Sentencing Class @ OSU Moritz College of Law

US v. Fitch and the potential impact of uncharged offense conduct

As noted in this agenda post, our class this Tuesday will focus on the consideration of acquitted and/or uncharged conduct at sentencing, with particular emphasis on the Supreme Court's 1997 ruling in US v. Watts (excerpted in casebook, full text here) and the Ninth Circuit's ruling just last month in US v. Fitch (full opinion here).  To whet everyones' appetite, and perhaps begin our discussion via comments to this post, consider the start of the majority opinion in Fitch:

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering.  The applicable Sentencing Guidelines range was 41-51 months.  At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable.  Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum — based on uncharged criminal conduct.  We have not had occasion to address a scenario quite like this, but are constrained to affirm.

The exciting week ahead in class ... and elsewhere

I hope everyone recharged their sentencing batteries with the help of Thursday's break because this coming week is going to be very full with exciting sentencing issues and related activities.  Here is a brief agenda to aid our collective planning:

Monday 10/31:  USSC expected to release 600-page report(!) on federal mandatory minimums.

Tuesday 11/1: Class will focus on consideration of acquitted/uncharged conduct at sentencing, with emphasis on US v. Watts (in casebook) and recent Ninth Circuit ruling in US v. Fitch (available here, further discussed in this blog post).

Thursday 11/3: Class will focus on quantifying offense conduct with emphasis on Coker v. Georgia (in casebook) and Problem 4-7 (p. 321 in casebook).

Friday 11/4: "Framing Innocence" event at 12noon in Room 252 AND Sentencing Movie Matinee at 3pm in Room 344 (at which snacks will be provided and after which will be a Berman happy hour)

Thoughts on class paper packet...

should appear in comments to this post.

UPDATE: Hmmm... nobody wants to comment on the work of colleagues. Not surprising, but a bit disappointing.  Nevertheless, this post will stay open for comments, and I will perhaps try to prompt some students comments with a few of my own in the days ahead (if necessary).

"Measurement and Its Discontents" ... and modern sentencing laws and guidelines

The title of this post starts with the headline of this interesting commentary, which was published in yesterday's New York Times.  Though not saying one word about sentencing, I thought many parts of piece (and especially the passages quoted below) were especially interesting and deserved consideration as we transition into our review and assessment of guideline sentencing systems:

Why are we still stymied when trying to measure intelligence, schools, welfare and happiness?

The problem is not that we don’t yet have precise enough tools for measuring such things; it’s that there are two wholly different ways of measuring.

In one kind of measuring, we find how big or small a thing is using a scale, beginning point and unit. Something is x feet long, weighs y pounds or takes z seconds. We can call this “ontic” measuring, after the word philosophers apply to existing objects or properties.

But there’s another way of measuring that does not involve placing something alongside a stick or on a scale.  This is the kind of measurement that Plato described as “fitting.” This involves less an act than an experience: we sense that things don’t “measure up” to what they could be. This is the kind of measuring that good examples invite.  Aristotle, for instance, called the truly moral person a “measure,” because our encounters with such a person show us our shortcomings.  We might call this “ontological” measuring, after the word philosophers use to describe how something exists.

The distinction between the two ways of measuring is often overlooked, sometimes with disastrous results.  In his book “The Mismeasure of Man,” Stephen Jay Gould recounted the costs, both to society and to human knowledge, of the misguided attempt to measure human intelligence with a single quantity like I.Q. or brain size. Intelligence is fundamentally misapprehended when seen as an isolatable entity rather than a complex ideal. So too is teaching ability when measured solely by student test scores.

Confusing the two ways of measuring seems to be a characteristic of modern life.  As the modern world has perfected its ontic measures, our ability to measure ourselves ontologically seems to have diminished. We look away from what we are measuring, and why we are measuring, and fixate on the measuring itself.  We are tempted to seek all meaning in ontic measuring — and it’s no surprise that this ultimately leaves us disappointed and frustrated, drowned in carefully calibrated details....

