Saturday, January 31, 2015
Ohio's current capital laws and the dynamic realities of Ohio and US death penalty history
As mentioned in class, one class activity for the coming week(s) will be to work through how modern post-Furman capital punishment laws might get applied to the (in)famous Unibomber, Ted Kaczynski. (Ted is currently an LWOP resident at superman ADX Florence in Colorado and in the past was comically portrayed by Will Farrell). I will not aggressively quiz anyone about doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Ted's case might be litigated in prominent death penalty states like Florida and Texas and Ohio.
We could easily spend the rest of the semester discussing the history and modern specifics of the death penalty in specific jurisdictions like Florida and Texas and Ohio and US. I will reference this history and modern practices in class over the next few weeks, and here are some links concerning the two jurisdictions in which we operate to provide a (low-stress, high-learning) chance to discover a lot more about these matters:
Links with background on Ohio's history and practices in the administration of the death penalty
- Legal basics: Ohio Revised Code Section 2929.04: "Death penalty or imprisonment -- aggravating and mitigating factors"
- Some history from the Ohio Department of Rehabilitation and Corrections
- Some history from the Ohio section of website of Death Penalty Information Center
Links with background on US history and practices in the administration of the death penalty
- Legal basics:Title 18 US Code Section 3592: "Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified"
- Some history from the federal section of website of Death Penalty Information Center
- Some history from a Congressional Research Service 2005 Overview Report on Federal Death Penalty
Based on my hope that your "who radar" is now fully operational, I would be eager to hear your views (in the comments or in class) as to which "whos" have had the most impact on the operation of Ohio's death penalty system throughout the state's history (based, perhaps, on the Ohio DRC's account of this history).
Tuesday, January 27, 2015
Deterrence research and the "life-saving" argument that the death penalty is morally required
As I mentioned in class, some years ago Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life. Here is a link to this article and its abstract:
Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs , 58 Stan. L. Rev. 703 (2005):
Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment -- potential error, irreversibility, arbitrariness, and racial skew -- do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.
As explained in class, the suggested prompt for mini-papers to be submitted on Feb 9 is to write to a legislator who is a kind of "agnostic supporter" of the death penalty based on the research suggesting executions help to save at least a few innocent lives.
Alternatively, if you like digging into social science research, you can write about the modern empirical debate informed perhaps by a collection of some recent data-crunching on the deterrent effect of capital punishment available via this page assembled by the Criminal Justice Legal Foundation. Notably, CJLF is supportive of the death penalty; the Death Penalty Information Center is opposed to the death penalty, and it has this webpage criticizing the studies appearing on the CJLF's page concerning deterrence.
Monday, January 26, 2015
Quick reminder of class activities for last week of January
Just a quick note to remind everyone that...
1. If you are submitting your first mini-paper this week (requirements outlined here), it is due by 12noon today (Monday, Jan 26).
2. You should prepare for this week's classes by (re)reading Williams v. New York and by reading McGautha v. California. (It is sufficient to read the shortened excerpts of these cases in the casebook, but I have here provided links to the full opinion for anyone interested in reading more. Williams in not much longer in full text, but McGautha is a lot longer.)
3. Our coming discussion of modern capital punishment administration in the United States is going to focus a lot on the "who sentences" question. To that end, you should check out and reflect on the "who" aspects of these stories about high-profile on-going capital cases:
Wednesday, January 21, 2015
SCOTUS cert petition in Young v. United States asserting 15-year ACCA prison term violates the Eighth Amendment
As mention in class, I am working on an amicus brief in support of a petition for certiorari in Young v. United States. I just received a copy of the petition, which was filed today, and the petition's appendix includes a copy of the Sixth Circuit opinion which rejected the defendant's assertion that a 15-year mandatory minimum sentence for being a felon in possession of shotgun shells violated the Eighth Amendment's prohibition on cruel and unusual punishments. The full petition and appendix can be downloaded below, and here is how the petition styles the Question Presented:
Whether the Eighth Amendment to the U.S. Constitution’s “evolving standards of decency” standard bars the application of a sentencing enhancement, the Armed Career Criminal Act, 18 U.S.C. section 924(e), to a conviction for being a felon in possession of ammunition in violation of 18 U.S.C. section 922(g)(1), when the defendant’s possession of the seven shotgun shells at issue was passive, innocent, and initially unwitting, when the defendant’s most recent prior felony conviction was twenty years old, and when the resulting mandatory minimum sentence is 18 times greater than the minimum sentence the defendant would have otherwise received and more than 11 times greater than the maximum sentence the defendant would have otherwise received.
Tuesday, January 20, 2015
Background on discretion, disparity and discrimination in Presidential clemency
With apologies for (once again) lecturing too much and running late, I hope that I was able in Tuesday's class to effectively lay out some of the basics of what I call the "Three Ds" of modern sentencing debates: Discretion, Disparity and Discrimination. I got a bit behind because I was not planning to talk about Presidential clemency powers; but given that Prez Obama is giving a State of the Union Address tonight (sentencing background/commentary here), perhaps now is a good time to use clemency as a good focal point for analyzing the "Three Ds."
