Sentencing Class @ OSU Moritz College of Law

Some SCOTUS death penalty news and notes

This week has already brought some notable death penalty action in the Supreme Court, and these blog posts over at my main blog about all the action has generated some interesting debates in the comments:

• Early report on Bies oral argument
• A SCOTUS win for the capital defendant in Cone v. Bell

My availability for conferences and my desire for continued commentary

As I have mentioned to some of you, for the week of April 27, I will be available for conferences only on Monday and Wednesday afternoons.  The following weeks, I am available most afternoons, though a scheduled appointment (ideally via comments to this post) is the best way to ensure I am in my office when you would like to come by.

All students who have not yet had a conference about their mid-term paper should try to book a time.  And even those who've had that conference are welcome to book more conference time to discuss in more detail their plans for the final white paper (which is due, with no extensions, on May 14).

In addition, as I mentioned in our last week of classes, you can still earn class participation credit via blog commentary here.  I likely will post some "fresh" sentencing news in the days ahead, and here are links to some recent posts from my main blog that touch on topics we covered in class at various times:

• Flawed HLR note on federal white-collar sentencing
• How might new drug war buzz impact SCOTUS student strip-search case?:
• "Imprisoned by stereotypes"
• CNN covers Sullivan case as SCOTUS considers juve LWOP
• Huge opinion concluding(?) Ohio lethal injection litigation
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days

Monday Bies moot in faculty lounge from 3pm until....?

The moot argument in in the Bobby v. Bies case (briefing here) will take place in the faculty lounge starting at 3pm, and I hope everyone eager to take advantage of this opportunity will come by at whatever time possible.

I also hope that anyone who attends any part of the moot will consider discussing the experience or on the case more generally in the comments to this post.

Setting up conference times

As I mentioned in class, I am eager to have individual conferences with all students about their mid-term and final papers the week of April 20th.  I am free just about every afternoon from 1pm on, except for when we have the scheduled moot on Monday and our class times Wednesday and Friday. 

I do not expect most conferences need to be more than about 20 minutes, and so I hope students will just announce convenient times here in the comments and plan to stop by then.  If afternoon times do not work for anyone, feel free to suggest morning alternatives any day after Tuesday.

Briefs for the Bobby v. Bies case

As promised, here are all the merits briefs for your review in the Ohio capital case, Bobby v. Bies, coming before the US Supreme Court later this month.  Though I do not expect everyone to attend the Monday moot, I would be grateful for suggested questions (or other reactions to the briefs) in the comments.

Ohio's merits brief in Bobby v. Bies as Petitioner: Download Bies Pet

Bies's merits brief in Bobby v. Bies as Respondent: Download Bies Resp

Ohio's reply brief: Download Bies Reply

Some local specifics for the application of federal sentencing guidelines

As documented here, the US Sentencing Commission has recently released its "District, State, and Circuit Statistical Packets." In the USSC's words, "Each packet contains a set of figures, tables, and charts comparing selected national sentencing data to data from cases sentenced in each judicial district. Data is also aggregated by circuit and by state (for states in which more than one judicial district is located)."

Here are the links to local packets:

• 6th Circuit
• Ohio
• Ohio Northern
• Ohio Southern

Students will get extra super bonus class participation points for noting in the comments any special or interesting data they can mine from all these materials

Topics of student interest in the closing weeks?

Because we got distracted by the (important) story of mandatory minimum sentencing statutes (both in policy and in practice), next Wednesady's class will focused primarily on wrapping up the guidelines debate concerning Judge Kent and working in the story of Blakely and Booker.  Though I suspect and fear that the Blakely/Booker story in turn will carry over until next Friday, that will still give us at least two classes to cover any (though surely not all) topics that may have to date slipped through the cracks.

So, as I suggested in class, I encourage students to use the comments here (or my e-mail) to report on topics of interest for our last few classes.  I won't promise a first-come, first-serve response, but I will do may best to make sure in class we get to sentencing topics of greatest interest in our waning hours together.

Michael Vick, Victor Rita and other federal guideline calculation stories

I mentioned in class a few famous/notable cases involving interesting guideline calculation issues, and here now are some links to facilitate further reading for those who might be interested. 

Let's start with Michael Vick, whose case is in the news again these days.  As you may recall, Vick pleaded guilty (like our friend Kent) and you can/should check out his plea agreement and the case's fact summary.  Notably, the plea agreement stipulated to an ultimate offense level to 13 for a guideline range of 12-18 months.  But, a "Brief of Amici Curaie" filed by a group of "organizations concerned about animal welfare and responsible dog ownership" can be access here, and it asserted (1) that the "agreed upon offense level does not adequately reflect the nature of Vick's conduct nor his role in the offense," (2) that Vick's guideline offense level should be 20 and his sentencing range 33-41 months, (3) the court should impose a 57-month sentence and a $250,000 fine. 

