Punishment & Sentencing (formerly just Death Penalty) Course @ Moritz College of Law

Former judge Samuel Kent gets sentenced to 33 months imprisonment

This updated Houston Chronicle piece provides an early report on the outcome of a sentence case that we spent lots of time with in class.  Especially since students surely have lots of other matters to deal with this week, anyone who finds the time and the energy to discuss this outcome will be rewarded with extra bonus class particulation points.

UPDATE:  Keep the good comments coming, as I have on my home blog:

• More (disturbing?) details emerging about crimes and sentencing of former Judge Kent

• Still more disturbing details emerging (and not emerging) from Kent sentencing

Some SCOTUS death penalty news and notes

This week has already brought some notable death penalty action in the Supreme Court, and these blog posts over at my main blog about all the action has generated some interesting debates in the comments:

• Early report on Bies oral argument
• A SCOTUS win for the capital defendant in Cone v. Bell

My availability for conferences and my desire for continued commentary

As I have mentioned to some of you, for the week of April 27, I will be available for conferences only on Monday and Wednesday afternoons.  The following weeks, I am available most afternoons, though a scheduled appointment (ideally via comments to this post) is the best way to ensure I am in my office when you would like to come by.

All students who have not yet had a conference about their mid-term paper should try to book a time.  And even those who've had that conference are welcome to book more conference time to discuss in more detail their plans for the final white paper (which is due, with no extensions, on May 14).

In addition, as I mentioned in our last week of classes, you can still earn class participation credit via blog commentary here.  I likely will post some "fresh" sentencing news in the days ahead, and here are links to some recent posts from my main blog that touch on topics we covered in class at various times:

• Flawed HLR note on federal white-collar sentencing
• How might new drug war buzz impact SCOTUS student strip-search case?:
• "Imprisoned by stereotypes"
• CNN covers Sullivan case as SCOTUS considers juve LWOP
• Huge opinion concluding(?) Ohio lethal injection litigation
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days

Monday Bies moot in faculty lounge from 3pm until....?

The moot argument in in the Bobby v. Bies case (briefing here) will take place in the faculty lounge starting at 3pm, and I hope everyone eager to take advantage of this opportunity will come by at whatever time possible.

I also hope that anyone who attends any part of the moot will consider discussing the experience or on the case more generally in the comments to this post.

Setting up conference times

As I mentioned in class, I am eager to have individual conferences with all students about their mid-term and final papers the week of April 20th.  I am free just about every afternoon from 1pm on, except for when we have the scheduled moot on Monday and our class times Wednesday and Friday. 

I do not expect most conferences need to be more than about 20 minutes, and so I hope students will just announce convenient times here in the comments and plan to stop by then.  If afternoon times do not work for anyone, feel free to suggest morning alternatives any day after Tuesday.

Briefs for the Bobby v. Bies case

As promised, here are all the merits briefs for your review in the Ohio capital case, Bobby v. Bies, coming before the US Supreme Court later this month.  Though I do not expect everyone to attend the Monday moot, I would be grateful for suggested questions (or other reactions to the briefs) in the comments.

Ohio's merits brief in Bobby v. Bies as Petitioner: Download Bies Pet

Bies's merits brief in Bobby v. Bies as Respondent: Download Bies Resp

Ohio's reply brief: Download Bies Reply

Some local specifics for the application of federal sentencing guidelines

As documented here, the US Sentencing Commission has recently released its "District, State, and Circuit Statistical Packets." In the USSC's words, "Each packet contains a set of figures, tables, and charts comparing selected national sentencing data to data from cases sentenced in each judicial district. Data is also aggregated by circuit and by state (for states in which more than one judicial district is located)."

Here are the links to local packets:

• 6th Circuit
• Ohio
• Ohio Northern
• Ohio Southern

Students will get extra super bonus class participation points for noting in the comments any special or interesting data they can mine from all these materials

Topics of student interest in the closing weeks?