On this topic, we must start with a key provision of the U.S. Constitution: Article II, Section 2 provides that the President "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The US Supreme Court views this authority quite broadly and has repeatedly indicated that Congress cannot limit the President's discretionary use of this clemency power.
In addition to vesting the President with broad discretion, this clause has resulted in considerable disparity in various ways in various eras as different Presidents have used (or not used) this authority in different ways. Most notably for modern discussion, a recent investigation by ProPublica produced these notable headlines about modern clemency realities:
- Pardon Applicants Benefit From Friends in High Places
- Presidential Pardons Heavily Favor Whites
- Racial Disparity in Presidential Pardons: What Can Be Done?
In light of these headlines and the realities they reveal about the modern exercise of Presidential clemency and discretion, disparity and discrimination, should we find this additional report comforting?:
Thursday, January 15, 2015
Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE?
As the text reveals, federal sentencing doctrines and state sentencing laws express in various ways an interest in achieving consistency in sentencing outcomes across a range of cases: e.g.,
- 18 US Code § 3553(a)(6) orders federal judges at sentencing to consider "the need to avoid unwarranted sentence disparities" among similar defendants;
- Ohio Revise Code § 2929.11(B) provides that sentences imposed for felonies shall be "consistent with sentences imposed for similar crimes committed by similar offenders."
Arguably, the US Constitution might be thought (at least since the end of the Civil Law) to demand consistent sentencing outcomes over a range of cases: the Fourteenth Amendment, of course, precludes governments from "deny[ing] to any person within its jurisdiction the equal protection of the laws."
We will begin next week by discussing the normative and practical issues raised by these kinds of commitments to sentencing consistency. Normatively, I hope students can explain why we should have a strong commitment to sentencing consistency, especially if there is reason to worry that such a commitment may complicate efforts to achieve justice in each individual case. Practically, I hope students can explain how we can effectively determine who are, in the words of federal law, "defendants with similar records who have been found guilty of similar conduct"? Helpfully, the on-going federal cases highlighted in the questionnaire provide a real-world lens to focus concretely on these abstract questions.
Here is an alphabetical list of some defendants arguably similar to Dzhokhar Tsarnaev (links via Wikipedia and with carnage; federal sentences they received):
- Ted Kaczynski (killed 3, injured over 20; LWOP)
- Timothy McVeigh (killed 186, injured over 600; death sentence)
- Terry Nichols (conspired with McVeigh; LWOP)
- Eric Rudolph (killed 2, injured over 100; LWOP)
Especially given that Tsarnaev is surely most similar to all those on this list other than McVeigh, does a commitment to sentencing consistency entail that Dzhokhar Tsarnaev must get an LWOP sentence? If a federal jury in the Tsarnaev case were to return a sentence recommendation of death, should the presiding federal judge ignore that recommendation and impose LWOP in order to "avoid unwarranted sentence disparities" among similar defendants?
Here is an alphabetical list of some defendants arguably similar to former Connecticut Gov John Rowland (links via Wikipedia when available and federal prison sentences received):
- Illinois Gov Rod Blagojevich (14 years)
- Massachusetts House Speaker Salvatore DiMasi (7 years)
- Louisiana Gov Edwin Edwards (10 years)
- Illinois Gov George Ryan (6.5 years)
- Bridgepost (CT) mayor Joseph Ganim (9 years)
- Alabama Gov Don Siegelman (6.5 years)
- Connecticut Treasurer Paul Sylvester (4.3 years)
Given that Rowland is facing sentencing for his second federal fraud/corruption charges, shouldn't concerns about sentencing consistency demand he now get a federal sentence of at least 6.5 years if not a lot more?
UPDATE as of 11am Monday: Kudos to those students who have already shared thoughtful comments below about the importance and challenges of achieving sentencing consistency.
One important additional factor in this critical debate which we will discuss in class today (and throughout the semester) is WHICH ACTORS in the criminal justice system should be especially concerned with seeking sentencing consistency and HOW PROCEDURLLY shoud greater consistency be pursued: e.g., should legislatures be especially concerned with sentence consistency and pursue it by enacting detailed sentencing guidelines and/or should sentencing judges be especially concerned with sentence consistency and pursue it by thoroughly researching "comparables" before imposing a sentence.
One especially notable actor in an especially notable setting that must confront these concerns a lot is a prosecutor in a jurisdiction with the death penalty. For example, is it virtuous for an Ohio prosecutor, in the name of consistency, always pursue a capital charge for any statutory eligible murder and refuse to plea the case down to a lesser punishment (which is the stated policy of long-time Hamilton County prosecutor Joe Deters)? Alternatively, as this new post on my main blog hints, should we be critical of the Colorado prosecutors in the Aurora killer James Holmes case for not being willing to take an LWOP plea given that prosecutors have often cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).
Basic logistics concerning mini-paper assignments/requirements
As discussed in our first class, one course requirement is for students to author and submit at least three mini-papers throughout the semester. Each of these mini-papers must be no more than two pages long, and the papers can be (1) thoughtful reflections on the prior two week's classes and readings, or (2) engaging discussions of an original topic/question/idea/challenge that I pose in class.
