October 20, 2016
Some more "who sentences" stories from my main blog, now focused on non-capital sentencing
In this post earlier this month, I flagged a number of "who sentences" stories relating to the death penalty on my Sentencing Law & Policy blog. Here is now a similar round up of some recent non-capital sentencing stories and commentaries that provide some more "who" perspectives:
February 21, 2015
Some notable gubenatorial capital developments
Though I am eager to start migrating our class discussions away from capital sentencing and punishment to non-capital sentencing and punishments, the notable death penalty news keeps coming. Specifically, check out these two recent posts from my main blog:
- New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor
As always, I am eager to hear student reactions to these developments and others in the comments or elsewhere.
February 11, 2015
Two fascinating new Ohio "who" sex offense sentencing stories
As mentioned in class, this week and next our class discussions will migrate from the basics of modern capital sentencing to the basics of modern non-capital sentencing. And, as the Coker and Kennedy cases highlight, all modern capital cases now involve only the crime of murder even though any number of sex offenses often lead legislatures to make special (and severe) sentencing laws and rules. On the topic of sex offenses, and with unique aspects of the "who" story in the mix, I recommend everyone check out these two new stories from my main blog concerns sentencing developments in our own state of Ohio:
March 30, 2014
With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums
As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff. (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence. Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact? Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)
We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence. Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case: should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)? How about her status as a newlywed? Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?
But rather than continue to obsess over the killer bride (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms. Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:
Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this informative speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.” It provides great background on the past and present of federal drug sentencing.
US District Judge James Browning provides a defense of the federal sentencing status quo in a lengthy opinion in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here). For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read. Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.
An on-going legislative sentencing reform debate developing around heroin in Louisiana, which is well covered in this notable news article headlined, "In heroin debate, a detour from sentencing reform."
February 26, 2014
Links to SCOTUS briefing in Hall v. Florida (and extra credit opportunity)
The issue presented to the Supreme Court in Hall v. Florida is "Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia."
Here are the top-side briefs:
- Brief of petitioner Freddie Lee Hall
- Motion for leave to file amici brief filed by Professors Adam Lamparello and Charles MacLean in support of neither party
- Brief amici curiae of American Psychological Association, et al.
- Brief amici curiae of Former Judges, and Law Enforcement Officials
- Brief amicus curiae of American Bar Association
- Brief amici curiae of The American Association on Intellectual and Developmental Disabilities, et al.
Here are the bottom-side briefs:
- Brief of respondent Florida filed
- Brief amici curiae of States of Arizona, et al.
- Brief amicus curiae of Criminal Justice Legal Foundation
February 11, 2014
Should Washington Gov. Jay Inslee be praised or condemned for unilaterally suspending executions in his state?
I am intrigued to have learned right after class that Washington Governor Jay Inslee decided to take his state's death penalty into his own hands today by declaring a moratorium on executions while he serves as Governor. I have blogged about this notable decision here at my main blog; and these comments from Governor Inslee’s remarks announcing his execution moratorium (which can be accessed in full at this link) seemed especially notable in the wake of our conversations in class recently:
Over the course of the past year, my staff and I have been carefully reviewing the status of capital punishment in Washington State.
We’ve spoken to people in favor and strongly opposed to this complex and emotional issue, including law enforcement officers, prosecutors, former directors of the Department of Corrections, and the family members of the homicide victims.
We thoroughly studied the cases that condemned nine men to death. I recently visited the state penitentiary in Walla Walla and I spoke to the men and women who work there. I saw death row and toured the execution chamber, where lethal injections and hangings take place.
Following this review, and in accordance with state law, I have decided to impose a moratorium on executions while I’m Governor of the state of Washington.
Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred....
I have previously supported capital punishment. And I don’t question the hard work and judgment of the county prosecutors who bring these cases or the judges who rule on them.
But my review of the law in Washington State and my responsibilities as Governor have led me to reevaluate that position....
In 2006, state Supreme Court Justice Charles Johnson wrote that in our state, “the death penalty is like lightening, randomly striking some defendants and not others.”
I believe that’s too much uncertainty.
Therefore, for these reasons, pursuant to RCW 10.01.120, I will use the authority given to the Office of the Governor to halt any death warrant issued in my term.
Is this move further proof of the astuteness of the Marshall Hypothesis? And that "death is different"?
That Governor Inslee is (foolishly? rightfully?) much more concerned about equal justice than about individual justice?
