Sentencing Class @ OSU Moritz College of Law

Final paper clarifications and timelines

To make sure all is clear about the final paper/assignment, let me go over my latest thinking on how you all can wrap up your work for this course:

1.  At our last class this Thursday (Dec. 8), I will have available copies of the "directed final paper" option that student may complete as their final paper/assignment for the class.  (As of this writing, I am planning for this "directed final paper" to have 5 questions, but students will only have to select and respond to three of these questions to complete the assignment and each question will have a 1500-word limit for answers.)  These final papers will be due on the last day of exams, December 21.

2.  Students committed to doing an amicus brief for the SCOTUS juvenile LWOP cases should be making progress on their brief plans/contents ASAP.  Though the briefs may not be due to the Supreme Court until after the end of the exam period, I am going to expect students to have a reasonable working draft to submit by the last day of exams, December 21, so that I know serious work is afoot.

3.  Instead of routes 1 or 2 above explaing above, students can do a "substantial" final paper or project of some other variety on a sentencing topic of their choosing.  My working definition of "substantial" is something in the neighborhood of 20-25 pages of written product if in the form of a traditional research report or advocacy "white paper."  But if the project is to take some other form (e.g., field-work research or other innovate and time-consuming activities), students are advised to keep a record of hours invested on the project through an informal "billing sheet" so that I can be confident that the product is the result of some "substantial" efforts.  Absent special needs and special approval, these sorts of final papers will also be due on the last day of exams, December 21.

Any questions?

Basic expectations for second short paper assignment

As discussing in class, your second short paper assignment is a requirement that you write a very brief memo — no more than 2 pages! — to Jonathan Wroblewski, who is the director of the Justice Department's Criminal Division Office of Policy and Legislation.  Here is DOJ's description of that Office's work and mission:

The office's legislative component develops legislative proposals, legal memoranda, and Congressional testimony.  We prepare comments on pending legislation and other legislative matters affecting the federal criminal justice system; and help represent the Department before the U.S. Sentencing Commission on sentencing-related issues, and before the Judicial Conference's Advisory Committees on Criminal Rules and Evidence regarding the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.

The office's policy component analyzes policy and management issues related to criminal law enforcement and the criminal justice system.  We identify problems and emerging trends; analyze crime data, federal caseload statistics, and other criminal justice system information; develop policy options and recommendations; and provide research, technical, and management support to the Assistant Attorney General and other Division and Department policymakers.

The memo is to recommend how you think the Justice Department could and/or should (formally and/or informally) respond to the US Sentencing Commission recently-released report on Congress on "Mandatory Minimum Penalties in the Federal Criminal Justice System."

Game plan for Friday November 4 and next week... UPDATED!!

I am sorry the excitement of the first Ohio DP Task Force meeting (now reported here in the Columbus Dispatch and here by the AP) slowed us down today.  Fortunately, this just means less work for students next week as I adjust our readings/focus.  Here is a revised agenda for Friday and beyond, with some additional recommended events in the mix:

Friday 11/4: "Framing Innocence" event at 12noon in Room 252 (be sure to RSVP to make sure you get a lunch) AND Sentencing Movie Matinee at 3pm in Room 344 (at which snacks will be provided and after which will be a Berman happy hour).  In addition, for any early risers seeking a free breakfast, consider attending this event over in the Journalism Building in which Heather Washington, an OSU Ph.D. Candidate, will present her work on "Parental Incarceration and Children's Behavior Problems: Uncovering the Not-So-Universal Effects of Fathers' Imprisonment."

Tuesday 11/8: Class will focus on quantifying offense conduct with emphasis on Coker v. Georgia (in casebook) and Problem 4-7 (p. 321 in casebook).

Thursday 11/10: Bodiker Lecture at 12 noon in Saxbe Auditorium (be sure to RSVP to make sure you get a lunch) AND class will focus on quantifying "mitigating" offender characteristics with emphasis on State v. Tiernan & USSG 3E1.1 (in casebook), as well as Problem 5-4 & US v. Pepper (in on-line supplement at pp. 66-79, and also in full form at this link).

Friday 11/11: IF INTERESTED ... another Sentencing Movie Matinee at 3pm in Room 344 (at which snacks will be provided and after which will be a Berman happy hour). 

Monday AM UPDATE:  I was VERY pleased with the number of persons who made it to the Sentencing Movie Matinee last Friday, and I want to do another one (this time with an even better, but longer, movie).  

But having figured out that 11/11/11 is a holiday, I am thinking of doing the movie on Monday 11/14 at 3pm.  But only if some people are available/interested to watch this great movie at that time.  Please report in the comments whether you might be able/interested in attending an even better movie on Monday 11/14.

Reminder: Before Tuesday's class, do/review the pre-modern-reform federal sentencing exercise!

This coming week we are going to shift our look into modern (non-capital) sentencing reforms into high gear.  To have everyone on the same page, it is essential that you come to class on Tuesday having completed the pre-modern-reform sentencing exercise I handed out at the end of last Tuesday's class.

The front page of the exercise requires you to sentence Rob Anon (whose crime and history appear in short form at pp. 273-74 of our text) as if you were a federal judge sentencing in the pre-modern-reform era (say, around 1972, which was when US District Judge Marvin Frankel wrote his book criticizing then-common discretionary sentencing practices).  The only key legal concerns for you as a federal judge sentencing circa 1972 are (1) that Rob Anon's statutory sentencing range is 0 to 25 years in federal prison and 0 to $250,000 in a fine, and (2) that federal parole officials will have discretionary authority (but no requirement) to release Rob Anon after he has served at least one-third of the sentence you impose.