As set forth below, the submission dates and time for these mini-papers is generally every other Monday by 12noon:
- January 26
- February 9
- February 23
- March 9
- March 30 (extra week because of Spring Break)
- April 13
As also explained in class, one goal for this assignment is to engender additional inter-student substantive discourse; that is why, subject to any stated objections/concerns for certain submissions, I expect to distribute everyone's submitted mini-papers back to the class for all to read and consider.
I will generally provide the original question/idea/challenge for certain mini-papers in class on the Tuesday right after the dates listed above and then provide links in this space to any supportive materials.
The first question/idea/challenge, as you may recall, is to make recommendations concerning what the new Executive Director of the Ohio Criminal Sentencing Commission (OCSC) ought to have the OCSC working on these days. Here are links to some OCSC materials that can provide helpful background for this topic:
Ohio Criminal Sentencing Commission Publications (most of which are dated)
Tuesday, January 13, 2015
Our class's (unrepresentative) initial perspectives on the death penalty
I am grateful for the 23 students who completed and submitted the class questionnaire, and I am eager to get completed surveys placed in my faculty from anyone who has not yet submitted the form before 2pm on Thursday. We will be sure to discuss some of the collective "results" in class, and I really appreciate all the thought that was evident in many answers.
I was moved to do this first post about the questionnaire because I was struck (and a bit surprised) by how titled the class seems to be against the death penalty this year. In previous years, students have come into the class fairly evenly divided on the issue, with roughly half of students saying they were categorically against the death penalty and half saying they were not. This year, however, 19 students (of 23 submitted questionnaires ) indicted they were against the death penalty (although a few back-tracked a little bit when asked about a sentence for the Boston Marathon Bomber).
In other words, it seems that more than 80% of our class generally oppose the death penalty, whereas Gallup polling reveals that more than 60% of people in the US generally favor the death penalty. Especially as we engage in death penalty discussions, we should be ever minderful of this notable contrast in student viewpoints and broader US viewpoints.
In addition to simply noting these notable facts about views on the death penalty, I am eager to hear what folks imagine to be the general views of all Moritz students and/or all lawyers as a group. Notably, some past Gallup poll data has highlighted that persons under 30 and "nonwhite" persons comprise the groups most opposed to the death penalty, and the Moritz student population as a whole is certainy younger and more diverse than the general population. But all lawyers as a group tend generally to reflect, demographically, the general population. (Consequently, I would guess that our class is not extremely unrepresentative of all Moritz students but likely is quite out of line with all lawyers generally on this issue.)
Also, on the topic of the death penalty, the first US execution in 2015 took place Tuesday night, see "Georgia executes Vietnam veteran who killed a sheriff's deputy", and Oklahoma is scheduled to carry out another execution on Thursday.
Thursday, January 8, 2015
Pre-Class Questionnaire for pre-class completion
As mentioned in my e-mail to the class, your only formal responsibility before the first week of classes is to completed the short questionnaire that I have now uploaded here are a word document:
As you will see from this document, you may want to (but need not) read pp. 1-17 in the text for some background on some of the terms used in the first question. And the second question seeks feedback the topics listed in this class introduction post.
In addition, the last question asks what sentence you would impose on former Connecticut Governor John Rowland at his upcoming federal sentencing. Background on this white-collar defendant and his crime can be found in these recent articles from the Hartford Courant:
- "Sides Clash Again Over Rowland Sentence"
- "Rowland Sentencing Postponed While He Presses Claim of Withheld Evidence"
Very excited (and a bit overwhelmed) for another blog reboot for another semester of Sentencing Law
Welcome to the FIFTH(!) re-launch of this blogging adventure. This blog started eight years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) to facilitate student engagement in the Spring 2007 course on the death penalty that I taught at OSU's Moritz College of Law.
Though I closed this blog down not long after that course ended, I was pleased to see all the students' hard work as reflected in the archives still generating significant traffic and much of the posts remain timely. Consequently, when I geared up for teaching Sentencing in Spring 2009 at The Ohio State University Moritz College of Law and again when visiting in Spring 2010 at Fordham School of Law and again back at the Moritz College of Law in Fall 2011 and yet again in Spring 2014, I decided to reboot this blog to allow the new course to build (indirectly) in this space on materials covered before. In all of these classes, I was generally pleased with how this blog helped promote a new type of student engagement with on-line media and materials. (For the record, OSU students engaged with the blog much more and better with Fordham students. Go bucks!)
Now, circa January 2015, we all now get to work together again on Sentencing Law at the Moritz College of Law. T his time around, I am especially excited (and more than a bit overwhelmed) by all the interesting, high-profile and on-going sentencing cases, developments and projects that we will discuss and perhaps get directly involved with in the months ahead. To highlight why I am so excited (and overwhelmed), I am going to list here just an abridged set of on-going stories we will be following on this blog and in the classroom:
Concerning the modern death penalty:
1. The federal capital trial of the Boston Marathon Bomber, Dzhokhar Tsarnaev, has just begun. This case will provide a great focal point for theoretical and practical discussions of death penalty decision-making (and plea bargaining).
2. A federal court-ordered moratorium on executions in Ohio is due to expire next week and the Ohio General Assembly recently enacted a controversial new law to allow the state to acquire execution drugs in secret for future executions. These matters will provide a basis for discussing state laws and policies (and federal litigation) over administration of the death penalty.
