Monday, April 23, 2018

Thanks for a great semester and...

remember that if you are taking the take-home exam, you should upload your exam answers to www.exam4.com on or before May 10. (Remember that a copy of the exam can be downloaded at the same locale and can also be found in front of my office.)

If you are working on a final paper, you should turn in that paper on or before May 10, and if you want feedback on a draft I would be grateful to see it at least a few days before then.

And whatever your plans, be checking this space (and my main blog) for continued coverage of sentencing topics AND for continued opportunities to comment about sentencing topics to continue to earn class participation points.

April 23, 2018 | Permalink | Comments (0)

Sunday, April 15, 2018

Examining the "why" and "who" of modern mass incarceration and its potential alternatives

As we finish up the semester with a final few classes examining the particulars of modern mass incarceration and possible alternatives, I realize it would be useful and fitting to return to some of the early themes of the class concerning the "why" and "who" of sentencing.  Specifically (and building off themes stressed by Fordham Law Professor John Pfaff at the Reckless-Dinitz Lecture), I will likely start Monday's class by exploring:

(1) "why" incarceration has become such a popular punishment in modern American history, and

(2) "who" has been most responsible for the particular emphasis on incarceration in modern American history.

I think some reasonable answers to these questions are important for anyone eager to move the nation away from modern mass incarceration: without having some sense of just why incarceration has proved so popular and just who has had a leading role in inflating incarceration levels, it will be hard to engineer a successful change of course.

Especially because there have recently been a whole lot of notable new court opinions about Eighth Amendment limits on extreme juvenile prison sentences — see examples here and here and here and here and here from the Third Circuit, the District of Connecticut, the Iowa Supreme Court, the Georgia Supreme Court and the Wyoming Supreme Court — I am especially eager to discuss what role we think courts have played in creating modern mass incarceration and what role courts could play in moving us away from modern mass incarceration.

In this context (and again to serve as a kind of semester review), I think it important to recognize that courts have played a major role in the modern decline of the death penalty in the United States over the last two decades.  All sort of litigation has played all sorts of roles in "gumming up" the modern machinery of death, and many abolitionists have come to expect that the US Supreme Court will play a starring role in a final push to have the death penalty fully abolished throughout the United States. 

Is there any basis to hope or expect courts to play a major role in a decline in the use of incarceration in the United States over the next two decades?

April 15, 2018 in Alternatives to imprisonment, Class activities, Theories of punishment, Who decides | Permalink | Comments (4)

Wednesday, April 11, 2018

Should particular pie pieces or particular populations be of particular concern for those troubled by modern mass incarceration?

Women_pie_2017The question in the title of this post will be one I will be eager to unpack in coming classes, and it is inspired in part by the points emphasized in the Prison Policy Initiative updated version of its terrific incarceration "pie" graphic and report now at this link.  Here is part of the PPI pie report's introductory text and subsequent discussion:

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....

Breaking down incarceration by offense type also exposes some disturbing facts about the youth confined by our criminal and juvenile justice systems: Too many are there for a “most serious offense” that is not even a crime. For example, there are over 8,500 youth behind bars for “technical violations” of the requirements of their probation, rather than for a new offense. Further, 2,300 youth are locked up for “status” offenses, which are “behaviors that are not law violations for adults, such as running away, truancy, and incorrigibility.” Nearly 1 in 10 is held in an adult jail or prison, and most of the others are held in juvenile facilities that look and operate a lot like prisons and jails.

Turning to the people who are locked up criminally and civilly for immigration-related issues, we find that 13,000 people are in federal prison for criminal convictions of violating federal immigration laws, and 13,000 more are held pretrial by U.S. Marshals. Another 34,000 are civilly detained by U.S. Immigration and Customs Enforcement (ICE) separate from any criminal proceedings and are physically confined in federally-run or privately-run immigration detention facilities or in local jails under contract with ICE. (Notably, these categories do not include immigrants represented in other pie slices because of non-immigration related criminal convictions.)

Adding to the universe of people who are confined because of justice system involvement, 22,000 people are involuntarily detained or committed to state psychiatric hospitals and civil commitment centers. Many of these people are not even convicted, and some are held indefinitely. 9,000 are being evaluated pre-trial or treated for incompetency to stand trial; 6,000 have been found not guilty by reason of insanity or guilty but mentally ill; another 6,000 are people convicted of sexual crimes who are involuntarily committed after their prison sentences are complete. While these facilities aren’t typically run by departments of correction, they are in reality much like prisons....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons.

