Sentencing Class @ OSU Moritz College of Law

Some sentencing news of note during our break

Though I doubt we will have too much extra time to talk about all the interesting sentencing developments of the last few weeks, I thought it might still be useful to spotlight here some posts from my main blog highlights some of the biggest news of the break week that was:

• Senator Jim Webb takes his concerns about prison nation to the next level
• "To Cut Costs, States Relax Prison Policies"
• The latest numbers on executions around the world
• New York drug sentencing laws finally to get serious reform
• Rapper T.I. gets a year-and-a-day federal sentence on gun charges

• The many fascinating legal and social issues swirling around "sexting"

Is it fitting and fair to call former Judge Kent a sex offender? Should he have to register?

As we ended class, it was obvious to me that many were troubled by my use of the "term" rapist to describe former Judge Kent.  Though I would be happy to have folks comment/debate on that label, a more contemporary and valuable label to consider is "sex offender."  Specifically, I am eager for everyone to consider (both in social and legal terms) whether the sex offender label can and should be affixed on Judge Kent in light of his admitted behavior.

As you think about this question in legal terms, keep in mind some of the legal consequences of this label.  Sex offenders are now required to register in all states, and in many jurisdictions they are prohibited from living or working in certain places.  They are also often prohibited from being involved in traditional Halloween festivities and a number of other activities many take for granted.

Finally, as you reflect on these issues, consider also the classic "who" question: which legal actor in the sentencing process should get to decide whether Judge Kent is to be legally considered a sex offender?

Some (helpful?) links for the guideline sentencing of former Judge Kent

I heartily encourage students using a variety of different means to try to figure out what kind of (now advisory) guideline sentence former Judge Kent is to be facing.  But I also wanted to help folks get a running start with these links to materials provides on the official website of the US Sentencing Commission:

• The entire latest (2008) US Sentencing Guidelines Manual in both html and pdf format
• U.S. Sentencing Guidelines Manual Section 2J1.2. Obstruction of Justice
• U.S. Sentencing Guidelines Manual Chapter 5, Part A Sentencing Table

Also, U.S. Sentencing Guidelines Manual Section 1B1.1 Application Instructions might prove useful, along with lots of other stuff to be found at the USSC website and elsewhere.

Key documents as we prepare for "sentencing" former Judge Samuel Kent

As mentioned in prior posts and in class, our in-class examination of non-capital sentencing and of modern sentencing reforms will focus — at times a lot and at times a little — on the real case of former federal district judge Samuel Kent.  There is lots and lots of background information about this case available on the web, including this effective  this effective March 2 piece from the Texas Lawyer, headlined "What's Next for Samuel Kent in Wake of Guilty Plea?".  But for purposes of our class discussion, the only essential reading are these key legal documents from the case:

• This superceding indictment filed January 6, 2009 in US v. Kent, No. 08-CR-596 (S.D. Texas)
• This plea agreement executed Feb 23, 2009 in US v. Kent, No. 08-CR-596 (S.D. Texas)

• This factual basis for plea in US v. Kent, No. 08-CR-596 (S.D. Texas)

This case and these documents should enable us to discuss effectively many of the challenging legal and policy issues covered in chapters 3 through 8.  Though I doubt we will get a chance in class to review systematically all the readings/ideas set forth in all these chapters, you should be able to find useful readings on a range of relevant topics from all those chapters as they apply to former Judge Kent's case.  And, if there are particular issues relating to former Judge Kent's upcoming sentencing that you want to make sure we discuss in class, please feel free to use the comments (or class time) to spotlight issues you want to make sure we cover.

Head's up on class plans up through Spring Break

We have two weeks together before Spring Break, and I wanted to make sure everyone knew my plans for these weeks:

1.  The first week's classes will have us wrap up our discussion of the death penalty, with Wednesday's class focused on the Ted Kaczynski hypo (details here) and Friday's class dedicated to an "open forum" on whatever capital punishment topics students would like to review.

2.  The second week's classes will jump us into the law and policy on non-capital sentencing, during which I want to use the upcoming sentencing of former federal judge Samuel Kent as a focal point for discussion.  Look for a series of Kent-related documents and activities posted on this blog over the next few days.

During any (or all) of these classes, I am happy to discuss further my expectation for the mid-term and final papers.

Is the economic argument against the death penalty a game-changer?

