December 04, 2016

Reviewing the final fulsome mini-paper opportunities

In a coming post, I will try to clarify any lingering questions students have about completing the final paper.  But as classes technically are not yet done, I want to first clarify student mini-paper opportunities/expectations.

First, to complete the course is a satisfactory manner, a student has to have submitted at least two mini-papers.  (If I have not received at least two mini-papers from a student by Dec 12, I will notify the student of the deficiency and its consequences.)

Second, every student is encouraged to earn extra credit by submitting more than the two-mini-paper minimum.  But all mini-papers need to be submitted no later than Dec 12 to receive full credit/extra credit for your work.

Third, I put forth the following three final mini-paper possibilities:

  1. Reviewing Prez Obama's sentencing reform legacy
  2. Recommending activities/concerns for Attorney General designee Jeff Sessions
  3. Assessing the sentencing history/views of one (or more) of the 21 persons on Prez-Elect Donald Trump's SCOTUS short-list

Among the benefits/challenges of completing a mini-paper on this topics is the possibility that I may ask to publish your analysis on my main blog or maybe even in the Federal Sentencing Reporter.

Any questions?

December 4, 2016 in Class activities, Who decides | Permalink | Comments (0)

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:

October 24, 2016 in Scope of imprisonment, SCOTUS cases of note, Supreme Court rulings, Who decides | Permalink | Comments (0)

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:

October 20, 2016 in Class activities, Current Affairs, Who decides | Permalink | Comments (0)

October 17, 2016

Lies, damn lies and federal prison and commutations statistics

As I mentioned in class, as we turn our attention more to the history and modern realities of non-capital sentencing and especially to the history and modern realities of incarceration, having a basic understanding of a lot of number becomes important.   The title of this post is designed to make sure, before you dive too much into these data, that you keep in mind perhaps the most famous quote about statistics.  Once you have that quote in mind, consider some of the data and their sources.

The latest detailed breakdown of the federal prison population comes from this terrific "Quick Facts" document released this month by the US Sentencing Commission titled "Federal Offenders in Prison – March 2016."  Here are just some of the data therein that caught my eye:

• A large majority of offenders in the federal prison population are male (93.3%).

• Hispanic offenders make up the largest group of the federal prison population(35.2%), followed by Black offenders (34.4%), White offenders (27.0%), and Other Races (3.5%).

• More than three-quarters (77.9%) of these offenders are United States citizens.

• The majority of offenders pleaded guilty (88.5%).

• Nearly one-quarter (23.9%) of all offenders serving a sentence for a federal conviction possessed a firearm or other weapon in connection with their offenses.

• Half of all offenders (50.2%) in the federal prison population were sentenced to more than ten years in prison, while 5.2% were sentenced to 30 years or longer, and 2.7% were sentenced to life in prison.

• Approximately 17,000 offenders (9.9% of all incarcerated offenders) have served more than 10 years in prison.

• More than half (56.8%) of offenders in the federal prison population were convicted of an offense carrying a mandatory minimum penalty.

The data in the USSC report is already significantly dated because it analyzed a federal prison population of 195,676 "offenders in the custody of the Federal Bureau of Prisons on March 27, 2016."   But, just a little more than six months later according to the Federal Bureau of Prisons latest inmate population report, it is now only in charge of 191,322 total federal inmates.  In other words, in just the last 6 months alone, there has been more than a 2% decline in the overall federal prison population!

Speaking of changes over time in the population levels in the Federal Bureau of Prison, check out this BOP year-by-year report of the past federal prison population in modern times, which includes these numbers:

Fiscal Year      BOP Population

1983                 33,216

1993                 88,565

2003                 172,499

2013                 219,218

In other words, in just the last 20 years up to 2013 (12 of which had a Democrat in charge in the Oval Office and his appointees running the US Department of justice), there was 250% increase in the overall federal prison population!

As you may now realize, the number of federal prisoners for fiscal year 2013 was the year with the highest ever federal prison population (it was also, of course, the first year of Prez Obama's second term in office and the fifth year of the US Department of Justice being run by former US Attorney General Eric Holder). 

Also, as of the end of Fiscal Year 2013, this webpage from the Office of the Pardon Attorney reports that Prez Obama had received well over 8,000 federal commutation petitions and had granted a grand total of 1 commutation.  (If you are running the numbers, this means that as of the end of 2013, Prez Obama had granted only about .01% of commutation petitions received from federal prisoners.)

Of course, Prez Obama has picked up the pace on commutation grants: as this White House website highlights, by having now granted a total of 774 commutations, Prez Obama "has granted commutations to more prisoners than the past 11 presidents combined."  But his actions here ought to be put in some other statistical context, as does this webpage from the Office of Pardon Attorney, which reports that Prez Obama has received 29,078 commutation petitions during his time an office.  So, by having now granted 774 commutations from among the 29,078 commutation petitions received, Prez Obama has now upped his granted rate to about 2.5% of all commutation petitions received from federal prisoners.

As always, a great way for students to earn extra credit for the class would be to mine these numbers for further insights and data points worthy of highlighting in the comments to the blog (or in class).  And any student who can find good data on the race/gender of the 774 persons to have received commutations from Prez Obama and compares them to the general federal prison population will be sure to receive extra, extra, extra credit.

October 17, 2016 in Class activities, Clemency, Data on sentencing, Race and gender issues, Scope of imprisonment, Sentencing data, Who decides | Permalink | Comments (0)

October 12, 2016

How some Framers thought about "gradation of punishments" (and proposed sentencing guidelines) in a world before "modern" prisons

One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging.

And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth....

[PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder....

[PUNISHMENT FOR SEX CRIMES:] Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

October 12, 2016 in Alternatives to imprisonment, Class activities, Death penalty history, Theories of punishment, Who decides | Permalink | Comments (0)

October 10, 2016

Follow-up after (too little) time with the Assistant Chief Counsel for Ohio Governor John Kasich

I am sorry we did not have more time to allow Kevin Stanek, the Assistant Chief Counsel for Ohio Governor John Kasich, to complete his tales about Ohio's fulsome history with lethal injection litigation.  But I trust you all got a flavor of some of the major themes I consider most important for our broader class's purposes: a whole bunch of distinctive (unexpected?) "whos" can and often will have a huge impact on whether, when and how death sentences actually get carried out in Ohio and elsewhere.

For more on that front with a continued focus on lethal injection drug acquisition and litigation, it is worth checking out the WNYC's Radiolab: More Perfect program on state efforts to acquire lethal injection drugs, which is titled "Cruel and Unusual."  The 40-minute radio program covers a lot of ground in ways both familiar and unfamiliar, including a notable discussion of the political impact of the Furman ruling and its aftermath starting around the 16-minute-mark (which in turn inspired the Oklahoma legislator who came up with the medicalized three-drug lethal injection protocol).