That Governor Inslee lacks the stomach needed to faithfully execute his state's laws?
That Governor Inslee has the courage to be a statesman and not merely a politician?
UPDATE: This post over at Crime and Consequences by Kent Scheidegger takes apart the statement by Gov Inslee to express the view that concerns about equal justice should not preclude application of individual justice to carry out existing death sentences.
January 30, 2014
Other than the defendant, which "whos" would you say should be considered most responsible for the death sentences in...
The principal goal of our pre-sentencing conversation about the Williams case on Wednesday was to shake everyone away from the (incomplete) view that a trial judge imposing a sentence is the most responsible (or even most important) decision-maker in the sentencing process.
A sentencing judge (or, in some cases, a sentencing jury) is often the most visible decision-maker in the sentencing process, but all the formal and informal criminal justice players who act before the official moment of sentencing (as well as many that act later) can often be, both formally and practically, much more responsible for the sentence that is actually imposed and served than the sentencing judge.
So, with these thoughts in mind and our "who" insights and radar now heightened, I would love to start a discussion here about which "whos" you would be inclined to say should be considered most responsible for the death sentences in any or all of the high-profile cases referenced above.
January 21, 2014
Low-stress, high-learning opportunities via TV, radio and blogs
I made reference to a lot of current events stories to follow at the start of class, in part because the development of these stories highlight how many distinct and distinctive "who"s play a role in criminal justice reforms and ultimately in the operation of modern sentencing systems.
For example, the NFL can have a huge impact on social and political views and developments throughout the United States, especially this time of year. Thus, I think folks ought to check out tonight's episode of HBO's Real Sports examining pot use in the NFL.
Similarly, doctors and medical groups have come to play a large role in modern discussions of execution methods, and this fact should be on display during the 10am Wednesday morning segment of All Sides with Ann Fisher on WOSU.
And the role of victims in the criminal justice system generally, and especially at sentencing, will be front-and-center before the U.S. Supreme Court tomorrow morning during the oral argument in the Paroline case. This SCOTUSblog post provides a lengthy preview of the issues before SCOTUS in the case.
As the title of this post is meant to highlight, I see watching TV and listening to the radio and reading blogs to be great low-stress, high-learning opportunities. I hope you all agree.
January 20, 2014
Some past (and present) MLK-inspired perspectives on sentencing
As perhaps is already clear from our first full week of discussion, issues of race and class are necessarily important concerns when we consider the law, policy and practices of modern sentencing systems. In part because of that reality, I have often through the years emphasized a number of MLK-inspired themes on my main sentencing blog, and here are some links to some of my favorite past MLK Day posts (as well as the one I did today):
From MLK Day 2006: Should criminal justice reform be the new civil rights movement?
From MLK Day 2008: Reflecting on race and criminal justice realities to honor MLK's legacy
From MLK Day 2012: NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
December 01, 2011
Filings from government in US v. Blagojevich
I talk about some of the issues discussed in class concerning the upcoming sentencing on my main blog in this post, and here is a link to the government's sentencing memo in US v. Blagojevich. I continue to look for an on-line version of the defense filing (and will give extra credit to any student who can find a link and post it in the comments).
In addition to the guideline stories I stressed in class, many other aspects of the government's memo merit consideration and comment. And this local article from a Spingfield paper, titled "Federal sentencing a confusing process," might be of special interest and appeal as you think about how the public thinks about these sentencing issues in a high-profile setting without having had the benefit of an entire semester of Sentencing Class with Crazy Professor Berman.
Among other topics, I would very much welcome/encourage you to pretend to be Judge Zagel and script in the comments a sentence (and an explanation for the sentence) to be imposed on Rod Blagojevich. For all we know, the Judge might read these comments before sentencing.
September 20, 2011
Troy Davis denied clemency ... now what if you think he might be is innocent?
As a few folks have already noted in comments to a prior post and as this lengthy Atlanta Journal-Constitution article reports, this morning the Georgia Board of Pardons and Paroles declined to commute the death sentence of Troy Anthony Davis. A couple quick thoughts and questions to set up a discussion here (and perhaps also in class):
1. I was wrong in my prediction that the Georgia Board would grant clemency (and I have already proudly admitted this at my SL&P blog in this post). Not that you needed proof that I can be wrong, but I hope you all realize that I am never ashamed to be wrong and I often then become eager to figure out why.
