentencing madness:
1. Everyone has a chance to submit an extra mini-paper this week (requirements outlined here), ideally by 12noon on Monday, March 23. The required prompt: "What topic(s) are you eager for us to discuss in class more before the end of the semester?" Recall that, though all students are required to submit at least three mini-papers before the end of the semester, extra credit will be rewarded to those who submit more than the minimum.
2. This week in class, we will focus on what should be "the offense" for sentencing purposes. Specifically, should only the formal specifics of the offense of conviction be considered at sentencing (the "charge offense") or should sentencing involve at least some real specifics of how the offense was actually committed (the "real offense"). As you consider this seemingly basic question, review your prior efforts sentencing Rob Anon prior to modern reforms and under the federal sentencing guidelines. Did the charge offense or the real offense matter more to you when sentencing in the discretionary pre-guideline world? How about in the guideline world? And what does the US Constitution have to say about this according to the Supreme Court in the Watts case?
3. You may recall we talked earlier in the semester about the upcoming sentencing of former Connecticut Gov John Rowland. Here is how that turned out: Former Governor John Rowland Sentenced to 30 Months in Prison. In addition, we have been following death penalty debate in Pennsylvania, and here is an interesting "who" development on that front: "Victim's wife: Keep me out of death penalty fight"
Monday, March 9, 2015
Links to all the key guidelines for modern FSG sentencing of Rob Anon
With apologies for the delay, I will now finally through this post provide some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines. Here are links to the key provisions of the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:
- §2B3.1 Robbery
- §3B1.1. Aggravating Role
- §4A1.1. Criminal History Category
I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (and then use the comments to express frustration) before looking for any more sentencing help. That said, if (when?) you want/need some more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:
As you work through this assignment, please feel free use the comments to express what it feels like to sentence in the federal system now that a whole lot of law has been brought into the process.
Though I continue to hope I am doing a good job with my low-stress, high-learning class mantra, it is very important in my view for everyone to get through the Rob Anon guideline sentencing experience ASAP; having done so will be essential to getting the most out of our classes the rest of this month. If you have already done this exercise, do it again and/or review your work. If you have not done it yet, please do.
More evidence that the death penalty will keep pulling us back in...
To paraphrase the most memorable line from the least memorable Godfather movie, just when I thought we could be done with our discussions of the death penalty and who sentences, the media and the US Supreme Court keep pulling us back in. Specifically, check out these recent notable posts from my main blog:
- Examining some statistical realities behind federal death penalty administration
Sunday, March 8, 2015
Pre-Monday reminder of Monday deadlines and events
Just a quick note to remind everyone that...
1. If you are submitting a mini-paper this week (requirements outlined here), it is due by 12noon on Monday, March 9. The suggested prompt was "could/should the law consider the subjective experience of imprisonment in some way," though you are always welcome of write on any topic of interest and relevance to recent class readings/discussion/activity.
2. Speaking of recent class readings/discussion/activity, you should be spending some time trying to figure out how to sentence Rob Anon pursuant the the federal sentencing guidelines. Here is a first "hint" with more to come in a subsequent post: Entire 2014 Federal Sentencing Guidelines linked via USSC
3. At noon in the Public Service Law Center is a lunch with Allen Bohnert, Moritz Class of 2006 (profiled here). The lunch is a brown-bag affair, but I will treat for lunch for a few students who let me know ASAP that the would be interested to come with me and Allen to eat at Eddie George's after the talk.
Wednesday, March 4, 2015
Seeking reflections/reactions to today's pre-reform federal sentencing exercise
We will talk on Thursday about the experience of sentencing Rob Anon under the pre-reform discretionary federal sentencing system, but I wanted to start the process of reflection on the pre-reform system with this post and a place for comments.
Did your experience strengthen your understanding for Judge Frankel's concerns and call for reform?
What aspects of the sentencing experience surprised or concerned you the most?
Monday, March 2, 2015
Some more on prisons past, present and future
This post provides a space for discussion of last week's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output." If you are interested in learning more about Eastern State, check out this terrific website. Notably, in recent years ESP has been trying to incorporate more modern art and education into its tours; it is working now on an ambitious new exhibit for 2016 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 to be found within in this history, as documented by this book entitled "Central Ohio's Historic Prisons," which 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.
Also, of course, everyone should be thinking not just about the past and present of prisons, but also the future. To that end, check out this forward-looking video:
Wednesday, February 25, 2015
Various posts on the subjective experiences of punishment from SL&P (and a timely article about prison rape)
Following up on today's class discussion (and tomorrow's video) concerning imprisonment and the subjective experiences offenders may face, here are various posts of note from the archives of Sentencing Law & Policy:
These posts are a mix of links to serious academic articles and interesting real-world cases on some topics we covered in class.
Finally, I just noticed that The Atlantic has this lengthy new article about another part of the subjective experience of imprisonment for many. The piece is headlined "Rape in the American Prison: In 2003, Congress passed legislation to eliminate sexual assaults against inmates. One young man’s story shows how elusive that goal remains."