In addition, the constitutional litigation that has gummed up the works of death penalty in Ohio over the last decade has also gummed up the work in a lot of other states.  Here is an  a report from my main blog about a (very red) state to Ohio's south that has been dealing with similar issues: "Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade."

October 10, 2016 in Death penalty history, Execution methods, Who decides | Permalink | Comments (0)

September 14, 2016

The full McGautha...

can be found here.  Reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.  I also think everyone should at least get started reading Furman and Gregg and subsequent SCOTUS cases in chapter 3 of our text ASAP.

September 14, 2016 in Class activities, Death penalty history, Who decides | Permalink | Comments (0)

September 13, 2016

Death penalty deterrence research and arguments that the death penalty is morally required

As I mentioned in class, some years ago Professors Cass Sunstein and Adrian Vermeule  produced a provocative article suggesting that new deterrence evidence might make the death penalty morally required for state actors seriously concerned with value of life.   Here is a link to this article and its abstract, with one line stressed to pick up the theme developed in class that government killing is different-in-kind from other kinds of killing:

Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs , 58 Stan. L. Rev. 703 (2005):

Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect.  But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.  The familiar problems with capital punishment -- potential error, irreversibility, arbitrariness, and racial skew -- do not require abolition because the realm of homicide suffers from those same problems in even more acute form.  Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.   The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.  The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

Alternatively, if you like digging into social science research, the modern empirical debate over the death penalty should be informed by a collection of some data-crunching on the deterrent effect of capital punishment available via this page assembled by the Criminal Justice Legal Foundation.  Notably, CJLF is supportive of the death penalty; the Death Penalty Information Center is opposed to the death penalty, and it has this webpage criticizing the studies appearing on the CJLF's page concerning deterrence.

September 13, 2016 in Deterrence, Who decides | Permalink | Comments (1)

September 12, 2016

Lots of interesting new buzz concerning the (sort of dormant) Ohio death penalty

Conveniently, my week away proved to be a period in which some interesting local death penalty news and commentary emerged, as evidence by these two recent posts from my main blog:

These topics and lots of others will be a part of our coming extensive discussion of death penalty theory, policy and practice over the next few weeks.

September 12, 2016 in Class activities, Death penalty history, Execution methods, Ohio news and commentary, Who decides | Permalink | Comments (0)

September 07, 2016

A glimpse into the hows (and whos) of federal death sentencing in a high-profile case

This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case.  Especially because we will be jumping into the history, law and practice of capital punishment next week, I recommend everyone consider checking out the motion.

September 7, 2016 in Class activities, Who decides | Permalink | Comments (0)

April 15, 2015

If you are curious about federal child porn sentencing...

here is a link to the 400+ page report that the US Sentencing Commission published on the topic in December 2012.  The report's executive summary is only about a couple dozen pages, can be accessed at this link, and here are some interesting excerpts:

[S]entencing data indicate that a growing number of courts believe that the current sentencing scheme in non-production offenses is overly severe for some offenders.  As the Supreme Court has observed, the Commission’s obligation to collect and examine sentencing data directly relates to its statutory duty to consider whether the guidelines are in need of revision in light of feedback from judges as reflected in their sentencing decisions.

[A]s a result of recent changes in the computer and Internet technologies that typical non-production offenders use, the existing sentencing scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability.  Non-production child pornography offenses have become almost exclusively Internet-enabled crimes; the typical offender today uses modern Internet-based technologies such as peer-to-peer (“P2P”) file-sharing programs that were just emerging only a decade ago and that now facilitate large collections of child pornography.  The typical offender’s collection not only has grown in volume but also contains a wide variety of graphic sexual images (including images of very young victims), which are now readily available on the Internet.  As a result, four of the of six sentencing enhancements in §2G2.2 — those relating to computer usage and the type and volume of images possessed by offenders, which together account for 13 offense levels — now apply to most offenders and, thus, fail to differentiate among offenders in terms of their culpability.  These enhancements originally were promulgated in an earlier technological era, when such factors better served to distinguish among offenders.15 Indeed, most of the enhancements in §2G2.2, in their current or antecedent versions, were promulgated when the typical offender obtained child pornography in printed form in the mail....

[M]ost stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded.  Those stakeholders, including sentencing courts, increasingly feel that they “are left without a meaningful baseline from which they can apply sentencing principles” in non-production cases....

The Commission concludes that the non-production child pornography sentencing scheme should be revised to account for recent technological changes in offense conduct and emerging social science research about offenders’ behaviors and histories, and also to better promote the purposes of punishment by accounting for the variations in offenders’ culpability and sexual dangerousness.

In addition, you might find intriguing and informative the lengthy discussion of child porn sentencing in the split Third Circuit panel decision in United States v. David Grober (where the majority, inter alia, faults the district court for allowing me to testify at the sentencing hearing).

April 15, 2015 in Class activities, Guideline sentencing systems, Offense Conduct, Who decides | Permalink | Comments (2)

April 09, 2015

Understand the terms of USSC debate over the fraud guidelines

As mentioned in class on Wednesday, and as detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.  

I doubt the actual USSC meeting will be a must-see event, though I still urge you to tune in. But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases."

April 9, 2015 in Offense Conduct, Who decides | Permalink | Comments (0) | TrackBack

April 06, 2015

Two projects for a week with possibly just one class

Much to my chagrin, I fear this week our class will only be able to meet on Wednesday (4/8), and I fear that much of that class will involve going over current events and making sure the last few weeks of class are productive.  To that end, I have two potential projects for students to work on/think about which (1) could be the basis for additional mini-papers OR (2) the basis for a final paper OR (3) the answer to one of the question(s) likely to show up on the take home final.  Here are the basics, with more explanation to come during Wednesday's class:

Possible paper/project #1.  After the drug war: keys terms for the treaty (or reparations, or a Marshall Plan, or a truth and reconciliation commission or....)? 

As we have discussed in class, the so-called "war on drugs" has played a huge role in criminal justice developments over the last 40 years, and it has play an important role in debates over modern sentencing reform and mass incarceration. Now that there is a growing consensus that the harshest sentencing aspects of the drug war need to be reformed (and a remarkable move toward reform of marijuana and other criminal laws), a growing question is what the essential elements and terms of the post-drug-war sentencing and corrections system. Should past marijuana (and other drug) convictions be expunged? Should some kind of formal reparations be a critical part of modern reforms? And who --- legislatures, sentencing commissions, judges, executive officials --- should be principally charged with designing the terms of the "post-drug-war treaty"?

