Sentencing Class @ OSU Moritz College of Law

Hey sports fans, lots of federal sentencing stories to follow

As a big sports fan, I tend to get a kick out of being able to follow federal sentencing stories via the sports page.  And now, as detailed in these two recent posts from my main blog, there are two timely stories worth watching closely:

• Any predictions (or suggestions) for ... sentencing of Barry Bonds?
• NFL player arrested by feds for big-time drug dealing

The second story, concerning the Chicago Bears receiver Sam Hurd and his alleged involvement in a big cocaine distribution scheme, provides a particularly good opportunity for students to think about plea bargaining practices and high-profile defendants.  Should Hurd's defense attorney and/or the federal prosecutors handing the case be talking about trying to put together a quick plea deal before all the details of Hurd's alleged  offense conduct become the topic of ESPN debate?  Or should both sides be already thinking about the "fight to the death" approach that Jerry Sandusky's lawyers have adopted?

Anyone eager to talk more about these issues at a sports bar over drinks can/should come get me from my office late on Friday night.  In addition to working late this Friday to follow the Bonds' sentencing from the West Coast, I am a free agent through the evening because my family has a "girls night out" without me at a holiday cookie party.

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.

Start posing questions for DOJ visitor (and/or react to short paper assignment)

As you all know, everyone needs to turn in short-paper advice for Jonathan Wroblewski, the director of the Justice Department's Criminal Division Office of Policy and Legislation, by mid-day on Monday. While or after you complete this task, I hope you are thinking about hard questions to ask Mr. Wroblewski concerning his work for the Justice Department or his role on the US Sentencing Commission when he visits our class on Tuesday.

For a variety of reasons, it might be a good idea to get a list of questions for Mr. Wroblewski started in the comments to this post. So, go for it. In addition, students should also feel free to react to the second short-paper assignment in the comments to this post.

Class on Tuesday, 11/22: a day for working on problems (with a running start here)

Our final pre-Thanksgiving class will be a day for discussing problems: (a) I can/will respond to any problems anyone has with completing the second short paper, (b) I can/will respond to any problems anyone has figuring out what they are doing for the final paper, and (c) I can/will ask a bunch of hard questions about Problems 5-4 and 6-1 from the casebook (pp. 383-84 and 456-58 in our text).

I am (justifiably) fearful that 75 minutes on Tuesday will not be sufficient to do justice to both Problems 5-4 and 6-1 from the casebook, especially if/when everyone has a belly full of turkey and stuffing from the SBA lunch.  Consequently, I am eager for initial student discussion/debate in the comments here about the issues posed by Problems 5-4 concerning the role/significance in federal sentencing of these eight offender characteristics:

1. age
2. education
3. vocational skills
4. mental and emotional condition
5. physical condition, including drug dependence
6. previous employment record
7. family ties and responsibilities
8. community ties

To foster targeted discussion, I would like to hear in the comments views on whether students think one or more of these offender characteristics absolutely should or absolutely should not be considered at sentencing.  

To get the conversation started, I will assert my (devil's advocate?) opinion that EDUCATION absolutely should be considered at sentencing (based in part on this criminal justice report on "Education and Public Safety"), while PHYSICAL CONDITION absolutely should not be considered at sentencing (based in part on my fear that there is a worrisome tendency of persons to judge poorly those who look different).  Does everyone agree?  

For anyone who agrees that education should be considered at sentencing, would you also agree with operationalizing this view by providing sentencing rules/guidelines stating that for each and every degree obtained (high-school, college, graduate school), there should be a presumptive 25% reduction in the imposed prison term?  If you do not like that rule/guideline, how else might be craft rules for considering education (or other offender characteristics) at sentencing?

UPDATE:  I have linked from this post at my main blog to this article reporting on research which suggest that, for American men, "marriage was associated with lower levels of crime and less frequent substance use [and that] following the birth of a first biological child, men's crime trajectories showed slope decreases."   Perhaps this provides support for, say, a 10% sentence reduction for men who get married and another 10% discount following the fathering of a first child."

Plans, papers and other notes on other of fronts

CLASS PLANS:  Today and next Tuesday we will be discussing: (1) Tiernan & USSG 3E1.1 & Pepper and sentencing discounts for pleas and cooperation, (2) Problem 5-4 & Pepper and sentencing based on offender characteristics, and then (3) McMillan & Blakely & Problem 6-1 (in casebook).  A timely and interesting circuit ruling that touches on many of these issues was handed down yesterday in US v. Robertson, No. 11-1651 (7th Cir. Nov. 16, 2011) (available here).  I recommend it highly as a compliment/follow-up to many of the issues we will discuss in the next few classes.

SHORT PAPER LOGISTICS: The short-paper assignment (explained here) must be submitted no later than Monday 9am on November 28.  Your names should be on the assignment, and you can hand in either a hard-copy or via a pdf attachment to an e-mail to me.  Important note: earlier this week, Jonathan Wroblewski's boss gave a significant speech on federal sentencing law and policy (which I suspect Jonathan helped draft).  The text of this speech is available at this link and may help your short-paper drafting efforts.