Because we got distracted by the (important) story of mandatory minimum sentencing statutes (both in policy and in practice), next Wednesady's class will focused primarily on wrapping up the guidelines debate concerning Judge Kent and working in the story of Blakely and Booker.  Though I suspect and fear that the Blakely/Booker story in turn will carry over until next Friday, that will still give us at least two classes to cover any (though surely not all) topics that may have to date slipped through the cracks.

So, as I suggested in class, I encourage students to use the comments here (or my e-mail) to report on topics of interest for our last few classes.  I won't promise a first-come, first-serve response, but I will do may best to make sure in class we get to sentencing topics of greatest interest in our waning hours together.

Michael Vick, Victor Rita and other federal guideline calculation stories

I mentioned in class a few famous/notable cases involving interesting guideline calculation issues, and here now are some links to facilitate further reading for those who might be interested. 

Let's start with Michael Vick, whose case is in the news again these days.  As you may recall, Vick pleaded guilty (like our friend Kent) and you can/should check out his plea agreement and the case's fact summary.  Notably, the plea agreement stipulated to an ultimate offense level to 13 for a guideline range of 12-18 months.  But, a "Brief of Amici Curaie" filed by a group of "organizations concerned about animal welfare and responsible dog ownership" can be access here, and it asserted (1) that the "agreed upon offense level does not adequately reflect the nature of Vick's conduct nor his role in the offense," (2) that Vick's guideline offense level should be 20 and his sentencing range 33-41 months, (3) the court should impose a 57-month sentence and a $250,000 fine. 

Now on to Victor Rita, whose case was the subject of the Rita v. US ruling by the Supreme Court that appears at pp. 199-210 in our casebook.   Though I got the exact facts of Rita's crimes a bit off in class, I am right about how a cross-reference increased his guideline range.  Here are snippet's from the Supreme Court's discussion of how Victor Rita got in trouble and ended up faced a guideline sentencing range of 33-41 months:

The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury.  The jury was investigating a gun company called InterOrdnance....  The investigating prosecutor brought Rita before the grand jury, placed him under oath [and] Rita denied that the Government agent had asked him for [a machine gun] kit, and also denied that he had spoken soon thereafter about the [gun] kit to someone at InterOrdnance.  The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts....

[P]ursuant to the Guidelines, the [presentence] report, in calculating a recommended sentence, groups the five counts of conviction together, treating them as if they amounted to the single most serious count among them (and ignoring all others). See USSG §3D1.1. The single most serious offense in Rita’s case is “perjury.”  The relevant Guideline, §2J1.3(c)(1), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for “perjury . . . in respect to a criminal offense” by applying the Guideline for an “accessory after the fact,” as to that criminal offense. §2X3.1.  And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is “6 levels lower than the offense level for the underlying offense."  Here the “underlying offense” consisted of InterOrdnance’s possible violation of the machinegun registration law. The base offense level for the gun registration crime is 26.  See USSG §2M5.2.  Six levels less is 20.  And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation.

Students will get lots and lots of bonus particulation points by using the comments for either (a) expressing interest in (and/or providing links to) other interesting guideline calculation cases, or (b)expressing in rank order with explaination how they think Kent, Vick and Rita stack up in terms of offense culpability and the purposes of punishment.  (Lots of thoughtful comments will also increase the chances I will cancel Friday's class.)

Some local stories and posts of note

Especially in light of some recent and past class discussions, everyone might be interested in these two recent posts from my main blog about Ohio happenings:

• Ohio's death row getting smaller (though new AG still laments pace of appeals)

• Ohio ACLU writes to local lawmakers and prosecutors about sexting

Also, students already looking for a different (and fresh) perspective on federal sentencing discretion and the limits of law might want to check out the article references in this post: Deep thoughts about post-Booker sentencing and sources of law.

Reviewing the mid-term paper experience (and Joker's Wild)

As I mentioned in class, I am open to lots of different ways to review and reflect on the mid-term paper experience.  I especially like the idea of circulating (without identification) all the papers for all to see.  But I want to provide everyone a chance to object to this tentative plan (via comments or e-mails to me).