Notably, last fall the Prison Policy Initiative working jointly with the ACLU’s Campaign for Smart Justice released this great report with a particular population perspective: "Women’s Mass Incarceration: The Whole Pie 2017."  The report explains that it provides "a first-of-its-kind detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even larger picture of correctional control."  In addition to thinking about how the female incarceration "pie" looks different, I wonder if you share my concern about discussion of "women's mass incarceration" given that there are around 165 million women in the United States and thus really less than 0.15% of all US women are incarcerated. 

Is it accurate and helpful to describe a phenomenon as "mass" if it directly impacts less than 1 out of 500 persons in a population?

April 11, 2018 in Class activities, Scope of imprisonment | Permalink | Comments (1)

Saturday, April 7, 2018

Reading in preparation of John Pfaff's visit on April 12 and our discussions of mass incarceration

9780465096916As repeatedly mentioned in class, Fordham Law Professor John Pfaff will be on campus this coming Thursday, April 12.  At 4pm at the Barrister Club he will be delivering the Reckless-Dinitz Lecture titled "Moving Past the Standard Story: Rethinking the Causes of Mass Incarceration." Here is the abstract for this lecture:

"Reducing America's exceptional reliance on incarceration is one of the few issues of genuine bipartisan cooperation these days. Yet despite years of work, change has been slow and halting.  One critical reason is that the story we tell about what has driven prison growth often emphasizes causes that matter less at the expense of those that matter more.
"We talk about the impact of long sentences — which certainly matter — but end up overlooking the even more important role of prosecutorial charging behavior in the process.  We emphasize the need to stop sending people to prison for drugs, but as a result fail to talk about changing how we punish those convicted of violence — even though only 15% of the prison population is serving time for drugs, compared to over 50% for violence.  And reformers frequently direct their attention on private prisons, and thus don't focus on the fact that public institutions hold over 90% of all inmates, and that (public) correctional officer unions and legislators with public prisons in their districts play far bigger roles than the private prison firms in pushing back against reform efforts. Even the modest reductions in prison populations since 2010 are something to celebrate, but more substantive cuts will require us to start asking tougher questions about the sorts of changes we need to demand."

As I have noted before, Professor Pfaff is the author of Locked in: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017), and I expect his lecture will be covering many points he develops in his book.  Were I an evil lawprof, I could demannd that you all read his full book ASAP.  Instead, I will be content to here link to some effective reviews of Locked In:

Though everyone should feel free to read Locked In, for class discussion purposes I think it might be useful for folks to read Professor Pfaff latest commentary titled "A Smarter Approach to Federal Assistance with State-Level Criminal Justice Reform."  Here is its abstract:

This brief explains how Congress and the president can best help reduce our country’s outsized reliance on imprisonment, a goal with rare, widespread bipartisan support. Successful interventions will need to target issues that previous efforts have overlooked or ignored, and they will need to take better account of the haphazard ways that costs, benefits, and responsibilities are fractured across city, county, state, and federal governments. If designed properly, however, federal efforts could play an important role in pushing our criminal justice system to adopt more efficient, as well as more humane, approaches to managing and reducing crime.

April 7, 2018 in Class activities, Scope of imprisonment | Permalink | Comments (1)

Monday, March 26, 2018

Reading in preparation of Zac Bolitho's visit on Monday, April 2

On April 2, Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As mentioned in class, here is how he would like all of us to prepare for his visit:

In terms of reading, it might be helpful if the students were familiar with Judge Pryor’s “presumptive guidelines” proposal (described in this speech to the American Law Institute).  I plan to spend a few minutes discussing how the Commission operates, what role DOJ plays in the process, what amendments are pending at the Commission now, and then I’d like to just have a discussion with the students.  I’d particularly love to hear their reactions to Judge Pryor’s proposal.

If there are particular questions that you would like me to address (or topics you know the students will want to discuss), please send them my way.

March 26, 2018 in Class activities | Permalink | Comments (1)

Sunday, March 25, 2018

Some recent posts about the Department of Justice and the US Sentencing Commission that might inspire mini-paper #4

As highlighted in previous posts,  on April 2, Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As repeatedly mentioned, and as shown at the end of this list of US Sentencing Commissioners, Zachary Bolitho also now serves as the designated ex officio member of the United States Sentencing Commission representing the Attorney General. 