3. I have been asked by federal and UK lawyers to help with efforts to review cases of Pakistan defendants scheduled to be executed. This project will provide an opportunity for students interesting in international/comparative death penalty work.
Concerning Eighth Amendment jurisprudence:
4. The US Supreme Court (SCOTUS) recently took up the issue of whether its 2012 Miller v. Alabama Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively. I am working on an amicus brief to be filed with the Court and welcome students to help with this effort.
5. The Ohio Supreme Court will hear oral argument next month concern whether the SCOTUS 2010 Graham v. Florida Eighth Amendment ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should applied to a lengthy term-of-year sentence. I worked on an amicus brief filed in this case and hope to attend the oral argument (with students, if interested).
6. The Sixth Circuit recently rejected the claim that a 15-year mandatory federal sentence for an ex-felon's possession of shotgun shells was unconstitutional. I am working on an amicus brief to support a SCOTUS cert petition and welcome students to help with this effort.
Concerning the federal sentencing law and developments:
7. Many bipartisan bills for federal statutory sentencing reform stalled in the last Congress, and there is reason to suspect that some of these bills may get renewed attention in the new Congress. These matters will provide a basis for discussing the legislative role in sentencing law and policy.
8. Hearings for new Attorney General nominee Loretta Lynch are likely to take place in the next few weeks, and she is sure to be asked about various criminal justice policies and practices of the Obama Administration. These matters will provide a basis for discussing the executive role sentencing law and policy (as well as some federalism issues).
9. The US Sentencing Commission is proposing new revisions to the federal sentencing guideline and continues to monitor federal sentencing patterns a decade after the US Supreme Court made these guidelines only advisory rather than mandatory. These matters will provide a basis for discussing the judiciary's role in sentencing policy and practice.
Concerning Ohio sentencing law and developments:
10. Despite statutory reforms a few years ago, Ohio's prison chief is warning about severe overcrowding in our prisons and is suggesting emergency release of prisoners might soon be required. These matters will provide a basis for discussing the costs and consequences of heavy reliance on incarceration in states.
11. The Ohio Criminal Sentencing Commission (OCSC) has a new director who is eager to give this body a refreshed agenda. I will be asking you, quite soon, to write a short memo to the OCSC director giving advice about what this Commission should be doing.
12. There are already three distinct groups talking seriously about bringing major marijuana reform proposals to the ballot in the coming years. These realities will provide a basis for discussing the drug prohibitions and its sentencing impact as well as the virtues and vices of direct democracy as a means of criminal justice reform.
Believe it or not, I could readily list a few dozen more topics that we likely will be discussing in the days ahead on substantive topics ranging from white-collar fraud sentencing to sex offender registration laws to victim's rights to receive restitution at sentencing and on procedural topics ranging from mandatory minimum sentencing provisions to plea bargaining to jury sentencing procedures. But I trust the dozen issues noted above provides you a sense of why I am so execited (and more than a bit overwhelmed) by all the stuff we can be working on in this class.
At this stage, I am most interested in getting your input ASAP about which of these various topics (or other topics) interest you the most going forward. Consequently, I would be eager to hear in the comments to this post which of the issues mentioned above are of greater interest (or of least interest) to you as students in this class. If there is some rough consensus among students about the topics of greatest interest, we will be sure to spend more time on these topics.
Wednesday, May 7, 2014
COURSE COMPLETION REMINDERS: Turn in final AND remind me of any extra credit completed
Just a few brief reminders for everyone still wrapping up this course:
1. If you are writing a final paper, I would appreciate receiving BOTH a digital and a hard-copy before the end of this week.
2. If you are doing the take-home final, I think the computer system needs to have it completed by the end of the exam period on Thursday (though you can/should check with the registrar about eact timing for submission).
3. Whatever final you have completed, be sure also to send me an e-mail to make sure I have a record of any/all the extra credit assignments that you completed and submitted to me this semester.
Thanks and congrats to everyone now wrapping up the class and your law school career!
Wednesday, April 23, 2014
Lots of extra credit for writing about lethal injection for JURIST
Late last night, I received this invitation/inquiry via e-mail:
Dear Professor Berman:
My name is Elizabeth Hand, and I am writing on behalf of the University of Pittsburgh JURIST's Dateline service. JURIST is an ABA and Webby award-winning legal news service that reaches hundreds of thousands of readers weekly. JURIST has been cited 700 times in law reviews and briefs to the US Supreme Court, state supreme courts, and federal appellate courts. It has also been cited in nearly 500 published books, and several hundred times by the Library of Congress Website. Dateline is JURIST's student commentary service, and we seek original opinion-based articles from law students regarding their personal and work experiences in a field of law.
JURIST is looking for student commentary pieces covering the recent lawsuit over the state of Oklahoma's lethal injection drugs. You can see our brief coverage of the case here: http://jurist.org/paperchase/2014/04/oklahoma-high-court-stays-executions-over-lethal-injection-drug-challenge.php.
We are looking for student op-eds exploring the legal issues surrounding the legality of the drugs and the overarching issues of capital punishment. If you could please extend this invitation to write to the any law students that you think would be interested in contributing it would be greatly appreciated.