In addition, I am eager to hear ideas for going "off the board" concerning how we might review the mid-term paper exercise: i.e., folks should feel free to make novel suggestions concerning how to make the most of the mid-term experience.

Speaking of going "off the board," Jonathan was kind enough to help me find this YouTube link to a classic clip of the old Joker's Wild game show.  There is a reference to going "off the board" around the 2:15 mark.  (Also, this clip should make every feel good about being smarter than some folks were in the 1970s.)

Some early thoughts about gendered realities in the Kent case

We will return to our discussion of the sentencing of former federal district judge Samuel Kent in class this week, and everyone should be sure to review again all the key case documents (here and here) and your own proposed pre-guideline and guideline sentence for defendant Kent. 

You should recall that, in our discussion just before break, students proposed a prison sentence as low as six months and as high as 15 years for defendant Kent.  Though I did not make much of the fact before, I do not think it was mere coincidence that a male "judge" proposed the lowest sentence for Kent and that a female "judge" proposed the highest sentence for Kent. As I have noted before and will note again and again, gendered realities (both conscious and unconscious) clearly play a significant role in how sex offense cases are handled.

Some of you have at times expressed concern about how often I tend to bring gendered perspectives into our class discussions.  To help you understand why I often obsess over gendered realities in law and practice, consider this new research I just came across.  The article, which is titled "From Lawyer to Judge: Advancement, Sex, and Name-Calling," has nothing to do with sentencing, but it does provide some worrisome insights into how lawyers judge one another.  Here is the abstract:

This paper provides the first empirical test of the Portia Hypothesis: females with masculine monikers are more successful in legal careers. Utilizing South Carolina microdata, we look for correlation between an individual's advancement to a judgeship and his/her name's masculinity, which we construct from the joint empirical distribution of names and gender in the state's entire population of registered voters. We find robust evidence that nominally masculine females are favored over other females. Hence, our results support the Portia Hypothesis.

Some sentencing news of note during our break

Though I doubt we will have too much extra time to talk about all the interesting sentencing developments of the last few weeks, I thought it might still be useful to spotlight here some posts from my main blog highlights some of the biggest news of the break week that was:

• Senator Jim Webb takes his concerns about prison nation to the next level
• "To Cut Costs, States Relax Prison Policies"
• The latest numbers on executions around the world
• New York drug sentencing laws finally to get serious reform
• Rapper T.I. gets a year-and-a-day federal sentence on gun charges

• The many fascinating legal and social issues swirling around "sexting"

Is it fitting and fair to call former Judge Kent a sex offender? Should he have to register?

As we ended class, it was obvious to me that many were troubled by my use of the "term" rapist to describe former Judge Kent.  Though I would be happy to have folks comment/debate on that label, a more contemporary and valuable label to consider is "sex offender."  Specifically, I am eager for everyone to consider (both in social and legal terms) whether the sex offender label can and should be affixed on Judge Kent in light of his admitted behavior.

As you think about this question in legal terms, keep in mind some of the legal consequences of this label.  Sex offenders are now required to register in all states, and in many jurisdictions they are prohibited from living or working in certain places.  They are also often prohibited from being involved in traditional Halloween festivities and a number of other activities many take for granted.

Finally, as you reflect on these issues, consider also the classic "who" question: which legal actor in the sentencing process should get to decide whether Judge Kent is to be legally considered a sex offender?

Some (helpful?) links for the guideline sentencing of former Judge Kent

I heartily encourage students using a variety of different means to try to figure out what kind of (now advisory) guideline sentence former Judge Kent is to be facing.  But I also wanted to help folks get a running start with these links to materials provides on the official website of the US Sentencing Commission:

• The entire latest (2008) US Sentencing Guidelines Manual in both html and pdf format
• U.S. Sentencing Guidelines Manual Section 2J1.2. Obstruction of Justice
• U.S. Sentencing Guidelines Manual Chapter 5, Part A Sentencing Table

Also, U.S. Sentencing Guidelines Manual Section 1B1.1 Application Instructions might prove useful, along with lots of other stuff to be found at the USSC website and elsewhere.