Possible paper/project #2.  Drafting new formal federal guidelines for the consideration of (one, a few, many?) offender characteristics.

In this (relatively short) law review article, a former Chair of the US Sentencing Commission criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear that these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct." He suggested factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new formal "guidelines that encourage consideration of those characteristics where appropriate."  Do you agree that new guidelines would be fitting for these (or other) offender characteristics, and what might these guidelines look like?

April 6, 2015 in Class activities, Who decides, Working on white papers | Permalink | Comments (0) | TrackBack

March 28, 2015

Working text of Amended RID bill for reducing drunk driving crimes and harms

As you should recall, we ended class on Thursday with a working draft proposal for new drunk-driving legislation.  Here is what has made it through our drafting committee so far:

First Offense DUI: imprisonment from minimum term of zero to five years max

Second Offense DUI: imprisonment from minimum term of six month to seven years max

Third (or Greater) Offense DUI: imprisonment from minimum term of two years to ten years max

In addition, a sentencing judge should (must?) give the minimum term for any DUI offense if and only when the defendant's BAC was .10% or lower and no tangible harm result from the offense.  A sentencing judge should (must?) impose a sentence above the minimum if the defendant's BAC was above .10% or tangible harm resulted from the offense.

We could (and perhaps should) continue to discuss and debate other offense-related provisions to incorporate into this sentenceing --- e.g., we might provide more specific guidance/mandates concerning what other BAC levels or types of harms should/must result in a certain amount of jail time.  But, in order to reduce the risk of potential unwarranted disparity, I think it may be even more important that we consider whether and how to provide some offender-related instructions to judges for the exercise of their sentencing discretion in this setting.  And to get the discussion started, here are some proposals for consideration:

Proposal 1.  A judge generally should (must?) sentence an offender at or near the applicable minimum term if and when the defendant has no criminal history, has pleaded guilty and accepted responsibility and shown remorse, and has demonstrated a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

Proposal 2.  A judge generally should (must?) sentence an offender at or near the applicable maximum term if and when the defendant has a significant criminal history, has refused to accept responsibility and shown remorse, and has failed to demonstrate a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

(Contrary) Proposal 3.  A judge generally should (must?) not in exercising his sentencing discretion consider in any way a defendant's criminal history, whether he has shown any remorse, or whether any substance abuse or personal problems may have contributed to the offense. 

As these proposals are written, it is possible (but not essential) to favor both Proposal 1 and Proposal 2.  But Proposal 3 is intended to be directly contrary to the Proposal 1 and my goal here is to explore whether and how you favor (or oppose) the consideration of some common offender-related sentencing factors.

I would encourage students to use the comments to discuss any part of this on-going debate over our new sentencing bill, and folks should feel especially free to propose any additional amendments and modifications to the bill.  We will build on what we have done to date in our class discussion on Tuesday and Wednesday.

March 28, 2015 in Aggravators and mitigators, Class activities, Offense Conduct, Who decides | Permalink | Comments (4) | TrackBack

March 22, 2015

Reminders and updates ... about class and sentencing cases we have been following

I hope everyone enjoyed Spring Break as much as I did and also that everyone is looking forward to an exciting final month of our sentencing class.  This post provides a couple of reminders about on-going activities as well as some updates that might be of interest as we close out March sentencing madness:

1.  Everyone has a chance to submit an extra mini-paper this week (requirements outlined here), ideally by 12noon on Monday, March 23.  The required prompt: "What topic(s) are you eager for us to discuss in class more before the end of the semester?"  Recall that, though all students are required to submit at least three mini-papers before the end of the semester, extra credit will be rewarded to those who submit more than the minimum.

2.  This week in class, we will focus on what should be "the offense"  for sentencing purposes.  Specifically, should only the formal specifics of the offense of conviction be considered at sentencing (the "charge offense") or should sentencing involve at least some real specifics of how the offense was actually committed (the "real offense").   As you consider this seemingly basic question, review your prior efforts sentencing Rob Anon prior to modern reforms and under the federal sentencing guidelines.   Did the charge offense or the real offense matter more to you when sentencing in the discretionary pre-guideline world?  How about in the guideline world?  And what does the US Constitution have to say about this according to the Supreme Court in the Watts case?  

3.   You may recall we talked earlier in the semester about the upcoming sentencing of former Connecticut Gov John Rowland.  Here is how that turned out:  Former Governor John Rowland Sentenced to 30 Months in Prison.  In addition, we have been following death penalty debate in Pennsylvania, and here is an interesting "who" development on that front: "Victim's wife: Keep me out of death penalty fight"

March 22, 2015 in Class activities, Course requirements, Recent news and developments, Who decides | Permalink | Comments (0) | TrackBack

March 09, 2015

More evidence that the death penalty will keep pulling us back in...

To paraphrase the most memorable line from the least memorable Godfather movie, just when I thought we could be done with our discussions of the death penalty and who sentences, the media and the US Supreme Court keep pulling us back in.  Specifically, check out these recent notable posts from my main blog:

March 9, 2015 in Death penalty history, Who decides | Permalink | Comments (0) | TrackBack

March 04, 2015

Seeking reflections/reactions to today's pre-reform federal sentencing exercise

We will talk on Thursday about the experience of sentencing Rob Anon under the pre-reform discretionary federal sentencing system, but I wanted to start the process of reflection on the pre-reform system with this post and a place for comments. 

Did your experience strengthen your understanding for Judge Frankel's concerns and call for reform? 

What aspects of the sentencing experience surprised or concerned you the most?

March 4, 2015 in Class activities, Who decides | Permalink | Comments (2) | TrackBack

February 13, 2015

Speaking of "who" and the death penalty...

check out what new Pennsylvania Gov Tom Wolf did on Friday the 13th.  Turns out it was a lucky day for those on death row in the state.

Thoughts?  The Marshall Hypothesis as applied by a Governor?

February 13, 2015 in Clemency, Who decides | Permalink | Comments (5) | TrackBack

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:

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

February 11, 2015 in Class activities, Current Affairs, Ohio news and commentary, Recent news and developments, Who decides | Permalink | Comments (1) | TrackBack

February 04, 2015

Link to Ohio Supreme Court oral argument in Ohio v. Moore

This morning (Feb 4, 2015), the Ohio Supreme Court heard argument in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. The Justices asked many questions of both sides, and I believe only one of the seven Justices failed to ask at least one question.

The argument lasted for approximately an hour, and here is a link to the oral argument.  I highly recommend all students interested in Eighth Amendment issues take the time to watch these proceedings.

I suspect and fear we will not get a ruling from the Court before the end of the semester (but maybe that will be a kind of good news allowing me to ask a take-home exam question about the case).