As also repeatedly mentioned, mini-paper #4 should be a short memo addressed to ADAG Bolitho on whatever topic you would be eager to raise with him.  If looking for ideas, here are links to a few posts from my main blog highlighting news of various sorts involving the US Sentencing Commission and the US Department of Justice (and the Trump White House):

 

Regarding US Sentencing Commission:

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs 

Prez Trump makes (tough) nominations to US Sentencing Commission 

Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission

 

Regarding US Department of Justice:

New spending bill includes a lot more money for Justice Department to fight drug war even harder 

AG Jeff Sessions issues memo to "strongly encourage federal prosecutors ... when appropriate" to pursue "capital punishment in appropriate cases" 

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed? 

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control" 

AG Sessions gives full accounting of his full law-and-order approach to his work as Attorney General

 

Regarding Trump White House:

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry 

Trump White House expresses opposition to sentencing reform part of SRCA of 2017

Highlights from Prez Trump's tough talk about the opioid crisis and federal response

March 25, 2018 in Class activities, Who decides | Permalink | Comments (0)

Friday, March 16, 2018

Lots to consider and discuss as we get back together

I am looking forward to getting back to our discussion of federal sentencing realities this coming week, and I expect on Monday (3/19) to get us finally into a discussion of "acquitted conduct" and the Supreme Court's decision in United States v. Watts, 519 U.S. 148 (1997).  But before we get together, I want to make sure everyone also knows of this great event in Saxbe right before our class: 

The 2018 David H. Bodiker Lecture on Criminal Justice will feature James Forman Jr., professor of law at Yale Law School and best-selling author of the critically acclaimed book, Locking Up Our Own: Crime and Punishment in Black America (2017), which explores how decisions made by black leaders, often with the best of intentions, contributed to disproportionately incarcerating black and brown people....

This lecture is scheduled for noon on March 19 in Saxbe Auditorium, located inside Drinko Hall.

In addition, if you have been taking a well-deserved break, you might have missed some of these posts from my other blog that touch on issues we have been exploring:

March 16, 2018 in Class activities | Permalink | Comments (0)

Friday, March 9, 2018

March madness predictions, sentencing style

I believe we will know the outcome of two interesting and very different sentencing cases I have been following before the end of today (March 9).  But before we get sentencing outcomes, I wanted, in the spirit of March Madness, to encourage sentencing students (if not already checked out for Spring Break) to make sentencing predictions with the prospect of a reward.  Specifically, anyone who comments to this post with a sentencing prediction in these two pending cases who comes within two years of the actual outcome will be treated by me at a coming happy hour:

Federal fraud sentencing for "Pharma Bro" Martin Shkreli, being decided by US District Judge

State involuntary manslaughter sentencing for Shana Elliott, being decided by a Texas jury

 

March 9, 2018 in Interesting new cases | Permalink | Comments (0)

Tuesday, March 6, 2018

Appreciating the subtle and significant impact of DOJ charging policies on sentencing outcomes

We will wrap up our two-week sentencing of Rob Anon on Wednesday by noting the persistent discretion that still subsists within a federal sentencing system now filled with all sort of sentencing law.  The most obvious locus of modern federal sentencing discretion, and the form that still garners the most attention, resulted from the Supreme Court's landmark Booker ruling making the guidelines advisory instead of mandatory.  Please come to class thinking about whether and why you would be, as sentencing judge, inclined to "vary" from the guideline range you calculated for Rob Anon.  Please also think about what a federal prosecutor or public defender might argue to you that might make you more inclined to "vary" from the guideline range.

Also to be covered, as mentioned on Monday, is the prospect of Rob Anon being subject to a 924(c) charge carrying a seven-year mandatory minimum consecutive term for brandishing a gun while committing  "any crime of violence or drug trafficking crime."  This possibility highlights the extraordinary sentencing impact that prosecutorial charging/bargaining discretion can have, and we will work through its potential echo effects.  Notably, the import and impact of federal prosecutorial charging/bargaining discretion got some distinctive public attention in May of 2017 when Attorney General Jeff Sessions issued a new memorandum establishing charging and sentencing policies for the Department of Justice that essentially reversed memoranda issued by Attorney General Eric Holder giving more discretion to individual prosecutors as to what charges and sentences to pursue.  A post at my main blog provided this accounting (with my added highlights):

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

My hope is you can, with the help of our engagement with the Rob Anon case, now have a fuller and deeper appreciation for the potential impact, in individual cases and across a range of cases, of the May 2017 Sessions Memo.  We will discuss this matter a bit further in class on Wednesday.