Key documents as we prepare for "sentencing" former Judge Samuel Kent

As mentioned in prior posts and in class, our in-class examination of non-capital sentencing and of modern sentencing reforms will focus — at times a lot and at times a little — on the real case of former federal district judge Samuel Kent.  There is lots and lots of background information about this case available on the web, including this effective  this effective March 2 piece from the Texas Lawyer, headlined "What's Next for Samuel Kent in Wake of Guilty Plea?".  But for purposes of our class discussion, the only essential reading are these key legal documents from the case:

• This superceding indictment filed January 6, 2009 in US v. Kent, No. 08-CR-596 (S.D. Texas)
• This plea agreement executed Feb 23, 2009 in US v. Kent, No. 08-CR-596 (S.D. Texas)

• This factual basis for plea in US v. Kent, No. 08-CR-596 (S.D. Texas)

This case and these documents should enable us to discuss effectively many of the challenging legal and policy issues covered in chapters 3 through 8.  Though I doubt we will get a chance in class to review systematically all the readings/ideas set forth in all these chapters, you should be able to find useful readings on a range of relevant topics from all those chapters as they apply to former Judge Kent's case.  And, if there are particular issues relating to former Judge Kent's upcoming sentencing that you want to make sure we discuss in class, please feel free to use the comments (or class time) to spotlight issues you want to make sure we cover.

Head's up on class plans up through Spring Break

We have two weeks together before Spring Break, and I wanted to make sure everyone knew my plans for these weeks:

1.  The first week's classes will have us wrap up our discussion of the death penalty, with Wednesday's class focused on the Ted Kaczynski hypo (details here) and Friday's class dedicated to an "open forum" on whatever capital punishment topics students would like to review.

2.  The second week's classes will jump us into the law and policy on non-capital sentencing, during which I want to use the upcoming sentencing of former federal judge Samuel Kent as a focal point for discussion.  Look for a series of Kent-related documents and activities posted on this blog over the next few days.

During any (or all) of these classes, I am happy to discuss further my expectation for the mid-term and final papers.

Is the economic argument against the death penalty a game-changer?

Inspired by a comment by Shawn to another post, I thought it might be valuable to again review all the recent discussion of the economic costs of the death penalty.  It has long been clear that the administration of capital punishment is a costly affair, though only now in tough budget times do we see politicans discussing this reality with emphasis and proposals for reform.  Whatever one might think of the merits of these arguments (which folks are welcome to discuss in the comments), these links to posts at my main blog highlight that the idea is getting a lot of media attention in recent weeks:

Some recent posts noting media discussion of death penalty costs and reform proposals:

• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• CNN now talking about the costs of the death penalty and state reforms 
• More discussion of cost concerns in debates over the death penalty
• Still more discussion of the costs of the death penalty
• Capital case cost concerns continue to inform reform debate
• Great new (though still dated) examination of the death penalty and plea bargaining
• Interesting time for Time's discussion of death's demise
• What might 2009 have in store for . . . the death penalty in the US?

US v. Ekwunoh, mens rea cases, war stories and class plans

I apologize for taking up (too?) much of class on Wednesday telling the war story of my very first real legal experience after law school (but perhaps a real-world war story about a non-capital case was a useful break from what we have been doing lately). If you want to read the Second Circuit's opinion in United States of America v. Caroline Oyibo Ekwunoh, 12 F.3d 368 (2d Cir. 1993), it is available at this link (and elsewhere on-line, of course).

In addition, I mentioned that the mens rea sentencing issue in Ekwunoh is discussed in the casebook (see pp. 321-25), and is also the subject recent Supreme Court debate in some other contexts.  Specifically, check out the links and other materials about these cases recently argued over before SCOTUS:

Flores-Figueroa v. United States (08-108) (argued Feb 25) —  concerning mens rea needed to trigger two-year mandatory sentence under federal identity theft law.

Dean v. United States (08-5274) (argued Feb 25)— concerning mens rea needed to trigger ten-year mandatory minimum sentence for discharging a gun during a violent crime.