February 4, 2015 in Ohio news and commentary, Scope of imprisonment, Who decides | Permalink | Comments (0) | TrackBack

February 02, 2015

Major developments on Eighth Amendment juve sentencing fronts

Students should recall the class-preview post in which I noted two notable on-going cases concerning the Supreme Court's modern Eighth Amendment jurisprudence limiting the imposition of life without parole sentences on juvenile offenders.  The end of last week and this coming week involve developments on this front:

I am planning to attend the oral argument, which starts at 9am on Wednesday February 4, at the Supreme Court of Ohio. Folks interested in this case can read all briefs submitted via this Ohio Supreme Court link, including this short amicus brief that I helped author for the National Association of Criminal Defense Lawyers.

February 2, 2015 in Ohio news and commentary, SCOTUS cases of note, Who decides | Permalink | Comments (0) | TrackBack

January 31, 2015

Ohio's current capital laws and the dynamic realities of Ohio and US death penalty history

As mentioned in class, one class activity for the coming week(s) will be to work through how modern post-Furman capital punishment laws might get applied to the (in)famous Unibomber, Ted Kaczynski.  (Ted is currently an LWOP resident at superman ADX Florence in Colorado and in the past was comically portrayed by Will Farrell).  I will not aggressively quiz anyone about doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Ted's case might be litigated in prominent death penalty states like Florida and Texas and Ohio. 

We could easily spend the rest of the semester discussing the history and modern specifics of the death penalty in specific jurisdictions like Florida and Texas and Ohio and US.  I will reference this history and modern practices in class over the next few weeks, and here are some links concerning the two jurisdictions in which we operate to provide a (low-stress, high-learning) chance to discover a lot more about these matters:

Links with background on Ohio's history and practices in the administration of the death penalty 

Links with background on US history and practices in the administration of the death penalty 

Based on my hope that your "who radar" is now fully operational, I would be eager to hear your views (in the comments or in class) as to which "whos" have had the most impact on the operation of Ohio's death penalty system throughout the state's history (based, perhaps, on the Ohio DRC's account of this history).

January 31, 2015 in Aggravators and mitigators, Class activities, Death penalty history, Who decides | Permalink | Comments (2) | TrackBack

January 20, 2015

Background on discretion, disparity and discrimination in Presidential clemency

With apologies for (once again) lecturing too much and running late, I hope that I was able in Tuesday's class to effectively lay out some of the basics of what I call the "Three Ds" of modern sentencing debates: Discretion, Disparity and Discrimination.  I got a bit behind because I was not planning to talk about Presidential clemency powers; but given that Prez Obama is giving a State of the Union Address tonight (sentencing background/commentary here), perhaps now is a good time to use clemency as a good focal point for analyzing the "Three Ds."

On this topic, we must start with a key provision of the U.S. Constitution: Article II, Section 2 provides that the President "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."   The US Supreme Court views this authority quite broadly and has repeatedly indicated that Congress cannot limit the President's discretionary use of this clemency power. 

In addition to vesting the President with broad discretion, this clause has resulted in considerable disparity in various ways in various eras as different Presidents have used (or not used) this authority in different ways.  Most notably for modern discussion, a recent investigation by ProPublica produced these notable headlines about modern clemency realities:

In light of these headlines and the realities they reveal about the modern exercise of Presidential clemency and discretion, disparity and discrimination, should we find this additional report comforting?:

January 20, 2015 in Who decides | Permalink | Comments (2) | TrackBack

April 21, 2014

Helping President Obama use his constitutional clemency powers

In our last few classes, I want to wrap up our discussions of modern federal drug sentencing by turning attention to the work of the most powerful of sentencing "whos": the President of the United States.  There are lots of ways the President can and does make sentencing decisions, but the most historic means is through the exercise of his (constitutionally enshrined) power to grant clemency.  

There are lots of stories to discuss and debate relating to the President's clemency power and its use throughout American history, but I will want us to focus on how it might still be used (and/or should be used) by President Obama as he heads into his final few years in office.  This new Reason.com piece by Jacob Sullum provides some useful background and context for our discussions:

President Obama made appropriate use of his clemency powers this week, shortening the prison term of a drug offender who received a sentence that everyone agreed was too long but for which there was no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to 17.5 years in federal prison after he pleaded guilty to conspiracy and money laundering charges related to shipping marijuana from Mexico to Virginia. That term was three-and-a-half years longer than it should have been under federal sentencing guidelines because of a mistake in Cantu's presentence report, which erroneously listed his "base offense level" as 36 instead of 34. Cantu's lawyer never noticed the mistake, which Cantu himself discovered in 2012 after his family mailed him a copy of the report. By then he had missed the deadline for asking the courts to shorten his sentence....

"It's hard to imagine that someone in the federal criminal justice system could serve an extra three-plus years in prison because of a typographical error," said White House Counsel Kathryn Ruemmler in a speech at NYU Law School on Tuesday....

Obama should [not] be so stingy with commutations, which he so far has issued at a slower rate than all but three other modern presidents: George W. Bush (11 commutations in 96 months), George H.W. Bush (three in 48 months), and Ronald Reagan (13 in 96 months). Obama has now issued 10 commutations in 64 months, which by that measure makes him about 26 percent more merciful than Bush II, 46 percent more merciful than Bush I, and 14 percent more merciful than Reagan. (Obama still lags all three on pardons, which clear people's records, typically after they have completed their sentences.) But surely a man who has repeatedly criticized excessively long prison sentences should aspire to do more than surpass these truly awful commutation records. Obama is still a long way from Nixonian levels of mercy, since Tricky Dick shortened 60 sentences...

A few months ago, Deputy Attorney General James Cole indicated that Obama planned to pick up the pace, which was encouraging. Not so encouraging: Cole, whose department had at that point received about 9,000 commutation petitions since Obama took office, asked for help in finding worthy applicants, which suggested the government's lawyers are either lazy or extremely picky. Cantu's case seems to fit the latter theory....

By the president's own account, there are thousands of other clear injustices that he has the power to remedy. He could start with all of the crack offenders sentenced under pre-2010 rules that almost everyone now agrees were unreasonably harsh. The Smarter Sentencing Act would make the shorter crack sentences enacted in 2010 retroactive. But if Congress fails to approve that bill, Obama still has the authority to act on his own, which would be consistent with the statements he and his underlings have made regarding our excessively punitive criminal justice system.

"The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in her NYU speech. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories." Probably more than 10. The president's pitiful performance so far falls far short of these aspirations.

UPDATE: This brand new post at my main blog provides more explanation for how timely our discussion on clemency now is as a result this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith."  I highly recommend reading the full Yahoo piece.