2. Troy Davis got every layer of traditional appellate review of his original death sentence as well as (many) additional ones. Should this fact make us more comfortable with his pending execution or more concerned about the value of lots and lots of review of death sentences?
3. What should persons who are genuinely concerned that the Georgia might execute an innocent person tomorrow do now? What if those persons work for the US President or Georgia's governor?
4. Is the Davis case getting so much attention only because of innocence issues? How much of a role do you think race and geography is playing here? If all the offense facts were the same, but the state about to execute Davis was Ohio and Davis was white, do you think the case gets as much attention? More?
I have lots of coverage of both the history and current doings in the Davis case in this posts from my SL&P blog:
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start (June 2010)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?
- The latest news (and helpful background) on the Troy Davis case
- "Slain officer's family calls for Troy Davis' execution"
- Georgia board denies clemency to Troy Davis
UPDATE: The official statement from the Georgia Board of Pardons and Paroles is short and available at this link. Here is the text in full:
Monday September 19, 2011, the State Board of Pardons and Paroles met to consider a clemency request from attorneys representing condemned inmate Troy Anthony Davis. After considering the request, the Board has voted to deny clemency.
Troy Anthony Davis was convicted in 1991 of the murder of 27-year old Savannah Police Officer Mark MacPhail. On August 19, 1989, MacPhail was working in an off-duty capacity as a security officer at the Greyhound Bus Terminal which was connected to the Burger King restaurant located at 601 W. Oglethorpe Avenue. At approximately 1 a.m., on that date, Officer MacPhail went to the Burger King parking lot to assist a beating victim where MacPhail encountered Davis. Davis shot Officer MacPhail and continued shooting at him as he lay on the ground, killing MacPhail. Davis surrendered on August 23, 1989.
Davis is scheduled to die by lethal injection September 21, 2011, at 7 p.m., at the Georgia Diagnostic and Classification Prison in Jackson, Georgia.
April 19, 2010
What are essential topics for discussions in our final few weeks of class?
I have arranged for US District Judge John Gleeson to come speak with our class on our final day together (next week, April 28), which means this coming week is essentially our last opportunity to cover formally in class any topic or topics that you are especially eager to discuss. For that reason, I hope students will use the comments to this post as an opportunity to indicate any and all substantive or procedural sentencing topic(s) that should be on our agenda for our closing time together.
As always, I have plenty of topics/ideas in mind, and I am also hopeful (but not at all confident) that we might finally have a hot new SCOTUS sentencing ruling to discuss this week (as the Justices have announce that new opinions will be handed down on Tuesday and Wednesday mornings). But I want to make extra sure we devote time to any topic that students are still eager to have formally covered in the classroom.
February 20, 2010
Reconnecting on Feb 24 with the help of lots of notable current events
I have heard great reports about the class this past week from our two kind guest lecturers. When we (finally!) get the chance to reconnect this coming Wednesday, I would be happy and eager to provide any kind of direct follow-up to what you covered this past week (and students are encouraged to use the this post for any follow-up comments or requests based on the guest presentation).
In addition to any needed follow-up, I plan for this week's class to involve mostly reconnection after we've been away from each other quite a while thanks to snow days and other complications. Specifically, here are my main agenda items for this week's class on Feb 24:
1. Confirm due dates and expectations for mid-term assignment and final white-paper
2. Wrap up focused discussion on the death penalty with emphasis on appreciating the importance (and interplay) of the distinct concepts of discretion, disparity, discrimination and sentencing severity.
For this part of the class discussion, consider how you (or others) would answer this question: Would you prefer a modern justice system in which the 500 worst murderers each year all got executed or one in which only 50 of these 500 worst murderers were executed, but that some (hard to identify) discriminatory factors will probably play a role in selecting which exact 10% of the worst 500 murderers get executed?
3. Discuss which (of so many) interesting current-events developments we might want make a special focal point for focused discussion in the weeks before Spring Break.
For this part of the class discussion, consider these posts of note from around the blogosphere:
- Mandatory minimums and automatic weapons: United States v. O'Brien and Burgess, [SCOTUS] Argument preview
- Canada's Supreme Court authorizes discount for police misconduct while upholding mandatory sentencing term
- DOJ suggests "extraordinary" leniency justified for Bernie Madoff's lieutenant
- "Race and Gender as Explicit Sentencing Factors"
- "Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"
As always, students are welcomed and encouraged to get a running start on a discussion of these (and other) topics via the comments to this post.