Though I may in subsequent posts give everyone a distinct opportunity to talk about, e.g., whether you'd like more war stories and/or whether you understand the class's paper requirements and/or whether I effectively explained the methods of my madness, all those topics are also fair game in the comments to this post since we will not be together again for a full week.

Pew Center report brings attention to state punishment rates in Ohio and nationwide

Though we likely won't formally transition to non-capital sentencing topics until next week (or maybe even the week after), I wanted to start that transition on the blog by highlighting a new report from the Pew Center on the States, titled "One in 31: The Long Reach of America Corrections."  The full report -- which provide an effective "gold-standard" model for what a great final paper might look like -- is available at this link.  I have blog coverage of the report at SL&P here and here.

The Columbus Dispatch provides a local spin on the report with this article, headlined "Punished population soars in Ohio, U.S." Here is the start of the Dispatch article:

One in every 25 adult Ohioans is in prison, jail or on parole or probation, a study by the Pew Center on the States shows. While the national average is one in 31 U.S. adults, the numbers are more dramatic for Latinos (one in 27), men (one in 18), and blacks (one in 11), according to One in 31: The Long Reach of American Corrections, released yesterday.

Ohio's one-in-25 rate was sixth among the states. Georgia had the highest at one in 13, and New Hampshire the lowest at one in 88.

The first-of-a-kind study showed a huge jump in the corrections rate since 1984, when it was one in 77 Americans. Nationally, there were 7.3 million people in prison, jail, on parole or on probation in 2007. Of those, 351,879 were in Ohio -- about 50,000 in state prisons, with the vast majority in community corrections facilities, on parole or on probation.

At a time when states are facing the worst financial crunch in decades, spending on corrections continues to be one of the fastest-growing pieces of state budgets, second only to Medicaid in the past two decades, the Pew Center concluded. The national cost to taxpayers for all forms of corrections is $68 billion annually. The study said $1 out of every $15 in discretionary state spending goes to prisons.

The Dispatch also has this webpage seeking reader input, titled "The Hot Issue: Would you rather see Ohio build more prisons or put more offenders on probation?".  As of this writing, the on-line voting is very close (but on-line voter "turn-out" is low).

Some notable posts on prosecutorial sentencing discretion

inspired in part by our class discussions of prosecutorial discretion in capital cases, I have done a serius of recent posts at my main blog that focus on prosecutorial sentencing discretion.  All the posts linked below are worth checking out (along with the comments), and the first linked post is especially on-point in light of our conversations during Friday's class:

• Two terrific accounts of prosecutorial discretion in California capital cases
• Might prosecutors keep New York from finally "dropping the rock"?
• Might sex offender (and former federal judge) Samuel Kent possibly avoid all jail time?

Background information on (your hypothetical capital client) Theodore Kaczynski

In order to effectively draw lessons about the modern realities of modern death penalty law, I encourage everyone to try to seriously imagine how one might seek as a defense attorney to avoid a death sentence for Theodore Kaczynski under the capital punishment statutes of Florida, Ohio and Texas.  To aid in this endeavor, it will be useful to read up on Ted's life history and crimes.  Here are some links to help with this task:

1.  Wikipedia's entry on Theodore Kaczynski is pretty effective and has lots of additional links for additional information.

2.  Court TV has this on-line archive with lots of reporting and information/links about Ted and his federal prosecution.

3.  Time Magazine published this fascinating article about Ted 10 years ago.  The headline and sub-heading of the article gives you a taste of some of its notable content:

"I Don't Want To Live Long. I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison": Ted Kaczynski talks about life in jail, his appeal plans and his brother David, who still struggles over the decision to turn in the Unabomber.

Victim involvement in the capital punishment process

I mentioned in class an article about victim participation in the death penalty process.  That article, titled "Their Day in Court: The Role of Murder Victims' Families in Capital Juror Decision Making," can be accessed at this link.  I recommend the whole piece, but here are some snippets of particular note as we get into discussion of racial and gender bias in the application of the death penalty:

When we cross-tabulated co-victims' testimony for the prosecution with the victim's race, we discovered a very significant finding: the co-victims of a white murder victim were more likely to offer testimony than the co-victims of a nonwhite victim....