Saturday, February 21, 2015
Some notable gubenatorial capital developments
Though I am eager to start migrating our class discussions away from capital sentencing and punishment to non-capital sentencing and punishments, the notable death penalty news keeps coming. Specifically, check out these two recent posts from my main blog:
- New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor
As always, I am eager to hear student reactions to these developments and others in the comments or elsewhere.
Tuesday, February 17, 2015
Would you urge out-going Oregon Gov Kitzhaber to commute all death sentences?
The question in the title of this post is a (slightly modified) version of what I have asked here at my main blog, where I also link to commentaries urging mass commutation by two law professors and by a retired assistant director of institutions and superintendent of the Oregon State Penitentiary.
Notably, back in November 2011, Gov Kitzhaber placed a moratorium on all executions in his state and his statement in support of this decision can be accessed at this link. I wonder if you find it more or less compelling and effective than the statement made by Pennsylvania Gov Wolf a few days ago.
Friday, February 13, 2015
Speaking of "who" and the death penalty...
check out what new Pennsylvania Gov Tom Wolf did on Friday the 13th. Turns out it was a lucky day for those on death row in the state.
Thoughts? The Marshall Hypothesis as applied by a Governor?
Wednesday, February 11, 2015
Two fascinating new Ohio "who" sex offense sentencing stories
As mentioned in class, this week and next our class discussions will migrate from the basics of modern capital sentencing to the basics of modern non-capital sentencing. And, as the Coker and Kennedy cases highlight, all modern capital cases now involve only the crime of murder even though any number of sex offenses often lead legislatures to make special (and severe) sentencing laws and rules. On the topic of sex offenses, and with unique aspects of the "who" story in the mix, I recommend everyone check out these two new stories from my main blog concerns sentencing developments in our own state of Ohio:
Friday, February 6, 2015
Quick reminder of class activities for second week of February
Just a quick note to remind everyone that...
1. The next deadline for submission of a mini-paper (requirements outlined here) is this coming Monday (Feb. 9) at 12noon.
2. You should prepare for this week's classes by:
(re)considering how differing state capital laws impact death sentencing discretion for the Unibomber (and others)
(re)reading McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion rejecting the defendant's claims)
thinking about whether and why the Supreme Court should categorically preclude states from allowing certain criminals ever to be sentenced to death --- especially once it has categorically precluded states from legislating that certain criminals must always be sentenced to death
3. If you are especially interested in understanding McClesky and its aftermath, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a lead symposium focused on "McClesky at 25." Here are links to all the articles in the symposium:
Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).
Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).
John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).
G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).
Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).
Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).
Anyone interested in the intersection of race and the death penalty should consider taking a quick peak at all of these article. But, especially for future class discussion purposes, the final two pieces linked above (the long Mosteller piece and the short Scheidegger piece) may be most worth your extra reading time and attention.
Thursday, February 5, 2015
Imaginging a (federal and mandatory?) death penalty only for mass shooters who kill more than five persons
A helpful student alerted me to this notable accounting of mass shooting in 2014 in the United States. Though I will not vouch for all the data, I still think it is notable (and not all that surprising) that this internet accounting of mass shootings lists 283 mass shootings in the US (roughly 5 every week of the year), and yet only 11 of these mass shootings involve five or more deaths (less than one per month on average).
In addition to finding these data fascinating, I continue to encourage folks to cull through this list of the 53 men who have been executed in Ohio in the modern era or this latest report from the Ohio Attorney General about the 140+ men on Ohio's death row to see how my proposed reform, if applied retroactively, would impact those past cases.
Wednesday, February 4, 2015
Link to Ohio Supreme Court oral argument in Ohio v. Moore
This morning (Feb 4, 2015), the Ohio Supreme Court heard argument in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. The Justices asked many questions of both sides, and I believe only one of the seven Justices failed to ask at least one question.
The argument lasted for approximately an hour, and here is a link to the oral argument. I highly recommend all students interested in Eighth Amendment issues take the time to watch these proceedings.
I suspect and fear we will not get a ruling from the Court before the end of the semester (but maybe that will be a kind of good news allowing me to ask a take-home exam question about the case).
Monday, February 2, 2015
Major developments on Eighth Amendment juve sentencing fronts
Students should recall the class-preview post in which I noted two notable on-going cases concerning the Supreme Court's modern Eighth Amendment jurisprudence limiting the imposition of life without parole sentences on juvenile offenders. The end of last week and this coming week involve developments on this front:
Late last week, as reported in this post from my main blog, the petitioner at the center of the case SCOTUS took up to resolve whether its 2012 Miller ruling should be applied retroactively was released from prison. In addition to providing yet another interesting story about "who sentences," the release of George Toca means that SCOTUS will need to take up a new case to resolve whether its Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively.
The Ohio Supreme Court will hear oral argument this week in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. Helpfully, this post at Legally Speaking Ohio provides an effective argument preview, starting with the basic fact that "Brandon Moore was sentenced to a 112-year prison term for convictions in 2002 on three counts of rape, three counts of complicity to rape, three counts of aggravated robbery, kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old."
I am planning to attend the oral argument, which starts at 9am on Wednesday February 4, at the Supreme Court of Ohio. Folks interested in this case can read all briefs submitted via this Ohio Supreme Court link, including this short amicus brief that I helped author for the National Association of Criminal Defense Lawyers.