Our authors, including our academic and professional authors, generally list their JURIST articles on their resumes along with journal, law review, and other publications.
Articles are approximately 1200 words in length and do not require Bluebook citations. For examples of recent articles please see: http://jurist.org/dateline/
I will give extra credit to any and every student who submits and op-ed, and double extra credit if you get your op-ed published!
Monday, April 21, 2014
Helping President Obama use his constitutional clemency powers
In our last few classes, I want to wrap up our discussions of modern federal drug sentencing by turning attention to the work of the most powerful of sentencing "whos": the President of the United States. There are lots of ways the President can and does make sentencing decisions, but the most historic means is through the exercise of his (constitutionally enshrined) power to grant clemency.
There are lots of stories to discuss and debate relating to the President's clemency power and its use throughout American history, but I will want us to focus on how it might still be used (and/or should be used) by President Obama as he heads into his final few years in office. This new Reason.com piece by Jacob Sullum provides some useful background and context for our discussions:
President Obama made appropriate use of his clemency powers this week, shortening the prison term of a drug offender who received a sentence that everyone agreed was too long but for which there was no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to 17.5 years in federal prison after he pleaded guilty to conspiracy and money laundering charges related to shipping marijuana from Mexico to Virginia. That term was three-and-a-half years longer than it should have been under federal sentencing guidelines because of a mistake in Cantu's presentence report, which erroneously listed his "base offense level" as 36 instead of 34. Cantu's lawyer never noticed the mistake, which Cantu himself discovered in 2012 after his family mailed him a copy of the report. By then he had missed the deadline for asking the courts to shorten his sentence....
"It's hard to imagine that someone in the federal criminal justice system could serve an extra three-plus years in prison because of a typographical error," said White House Counsel Kathryn Ruemmler in a speech at NYU Law School on Tuesday....
Obama should [not] be so stingy with commutations, which he so far has issued at a slower rate than all but three other modern presidents: George W. Bush (11 commutations in 96 months), George H.W. Bush (three in 48 months), and Ronald Reagan (13 in 96 months). Obama has now issued 10 commutations in 64 months, which by that measure makes him about 26 percent more merciful than Bush II, 46 percent more merciful than Bush I, and 14 percent more merciful than Reagan. (Obama still lags all three on pardons, which clear people's records, typically after they have completed their sentences.) But surely a man who has repeatedly criticized excessively long prison sentences should aspire to do more than surpass these truly awful commutation records. Obama is still a long way from Nixonian levels of mercy, since Tricky Dick shortened 60 sentences...
A few months ago, Deputy Attorney General James Cole indicated that Obama planned to pick up the pace, which was encouraging. Not so encouraging: Cole, whose department had at that point received about 9,000 commutation petitions since Obama took office, asked for help in finding worthy applicants, which suggested the government's lawyers are either lazy or extremely picky. Cantu's case seems to fit the latter theory....
By the president's own account, there are thousands of other clear injustices that he has the power to remedy. He could start with all of the crack offenders sentenced under pre-2010 rules that almost everyone now agrees were unreasonably harsh. The Smarter Sentencing Act would make the shorter crack sentences enacted in 2010 retroactive. But if Congress fails to approve that bill, Obama still has the authority to act on his own, which would be consistent with the statements he and his underlings have made regarding our excessively punitive criminal justice system.
"The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in her NYU speech. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories." Probably more than 10. The president's pitiful performance so far falls far short of these aspirations.
UPDATE: This brand new post at my main blog provides more explanation for how timely our discussion on clemency now is as a result this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith." I highly recommend reading the full Yahoo piece.
Wednesday, April 16, 2014
Lunchtime sentencing activities on 4/17 and 4/18
As briefly mentioned in in class earlier this week, you can have still more sentencing fun in the coming days during the lunch hour. Here are the details:
April 17 at 1pm: Federalist Society Teleforum Conference Call involving Profs Berman and Cassell on "Controversial Sentencing in the Antwuan Ball Case"
April 18 at 12noon in Drinko Room 244: ACS Chapter presents "Lethal Injection and Legal Problems with New Drug Combinations" with Allen Bohnert and Jessica Felker of the Federal Public Defender Capital Habeas Unit, Southern District of Ohio, to discuss some of the legal issues surrounding recent changes in drug combinations used for lethal injections.
UPDATE: A podcast recording of the Federalist Society Teleforum Conference Call is now available at this link.
Friday, April 11, 2014
Comparing two federal drug offenders and the (now just amended) federal drug guidelines
To aid our discussion of drug sentencing under the existing federal sentencing guidelines (which were, as reported here, amended just yesterday) based on various offender and offense factors, let me briefly describe two notable federal drug offender:
Offender #1 was, at the time of his offense, a 21-year-old man in his second year at college and got involved in an ecstacy conspiracy through a friend. This fellow himself used various drugs and served as a middle-man dealer of thousands of ecstacy pill for seven months, earning personally between $30,000 and $40,000. Afraid of getting apprehended, this offender thereafter decided the drug business was not for him: he withdrew from the conspiracy on his own, graduated from college, stopped using drugs, and began lawful work in another state. But, a few years later, when the ecstacy conspiracy was disrupted, and Offender #1 was indicted on various federal drug charges. Offender #1 thereafter pleaded guilty and truthfully provided authorities with all the information he had about his offense and others involved in the conspiracy.
