Criminal Law @ Moritz College of Law

Sentencing form for role-play

Below for downloading is the form all judges are to use when sentencing Rachel Foster and Dan Schayes (whose PSRs are linked here). There is no need (or place) to put a name on the form, but I will collect them after our sentencing hearings in class on Thursday, Aug. 26.

As you will see when you download the form (and as I suggested in class), judges should develop tentative ideas about likely sentences before coming to class to hear the advocates' presentations.  By doing so, judges can get a better sense for whether and how advocacy can have an impact in this kind of setting.

Download 2010 sentencing verdict form

REMINDER:  We start classes on Thursday at 2pm starting this week!

Does the text or spirit of the US Constitution favor any particular theory of punishment?

The question in the title of this post will be our main topic of conversation during our Tuesday class, and I thought it might be useful to start the conversation in this space by quoting some of the key provisions of the U.S. Constitution that might be most pertinent to this discussion (and/or that arise most frequently in criminal case litigation).  So, for your consideration:

The Preamble:  "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Part of Article I:  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  No Bill of Attainder or ex post facto Law shall be passed."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."

Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Sentencing role-play basics and participants

As I mentioned in class on Friday, for purposes of our sentencing role-play exercise on Thursday, both the lawyers and judges of Oliwood should assume that the great state of Oliwood has adopted the first two subsections of US Code, Title 18, Section 3553(a) as a guide for sentencing advocacy and decision-making by Oliwood judges.  In other words, the lawyers and judges should focus on the substantive provisions of 3553(a)(1) and 3553(a)(2), but should not worry about all the subsequent sections of 3553(a).

As for procedure, each team of lawyers will have 10 minutes per side to present sentencing arguments in each case.  Prosecutors will begin in the Foster case, followed by the defense team, and sentencing by the judges; the same process will be followed for the Schayes case thereafter.

As of Sunday morning, one prosecutor and one defense attorney for the Foster case have been set and one prosecutor for the Schayes case is in place, but there are five remaining spots.

Real criminal law "purposes" statutes and theories of punishment

As I highlighted at the end of our first class, most views on theories of punishment and most criminal laws incorporate a mix of utilitarian and retributivist commitments and concerns.  To test your own understanding of these basic concepts, take a gander at the real criminal law statutes linked below and see if you can identify which theories of punishment are getting the most attention and love:

• US Code, Title 18, Section 3553(a)

• Ohio Revised Code, Section 2929.11

• New Jersey Statutes, Section 2C:1-2

Feeling well oriented? Have any pre-class questions or concerns?

I am eager for this blog to be an opportunity and forum for discussion of "meta-issues" relating to what's going on at Moritz and the entire first-year law school experience.  Consequently, I may often create posts like this one posing general questions about recent Moritz events and how 1Ls students are feeling.  I hope folks feel free to express candid (and, when appropriate, critical) thoughts in response to my questions in the comments of these posts.  So, without further ado, here are my questions today:

1.  What did you think about the orientation program?  What parts of the program did you find most (or least) helpful?

2.  Do you have any final questions or concerns about the whole law school experience now that we are on the eve of 1L classes getting off to a flying start?

UPDATE at 11am on 8/19 (with pre-class advice):  Thanks to Luke (and Kristin), I know you all have now survived your first law-school class, and I trust it went well.  Relatedly, I would be grateful if somebody reports in the comments if anyone from our small-section got called on by Professor Cole so I can make sure to leave that student alone today.  (It is bad enough to be called on in your very first law school class; it is likely a bad omen to be called on in your first two classes.) 

If you are reading this update before our time together in our first class, you are already following the advice I wanted to give in this update.  Specifically, I encourage you to make a habit of checking this blog sometime before each of our class sessions.  You are, of course, encouraged to check (and comment) on this blog frequently.  But, I like to use this space to provide brief pre-class reminders, it is especially important that you check this space for new posts as part of your standard pre-class routine.

Welcome to Moritz College of Law school, Crim Law with Berman & verison 2.0 of this class blog

I have made a habit in recent years to use blogs to support and supplement my instruction in law school classes. Some of these class blogs have served my purposes and goals well, others have meet with mixed results. Undaunted, I remain convinced (but not entirely confident) that the blog technology (rather than a propriety law-school-support technology like TWEN) provides the best on-line tool for supporting and supplement law school courses.

I will continue my bloggy ways in the Fall 2010 semester at the Moritz College of Law through this blog to supplement my first-semester 1L small-section Crim Law course.  And, as the version 2.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course two years ago in Fall 2008.  I am hopeful that new 1Ls will benefit (or at least find reassuring) from seeing some of the posts (and comments) that were generated in this forum the last time around.

So, welcome to the re-launch of this 1L Crim Law blogging adventure. I am always pleased when this blog helps to promote a new type of student engagement, and it also provides an effective means for me to share both required and optional materials and ideas. WELCOME (and feel free to browse the 2008 blog archives for a preview of some of the fun that awaits you in Crim Law)! _________________________________________________________________

 

UPDATE:  It was great to see everyone so bright and eager on the first day, and I am sorry I got such a running start with my tendency to pontificate with advice.  Here were the three most important take-away points in case you dozed off (or were so hungry you could not focus):

1.  You all already have jobs your first day in law school, as any and every one of my 1L students have a open invitation to serve as my (woefully underpaid) research assistant after they complete their first year.

2.  I will make a habit after our Friday class meeting of being available and eager to discuss casually law school, lawyering and life either in our classroom and/or in Lou's cafe and/or at a local coffee shop or bar.  With luck and/or some ingenuity, perhaps we can find a corporate sponsor to cover our first rounds of drinks on a regular basis.

3.  The first student to post our small section's entire class schedule will not get called on before fall break (although I hope that person and many others will make a habit of volunteering even when "safe" from being called on).

 

 

 

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