Sentencing Class @ OSU Moritz College of Law

Student guest-post asks great questions about prison labor

So far, one student has succeeded in earning extra credit by sending me "top-flight" guest posting material.  Here is the content of this guest-post (along with the picture) that was sent my way this past weekend:

One topic that we have not had time to discuss in detail in class this year has been prison labor.  See, for example, this article from the New York Times, published earlier this year and headlined "Enlisting Prison Labor to Close Budget Gaps."  And this article from the Dayton Daily Newss published about a month ago, which is headlined "Bureaucracy, politics hinder prison labor force," and explains problems with Ohio’s prison labor force.

As the first article explains, nearly all states have some form of prison labor, and the use of prison labor seems to be rising in response to cuts in federal financing and decreased tax revenue. Supporters of prison labor say that this could be a win-win for prisons because it could (1) allow prisons to use the labor to reduce their own costs and (2) help inmates develop skills which will help them to re-enter society. Because of these advantages, coalitions supporting prison labor have included both conservative budget hawks and liberal humanitarian groups.

But prison labor continues to have its share of critics as well (e.g. labor unions and civil rights advocates).  What do you think?  

Is prison labor a good idea?  

Does it matter whether it is required or voluntary?

Should it only be available to some inmates?

Other comments?

Students should remember that they can earn class participation by simply commenting on this effective post.  And the offer to send me guest-post fodder for extra credit remains open at least through this week.

SCOTUS grants cert on juve LWOP for young murderers ... and creates new final paper opportunity

Big sentencing news from the Supreme Court today, as reported in this blog post at SL&P: "Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!"  These cases now on the Supreme Court's agenda are Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas).

I will discuss these two new SCOTUS cases briefly in class this week (in part to explain how writing an amicus brief for filing in the Supreme Court can be an alternative to the final take-home paper in the class).  In the meantime, here are links to the state court rulings now to be reviewed by SCOTUS: 

• Miller v. Alabama
• Jackson v. Hobbs
  

Do we need to worry about (complex) guidelines enhancing disparity or severity or both?

I know I did not leave enough time at the end of class today for a complete discussion of all the early results of the guideline part of the Rob Anon sentencing exercise, but I went slow today because (1) I wanted to get out more general themes before jumping into the USSG weeds, and (2) I wanted to make sure everyone have a chance to work through the FSG basics for Rob Anon before our sentencing law weed-whacking the rest of the semester.  Nevertheless, even the hasty report of different offense level calculations for Rob prompts the question in the title of this post. 

Consider especially the disparity in guideline sentencing ranges that could result from even seemingly minor differences in offense level and criminal history computations.   Specifically, if the person who calculated Rob's offense level to be "only" 31 also had him in criminal history category II, his guideline range would have been 121-151 months in federal prison (roughly 10 to 12.5 years).  Meanwhile, if  whomever calculated Rob's offense level to be 35 also had him in criminal history category III, then his guideline range would have been 210-262 months in federal prison (roughly 17.5 to nearly 22 years).  And, of course, anyone scoring Rob's offense level at 39 or above would be getting a guideline range calling for near or above the 25-year statutory maximum for his offense of conviction.

Obviously, all of these guideline-calculated sentences are significantly longer than the 8 years imposed by many in our pre-guideline group-sentencing exercise earlier this week.  And, remember, in the pre-SRA federal sentencing world with parole eligibility, even a sentence of 25 years (300 months) for Rob would in fact mean he would become eligible for release on parole in 100 months.  In the post-SRA world in which defendants can only earn a 15% reduction for good time, Rob would actually have to serve at least 103 months of even a sentence of "only" 121 months.

Reactions?  Comments?  Concerns?

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.)

Eastern State Penitentiary and other historic prisons

This post provides a space for discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website.  

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.  A number of notable Ohio-centric stories to be found within in this history, as documented by a relatively recent book entitled "Central Ohio's Historic Prisons."  Here is a snippet from the book:

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.

Excerpts from this book can be accessed at this link.  The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site (and also where the great movie The Shawshank Redemption was shot).  I could be readily talked into a class field-trip to this site (for extra credit, of course, and we can skip "Glamour in the Slammer").  Even without a trip north, I urge everyone to take a virtual tour via this huge photo gallery.

Especially if you are looking for some weekend web-surfing fun, check out these additional links to some good sites about some of the United States' most famous or most interesting prisons and jails:

• Alcatraz
• Missouri State Penitentiary
• Rotary Jail Museum
• West Virginia Penitentiary 

Ohio sentencing news and resources

Intriguingly, there has been a good bit of Ohio sentencing and punishment coverage in the Columbus Dispatch during our break this week, and I have linked some of the biggest stories via this post on my main blog.  In addition, I encourage everyone interesting in Ohio non-capital sentencing law and policy to look around the website of the Ohio Criminal Sentencing Commission.  

There are lots of notable (and intricate) materials to be found on the "Resources" sections of the OCSC website  here and here.  And I will likely assign for required or recommended reading later this month these particular OCSC documents:

• A Decade of Sentencing Reform (especially through p. 25)
• Prison Crowding: The Long View, With Suggestions
• H.B. 86 Summary: 2011 Changes to Criminal & Juvenile Law

Seeking reactions to Eastern State video and on prison as a sentencing output

 As promised, here is a space to enable discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website (and also this special opportunity to get your own ESP "mug-shot" mug shown here).

More broadly, I plan to start our next class together discussing whether there is a modern viable alternative to imprisonment as a default presumptive sentence for most serious crimes.  It would be great if this discussion could get a running start in the comments to this post. 

Snow day readings on revising the MPC sentencing provisions

I briefly mentioned at the end of class this past week that the American Law Institute is in the midst of revising the Model Penal Code's sentencing provisions, and that I have been critical of some of the structural changes that the MPC revision is advocating.  If you want to do some snow day reading of my writings on these matters, check out this piece from the September 2009 issue of the Florida Law Review, which is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions."

In addition, you can find other terrific (and relatively short) readings on the Model Penal Code's new sentencing proposals in this issue of the Florida Law Review.  As always, comments are welcome and encouraged on these topics.

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).