Offender #2 was, at the time of her offense, a 19-year-old woman who dropped out of high school when she got pregnant as a teenager. Her half-sister got her involved in a methamphetamine conspiracy as a way to make money while she cared for two children and their mother. She made at most a few thousand dollars as a drug courier, and was apprehended at a bus station by police during her third run as a courier with 2.35 kilograms of methamphetamine in her possession. While on pre-trial/sentencing release, Offender #2 got married, had another child started, taking GED classes and got a low-paying job. Offender #2 also pleaded guilty and truthfully provided authorities with all the information she had about her offense and others involved in the conspiracy.
Can you guess which of these two offenders faced a higher guideline sentencing range?
Can you guess what federal sentence was ultimately imposed on these offenders?
Answers to both these questions are revealed by reading Gall v. US (in our text at pp. 415-423) and US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here). Please review both these cases to facilitate our class discussions on Monday and Wednesday.
Tuesday, April 8, 2014
Military service in the federal sentencing guidelines, then and now (and in the future?)
As a follow-up to our class discussion about military service and to provide a specific proposal to debate in our next class, I thought it would be useful to review the history of how the federal sentencing guidelines have treated military service.
For starters, the original federal sentencing guidelines promulgated in 1987 said not one word about military service. Then, in 1991, the following provision was added to the guidelines:
§ 5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works (Policy Statement)
Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
Then, in 2010, § 5H1.11 was amended so that it now reads:
Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.
Civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.
Now, circa 2014, I propose mendment to the first paragraph of § 5H1.11 to read as follows:
If the defendant served in the active military prior to the commission of the offense, and if evidence suggests that personal or professional issues resulting from military service played any role in contributing to the commission of the offense or impacted the defendant's mental or emotional condition at the time prior to or during the offense, reduce the otherwise applicable guideline sentencing range by one third.
REAL-WORLD UPDATE: Here is a timely press report on an interesting and on-going federal case raising these issues and other offender-circumstances for consideration at sentencing:
A federal judge next week will re-start the sentence hearing for an Iraq combat veteran with PTSD who pleaded guilty to trying to hire the KKK to kill a black neighbor. Chief U.S. District Court Judge Karon Bowdre on Wednesday set Monday, April 14, as the date for continuing the sentencing hearing for Allen Wayne "Big Dad" Morgan. The hearing will begin at 1:30 p.m. at the Hugo L. Black U.S. Courthouse in downtown Birmingham.
Bowdre had started the sentencing of Morgan on Feb. 27 but after it began she continued it to give prosecutors time to respond to a witness Morgan's attorneys planned to call. The hearing continued on Monday with testimony about Morgan's drug addiction, his alleged sexual abuse as a child, and his diagnosed PTSD from his combat missions. Defense attorneys argue that the Federal Bureau of Prisons is not equipped to handle combat veterans with PTSD. Bowdre announced that she would continue the hearing after more than four hours.
Morgan, 30, pleaded guilty to using and causing someone else to use interstate facilities and travel -- a telephone and a motor vehicle -- with the intent to commit a murder-for hire. He is charged with trying to hire the KKK to kill a neighbor, who is black, because he believed the man had raped his wife.
Other than criminal history, is there any specific "offender characteristic" that you think must be considered at sentencing? If so, how?
As we start digging into the challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing. As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).
Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing. Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.
Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statment that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings). Relatedly, as discussed in this recent post on my main blog, a number of states have enacted laws or considered bills to require consideration of military service and/or PTSD at sentencing.
Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of military service? If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing.
Monday, April 7, 2014
With three weeks left, how are we doing on "low stress, high learning" on sentencing issues?
Sadly (at least from my perspective) we only have three more weeks together before classes conclude on April 23. That means eight classes, and a mere 400 minutes, because we do not have class on Tuesday 4/15. (Fortunately, as I will explain in class, this week and next we can have some extra time together through lots of extra-curricular sentencing activities on the calendar.)
As explained in prior posts and in class, we will be focused in our final few weeks on drug sentencing, offender characteristics and the back end of the (non-capital) sentencing system (e.g., parole and clemency). In so doing, I hope to continue fulfilling my start-of-semester promise/desire to create a "low stress, high learning" environment for students. And as we head into this final stretch, I want to provide this blog venue for expression of concerns, complaints, suggestions and any other feedback before it is too late for me to respond effectively. (Obviously, you will all get a chance to share your views on the course in the formal evaluations at the very end of the semester, but at that point it will be too late for me to do anything in response that you will benefit from.)
In other words, I would be grateful for any/all student comments in response to this post about any subject related (or even not related) to the substance and style of our course.
Sunday, March 30, 2014
With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums
As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff. (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence. Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact? Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)
We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence. Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case: should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)? How about her status as a newlywed? Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?
But rather than continue to obsess over the killer bride (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms. Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:
Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this informative speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.” It provides great background on the past and present of federal drug sentencing.