April 21, 2014 in Clemency, Who decides | Permalink | Comments (6) | TrackBack

March 27, 2014

Some background and sentencing readings related to Ninth Circuit CJ Alex Kozinski

Kozinski-alexAs I have mentioned, on Wednesday April 2, we will have the honor and pleasure of having Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, visit our class. For basic background on this renown jurist, check out his Wikipedia entry and/or this (dated) Unofficial Judge Alex Kozinski Site and/or this 2005 Legal Affairs profile.  That profile has this headline and subheading: "THE BIG KOZINSKI; If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster."

Because he has written opinions and commentaries on every subject under the legal sun, it would be almost impossible to read even a small sample of all his views.  Fortunately, though, he has written a few especially high-profile (though now somewhat dated) pieces about death penalty jurisprudence and federal sentencing jurisprudence.  Here are links to a few highlights from this part of CJ Kozinski's corpus:

Concerning the death penalty, check out this lengthy co-authored 1995 op-ed in the New York Times given the headline "For an Honest Death Penalty." It starts this way:

It is a staple of American politics that there is very strong support for the death penalty; in opinion polls, roughly 70 percent consistently favor it. Yet the popular will on this issue has been thwarted.

To be sure, we have many capital trials, convictions and death sentences; we have endless and massively costly appeals; and a few people do get put to death every year. But compared to the number of death sentences, the number of executions is minuscule, and the gap is widening fast.

Note that, back in the early 1990s when this op-ed was authored, thoughtout the US there were often 300 death sentences imposed and only about 30 executions each year. Lately, in contrast, we have had in the US only about 75 death sentences and 40 executions each year.

On the topic of federal sentencing, I succeeded way back in 1999 to get CJ Kozinski to author this article for the Federal Sentencing Reporter a full five years before Booker made the Guidelines advisory.  It starts this way:

Once or twice a year I sit as a trial judge, usually in a criminal case. I've been doing it for many years and never cease to learn something new. I started before the Sentencing Guidelines, so I have sentenced defendants both with and without the Commission's guidance. I've had my doubts about the Guidelines; I even wrote an opinion saying they were unconstitutional. Doubts sometimes resurface when I sit as an appellate judge, but I have no doubts when I sit as a trial judge: I like the Guidelines and hope they're here to stay.

I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison. Some judges may have the wisdom of Solomon in figuring out where in that range to select just the right sentence, but I certainly don't. Would too heavy a sentence destroy a young life and snuff out any chance of rehabilitation? Would too light a sentence embolden the defendant, endangering the lives of innocents? What deterrent effect will the sentence I impose have on others?

Deciding whether someone spent the next twenty years in prison or got straight probation was a burden almost too heavy to bear. Somehow I felt it was wrong for one human being to have that much power over another. Imposing sentence was, for me, almost an act of sacrilege.

Nor did it help that there was no appeal from the sentence. On the contrary, the very finality of the decision made it all the more difficult. If the sentence had been subject to appeal, someone else could have told me if I was way off the mark. But with no sentencing appeals, the burden lay entirely on my shoulders, and I didn't like it a bit.

Enter the Sentencing Guidelines and all this changed for the better. Gone are the wide open spaces for sentencing discretion. Sentencing ranges are narrow and presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition--they're all engineered into the machine; all I have to do is wind the key. The Probation Officers in the Central District of California, where I mostly sit, do an excellent job and there are seldom disputes over the accuracy of the PSR. When there are, I do what I am competent to do--make factual findings.

Once I have figured out the range, I always sentence at the very bottom; I never depart up or down, unless it's a guided departure like substantial assistance or acceptance of responsibility. This is true whether a defendant has pleaded guilty or proceeded to trial; generally, I have found that the bottom end of a given Guideline range sufficiently captures a defendant's criminal culpability, and I very seldom run across a case so unusual as to warrant departure. If the sentence seems too harsh or too light, I no longer feel responsible.

March 27, 2014 in Class activities, Death penalty history, Who decides | Permalink | Comments (5) | TrackBack

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:

Here are the bottom-side briefs:

February 26, 2014 in Class activities, Current Affairs, Death eligible offenses, SCOTUS cases of note, Who decides | Permalink | Comments (0) | TrackBack

February 23, 2014

Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

After a final review of what we should take away from the McClesky ruling, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence which places categorical limits on what crimes cannot result in capital sentence and what criminals can not be executed for their crimes.  Here, in order, are the major rulings in this series:

Offense-based Eigth Amendment categorical prohibitions on the death penalty:

Coker v. Georgia, 433 U.S. 584 (1977) (precluding imposition of the death penalty for offense of adult rape)

Tison v. Arizona, 481 U.S. 137 (1987) (precluding imposition of the death penalty for homicide accomplice lacking reckless indifference to life)

Kennedy v. Louisiana, 554 U.S. 407 (2008) (precluding imposition of the death penalty for offense of child rape)

Offender-based categorical prohibitions on the death penalty:

Thompson v. Oklahoma, 487 U.S. 815 (1988) (precluding imposition of the death penalty on offenders under age 16 at time of crime)

Atkins v. Virginia, 536 U.S. 304 (2002) (precluding imposition of the death penalty on offenders who suffer from mental retardation (reversing 1989 ruling holding otherwise))

Roper v. Simmons, 543 U.S. 551 (2005) (precluding imposition of the death penalty on offenders under age 18 at time of crime (reversing 1989 ruling holding otherwise))

As I asked at the end of last week, given that the Supreme Court's Eighth Amendment jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender with have individual circumstances considered by the sentencing judge and/or jury, what justifies another set of Supreme Court rulings that preclude legislatures from ever being allowed to even consider the death penalty for certain crimes or offenders?

Contextualizing these matters, consider the qusry in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker. For a reminder, here is how the lead dissent in Coker v. Georgia describe the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently.  Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.

The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner -- as well as others in his position -- will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.

February 23, 2014 in Death eligible offenses, Death penalty history, Deterrence, Who decides | Permalink | Comments (4) | TrackBack

February 17, 2014

"Let's put the political correctness aside and debate this issue on the grounds that we really want to: is the death penalty moral or not?"

The title of this post is the final senitment expressed by Gus L. in conjunction with the terrific comment discussion that is now energized in response to this post noting Washington Governor Jay Inslee's remarkable decision to take his state's death penalty into his own hands by declaring a moratorium on executions while he serves as Governor.  Though I do not want to distract from discussion about Governor Inslee's decision, I wanted to "tee up" the fundamental question Gus identifies while also contextualizing it with my usual who and how concerns.