[W]e find that jurors tend to be less concerned about the suffering of nonwhite-victim families than with white-victim families.... It is possible that since families of nonwhite victims testify much less often (perhaps as a result of institutionalized racism or their own feelings about capital punishment), their place in the minds of jurors is diminished. As a matter of policy, we would strongly encourage greater participation of family members of nonwhite victims in capital trials because their [testimony] may make their side of the story increasingly memorable to jurors. Although the findings we report do not show dramatic differences between whites and nonwhites in terms of participation, the evidence that jurors exhibit racially biased attitudes is statistically significant, and it is discouraging to see race bias plague yet another area of capital punishment.

Among the points worthy of reflection here is that this study is only seeking and able to examine the impact of victims in capital cases that go to trial.  Yet there is little doubt that victims can and often do have a profound impact on prosecutorial charging and bargaining decisions in capital cases. 

I am inclined to speculate that the racial biases discussed in this article with respect to jury decision-making could be even more profound with respect to prosecutorial decision-making in capital cases.  And yet this is only rank speculation because prosecutorial decision-making in capital cases is rarely studied or even subject to measurement through effective data.

The death penalty and plea bargaining

Especially as we are unpacking the past and present reality of who imposes death sentences, a new analysis of the death penalty and plea bargaining realities merits our collective attention.  The analysis appears in this new working paper, titled "The Death Penalty and Plea Bargaining to Life Sentences."  I discuss the report (and link to other notable posts on the topic) here at my main blog, and in light of our recent classroom discussion I wanted to spotlight one particular passage from the paper:

[Here is an accounting of] the disposition of cases in the sample used in this study. For every 100 suspects arrested by the police and charged with murder, 19 cases were rejected at initial screening and 81 went forward.  Of the 81, 42 went to trial and 39 pleaded guilty.  Of the 42 trials, 8 were acquittals and 34 were convictions.  Thus, of the 81 cases carried forward, 73 ended in convictions of some crime, though not necessarily of murder.  Of these, 65 were sentenced to incarceration of more than one year.

Effective press coverage of Ohio's modern death penalty history

The Dayton Daily News has an extraordinary collection of materials at this link under the heading "Special report: Death row in Ohio." Here is how the paper sets up its work:

About this series: For many convicted murderers, a death sentence doesn't really mean death. Since Ohio's current death penalty was put into effect, 28 people have died from state-ordered lethal injections — and 71 have walked off death row because of successful appeals.

Especially in light of our continuing discussion of McGautha and Furman and Gregg (and eventually McKlesky), this particular article from the series may deserve special attention: "Worst of the worst eludes death."

And, speaking of the worst of the worst, as some of you may already know, the modern story of the death penalty in Ohio will soon include yet another Supreme Court chapter as a result of the Justices decision earlier this week to take up another capital case from Ohio.  This article from the Cleveland Plain-Dealer provides the basic back-story:

For the second time, the U.S. Supreme Court will consider whether Frank Spisak should be executed for killing three people at Cleveland State University. The high court announced Monday that it will hear the arguments after years of appellate disputes over the effectiveness of Spisak's legal counsel and the instructions jurors received at his trial....

Spisak, 57, was sentenced to death in 1983 after a four-week trial that included testimony that Spisak was a neo-Nazi and cross-dresser. A jury convicted him of the 1982 killings of the Rev. Horace Rickerson; Brian Warford, a CSU student; and Timothy Sheehan, CSU's assistant superintendent for buildings and grounds. Sheehan was the father of Cuyahoga County Common Pleas Judge Brendan Sheehan.

The 6th U.S. Circuit Court of Appeals ruled in 2006 that Spisak's death sentence should be dropped, and a new sentencing hearing should be set. The appellate court said defense attorneys "demonized" Spisak in closing arguments during the sentencing phase of the trial. It also said jury instructions as to the death penalty were unconstitutional. Specifically, the instructions during the sentencing phase erroneously required the jury to be unanimous in its findings that Spisak should not be executed.