Inspired by a comment by Shawn to another post, I thought it might be valuable to again review all the recent discussion of the economic costs of the death penalty.  It has long been clear that the administration of capital punishment is a costly affair, though only now in tough budget times do we see politicans discussing this reality with emphasis and proposals for reform.  Whatever one might think of the merits of these arguments (which folks are welcome to discuss in the comments), these links to posts at my main blog highlight that the idea is getting a lot of media attention in recent weeks:

Some recent posts noting media discussion of death penalty costs and reform proposals:

• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• CNN now talking about the costs of the death penalty and state reforms 
• More discussion of cost concerns in debates over the death penalty
• Still more discussion of the costs of the death penalty
• Capital case cost concerns continue to inform reform debate
• Great new (though still dated) examination of the death penalty and plea bargaining
• Interesting time for Time's discussion of death's demise
• What might 2009 have in store for . . . the death penalty in the US?

US v. Ekwunoh, mens rea cases, war stories and class plans

I apologize for taking up (too?) much of class on Wednesday telling the war story of my very first real legal experience after law school (but perhaps a real-world war story about a non-capital case was a useful break from what we have been doing lately). If you want to read the Second Circuit's opinion in United States of America v. Caroline Oyibo Ekwunoh, 12 F.3d 368 (2d Cir. 1993), it is available at this link (and elsewhere on-line, of course).

In addition, I mentioned that the mens rea sentencing issue in Ekwunoh is discussed in the casebook (see pp. 321-25), and is also the subject recent Supreme Court debate in some other contexts.  Specifically, check out the links and other materials about these cases recently argued over before SCOTUS:

Flores-Figueroa v. United States (08-108) (argued Feb 25) —  concerning mens rea needed to trigger two-year mandatory sentence under federal identity theft law.

Dean v. United States (08-5274) (argued Feb 25)— concerning mens rea needed to trigger ten-year mandatory minimum sentence for discharging a gun during a violent crime.

Though I may in subsequent posts give everyone a distinct opportunity to talk about, e.g., whether you'd like more war stories and/or whether you understand the class's paper requirements and/or whether I effectively explained the methods of my madness, all those topics are also fair game in the comments to this post since we will not be together again for a full week.

Pew Center report brings attention to state punishment rates in Ohio and nationwide

Though we likely won't formally transition to non-capital sentencing topics until next week (or maybe even the week after), I wanted to start that transition on the blog by highlighting a new report from the Pew Center on the States, titled "One in 31: The Long Reach of America Corrections."  The full report -- which provide an effective "gold-standard" model for what a great final paper might look like -- is available at this link.  I have blog coverage of the report at SL&P here and here.

The Columbus Dispatch provides a local spin on the report with this article, headlined "Punished population soars in Ohio, U.S." Here is the start of the Dispatch article:

One in every 25 adult Ohioans is in prison, jail or on parole or probation, a study by the Pew Center on the States shows. While the national average is one in 31 U.S. adults, the numbers are more dramatic for Latinos (one in 27), men (one in 18), and blacks (one in 11), according to One in 31: The Long Reach of American Corrections, released yesterday.

Ohio's one-in-25 rate was sixth among the states. Georgia had the highest at one in 13, and New Hampshire the lowest at one in 88.

The first-of-a-kind study showed a huge jump in the corrections rate since 1984, when it was one in 77 Americans. Nationally, there were 7.3 million people in prison, jail, on parole or on probation in 2007. Of those, 351,879 were in Ohio -- about 50,000 in state prisons, with the vast majority in community corrections facilities, on parole or on probation.

At a time when states are facing the worst financial crunch in decades, spending on corrections continues to be one of the fastest-growing pieces of state budgets, second only to Medicaid in the past two decades, the Pew Center concluded. The national cost to taxpayers for all forms of corrections is $68 billion annually. The study said $1 out of every $15 in discretionary state spending goes to prisons.

The Dispatch also has this webpage seeking reader input, titled "The Hot Issue: Would you rather see Ohio build more prisons or put more offenders on probation?".  As of this writing, the on-line voting is very close (but on-line voter "turn-out" is low).

Some notable posts on prosecutorial sentencing discretion

inspired in part by our class discussions of prosecutorial discretion in capital cases, I have done a serius of recent posts at my main blog that focus on prosecutorial sentencing discretion.  All the posts linked below are worth checking out (along with the comments), and the first linked post is especially on-point in light of our conversations during Friday's class:

• Two terrific accounts of prosecutorial discretion in California capital cases
• Might prosecutors keep New York from finally "dropping the rock"?
• Might sex offender (and former federal judge) Samuel Kent possibly avoid all jail time?