I am grateful to Gus for cutting to the heart of the issue in all capital punishment debates and discussions, namely whether one believe the death penalty is moral (or just or righteous or legitimate or approrpiate or whatever other word one wants to adopt for this ultimate normative question).  I am grateful because I hope and assume that everyone in the class realizes and recognizes (1) that one's own views on this ultimate issue inevitably colors one's perspective on all other capital punishment questions/debates, and (2) that reasonable people with reasonable and diverse views on theories of punishment reach reasonable and diverse conclusions concerning whether the death penalty is moral/just.

With this critical background, the who and how questions we are discussing in class take on an extra dimension in modern American society committed to democratic rule structured by a Constitution designed to safeguard some individual rights against majoritarian preferences.

1.  If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?   

2.  If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

3.  If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

4.  If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

Arguably, if you have a very strong opinion on the morality of the death penalty and a very strong belief that "death is different" so that matters of life and death are to be treated different in kind than all other matters, then the answer to these four questions might be identical: you should use all your legal, political and social powers to further your moral vision no matter what your role in American society.  But, if you think one's role in American society should influence the answer to the questions above, then arguably you think that there are moral considerations of even greater importance that the question Gus highlights as to whether the death penalty moral or not.

February 17, 2014 in Pro/Con arguments surrounding the death penalty, Who decides | Permalink | Comments (6) | TrackBack

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.

February 11, 2014 in Current Affairs, Pro/Con arguments surrounding the death penalty, Who decides | Permalink | Comments (6) | TrackBack

February 02, 2014

Yet another round of notable "who" developments concerning the death penalty and federal mandatory minimums

This coming week we are going to get much more focused on the particulars of capital punishment laws and doctrines and practices.  But, as you may already realize, my obsession with "who" issues will persist in class and elsewhere.  And these posts from my other blogs since our last meeting highlights this reality from various perspectives concerning both the death penalty and mandatory minimums:

Some death penalty stories:

Some federal mandatory minimum stories:

February 2, 2014 in Death penalty history, Who decides | Permalink | Comments (4) | TrackBack

January 30, 2014

Other than the defendant, which "whos" would you say should be considered most responsible for the death sentences in...

Williams?

McGautha?

Furman?

Tsarnaev?

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 30, 2014 in Current Affairs, SCOTUS cases of note, Who decides | Permalink | Comments (4) | TrackBack

January 27, 2014

A weekend full of interesting who news

As you may already be discovering, once one starts to focus on current-event stories with a "who sentences" lens, the context and complications of sentencing decision-making can take on a new view.  With that reality in mind, consider these recent posts from my other blogs concerning some notable recent events:

January 27, 2014 in Who decides | Permalink | Comments (4) | TrackBack

January 22, 2014

Who should have the least sentencing power in American CJ systems?

In addition to closely reviewing the 1949 Williams v. New York case (which can be read in full here and is worth the time to read in full), we will discuss in class next week which particular institutional players tend to exercise the most formal and informal sentencing power, and whether and how you think these institutional players should have their powers limited and regulated.  Long story short: legislatures, prosecutors, trial judges, and parole/prison officials have historically wielded the most sentencing power, but many modern reforms have given larger roles to sentencing commissions and appellate judges.

As suggested in class, I am eager to have everyone consider this issue from the other side of the equation: that is, I want to hear whether and why you might think certain institutional players should have little or no formal or informal sentencing power.  Again, history is somewhat instructive: victims, police, juries (except in capital cases) and appellate judges have historically wielded little sentencing power, but many modern reforms have given larger roles to victims and appellate judges.

As we will discuss, every institutional player that actively seeks to be involved in the sentencing process usually can have some input or impact.  But that practical reality should not prevent a sentencing system (or us) from exploring how to limit the authority of those players we believe should have the least power to impact sentencing outcomes.  (There are lots of general reasons why we might want to limit and/or regulate a particular player's sentencing power: e.g., we fear that particular institutional player has a certain problematic/systematic bias, or will too often pursue a disfavored punishment purpose or form, or will be too subject to undue influences by other actors, or will tend to make less-than-thoughtful or even discriminatory decisions.)

So, who do you think should have the least sentencing power?  Why?

January 22, 2014 in Class activities, Who decides | Permalink | Comments (7) | TrackBack

January 16, 2014

Sincere marijuana reform question: exactly what are DEA officials "scared" of?

The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level."  Here is the context:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan.  “Every part of the world where this has been tried, it has failed time and time again.”

Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....

Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay.  “There are more dispensaries in Denver than there are Starbucks,” he said.  “The idea somehow people in our country have that this is somehow good for us as a nation is wrong.  It’s a bad thing.”

Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...

Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said.  “It’s going to cost us in terms of social costs.”

Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.

That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere.  Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual.  Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."

This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States.  The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming.  These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.

It is quite possible, as the DEA official suggests, that "this is a bad experiment."  But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared."  More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:

I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal.  But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments.  Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.

But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.

I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.

January 16, 2014 in Offense Conduct, Who decides | Permalink | Comments (3) | TrackBack

January 14, 2014

How Thomas Jefferson would have sentenced Richard Graves

I suggested in Tuesday's class that, if incapacitation was a key goal/purpose when sentencing convicted rapist Richard Graves, that castration would seem likely much more effective than any term in prison. (Indeed, given ugly statistics concerning prison rape, a trip to prison might be the worst way to prevent Graves from raping again.) But I surmised that some (many? most?) members of the class have a visceral negative reaction to castration as a form of punishment. But why?

If you had a visceral negative reaction to castration, I urge you to read and reflect on Michel Foucault's astute insight (reprinted in Chapter 1 of the text) that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment. In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.

Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes. This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages (with my emphasis added):

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....

I highly encourage everyone to read (and then comment upon) the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

January 14, 2014 in Alternatives to imprisonment, Theories of punishment, Who decides | Permalink | Comments (4) | TrackBack

November 27, 2011

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.

November 27, 2011 in Class activities, Guideline sentencing systems, Who decides | Permalink | Comments (12) | TrackBack

November 09, 2011

Notable comments on judging (and sentencing) from a member of my "Sentencing Judges hall of Fame"

Seven years ago, back when my main blog was just getting going, I did this (silly?) post in which I imagined a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system.  As I explained in the post, the "first inductee of the Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms."

I then went on to ask these tough (and silly) follow-up questions: "Should there be separate capital and non-capital wings, state and federal wings, trial and appellate wings?  Would Supreme Court Justices and judges who serve on sentencing commissions have an unfair advantage because of the visibility of their sentencing work?  Would pre-guidelines judges be unfairly disadvantaged for sentencing during the 'dead law' era?"