You need not yet (and I suggest you do not yet) try to sentence Rob Anon under current post-reform (and post-Booker) modern federal sentencing laws.  After we have had a chance in class to talk about your experiences and judgments concerning Rob Anon's sentencing circa 1972, then I will give you guidance and help in sentencing him under modern federal sentencing laws and guidelines.

UPDATE:  Please feel free (indeed, encouraged) now to comment with thoughts and insights as a result of our in-class sentencing exercise/discussion on Tuesday 10/18.  In particular, I am eager to hear perspectives on any special virtues or special vices that you identify in the pre-guideline sentencing world in which very little law limited or shaped your sentencing discretion.  (We will later discuss special virtues and vices of the modern structured sentencing system.)

Links with background reading on federal mandatory minimums and reasonableness review

I will talk more about (and provide more structure for) the second paper in coming classes.  But, as explained in class today, the topic choices for the paper are limited to two hot(?) federal sentencing issues: federal statutory mandatory minimum sentencing provisions and/or circuit review of federal sentences for reasonableness after Booker. 

There is an incredible amount of reading one can (and should?) do on either or both of these topics, and coverage of some basics on both topics can be found in our casebook.  In addition, here are a few "classic" and/or recent documents worth checking out for more detailed background reading:

• US Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991).  As described by the USSC: "This report responds to a statutory directive that the Commission examine the compatibility of the sentencing guidelines and mandatory minimum penalties, the effect of mandatory minimums on the federal system, and congressional alternatives to mandatory minimums for directing sentencing policy."

• Craig D. Rust, Student Note, When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough (March 2010).  From the abstract by the author: "Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.  This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits."

• William K. Sessions III (former USSC Chair), At the Crossroads of the Three Branches: The U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles (March 2011).  From the abstract by the author: "[T]he Sentencing Commission must assume a leadership role in developing an improved federal sentencing scheme that recognizes the legitimate interests of each branch.  I urge the Commission, working together with Congress and executive branch, to reformulate the guidelines in a manner that helps reduce unwarranted disparities while, at the same time, remove the main obstacle that has hindered lasting achievement of the aspirations of the SRA: the undue complexity and rigidity of the guidelines system, which have resulted in large part from congressional directives and draconian mandatory minimum statutes and which have caused increasing numbers of judges to resist (and, after Booker, in some cases entirely reject) substantial portions of the current guidelines."

None of these (lengthy) documents are required reading for the paper assignment, and there might be some value in doing some of your own web-exploration on both topics without reading these (lengthy) papers.  Here are links to a variety of websites that discuss modern federal sentencing practices in various ways:

• United States Sentencing Commission
• US Department of Justice
• US Office of Defender Services
• Families Against Mandatory Minimums
• The Sentencing Project

Seeking mid-break thoughts about mid-term paper assignment

As I mentioned last week in class, I am eager to receive any and all student feedback on the writing assignment I gave you for the first part of the semester.  I trust no one found it too burdensome (though you should tell me if you did), and I am especially hopeful some will report in the comments if they found the assignment fun or at least useful/educational.

As always, feel free to post comments with or without your name as you see fit.  (And please realize that I will take a lack of comments as a sign that there was not a strong disaffinity for this kind of assignment and that another similar small writing project before Thanksgiving would be just fine.)

Key facet of the first paper: it should be all about you, not me

As you all should know, every student is required to submit a short paper (of no more than 5 pages) before Fall Break concerning a topic of sentencing law, policy or practice that you believe is under-reported and/or under-researched and/or under-litigated.  I emphasize the "you" in this post because I want and expect this first paper will reflect your personal perspective on an issue of sentencing law, policy or practice that you believe should be getting more attention from the press and/or from researchers and/or from courts.

There are truly thousands of sentencing issues that I personally think merit a lot more attention from the press and from researchers and from courts.  That reality is part of the reason for this assignment so that I can hear from interested students about what specific issues you personally consider problematically under-reported and/or under-researched and/or under-litigated.  The best papers will not be trying to guess at what issue(s) I think merit more attention, but rather will be effectively explaining in clear and cogent terms the author's views.

Critically, at least some basic research may be required for you to confirm your beliefs as to what topic of sentencing law, policy or practice is under-reported and/or under-researched and/or under-litigated. In addition, the best discussion of this issue may explain not only why this issue deserves more attention, but also why you think the issue has heretofore not gotten the attention it deserves from the press and/or from researchers and/or from courts.

Make sense?

Place and space for any final white-paper questions

This post is intended to provide a place and space for questions about the final white-paper assignment.  I will, of course, answer questions about the assignment in our final class and via personal e-mails, but I encourage students to feel comfortable asking questions here so that I can provide answers to questions in a forum that should remain accessible to all through the exam period.

Commenting on each others' mid-term papers...

can and should get started in the comments to this post.  And, upon request (or based on my own assessment of which comments merit added attention), specific comments can and will be transposed into a new post (which in turn can and should enable continued and more focused commentary).

Most essentially, everyone is urged to recommend at least one of the mid-term paper (and as many as appropriate) that you think would merit publication and/or wider circulation either as is ASAP or in some modified form at some future date.

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.)