Now on to Victor Rita, whose case was the subject of the Rita v. US ruling by the Supreme Court that appears at pp. 199-210 in our casebook.   Though I got the exact facts of Rita's crimes a bit off in class, I am right about how a cross-reference increased his guideline range.  Here are snippet's from the Supreme Court's discussion of how Victor Rita got in trouble and ended up faced a guideline sentencing range of 33-41 months:

The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury.  The jury was investigating a gun company called InterOrdnance....  The investigating prosecutor brought Rita before the grand jury, placed him under oath [and] Rita denied that the Government agent had asked him for [a machine gun] kit, and also denied that he had spoken soon thereafter about the [gun] kit to someone at InterOrdnance.  The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts....

[P]ursuant to the Guidelines, the [presentence] report, in calculating a recommended sentence, groups the five counts of conviction together, treating them as if they amounted to the single most serious count among them (and ignoring all others). See USSG §3D1.1. The single most serious offense in Rita’s case is “perjury.”  The relevant Guideline, §2J1.3(c)(1), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for “perjury . . . in respect to a criminal offense” by applying the Guideline for an “accessory after the fact,” as to that criminal offense. §2X3.1.  And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is “6 levels lower than the offense level for the underlying offense."  Here the “underlying offense” consisted of InterOrdnance’s possible violation of the machinegun registration law. The base offense level for the gun registration crime is 26.  See USSG §2M5.2.  Six levels less is 20.  And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation.

Students will get lots and lots of bonus particulation points by using the comments for either (a) expressing interest in (and/or providing links to) other interesting guideline calculation cases, or (b)expressing in rank order with explaination how they think Kent, Vick and Rita stack up in terms of offense culpability and the purposes of punishment.  (Lots of thoughtful comments will also increase the chances I will cancel Friday's class.)

Some local stories and posts of note

Especially in light of some recent and past class discussions, everyone might be interested in these two recent posts from my main blog about Ohio happenings:

• Ohio's death row getting smaller (though new AG still laments pace of appeals)

• Ohio ACLU writes to local lawmakers and prosecutors about sexting

Also, students already looking for a different (and fresh) perspective on federal sentencing discretion and the limits of law might want to check out the article references in this post: Deep thoughts about post-Booker sentencing and sources of law.

Reviewing the mid-term paper experience (and Joker's Wild)

As I mentioned in class, I am open to lots of different ways to review and reflect on the mid-term paper experience.  I especially like the idea of circulating (without identification) all the papers for all to see.  But I want to provide everyone a chance to object to this tentative plan (via comments or e-mails to me).

In addition, I am eager to hear ideas for going "off the board" concerning how we might review the mid-term paper exercise: i.e., folks should feel free to make novel suggestions concerning how to make the most of the mid-term experience.

Speaking of going "off the board," Jonathan was kind enough to help me find this YouTube link to a classic clip of the old Joker's Wild game show.  There is a reference to going "off the board" around the 2:15 mark.  (Also, this clip should make every feel good about being smarter than some folks were in the 1970s.)

Some early thoughts about gendered realities in the Kent case

We will return to our discussion of the sentencing of former federal district judge Samuel Kent in class this week, and everyone should be sure to review again all the key case documents (here and here) and your own proposed pre-guideline and guideline sentence for defendant Kent. 

You should recall that, in our discussion just before break, students proposed a prison sentence as low as six months and as high as 15 years for defendant Kent.  Though I did not make much of the fact before, I do not think it was mere coincidence that a male "judge" proposed the lowest sentence for Kent and that a female "judge" proposed the highest sentence for Kent. As I have noted before and will note again and again, gendered realities (both conscious and unconscious) clearly play a significant role in how sex offense cases are handled.

Some of you have at times expressed concern about how often I tend to bring gendered perspectives into our class discussions.  To help you understand why I often obsess over gendered realities in law and practice, consider this new research I just came across.  The article, which is titled "From Lawyer to Judge: Advancement, Sex, and Name-Calling," has nothing to do with sentencing, but it does provide some worrisome insights into how lawyers judge one another.  Here is the abstract:

This paper provides the first empirical test of the Portia Hypothesis: females with masculine monikers are more successful in legal careers. Utilizing South Carolina microdata, we look for correlation between an individual's advancement to a judgeship and his/her name's masculinity, which we construct from the joint empirical distribution of names and gender in the state's entire population of registered voters. We find robust evidence that nominally masculine females are favored over other females. Hence, our results support the Portia Hypothesis.