I note these musing in part to encourage you to think about whether you think any particular Justices and judges ought to get special attention based on their sentencing work.  But I also share these comments to serve as a kind of introduction to my linking hereand presenting below video from one of the sure-fire members of this Sentencing Judges Hall of Fame, Judge Nancy Gertner.

Judge Gernter's professional career is too dynamic to summarize here, and I encourage you to check out all the interview videos on this HLS webpage.  And the video below includes some notable sentencing-specific comments starting just after the 3:00 mark.

November 9, 2011 in Who decides | Permalink | Comments (9) | TrackBack

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).

November 1, 2011 in Class activities, Guideline sentencing systems, Offense Conduct, Supreme Court rulings, Who decides | Permalink | Comments (10) | TrackBack

Readings (and videos) on Paul Butler's proposal for race-based jury nullification

I mentioned briefly in class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification.  The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link.  Here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African- Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all --- you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy ---American criminal justice --- to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated) 60 Minutes video (under 10 minutes) discussing Butler's ideas.

Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 here, part 2 here, part 3 here...) with Butler and other guests.

November 1, 2011 in Race and gender issues, Who decides | Permalink | Comments (3) | TrackBack

October 24, 2011

"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.

October 24, 2011 in Guideline sentencing systems, Science, Who decides | Permalink | Comments (5) | TrackBack

October 17, 2011

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.)

October 17, 2011 in Class activities, Course requirements, Scope of imprisonment, Who decides | Permalink | Comments (2) | TrackBack

September 26, 2011

Working draft for proposed "Ohio Racial and Gender Justice Act"

As the casebook highlights, Kentucky in 1998 enacted the first statutory response to the McClesky ruling through its Kentucky Racial Justice Act.  And just two years ago, North Carolina followed suit through the enactment of the North Carolina Racial Justice Act

There has not been much litigation over the Kentucky RJA because that legislation was expressly made notretroactive so that it could not be applied to any person sentenced to death in Kentucky before July 1998.  (A short 2010 law review article on the Kentucky RJA can be found at this link.)

In contrast, many defendants on North Carolina's death row right now have pending claims based on the NC-RJA because that statute provided a one-year window for previously sentenced defendants to file a claim based on the NC-RJA.  All but a few death row defendants did file claims based on the NC-RJA, though litigation on particular defendants' claims have so far been stalled in the North Carolina lower courts.  (A long, now-dated 2010 law review article on the NC-RJA can be found at this link.)

Though there is much to discuss concerning McClesky and the Kentucky and NC RJAs, I wanted here to set forth my working draft of a proposed "Ohio Racial and Gender Justice Act" for discussion in the comments and in class.  So here goes (with language based in large part on the NC-RJA):

1.  No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was, in any part or in any way, sought or obtained on the basis of race or gender.

2.  A finding that race or gender was in any way any part of the basis of the decision to seek or impose a death sentence may be established if the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.   Evidence relevant to establish a finding that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed may include statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system or both, that, irrespective of statutory factors, one or more of the following applies:

(A) Death sentences were sought or imposed any more frequently upon persons of one race or gender than upon persons of another race or gender.

(B) Death sentences were sought or imposed any more frequently as punishment for capital offenses against persons of one race or gender than as punishment of capital offenses against persons of another race or gender.

(C) Race or gender was in any way any part of decisions to exercise peremptory challenges during jury selection.

3. The state of Ohio has the burden of proving beyond a reasonable doubt that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.

4. If the court finds that race or gender was  in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant resentenced to life imprisonment without the possibility of parole.

5. This act is effective when it becomes law and applies retroactively.

The language in bold and italics within my proposed Ohio statutory language highlights my tweaks to the Kentucky and NC RJAs, both of which concern only race and seem only concerned with race as a "significant" capital sentencing factor.  In addition, both acts place the burden on defendants to prove race was a significant factor in their cases.  As my draft reflects, I am very eager to ensure that neither race nor gender plays any role in the pursuit or imposition of the punishment of death.  In service to that goal, my proposal puts the burden on the state of Ohio, once a claim is brought under this Act, to prove convincingly that neither race nor gender played any role in the death sentencing process.

Thoughts?  Who is willing to co-sign this bill as proposed?  I am open to friendly amendments and also eager to hear if any legislators oppose this effort to eradicate the problem identified in McClesky through a legislative response.

September 26, 2011 in Class activities, Race and gender issues, Who decides | Permalink | Comments (10) | TrackBack

September 21, 2011

Terry Nichols and a few other modern mass murderers who escaped death sentences

Sorry to have played an (evil?) game of guess the murderer at the end of class yesterday, but I think the story of Terry Nichols encounters with both the federal and Oklahoma capital punishment system provides a useful reminder that some (many?) high-profile US mass murderers can escape a death sentence in various ways.  Via his Wikipedia entry, here are the basics of Terry Nichols' crime and how he managed avoid a death sentence:

In 1994 and 1995, [Terry Nichols] conspired with [Tim] McVeigh in the planning and preparation of the Oklahoma City bombing -- the truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma on April 19, 1995 which claimed the lives of 168 people including 19 children.

After a federal trial in 1997, Nichols was convicted of conspiracy to use a weapon of mass destruction and eight counts of involuntary manslaughter for killing federal law enforcement personnel.  He was sentenced to life imprisonment without the possibility of parole because the jury deadlocked on the death penalty.  He was also tried in Oklahoma on state charges of murder in connection with the bombing, and was convicted in 2004 of 161 counts of first degree murder, which included one count of fetal homicide, first degree arson, and conspiracy.  As in the federal trial, the state jury deadlocked on imposing the death penalty.  He was sentenced to 161 consecutive life terms without the possibility of parole, and is incarcerated in ADX Florence, a super maximum security prison in Florence, Colorado. He shares a cellblock that is commonly referred to as "Bombers Row" with Ramzi Yousef and Ted Kaczynski.

As I mentioned in class, Jeffrey Dahmer (who killed at least 17 people in Wisconsin) and Dennis Raeder(the BTK Killer, who killed at least 10 people in Kansas) and Joel Rifkin (who kiled at least 17 people in New York) and David Berkowitz (the Son of Sam, who killed at least 6 people in New York) are just some examples of some infamous modern serial killers who escaped a death sentence because they committed mass murder in states without the death penalty at the time of their crimes.

In addition, some other modern mass murderers like Gary Ridgway (the Green River Killer who killed at least 49 people in Washington) and Charles Cullen (who killed at least 29 people in New Jersey and Pennsylvania) and Ronald Dominique (who killed at least 23 people in Louisiana) are just some examples of some infamous modern serial killers who escaped a death sentence because, after committig mass murder, they were able to cut plea deals with state prosecutors in order to take the death penalty off the table.