March 6, 2018 in Guideline sentencing systems, Who decides | Permalink | Comments (0)

Important scheduling matters for first few weeks of April

Even though March has just gotten started, it will be April before you know it, and I wanted to make sure everyone know of some class schedule issues of importance for the first part of April.  Some of this I have mentioned in class, but some of this is new news (and would be helped by student input):

Monday, April 2: Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As repeatedly mentioned, and as shown at the end of this list of US Sentencing Commissioners, Zachary Bolitho also now serves as the designated ex officio member of the United States Sentencing Commission representing the Attorney General.  As mentioned also repeatedly mentioned, mini-paper #4 should be a memo addressed to ADAG Bolitho.

Monday, April 9NO CLASS!!

Thursday, April 12: Make-up class possibilities:

March 6, 2018 in Class activities, Who decides | Permalink | Comments (0)

Monday, March 5, 2018

Diving deep into many particulars of modern guideline sentencing (and mandatory minimums) for Rob Anon and others

This final week before Spring Break, we will be diving even deeper into the sentencing of Rob Anon under the modern federal sentencing guidelines.  I continue to welcome comments to this prior post if/when you want to discuss your experiences with guideline sentencing, though I also welcome new comments here as I reprint the US Sentencing Commission's latest accounting of the average sentences that modern federal robbery defendants now receive. 

Over the last few years, the US Sentencing Commission has be producing terrific Quick Fact publications (you might call them mini-papers) about various federal sentencing realities. This recent one for "Robbery Offenses" was released in August 2017, and reported that in "fiscal year 2016, there were 1,554 robbery offenders, who accounted for 2.5% of all offenders sentenced under the guidelines."  This two-page document has too much data to capture in this space, but here are particulars that seem particularly notable in light of our Rob Anon exercise:  

The most common Criminal History Category for these offenders was Category I (25.0%). The proportion of these offenders in other Criminal History Categories was as follows:  11.0% of these offenders were in Category II; 20.2% were in Category III; 13.5% were in Category IV;  7.8% were in Category V; and 22.6% were in Category VI.

The median loss for these offenses was $2,846.  92.1% of robbery offenses involved losses of $95,000 or less.  82.5% of robbery offenses involved losses of $20,000 or less.

Sentences for robbery offenders were increased for: 48.7% of offenders for taking the property of a financial institution or post office; 61.2% of offenders for using or brandishing a firearm or dangerous weapon or making a threat of death; 13.0% of offenders because a victim sustained bodily injury; 22.0% of offenders for abducting or physically restraining a victim; 8.5% of offenders for carjacking; 8.2% of offenders for taking a firearm, destructive device, or controlled substance; and 5.1% of offenders for recklessly creating a risk of death or bodily injury in the course of fleeing from a law enforcement officer.

More than one-third (34.1%) of robbery offenders also had convictions under 18 U.S.C. § 924(c).

The average sentence length for robbery offenders was 111 months.  

  • The average sentence length for robbery offenders with a conviction under section 924(c) was 180 months. 
  • The average sentence length for robbery offenders without a conviction under section 924(c) was 75 months. 

In fiscal year 2016, 46.7% of robbery offenders without a conviction under section 924(c) were sentenced within the guideline range.

  • Substantial assistance departures were granted in approximately 11 to 13 percent of robbery cases without section 924(c) convictions in each of the past five years.
    The average reduction for these offenders was 42.6% during the five year time period (which corresponds to an average reduction of 36 months).
  • The rate of non-government sponsored below range sentences increased during the past five years for robbery cases without section 924(c) convictions from 22.5% to 24.7%.  The average reduction for these offenders was 32.1% during the five year time period (which corresponds to an average reduction of 24 months).

In fiscal year 2016, 43.0% of robbery offenders with a section 924(c) conviction were sentenced within the guideline range.

  • Substantial assistance departures were granted in approximately 19 to 22 percent of robbery cases with section 924(c) convictions in each of the past five years.
    The average reduction for these offenders was 41.7% during the five year time period (which corresponds to an average reduction of 84 months).
  • The rate of non-government sponsored below range sentences increased during the past five years for robbery cases with section 924(c) convictions from 18 to
    21 percent. The average reduction for these offenders was 17.3% during the five year time period (which corresponds to an average reduction of 31 months).

