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April 19, 2010

What are essential topics for discussions in our final few weeks of class?

I have arranged for US District Judge John Gleeson to come speak with our class on our final day together (next week, April 28), which means this coming week is essentially our last opportunity to cover formally in class any topic or topics that you are especially eager to discuss.  For that reason, I hope students will use the comments to this post as an opportunity to indicate any and all substantive or procedural sentencing topic(s) that should be on our agenda for our closing time together.

As always, I have plenty of topics/ideas in mind, and I am also hopeful (but not at all confident) that we might finally have a hot new SCOTUS sentencing ruling to discuss this week (as the Justices have announce that new opinions will be handed down on Tuesday and Wednesday mornings).  But I want to make extra sure we devote time to any topic that students are still eager to have formally covered in the classroom.

April 19, 2010 in Class activities, Current Affairs | Permalink


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I would like to discuss the doctrinal underpinnings of Apprendi. This came up in my criminal procedure class a few weeks ago. The professor was dissatisfied with the Court's explanation about the basis for its holding that any fact (other than a prior conviction) which increases the maximum sentence must be proven to a jury beyond a reasonable doubt or admitted by the defendant, i.e. that such a fact is an "element" of the offense. What is the Court's rationale for this holding?

Posted by: Steve Kress | Apr 19, 2010 6:34:24 PM

I would be interested in discussing more about the viability of alternatives to incarceration and what the current state of the law is for defendants who are seeking alternatives (ie, how possible is it? In what contexts has it been most successful? What are the obstacles?)

I would also be interested in learning more about "holistic defender" services like the Bronx Defenders/Neighborhood Defender Services in Harlem and whether, and to what extent, sentencing outcomes have been different in those settings.

Posted by: Sarah Lorr | Apr 20, 2010 12:13:32 PM

I would be interested in a discussion regarding the way that alternative courts (such as drug courts and integrated domestic violence courts) can influence sentencing results. Even the simple fact that defendants in the New York IDV courts see the same judge every time -- whereas defendants in the New York criminal courts get a new judge at every appearance -- seems like it could have an enormous effect on the ultimate sentence.

I think this discussion could dovetail nicely with a discussion (suggested by Sarah) on alternatives to incarceration.

Posted by: Emily Viglietta | Apr 20, 2010 12:23:23 PM

Excellent suggestions... keep 'em coming!

Posted by: Doug B. | Apr 20, 2010 6:18:51 PM

I would like a discussion of Comstock and civil commitment. A number of people wrote about this in their think pieces all of whom did a great job. The case raises a lot of interesting issues from general theories to specific sentencing actors with a whole lot of other stuff such as determining recidivism risks, characterizing crimes and etc.

Posted by: Brian | Apr 20, 2010 8:38:18 PM

1) Validation of sentencing. In real life negotiations, what are the steps to apply progressively increasing pressure to plead? What happens to the defendant who asserts a right to a trial to persuade to plead? What is the rate of innocence at the level of the death penalty, at the level of a ticket for moving violation and at the level of charges in between? Is sentencing important enough to merit a good study of validation if the data are not available? Daubert standards apply to evidence in criminal cases. If validation data are not available, what should happen? Can that be used as defense tactic?

2) Collateral consequences of pleading guilty, such as deportation, must now be covered by the defense attorney or counsel may be deemed inadequate. The prosecutor has many duties to the defendant statutorily enumerated in the Rules of Evidence, Criminal Procedure, Conduct, and in a lot of case law. Should a formal list of potential consequences based on the experience of other defendants be required from the prosecutor before the plea can be called "informed?" For example, plead to child endangerment, or drug possession, you may lose your nursing job and even license. The plea may keep the person out of jail, but destroy one's life. Should informed pleading be added to the list of prosecutor duties to the defendant?

3) The criminal sentences likely to affect the majority of the population are traffic fines. Is there a line between punishment and revenue generation? Is revenue generation lawful in the context of sentencing? If the fines are so high or tack on fees for irrelevant government functions, is the resulting total payment a violation of the Eighth Amendment (excessive fines)? Define gross disproportionality. (from http://en.wikipedia.org/wiki/United_States_v._Bajakajian)

Posted by: Supremacy Claus | Apr 21, 2010 6:43:19 AM

In seconding the requests for some discussion of sentencing alternatives, I would enjoy a discussion of what philosophies and purposes of sentencing would lead us to these alternatives. It seems to me that rehab and deterrence not only do not work, but also are nearly impossible to measure adequately. I would like some discussion (or debate) about this issue, and what that means for our sentencing alternatives.

Posted by: Clay | Apr 21, 2010 9:12:07 AM

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