Does this kind of information make you more sympathetic (or less sympathetic) to claims of unconstitutional or just unfair sentencing disparity often made on behalf of folks who are sentenced to death in many states for only one murder (like Warren McClesky and Troy Davis)?

In light of this information, might you support a new federal death penalty law that defined the murder of,say, five or more people over an extended period of time to be a form of terrorism and thereby readily subjecting all of these sorts of serial killers to possible federal capital prosecution if/when state authorities are unable or unwilling to seek a death sentence for a mass murderer? 

September 21, 2011 in Death eligible offenses, Death penalty history, Who decides | Permalink | Comments (13) | TrackBack

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:

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.

September 20, 2011 in Current Affairs, Race and gender issues, Who decides | Permalink | Comments (11) | TrackBack

September 13, 2011

Information on (your hypothetical client) Ted Kaczynski and Ohio DP law

To give you a focus for examining modern death penalty statutes, the casebook encourages thinking about how you might help represent Ted Kaczynski if he were to be prosecuted under the applicable death penalty statutes in Texas and Florida.  Though not in the text, you should also consider how you think Ted might fare under Ohio's death penalty statute and its distinct specification of aggravating and mitigating circumstances.  (Ignore for purposes of this exercise that these states would not likely have jurisdiction.)

For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out this short article toward the end of this link entitled "The Death Penalty Up Close and Personal" by David Kaczynski (Ted's brother).  Also worth a read is this 1999 article from Time magazine by Stephen Dubner.

Though I have given this sort of assignment to prior classes, I must note that this "case" has a disturbing new element.  As detailed in this press report from July 2011, "Anders Behring Breivik, the suspect in Norway's twin attacks that killed at least 93 people, appeared to plagiarise large chunks of his manifesto from the writings of Theodore Kaczynski."  Here is more:

The 32 year-old appears to have quoted verbatim large sections from the preaching of Theodore Kaczynski in his 1500 page online rant.  Breivik had “copied and pasted” almost a dozen key passages from the 69 year-old’s 35,000 manifesto, only changing particular words such as “leftist” with “cultural Marxist”.

It remains unclear what his motivations were, but experts said it appeared he had taken “inspiration” from Kaczynski whose two decade parcel-bomb terror campaign killed three people and 29 injured others. 

Despite meticulous university thesis-style referencing through the manifesto, Norwegian bloggers discovered that passages quoting Kaczynski were not credited....  It was published on the internet just hours before he killed at least 93 people and wounded nearly 100 more in twin attacks in Norway.

Ragnhild Bjørnebek, a researcher on violence for the Norwegian Police Academy, described the disclosures as “very interesting” and showed startling similarities between the two terrorists.  “The Unabomber was very intelligent and who was also a person that was very difficult to detect,” she told Norwegian media.

September 13, 2011 in Aggravators and mitigators, Class activities, Who decides | Permalink | Comments (7) | TrackBack

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 13, 2011 in Class activities, Pro/Con arguments surrounding the death penalty, SCOTUS cases of note, Supreme Court rulings, Who decides | Permalink | Comments (12) | TrackBack

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.

September 6, 2011 in Death penalty history, Supreme Court rulings, Who decides | Permalink | Comments (11) | TrackBack

August 31, 2011

Who should have the least sentencing power?

In addition to closely reviewing the 1949 Williams v. New York case (which can be read in full here and is worth the time to read in full), we will discuss in class on Thursday which particular institutional players tend to exercise the most formal and informal sentencing power, and whether and how you think these institutional players should have their powers limited and regulated.  Long story short: legislatures, prosecutors, trial judges, and parole/prison officials have historically wielded the most sentencing power, but many modern reforms have given larger roles to sentencing commissions and appellate judges.

Here (and perhaps also in class), I am eager to look at this issue from the other side of the equation: that is, I want to hear whether and why you might think certain institutional players should have little or no formal or informal sentencing power.  Again, history is somewhat instructive: victims, police, juries (except in capital cases) and appellate judges have historically wielded little sentencing power, but many modern reforms have given larger roles to victims and appellate judges.

As we will discuss, every institutional player that actively seeks to be involved in the sentencing process usually can have some input or impact.  But that practical reality should not prevent a sentencing system (or us) from exploring how to limit the authority of those players we believe should have the least power to impact sentencing outcomes.  (There are lots of general reasons why we might want to limit and/or regulate a particular player's sentencing power: e.g., we fear that particular institutional player has a certain problematic/systematic bias, or will too often pursue a disfavored punishment purpose or form, or will be too subject to undue influences by other actors, or will make inconsistent or less-than-thoughtful decisions.)

So, who do you think should have the least sentencing power?  Why?

August 31, 2011 in Who decides | Permalink | Comments (12) | TrackBack

August 28, 2011

If castration was a good idea for Thomas Jefferson, why not for Richard Graves?

We concluded our first week's class discussion with questions about whether and why castration (either physical or chemical) could and would be a fitting punishment for convicted rapist Richard Graves.  As a preview of second week topics, I encouraged considering whether answers to these questions might be changed or significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).  

For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment.  In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that few forms of punishment have ever been the subject of Supreme Court review.

Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....

I highly encourage everyone to read the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

August 28, 2011 in Alternatives to imprisonment, Who decides | Permalink | Comments (14) | TrackBack

January 16, 2010

You be the judge: what sentence would you give to Gilbert Arenas following his plea?

As detailed  this Washington Post article, which is headlined "Arenas awaits sentence on gun charge, fate in NBA," the gun fun had by NBA star Gilbert Arenas last month has now made him a great subject for discussion and debate in a sentencing seminar.  I have asked this same sentencing question in this post at my main blog, and here are the key legal basics to keep in mind as reported by the Post:

Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then.  The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years.  Guidelines call for six to 12 months.

I am especially interesting in having students think about these Chapter 2 "who sentences" topics as we contemplate Arenas's possible sentencing fate:

1.  How should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA and the Washington Wizards impact Arenas's sentencing outcome?

2.  How should the fact that DC's advisory sentencing guidelines impact Arenas's sentencing outcome?

3.  How should the fact that prosecutors have agreed not to seek a prisoner term of more than six months impact Arenas's sentencing outcome?

4.  Are there any victims of Arenas's offense of one count of carrying a pistol without a license in the District of Columbia whose interests should be considered?

5.  How should the fact that Arenas agreed to plead guilty impact Arenas's sentencing outcome?

6.  If Arenas were to start doing prominent and significant anti-gun-violence community service, how should that fact impact Arenas's sentencing outcome?

7.  Should any sentencing outcome be subject to appeal (by either prosecutors or Arenas)?

January 16, 2010 in Interesting new cases, Who decides | Permalink | Comments (0) | TrackBack