But how are we supposed to measure how wise or prudent we are in choosing the instruments of measurement and interpreting the findings?  Modern literature is full of references to the dehumanizing side of measurement, as exemplified by the character Thomas Gradgrind in Dickens’s “Hard Times,” a dry rational character who is “ready to weigh and measure any parcel of human nature, and tell you exactly what it comes to,” yet loses track of his own life.

How can we keep an eye on the difference between ontic and ontological measurement, and prevent the one from interfering with the other?

One way is to ask ourselves what is missing from our measurements.... In our increasingly quantified world, we have to determine precisely where and how our measurements fail to deliver.

Do we need to worry about (complex) guidelines enhancing disparity or severity or both?

I know I did not leave enough time at the end of class today for a complete discussion of all the early results of the guideline part of the Rob Anon sentencing exercise, but I went slow today because (1) I wanted to get out more general themes before jumping into the USSG weeds, and (2) I wanted to make sure everyone have a chance to work through the FSG basics for Rob Anon before our sentencing law weed-whacking the rest of the semester.  Nevertheless, even the hasty report of different offense level calculations for Rob prompts the question in the title of this post. 

Consider especially the disparity in guideline sentencing ranges that could result from even seemingly minor differences in offense level and criminal history computations.   Specifically, if the person who calculated Rob's offense level to be "only" 31 also had him in criminal history category II, his guideline range would have been 121-151 months in federal prison (roughly 10 to 12.5 years).  Meanwhile, if  whomever calculated Rob's offense level to be 35 also had him in criminal history category III, then his guideline range would have been 210-262 months in federal prison (roughly 17.5 to nearly 22 years).  And, of course, anyone scoring Rob's offense level at 39 or above would be getting a guideline range calling for near or above the 25-year statutory maximum for his offense of conviction.

Obviously, all of these guideline-calculated sentences are significantly longer than the 8 years imposed by many in our pre-guideline group-sentencing exercise earlier this week.  And, remember, in the pre-SRA federal sentencing world with parole eligibility, even a sentence of 25 years (300 months) for Rob would in fact mean he would become eligible for release on parole in 100 months.  In the post-SRA world in which defendants can only earn a 15% reduction for good time, Rob would actually have to serve at least 103 months of even a sentence of "only" 121 months.

Reactions?  Comments?  Concerns?

Hints and help for federal guidelines sentencing of Rob Anon

Throughout today and tomorrow, I will in through this post provide progressively more and more hints and help for sentencing Rob Anon under the modern federal sentencing guidelines.  I will begin with a few links to the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

• Entire 2010 Federal Sentencing Guidelines linked via USSC
• USSG §1B1.1:  Application Instructions
• USSG §2B3.1:  Robbery

UPDATE #1:  Class members can and should all thank Patrick for his first comment on this thread, which prompts me to provide more hints and help.  Specifically, I am below setting out links to a few more key guideline provisions for the sentencing of Rob Anon:

• USSG § 3B1.1. Aggravating Role
• USSG §4A1.1. Criminal History Category

With some more comments, I will be sure to provide some more hints and help.

UPDATE #2:  Class members now can and should all give extra thanks to Joseph for providing the next very substantive comment on this thread, which prompts me to provide still more hints and help.  Specifically, I am below setting out a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

• Worksheet for sentencing individuals under USSG

I also think it is always helpful to keep looking at the magical USSG Sentencing Table.

Reminder: Before Tuesday's class, do/review the pre-modern-reform federal sentencing exercise!

This coming week we are going to shift our look into modern (non-capital) sentencing reforms into high gear.  To have everyone on the same page, it is essential that you come to class on Tuesday having completed the pre-modern-reform sentencing exercise I handed out at the end of last Tuesday's class.

The front page of the exercise requires you to sentence Rob Anon (whose crime and history appear in short form at pp. 273-74 of our text) as if you were a federal judge sentencing in the pre-modern-reform era (say, around 1972, which was when US District Judge Marvin Frankel wrote his book criticizing then-common discretionary sentencing practices).  The only key legal concerns for you as a federal judge sentencing circa 1972 are (1) that Rob Anon's statutory sentencing range is 0 to 25 years in federal prison and 0 to $250,000 in a fine, and (2) that federal parole officials will have discretionary authority (but no requirement) to release Rob Anon after he has served at least one-third of the sentence you impose.

