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August 26, 2022

Reminder of role play roles (and the sentencing form in electronic form)

Thanks again for all those who volunteers to be lawyers in our first role play.  Particularly for their benefit, but really for everyone's consideration, I wanted to reiterated everyone's respective roles:

Prosecutors do not represent any individual party, but the community as a whole, and they thus tend to view their obligation at sentencing to argue for whatever sentence they believe will serve as just and effective punishment in accordance with applicable law. 

Defense attorneys, in contrast, represent an individual client, and so their role is typically understood to require them to seek and advocate for the most lenient/defendant-friendly sentence as seems possible under the circumstances.  Of course, that may hinge somewhat on figuring out what kind of sentencing advocacy is most likely to sway the judge(s). 

The rest of you, as I mentioned in class, get to serve as sentencing judges.  Below you can download a copy of the form I handed out in class to be used to prepare for the sentencing.  There is no need (or place) to put a name on the form, but I plan collect these forms after our sentencing hearings in class.  As mentioned, the judges are encouraged to develop tentative ideas about what sentence they might impose before coming to class to hear the advocates' presentations.  By doing so, folks can get a sense of your own judicial instincts about punishment and also can see first-hand whether and how advocacy can have an impact in this kind of setting.

Download 2022-judges-sentencing-form

August 26, 2022 in Course materials and schedule | Permalink | Comments (0)

August 25, 2022

Does the text or spirit of the Eighth Amendment embrace any particular theory of punishment?

I have asked the first question in the title of this post to many students in many classes, and I am still not sure of the answer and so will be eager to hear another set of views in our class.   The Supreme Court has, in a sense, spoken to this question in a number of Eighth Amendment cases (some of which are discussed in our text).  I plan to discuss briefly some of the Eighth Amendment cases that appear in our reading, but let me start the conversation by highlighting some key text from the Constitution and from the caselaw:

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

Graham v. Florida, 560 U.S. 48 (2010), majority opinion: "The concept of proportionality is central to the Eighth Amendment."

Ewing v. California, 538 U.S. 11 (2003), majority opinion:  "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution does not mandate adoption of any one penological theory....  Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts."

Ewing v. California, 538 U.S. 11 (2003), Justice Scalia opinion: "Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution....  In the present case, the game is up once the plurality has acknowledged that 'the Constitution does not mandate adoption of any one penological theory,' and that a 'sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation'."

August 25, 2022 in Course materials and schedule, Reflections on class readings | Permalink | Comments (0)

August 24, 2022

Many, many thanks for (too) many, many sentencing role-play volunteers

I was overwhelmed get back to my computer after some office hours conversations and already hear from so many of you about your interest in volunteering for our sentencing role-play planned for Monday afternoon.   As I mentioned, I tried to fill spots in a first-come (by email), first-serve way, and I am sincerely sorry we had so many more volunteers than slots.   Here are the individuals who have been plugged into these coveted early lawyering slots based on the early (still during emails I received:

Oliwood v. Rachel Foster (applying US Code, Title 18, Section 3553(a))

ProsecutorsRyan Cleary + Olivia Hiltbrand

Defense Attorneys: Lili Biswas + Isabel Cohen


Oliwood v. Dan Schayes (applying Ohio Revised Code Section 2929.11)

Prosecutors: Mehek Sheikh + Greyson Teague

Defense AttorneysMickaela Davis + Rachel Peterson


Thanks again to so many of you for you interesting in volunteering.  We will have a bunch more role plays throughout the semester, so more lawyering opportunities await.

August 24, 2022 in Course materials and schedule | Permalink | Comments (0)

August 22, 2022

Noticing how theories of punishment find expression in federal and Ohio law

In class today, toward the very end, I (too quickly) flagged passages from key portions of federal and Ohio law to highlight that actual criminal laws often reference both utilitarian and retributivist ideas.  I will be eager to return to this theme in class on Wednesday, and so I thought here I would link here to the two provisions of law I referenced during class.  Specifically, consider:

FEDERAL LAW: US Code, Title 18, Section 3553(a) -- Imposition of a Sentence

OHIO LAW: Ohio Revised Code Section 2929.11 -- Purposes of felony sentencing

I recommend that you click through to these laws and see if you can identify the varied ways in which various theories of punishment find expression in actual laws.  (And feel free to use the comments to get the discussion started on your time, if you wish.)

August 22, 2022 in Reflections on class readings | Permalink | Comments (3)

August 15, 2022

Welcome to the Moritz College of Law, Criminal Law with Professor Douglas Berman, and version 10.0 of this class blog

Welcome to a new school and a new class using an old tech platform!

Ever drawn to a technology that has served me well for many years, I remain a big fan of law blogs and I continue to make a habit of using various blogs to support my instruction in various law school classes.  I have found that blogs (over a law-school-support technology like TWEN or course software like CARMEN) provide an especially useful and distinctive on-line tool for supplementing my courses and for encouraging students to engage with "public" questioning and commentary.

I will continue as an old dog with old tricks in the Fall 2022 semester at the Moritz College of Law by using this blog in our first-semester 1L Criminal Law course.  As the "version 10.0" label in the title of this post highlights, I have built this "new" blog directly atop the blog I have used when teaching this same course eight times before (in Fall 2008, 2010, 2013, 2014, 2016, 2017, 2018 and 2021) and also when teaching a Comparative Criminal Procedure course (in Summer 2012 as part of our great Oxford summer program).  I am hopeful that new 1Ls will benefit from — or at least find reassuring — seeing some of the posts and comments that were generated in this space in years gone by via these archives.

So, welcome to the latest re-launch of this 1L Crim Law blogging adventure.  I am always pleased when this blog helps to promote a distinct type of student engagement, and it will provide the means for me to share required and optional materials and ideas.


Getting us started, I am here posting electronic copies of the basic course documents and our assignment for the first week of class (which also appears in the same form on CarmenCanvas).



In preparation for our first class on Monday, August 22, you should:

1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (9th ed. 2021)

2. Obtain a copy of the course description and the course syllabus, which are available in front of my office (Room 313) and on the course website (linked below), and also via the FILES tab in our CarmenCanvas class webpage.

3. Read the casebook's Introduction quickly and pages 19-25, 29-32, and 589-595 closely.  Because the next set of readings provide theoretical background, should be read (skimmed) VERY quickly, and should enhance your appreciation of our initial discussions, I encourage you also to SKIM the readings from pages 32‑70 in the text as soon as possible.

Download 2022 Course description

Download 2022 Crim Law syllabus







August 15, 2022 in Course materials and schedule | Permalink | Comments (0)