UPDATE: It just dawned on me, as I was thinking about how much to talk about the impact of section 924(c) charges and convictions in the federal sentencing process, that I should flag that just last year the Supreme Court finally got around to discussing the interplay of mandatory minimum sentencing provisions and the discretion created by Booker's conversion of the guidelines from mandates to advice.  The Supreme Court's unanimous(!) work in Dean v. United States is worth checking out, in part because it highlights the potential severity of "stacked" 924(c) convictions.

And if you have been wondering, "what the heck is a section 924(c) conviction and why is it so significant," here is a link or two or three to help(?) on that front.

March 5, 2018 in Class activities, Guideline sentencing systems, Sentencing data | Permalink | Comments (0)

Monday, February 26, 2018

Interesting accounting of federal bank robbery sentencing (and parole) in pre-guidelines era

Starting with Wednesday's class, we will start unpacking the sentencing of Rob Anon under the modern federal sentencing guidelines.  I welcome comments to this prior post if/when you want to discuss your experiences with guideline sentencing.  This post, however, is meant to wrap up our pre-guideline sentencing experiences with the help of this interesting 1986 US Government Accounting Office report reviewing the "median sentences imposed and median time served for 609 offenders convicted of armed and unarmed bank robbery who were confined in the Federal Prison System as of June 30, 1983, and on whom release decisions had been made by the Parole Commission."

I think folks find might the whole US GAO report interesting, but I will provide this imperfect summary:

  • Those convicted of armed bank robbery received a sentence of, on average, 15 years and served in prison, on average, 6 years
  • Those convicted of unarmed bank robbery received a sentence of, on average, 10 years and served in prison, on average, 5 years

Usefully, the short report also notes that the US Parole Commission had "established parole release guidelines as required by law which indicate the customary range of time to be served by offenders before release from prison." These parole guidelines had two parts, "offense severity and parole prognosis": the severity of the offense was "broken down into eight categories" and the parole prognosis score ranging "from 0 to 10."  These Parole Commission guidelines served as a partial template for the work of the original US Sentencing Commission creating the original US Sentencing Guidelines (especially its criminal history categories).

In addition to giving you another perspective on the range of sentencing outcomes for the likes of Rob Anon, this report serves as another reminder of just how practically consequential the abolition of parole was as a feature of the Sentencing Reform Act of 1984.  We will discuss that reality and other parts of the SRA starting Wednesday. 

February 26, 2018 in Class activities, Guideline sentencing systems, Sentencing data | Permalink | Comments (0)

Sunday, February 25, 2018

Exploring federal sentencing realities for some local federal appellants

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. Continuing a series of posts providing suggestions about possible federal defendants you might consider examining for mini-paper #3, below are some links to some Sixth Circuit opinions all from the first two months of 2018 in cases in which a federal defendant appealed some aspect of his federal sentencing.

As we will discuss in class, before modern guideline reforms, appeals of federal sentences were very rare and very rarely successful. Now, as you can see from the list below, federal sentencing appeals are quite common (and you will have to click through to get a sense for how often successful):

United States v. Terrance Ford and Brian Williams (drug offenses resulting in imprisonment for 120 months and 180 months, respectively)

United States v. Richard Thornton and Keenan Crane and David Tatum (fraud offenses resulting in imprisonment for 136 months, 80 months, and 66 months, respectively).

United States v. Bernardo Santana (drug offenses resulting in imprisonment for 180 months)

United States v. Michael Ferguson (firearm offenses resulting in imprisonment for 105 months)

United States v. Kenneth Jozwiak (fraud offenses resulting in imprisonment for 51 months)

United States v. Anthony Sanders (drug offenses resulting in imprisonment for 60 months)

United States v. John Benchick (fraud offenses resulting in imprisonment for 110 months)

United States v. Malcolm Roberson (firearm offenses resulting in imprisonment for 41 months)

United States v. Arthur Charles Smith (armed robbery offenses resulting in imprisonment for 262 month)

United States v. James Cortelyou (sex offenses resulting in imprisonment for 157 months)

United States v. Timothy Vallier (sex offenses resulting in imprisonment for 264 months)

United States v. Donald Allen (sex offenses resulting in imprisonment for 300 months)

United States v. Velasquez Curuchiche (sex offenses resulting in imprisonment for 600 months)

February 25, 2018 in Class activities, Guideline sentencing systems | Permalink | Comments (0)

Saturday, February 24, 2018

Some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines

As stressed in class last week, the next two weeks are going to involve detailed discussions of federal sentencing policies and practice before and after modern guideline reforms. 

