Criminal Law @ Moritz College of Law

Reviewing role play roles (and electronic versions of the materials)

Thanks again so very much to the eight students who volunteered to be lawyers in our first role play.  Particularly for their benefit, but really for everyone's consideration and reflection, I wanted to reiterated the respective roles of attorneys and judges at a sentencing proceeding:

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.  Of course, prosecutors know that, right after they make their presentation at sentencing about a proper punishment, the defense attorneys are likely to be giving a different account of the case to the judge(s).

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, defense attorneys know not only that prosecutors are to be advocating from a distinct perspective, but also that the judge(s) may not be swayed by positions or arguments that seems unrealistic in light of the applicable facts and law. 

The rest of you, as I mentioned in class, get to serve as sentencing judges.  Below everyone can download the Oliwood Pre-sentence reports and the sentencing form that 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 on Monday. 

As mentioned in Wednesday's class, the judges are encouraged to develop tentative ideas about what sentence they might impose before coming to class to hear the legal advocates' presentations.  By doing so, folks can get a sense of their own judicial instincts about punishment before hearing from the lawyers, and they also can experience first-hand whether and how advocacy can have an impact in this kind of setting.

Download 2023 sentencing role play psrs

Download 2023 Judges sentencing form

Does the text or spirit of the Eighth Amendment (or other parts of the US Constitution) embrace any particular theory of punishment?

I have asked the question in the title of this post to many students in many classes, and I am still not sure of the answer.  The Supreme Court has sometimes spoken to these matters 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.... A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense."

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'." 

So grateful for many sentencing role-play volunteers

I was pleased to return to my desk and already hear from 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  many more volunteers than slots.   Here are the individuals who have been plugged into these coveted early lawyering slots based on the emails I received.  As you will see, as of this writing (5pm on Tuesday), there is one last spot open.

Wed AM UPDATE:  The final spot has been filled!  Thanks to you all, and I am already very excited for Monday!

 

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

Prosecutors:  Roha Tanveer + Noah Golovan

Defense Attorneys: George Sdregas + Kelly Miles

 

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

Prosecutors:  Morgan Kukovec + Gavin Maziarz

Defense Attorneys: Levi Brake + Mitch MacDonald

 

Thanks again to so many of you for you interesting in volunteering.  As I mentioned, we will talk a bit more about the exercise during Wednesday's class.  And we will have a bunch more role plays throughout the semester, so more lawyering opportunities await.

Welcome to the Moritz College of Law, Criminal Law with Professor Douglas Berman, and version 11.0 of this class blog

Get excited about starting a new school and a new class that uses an old technology!

I am so very pleased to welcome you the the Moritz College of Law and to introduce you to the legal field of Criminal Law.  And because the technology has served me quite well for nearly two decades, I remain a big fan of law blogs and 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 (and to see how prior generations of law students engaged with these materials).

So, I will continue as an old dog with old technology tricks in the Fall 2023 semester at the Moritz College of Law by using this blog in our first-semester 1L Criminal Law course.  As the "version 11.0" 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 nine times before (in Fall 2008, 2010, 2013, 2014, 2016, 2017, 2018, 2021 and 2022) 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 another means for me to share required and optional materials and ideas.

WELCOME!

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 our CarmenCanvas class page).

 

In preparation for our first class on Monday, August 21, 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 will be available by August 16 in front of my office (Room 313), and on the course website (linked hereLinks to an external site.), and in 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, and because they can and should be read 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 2023 Course description

Download 2023 Crim Law syllabus