You need not yet (and I suggest you do not yet) try to sentence Rob Anon under current post-reform (and post-Booker) modern federal sentencing laws.  After we have had a chance in class to talk about your experiences and judgments concerning Rob Anon's sentencing circa 1972, then I will give you guidance and help in sentencing him under modern federal sentencing laws and guidelines.

UPDATE:  Please feel free (indeed, encouraged) now to comment with thoughts and insights as a result of our in-class sentencing exercise/discussion on Tuesday 10/18.  In particular, I am eager to hear perspectives on any special virtues or special vices that you identify in the pre-guideline sentencing world in which very little law limited or shaped your sentencing discretion.  (We will later discuss special virtues and vices of the modern structured sentencing system.)

Eastern State Penitentiary and other historic prisons

This post provides a space for discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website.  

In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America.  A number of notable Ohio-centric stories to be found within in this history, as documented by a relatively recent book entitled "Central Ohio's Historic Prisons."  Here is a snippet from the book:

With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States."  The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class."  However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.

Excerpts from this book can be accessed at this link.  The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site (and also where the great movie The Shawshank Redemption was shot).  I could be readily talked into a class field-trip to this site (for extra credit, of course, and we can skip "Glamour in the Slammer").  Even without a trip north, I urge everyone to take a virtual tour via this huge photo gallery.

Especially if you are looking for some weekend web-surfing fun, check out these additional links to some good sites about some of the United States' most famous or most interesting prisons and jails:

• Alcatraz
• Missouri State Penitentiary
• Rotary Jail Museum
• West Virginia Penitentiary 

Some famous crime and punishment political ads

An amazing website I highly recommend during every politcal season is The Living Room Candidate, which has video clips of more than 300 TV commercials from the major presidential candidates for every presidential election since 1952.  Historically, there have not been all that many ads focused on crime and punishment in presidential election cycles, but a few elections were especially notable for a few ads on these topics.

The 1968 campaign, in addition to being the first with color TV ads, had lots of crime and punishment political ads such as this one "Crime" and this one "The First Civil Right" and this one "Law and Order Democrat" and this one "Busing/Law and Order".

The 1988 campaign between then-Vice President George Bush and then-Massachusetts Governor Michael Dukakis had two of the most (in)famous modern attack ads: this one "Willie Horton" and this one "Revolving Door" (which I have embedded below).  The "Revolving Door" ad prompted this reponse.



Links with background reading on federal mandatory minimums and reasonableness review

I will talk more about (and provide more structure for) the second paper in coming classes.  But, as explained in class today, the topic choices for the paper are limited to two hot(?) federal sentencing issues: federal statutory mandatory minimum sentencing provisions and/or circuit review of federal sentences for reasonableness after Booker. 

There is an incredible amount of reading one can (and should?) do on either or both of these topics, and coverage of some basics on both topics can be found in our casebook.  In addition, here are a few "classic" and/or recent documents worth checking out for more detailed background reading:

• US Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991).  As described by the USSC: "This report responds to a statutory directive that the Commission examine the compatibility of the sentencing guidelines and mandatory minimum penalties, the effect of mandatory minimums on the federal system, and congressional alternatives to mandatory minimums for directing sentencing policy."

• Craig D. Rust, Student Note, When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough (March 2010).  From the abstract by the author: "Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.  This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits."

• William K. Sessions III (former USSC Chair), At the Crossroads of the Three Branches: The U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles (March 2011).  From the abstract by the author: "[T]he Sentencing Commission must assume a leadership role in developing an improved federal sentencing scheme that recognizes the legitimate interests of each branch.  I urge the Commission, working together with Congress and executive branch, to reformulate the guidelines in a manner that helps reduce unwarranted disparities while, at the same time, remove the main obstacle that has hindered lasting achievement of the aspirations of the SRA: the undue complexity and rigidity of the guidelines system, which have resulted in large part from congressional directives and draconian mandatory minimum statutes and which have caused increasing numbers of judges to resist (and, after Booker, in some cases entirely reject) substantial portions of the current guidelines."