NEW SCOTUS CASES (AND AMICI OPPORTUNITIES):  In this post at my main blog, I report on two intricate sentencing issues that have split lower federal courts that now appear ready for Supreme Court review.  If (when?) the Supreme Court grants cert on these issues, they may become the focal point (along with the juve LWOP cases) of much of our post-Thanksgiving discussions during our last two classes following Jonathan Wroblewski's visit on Tuesday, November 29.

LUNCH/DINNER OPPORTUNITY WITH DOJ GUY: Speaking of Jonathan Wroblewski's visit on Tuesday November 29, I was thinking about trying to organize a lunch or dinner with students on that day if there is some student interest.  I do not want to make this a huge/formal event, but students should let me know ASAP if they would be interested in such an opportunity.

Justice Breyer's Watts concurrence and the challenge of better guideline drafting

I made brief mention in class of Justice Stephen Breyer's concurrence in Watts, and I thought it might be useful to quote all of it here as the prelude to an (extra credit) challenge:

I join the Court’s per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.

In telling judges in ordinary cases to consider “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction,” United States Sentencing Commission, Guidelines Manual § 1B1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up the offense of conviction, but of certain related conduct as well. And I agree with the Court that the Guidelines, as presently written, do not make an exception for related conduct that was the basis for a different charge of which a jury acquitted that defendant. To that extent, the Guidelines’ policy rests upon the logical possibility that a sentencing judge and a jury, applying different evidentiary standards, could reach different factual conclusions.

This truth of logic, however, is not the only pertinent policy consideration. The Commission in the past has considered whether the Guidelines should contain a specific exception to their ordinary “relevant conduct” rules that would instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 57 Fed. Reg. 62832 (1992) (proposed USSG § 1B1.3(c)). Given the role that juries and acquittals play in our system, the Commission could decide to revisit this matter in the future. For this reason, I think it important to specify that, as far as today’s decision is concerned, the power to accept or reject such a proposal remains in the Commission’s hands.

Here is the (extra credit) challenge for members of the class: Can/will someone propose in the comments a formal US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted conduct (which may or may not also cover uncharged conduct of the sort at issue in Fitch)? 

(Note:  The US Sentencing Commission has, in fact, never formally proposed an "acquitted conduct" provision in response to Watts.)

In addition to being eager to see student efforts to draft a provision of the US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted (and/or uncharged) conduct, I wonder if folks think that, now that Booker has made the guidelines advisory, the "problem" in Watts is now better (or worse).

"Measurement and Its Discontents" ... and modern sentencing laws and guidelines

The title of this post starts with the headline of this interesting commentary, which was published in yesterday's New York Times.  Though not saying one word about sentencing, I thought many parts of piece (and especially the passages quoted below) were especially interesting and deserved consideration as we transition into our review and assessment of guideline sentencing systems:

Why are we still stymied when trying to measure intelligence, schools, welfare and happiness?

The problem is not that we don’t yet have precise enough tools for measuring such things; it’s that there are two wholly different ways of measuring.

In one kind of measuring, we find how big or small a thing is using a scale, beginning point and unit. Something is x feet long, weighs y pounds or takes z seconds. We can call this “ontic” measuring, after the word philosophers apply to existing objects or properties.

But there’s another way of measuring that does not involve placing something alongside a stick or on a scale.  This is the kind of measurement that Plato described as “fitting.” This involves less an act than an experience: we sense that things don’t “measure up” to what they could be. This is the kind of measuring that good examples invite.  Aristotle, for instance, called the truly moral person a “measure,” because our encounters with such a person show us our shortcomings.  We might call this “ontological” measuring, after the word philosophers use to describe how something exists.

The distinction between the two ways of measuring is often overlooked, sometimes with disastrous results.  In his book “The Mismeasure of Man,” Stephen Jay Gould recounted the costs, both to society and to human knowledge, of the misguided attempt to measure human intelligence with a single quantity like I.Q. or brain size. Intelligence is fundamentally misapprehended when seen as an isolatable entity rather than a complex ideal. So too is teaching ability when measured solely by student test scores.

Confusing the two ways of measuring seems to be a characteristic of modern life.  As the modern world has perfected its ontic measures, our ability to measure ourselves ontologically seems to have diminished. We look away from what we are measuring, and why we are measuring, and fixate on the measuring itself.  We are tempted to seek all meaning in ontic measuring — and it’s no surprise that this ultimately leaves us disappointed and frustrated, drowned in carefully calibrated details....

But how are we supposed to measure how wise or prudent we are in choosing the instruments of measurement and interpreting the findings?  Modern literature is full of references to the dehumanizing side of measurement, as exemplified by the character Thomas Gradgrind in Dickens’s “Hard Times,” a dry rational character who is “ready to weigh and measure any parcel of human nature, and tell you exactly what it comes to,” yet loses track of his own life.

How can we keep an eye on the difference between ontic and ontological measurement, and prevent the one from interfering with the other?

One way is to ask ourselves what is missing from our measurements.... In our increasingly quantified world, we have to determine precisely where and how our measurements fail to deliver.