US District Judge James Browning provides a defense of the federal sentencing status quo in a lengthy opinion in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here). For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read. Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.
An on-going legislative sentencing reform debate developing around heroin in Louisiana, which is well covered in this notable news article headlined, "In heroin debate, a detour from sentencing reform."
Thursday, March 27, 2014
Some background and sentencing readings related to Ninth Circuit CJ Alex Kozinski
As I have mentioned, on Wednesday April 2, we will have the honor and pleasure of having Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, visit our class. For basic background on this renown jurist, check out his Wikipedia entry and/or this (dated) Unofficial Judge Alex Kozinski Site and/or this 2005 Legal Affairs profile. That profile has this headline and subheading: "THE BIG KOZINSKI; If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster."
Because he has written opinions and commentaries on every subject under the legal sun, it would be almost impossible to read even a small sample of all his views. Fortunately, though, he has written a few especially high-profile (though now somewhat dated) pieces about death penalty jurisprudence and federal sentencing jurisprudence. Here are links to a few highlights from this part of CJ Kozinski's corpus:
Concerning the death penalty, check out this lengthy co-authored 1995 op-ed in the New York Times given the headline "For an Honest Death Penalty." It starts this way:
It is a staple of American politics that there is very strong support for the death penalty; in opinion polls, roughly 70 percent consistently favor it. Yet the popular will on this issue has been thwarted.
To be sure, we have many capital trials, convictions and death sentences; we have endless and massively costly appeals; and a few people do get put to death every year. But compared to the number of death sentences, the number of executions is minuscule, and the gap is widening fast.
Note that, back in the early 1990s when this op-ed was authored, thoughtout the US there were often 300 death sentences imposed and only about 30 executions each year. Lately, in contrast, we have had in the US only about 75 death sentences and 40 executions each year.
On the topic of federal sentencing, I succeeded way back in 1999 to get CJ Kozinski to author this article for the Federal Sentencing Reporter a full five years before Booker made the Guidelines advisory. It starts this way:
Once or twice a year I sit as a trial judge, usually in a criminal case. I've been doing it for many years and never cease to learn something new. I started before the Sentencing Guidelines, so I have sentenced defendants both with and without the Commission's guidance. I've had my doubts about the Guidelines; I even wrote an opinion saying they were unconstitutional. Doubts sometimes resurface when I sit as an appellate judge, but I have no doubts when I sit as a trial judge: I like the Guidelines and hope they're here to stay.
I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison. Some judges may have the wisdom of Solomon in figuring out where in that range to select just the right sentence, but I certainly don't. Would too heavy a sentence destroy a young life and snuff out any chance of rehabilitation? Would too light a sentence embolden the defendant, endangering the lives of innocents? What deterrent effect will the sentence I impose have on others?
Deciding whether someone spent the next twenty years in prison or got straight probation was a burden almost too heavy to bear. Somehow I felt it was wrong for one human being to have that much power over another. Imposing sentence was, for me, almost an act of sacrilege.
Nor did it help that there was no appeal from the sentence. On the contrary, the very finality of the decision made it all the more difficult. If the sentence had been subject to appeal, someone else could have told me if I was way off the mark. But with no sentencing appeals, the burden lay entirely on my shoulders, and I didn't like it a bit.
Enter the Sentencing Guidelines and all this changed for the better. Gone are the wide open spaces for sentencing discretion. Sentencing ranges are narrow and presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition--they're all engineered into the machine; all I have to do is wind the key. The Probation Officers in the Central District of California, where I mostly sit, do an excellent job and there are seldom disputes over the accuracy of the PSR. When there are, I do what I am competent to do--make factual findings.
Once I have figured out the range, I always sentence at the very bottom; I never depart up or down, unless it's a guided departure like substantial assistance or acceptance of responsibility. This is true whether a defendant has pleaded guilty or proceeded to trial; generally, I have found that the bottom end of a given Guideline range sufficiently captures a defendant's criminal culpability, and I very seldom run across a case so unusual as to warrant departure. If the sentence seems too harsh or too light, I no longer feel responsible.
Tuesday, March 25, 2014
Sentencing submissions in US v. Graham: YOU BE THE SENTENCING JUDGE (and/or predict what the real judges will do)
As promised, here are links to the sentencing submission in US v. Graham (D. Montana):
As I mentioned in class, I am VERY interest in having students review these submissions and then comment/opine about (1) what sentence they would give if the sentencing judges in this case, and/or (2) what sentence they predict the actual federal sentencing judge will give on Thursday at the actual sentencing.
For anyone who makes a judgment/prediction that is spot on, I will reward with a special surprise prize.
UPDATE: Outcome is detailed over at SL&P: Remorseless killer bride gets sentenced to 30+ years in federal prison
Sunday, March 23, 2014
Seeking engagement on "offense" for sentencing purposes (with or without emphasis on "acquitted/uncharged conduct")
In this post from my main blog, titled "As a matter of law, policy and practice, what should be the 'offense' a sentencer considers?," I set out some ideas that I referenced in last Wednesday's class and that I am eager to review during our two classes this coming last full week of March. (Remember, class does not meet on 3/26; I suspect I have already conducted a make-up class with the extra minutes I have run class late some days.)