None of these (lengthy) documents are required reading for the paper assignment, and there might be some value in doing some of your own web-exploration on both topics without reading these (lengthy) papers.  Here are links to a variety of websites that discuss modern federal sentencing practices in various ways:

• United States Sentencing Commission
• US Department of Justice
• US Office of Defender Services
• Families Against Mandatory Minimums
• The Sentencing Project

You ask for videos, I provide videos

This is one of my favorite modern videos about the politics of sentencing.  It is already a bit dated, but still is a great 90 seconds.  Enjoy.

Ohio sentencing news and resources

Intriguingly, there has been a good bit of Ohio sentencing and punishment coverage in the Columbus Dispatch during our break this week, and I have linked some of the biggest stories via this post on my main blog.  In addition, I encourage everyone interesting in Ohio non-capital sentencing law and policy to look around the website of the Ohio Criminal Sentencing Commission.  

There are lots of notable (and intricate) materials to be found on the "Resources" sections of the OCSC website  here and here.  And I will likely assign for required or recommended reading later this month these particular OCSC documents:

• A Decade of Sentencing Reform (especially through p. 25)
• Prison Crowding: The Long View, With Suggestions
• H.B. 86 Summary: 2011 Changes to Criminal & Juvenile Law

Seeking mid-break thoughts about mid-term paper assignment

As I mentioned last week in class, I am eager to receive any and all student feedback on the writing assignment I gave you for the first part of the semester.  I trust no one found it too burdensome (though you should tell me if you did), and I am especially hopeful some will report in the comments if they found the assignment fun or at least useful/educational.

As always, feel free to post comments with or without your name as you see fit.  (And please realize that I will take a lack of comments as a sign that there was not a strong disaffinity for this kind of assignment and that another similar small writing project before Thanksgiving would be just fine.)

PBS documentary "Prohibition" begins tonight

As I mentioned in our last pre-break class, I highly recommend everyone join me in setting the DVR to record the new PBS three-part documentary "Prohibition."  It begins airing tonight (Sunday, Oct. 2); I am hopeful that even those without TVs may eventually be able to watch the whole series via this official website.  Here is a preview from that site:

PROHIBITION is a three-part, five-and-a-half-hour documentary film series directed by Ken Burns and Lynn Novick that tells the story of the rise, rule, and fall of the Eighteenth Amendment to the U.S. Constitution and the entire era it encompassed.

The culmination of nearly a century of activism, Prohibition was intended to improve, even to ennoble, the lives of all Americans, to protect individuals, families, and society at large from the devastating effects of alcohol abuse.

But the enshrining of a faith-driven moral code in the Constitution paradoxically caused millions of Americans to rethink their definition of morality. Thugs became celebrities, responsible authority was rendered impotent. Social mores in place for a century were obliterated. Especially among the young, and most especially among young women, liquor consumption rocketed, propelling the rest of the culture with it: skirts shortened. Music heated up. America's Sweetheart morphed into The Vamp.

Prohibition turned law-abiding citizens into criminals, made a mockery of the justice system, caused illicit drinking to seem glamorous and fun, encouraged neighborhood gangs to become national crime syndicates, permitted government officials to bend and sometimes even break the law, and fostered cynicism and hypocrisy that corroded the social contract all across the country. With Prohibition in place, but ineffectively enforced, one observer noted, America had hardly freed itself from the scourge of alcohol abuse — instead, the "drys" had their law, while the "wets" had their liquor.

The story of Prohibition's rise and fall is a compelling saga that goes far beyond the oft-told tales of gangsters, rum runners, flappers, and speakeasies, to reveal a complicated and divided nation in the throes of momentous transformation. The film raises vital questions that are as relevant today as they were 100 years ago: about means and ends, individual rights and responsibilities, the proper role of government and finally, who is — and who is not — a real American.