We will begin on Monday with a deep discussion of the sentencing realities faced in sentencing Rob Anon in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text which you should read and re-read).  In addition to imagining how you, as a judge, would sentence Rob Anon in this world, think also about how prosecutors and defense attorneys would approach sentencing in a pre-guideline world. 

We will then turn to sentencing Rob Anon under the modern federal sentencing guidelines.  I highly encourage class members to try to figure out how to identify and assess federal guideline sentencing laws relevant to Rob Anon with just the help of on-line search materials or traditional legal research resources (and feel free to use the comments to express frustration).  Consider that a federal defendant or a novice lawyer taking on his or her first federal criminal case will not likely have access to any perfect guide (or even "Guidelines for Dummies") to enable ready understanding of the federal sentencing guidelines.

If and when you would like some basic guideline sentencing help, you can turn to these links which take you to key guideline provisions for Rob Anon appearing in the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (again feeling free to use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want or need even 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, give particular thought to the array of challenges that modern federal sentencing law may present for modern federal sentencing lawyers.   If you want to think particularly about the import and impact of sentencing law for the work of defense attorneys, perhaps check out this article I wrote some years ago seeking to highlight "the array of challenges that the Federal Sentencing Guidelines create for defense counsel."

February 24, 2018 in Class activities, Guideline sentencing systems, Who decides | Permalink | Comments (4)

Wednesday, February 21, 2018

If you really want to get into Eastern State Penitentiary and other (in)famous US prisons past and present....

then this post can help facilitate discussion and reflection on prison history in the United States, building on the video about Eastern State Penitentiary and the modern reality that time in jail or prisons is now our default punishment for crimes both major and minor.  If you are interested in learning more about Eastern State, check out this terrific website.   Notably, the Eastern State Penitentiary has this new exhibit on "Prisons Today: Questions in the Age of Mass Incarceration."  And that includes this little survey: "What are Prisons For? Take the quiz."

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.  Some Ohio-centric stories are to be found within in this history, as documented via this book entitled "Central Ohio's Historic Prisons."  That book is summarized this way:

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

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

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

February 21, 2018 in Alternatives to imprisonment, Scope of imprisonment, Theories of punishment | Permalink | Comments (0)

Tuesday, February 20, 2018

Unearthing federal sentencing realities for some celebrity federal defendants

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. Continuing a series of posts providing a suggestions about possible federal defendants you might consider examining for mini-paper #3, here are some links to posts from my main blog from the last few years about "famous" or high-profile offenders whose federal sentencing stories you might find engaging:

Rene Boucher (that guy who attacked Senator Rand Paul)

Michael Flynn

Jared Fogle

Dennis Hastert (former speaker of the US House)

Abby Lee Miller (star of Dance Moms)

Larry Nasser

Sholom Rubashkin (rabbi who receive commutation from Prez Trump)

Sheldon Silver (former speaker of New York Assembly)

Martin Shkreli (that Pharmo Bro guy)

Michael Slager

Kevin Trudeau (infamous infomercial star)

Ross Ulbricht (creator of Silk Road website)

Anthony Weiner

February 20, 2018 in Class activities, Course requirements, Guideline sentencing systems | Permalink | Comments (0)

Sunday, February 18, 2018

Unearthing federal sentencing realities under federal defendants now before SCOTUS

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 15, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, February 12, 2018

Reviewing categorical limits on death penalty created by US Supreme Court

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

 

Crime:

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

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

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

 

Criminal:

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

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

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

 

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

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

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

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

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

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

Q: What does a death penalty indictment mean?

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 8, 2018

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

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

Victims:

Prosecutors:

Defense attorneys:

Trial judges:

Jurors:

Appellate judges:

Governors:

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

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

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

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

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

Monday, February 5, 2018

Gearing up to represent (or prosecute) the Unibomber

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

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

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

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

Saturday, February 3, 2018

Gameplans for continuing capital punishment discussions

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

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

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

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

Thursday, January 25, 2018

The full McGautha and Furman...

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

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

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

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

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

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

Monday, January 22, 2018

A timely example of a victim seeking sentencing leniency

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

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

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

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