October 24, 2016
The full opinions in Graham and Miller....
are worth checking out if you are eager to think deeply about the future of Eighth Amendment limitations on extreme prison sentences. And here are links to the original SCOTUS slip opinions:
Graham v. Florida (2010) (all 84-fun-loving-PDF-pages)
Miller v. Alabama (2012) (all 62-fun-loving-PDF-pages)
November 30, 2011
Looking back and looking forward in our final few classes
I hope everyone enjoyed yesterday's visit by Jonathan Wroblewski (and the Duke game) as much as I did. I am sorry we did not have more time in class for questions, but I plan to use the first part of Thursday's class to follow-up on his lecture and also on the second short-paper assignment. I also will discuss again all of the options (and challenges) for the final paper/project for the class.
For substantive content, I plan to finish up the course by discussing mass incarceration (and sentencing severity) in general and life prison terms in particular. Everyone is encouraged to read the selections from Chapter 7 noted on our syllabus (pp. 517-24, 552-78), as well as the Supreme Court's recent Eighth Amendment opinion in Graham v. Florida (which appears in the on-line supplement at pp. 96-112, and in full form here).
In addition, and especially if you are working on an amicus brief for your final assignment, I also recommend checking out this very short and very recent opinion from the Supreme Court of Louisiana concerning the application of Graham to three cases involving persons sentenced decades ago to life sentences for nonhomicide crimes committed when they were juveniles.
November 17, 2011
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.
November 01, 2011
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).
September 13, 2011
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.
September 06, 2011
Is there a strong constitutional basis for saying "death is different"?
We ended class with a question/issue/talking-point that may well haunt us throughout the semester and that has arguably haunted all modern legal debates over modern issues of crime and punishment: is "death" really different as a matter of constitutional law?
Couple of preliminaries as we unpack this question/issue/talking-point going forward:
1. As a basic normative and empirical and factual matter concerning state punishment generally, the (too) simple assertion that "death is different" cannot be readily gainsaid. John Stuart Mill in his renown “Speech in Favor of Capital Punishment” (worth reading and available here), observed punishment of death makes a unique "impression on the imagination" and "is more shocking than any other to the imagination." The undeniable reality that death as a punishment "feels" different in kind than any other form of punishment necessarily means humans will react and respond to this punishment differently even if we try to treat it like any other form of punishment.
2. As a basic historical and descriptive matter concerning state punishment generally, the observation that "death is (and always has been) different in criminal law's doctrines and practices" also cannot be readily gainsaid. Much of both the common law history of criminal law's development, as well as much of modern statutory and related criminal punishment doctrines, reflect the reality that the people who make the law and shape its application "feel" differently about the death penalty than about any other form of punishment.
3. As a basic matter of constitutional text, the doctrinal basis for asserting that special substantive and/or procedural constitutional rules should control the death penalty is a pretty hard argument to make. The Fifth, Sixth and Eighth and Fourteenth Amendments contain nearly all the constitutional provisions and prohibitions that get the most attention in litigation over the death penalty (and other punishments), but the text of these provisions do not appear to call for many (or any) unique doctrines just for the death penalty.
With this background, I am eager to hear via comments or in class whether and how one can develop a strong argument for the claim that the Constitutionjustifies or demands or even allows special substantive and/or procedural constitutional rules for the operation and application of the death penalty. Putting this point a little differently, I think the easiest way to understand (and justify?) the pro-prosecution outcomes in cases like Williams and McGautha and McClesky comes from understanding that the justices in those cases were (justifiably?) concerned that any pro-defendant constitutional rulings would subsequently have to get extended to all non-capital cases and defendants.
April 14, 2010
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.
March 02, 2010
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.
January 25, 2007
More on McGautha, Furman and Gregg
As hinted in Wednesday's class, I think the constitutional and social history surrounding the rulings in McGautha, Furman and Gregg are fascinating. Here are some links and thoughts for anyone interested in digging deeper in this little piece of important constitutional history:
Here is a link to all the full opinons in McGautha. As a follow-up to our class discussions, check out Justice Brennan's dissent, which includes this potent paragraph at the outset:
It is of critical importance in the present cases to emphasize that we are not called upon to determine the adequacy or inadequacy of any particular legislative procedure designed to give rationality to the capital sentencing process. For the plain fact is that the legislatures of California and Ohio, whence come these cases, have sought no solution at all. We are not presented with a State's attempt to provide standards, attacked as impermissible or inadequate. We are not presented with a legislative attempt to draw wisdom from experience through a process looking toward growth in understanding through the accumulation of a variety of experiences. We are not presented with the slightest attempt to bring the power of reason to bear on the considerations relevant to capital sentencing. We are faced with nothing more than stark legislative abdication. Not once in the history of this Court, until today, have we sustained against a due process challenge such an unguided, unbridled, unreviewable exercise of naked power. Almost a century ago, we found an almost identical California procedure constitutionally inadequate to license a laundry. Yick Wo v. Hopkins, 118 U.S. 356, 366 -367, 369-370 (1886). Today we hold it adequate to license a life.
Ironically, the use of the death penalty declined in the 1960s. Only two persons were executed in the United States between 1967 and the date of the Furman decision in 1972. Public opinion polls showed that a majority of U.S. citizens were opposed to capital punishment.
Furman arose out of the convictions and death sentences of three African American men. William Henry Furman was convicted in Georgia for murder, Lucious Jackson was convicted in Georgia for rape, and Elmer Branch was convicted in Texas for rape.
Here is a link to all the full opinons in Gregg. Professor Michael Radelet has this recent article discussing Furman, Gregg and post-Gregg developments. This passage explains what transpired in the four years between Furman and Gregg:
[After Furman, Florida] Governor Rubin Askew called the legislature into a special session, held in Tallahassee just after Thanksgiving, 1972. Soon Florida had the nation's first "post-Furman" death penalty statute. Since it required that guilt and punishment decisions be held in separate proceedings, and specified factors that jurors must consider in deciding between a death and a prison sentence (e.g., the defendant's prior record; whether the murder is especially cruel), the Florida legislation is an example of what is called a "guided discretion" statute. Within two years after Furman, fourteen other states had reacted in a different way by enacting statutes that required mandatory death sentences upon conviction for assorted types of criminal homicide.
By 1976, 35 states had passed new death penalty laws and more than 500 inmates were confined on America's death rows. Public support for the death penalty had also grown markedly since Furman; by then some two-thirds of Americans supported it. Clearly the Supreme Court's silence on the issue had to end. It was time to decide whether these new, post-Furman death penalty laws were constitutional.