In that post (which I urge students to review), I explain why many challenging and controversial issues of modern sentencing can often relate to the consensus viewpoint that (1) offense(s) of conviction are a necessary and critical part of the "offense" to be considered at sentencing, but also that (2) at least some non-conviction, offense-related factors (such as a defendant's motive and role and the impact on victims) should also be considered sentencing. The constitutional issues considered by the Supreme Court in Watts and the broader debate over whether sentencing guidelines should focus mostly/exclusively on the "charged" offense or the "real" offense depend to a large extent on whether concern (1) or concern (2) is considered most important at sentencing.
Usefully, an interesting and notable variation on the Watts case was decided by the DC Circuit less than 10 days ago in a multi-defendant case involving one defendant named Antwuan Ball. I discussed the background and ruling in the Antwuan Ball case in this SL&P post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims." Here are the factual basics:
Ball put the government to its burden of proof concerning allegations of his involvement running a massive drug conspiracy in Washington DC; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.
At sentencing, federal prosecutors urged the district judge to rely heavily on all sorts of alleged wrongdoing by Ball to impose a (statutory maximum) sentence of 40 years on the crack charge/conviction. Relying on the prosecution's allegations that Ball was the leader of a huge crack conspiracy (claims which the jury concluded were not proven beyond a reasonable doubt), the district calculated Ball's guideline sentencing range to be 292 to 365 months (whereas Ball's guideline range would have been only 51 to 71 months absent consideration of "acquitted conduct").
District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy," and he ultimately decided to give Ball a (below-guideline-range) 225-month prison sentence for his conviction based on the 2001 hand-to-hand drug transaction. In other words, like the defendants in the Watts case that came before the US Supreme Court, Antwuan Ball's calculated guideline range and his actual sentence was significantly impacted by "real offense conduct" considered by the sentencing judge but not the basis for a conviction. But, as was likewise true for at least on of the Watts defendants, Antwuan Ball ultimately was eligible for and received a much lower sentence than he would have gotten had been convicted of all the offenses with which he had been charged. (Ball likely would have been facing a statutory mandatory LWOP if he had been convicted by the jury of being the leader of a big crack conspiracy.)
I have strong (but quite nuanced) views about what is wrong and what is not-so-wrong with how federal sentencing law now deals with defendants like Antwuan Ball, and you can become more informed and insightful than 99% of practitioners if/when you can understand why these issues are so philosophically and doctrinally challenging. And, to aid analysis, my post about the Ball case generated a pair of thoughtful posts at The Volokh Conspiracy: Professor (and former federal sentencing judge) Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?". And then Professor Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence."
Among the reasons you might want to invest time/energy thinking through this case is because I likely will be authoring an amicus brief this coming summer in support of a cert petition if/when the lawyers for Antwuan Ball and his co-defendant decide to pursue further appeals. I would welcome any and all student help and input now or later concerning such a project.
Monday, March 17, 2014
Make sure you work on (and are ready to discuss) FSG sentencing of Rob AnonMonday's first post-break class will involve lots of catching up on events since our last gathering and lots of gearing up for our final six week of classes. It will help if everyone has already gone through the Rob Anon guideline sentencing experience, and 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 note done it yet, please do ASAP. And everyone is encouraged to discuss the experiences in the comments here.
Friday, March 14, 2014
Basketball, baseball, brews and professional bonding in the weeks ahead....
Now that March Madness and baseball's spring training are finally in full swing (and golf season and The Masters are on the horizon), I am likely to be grumpy any and every Thursday and Friday afternoons for the next month if/whenever I am in my Moritz office working rather than over at Eddie's watching sports of some sort. But I always feel guilty (and lame/lonely) if I go over to EG's alone, and thus I mean through this post to encourage/bribe students to rescue me so I can rationalize a trip out of my office as a form of work/professional bonding with whomever comes and gets me.
As some of you know, I always buy the first round for any/everyone who pulls me out of my Moritz office at a convenient/appropriate time on a Thursday or Friday. Today, for example, in addition to being Pi Day (3.14), I am especially eager to watch the Big Ten tournament (at least when the Buckeyes are playing; tip at 2:30pm).
In subsequent weeks, there will be the NCAA Tourney, the official start of baseball season, and then The Masters to distract me from other (more productive?) endeavors. If (when?) I start feeling guilty about too much afternoon time watching sports, I may have to take back this open invitation for professional bonding; until that time; PLEASE feel free to take advantage of my open-door EGs migration policies.
Wednesday, March 12, 2014
If you want to spend a cold day in a warm appellate courtroom...
I will be driving down to Cincy this Thursday morning in order to participate in oral arguments before the Sixth Circuit in US v. Young. Details about the case is available here at my main blog, and the arguments are slated third for session (as set forth on this calendar) scheduled to begin at 9am. The panel hearing the case is composed of Judges Griffin, White, and Stranch in Room 403 of 540 Potter Stewart US Courthouse Building.
I will be driving down to Cincy in my Prius, which can hold up to 3 passengers. I already have one student scheduled for a ride, whom I plan to pick up in the Moritz parking lot at 7:20am on Thursday morning. Anyone ease eager to come along should let me know ASAP so I look for you at that time.