Sentencing Class @ OSU Moritz College of Law

Update on my latest thinking on juve LWOP amicus project

I continue to enjoy and learn from reading and re-reading the seven juve LWOP amicus brief efforts sent my way.  And the more I think about what might be most useful to say to the Court, the more I am finding myself drawn to the idea that the mandatory nature of the LWOP sentences in Jackson and Miller are what make them especially constitutionally problematic given both the young age of the defendants and the (many?) other mitigating factors involved in the murderers for which they were convicted.

A number of the draft briefs (though not all) focus in whole or in part on assailing the mandatory nature of the LWOP sentences in Jackson and Miller.  And even the drafts that do not have this particular focus still have at least a few passages that could be incorporated into a brief with that focus.  Consequently, I am thinking/planning in the next few days to take a stab at assembling sections/passages from all the drafts I now have in hand to make a "mega-draft" with the focus on the mandatory nature of the LWOP sentences.

This plan should not preclude (or even slow down) those folks who have not yet completed a full draft brief from getting me a full draft, and it also should not preclude (or even slow down) those folks with a full draft from coming to talk with me about how to refine their full draft for possible SCOTUS filing.  But this plan should allow those of you eager now to work collectively on something of a "class" brief to know that, within the next few days, you can review a "mega-draft" that may become the focus of our collective briefing activities over the next few weeks if there is continued student interest in completing and filing a "top-flight" amicus brief.

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
  

Which Furman opinion would you have joined? Why?

I suggested in class some time ago that you should read (and re-read) Furman thinking about which of the nine Justices' opinions you would have been most likely to join (assuming you had been a hypothetical additional Justice in 1972 and could only join an opinion rather than write your own).  Because I suspect we will not have enough time in class to discuss all the opinions in Furman, I wanted to created this blog space to allow/encourage folks to weigh in on which of the opinions they found most convincing or compelling.

UPDATE on 9/16:  Though she presumably did not indicate which of the Furman opinions she liked best, Justice Ruth Bader Ginsburg made some comments during a law school speech this week (as reported here) which suggest she is quite fond of what was the outcome in Furman and would like to get four more votes among the Justices on the current Supreme Court to once again halt death sentencing.

Supreme Court rules in favor of Curtis Johnson on ACCA issue

As you may recall, we discussed the case and potential sentencing fate of "Tommy Johnson" in our first seminar session this semester.  Today, the Supreme Court ruled in favor of the real defendant, Curtis Johnson, on whom our case facts were based. 

I encourage everyone to read the (relatively short) SCOTUS ruling in Johnson, which is available at this link, and to then think about the various broad "meta-topics" we have discussed in class in light of what the Supreme Court said (and did not say) about Curtis Johnson's case.

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.

More background on Johnson v. United States

I mentioned in class that the supplemental problem involving Tommy Johnson is based on a real case now pending before the US Supreme Court.  The case is Johnson v. US, and this webpage at SCOTUSwiki provides lots of background on the technical legal issue in Johnson that is currently before the Supreme Court.  That page also provides links to all the briefs filed in the Supreme Court.

Because many students are interested in mandatory minimum sentencing provisions, and especially because the Armed Career Criminal Act (“ACCA”) is among the most important (and most severe) federal mandatory minimum sentencing provisions, I encourage everyone to take a little time to check out some of the briefs in Johnson.  For law geeks like me, the Brief for National Association of Criminal Defense Lawyers in Support of Petitioner is especially interesting because it argues that "the rule of lenity has special force in interpreting criminal statutes that impose a mandatory minimum sentence."