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October 17, 2011

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.)

October 17, 2011 in Class activities, Course requirements, Scope of imprisonment, Who decides | Permalink


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After today's exercise I had a question that I wanted to get others' thoughts on. One of the members of my group stated that they wanted to give a lesser sentence because they weren't sure how strong the evidence presented against Ron Anon in the case was. My question was, say a jury has convicted a person of armed robbery as we had in Ron Anon's fact pattern. And you, as the judge, are not sure of the evidence that you saw presented. If you are not sure of his guilt, can you sentence him at all -- wouldn't you set aside the verdict instead? Or is that only warranted in cases where the jury clearly made the wrong decision -- otherwise, you have to let the decision of the jury stand, and help the defendant out where you can?

Posted by: Maureen F | Oct 18, 2011 9:27:09 PM

We had the same question come up in our discussion and it troubled me a bit. The way I look at it is that once the jury has come back with a sentence of guilty, it is not the judge's job to re-try the person in his or her own mind when deciding the sentence, but to rather weigh the aggravating and mitigating circumstances. The problem in this case, and probably almost every case, is that we don't have specific verdicts, saying what exactly the jury thought was true or untrue, so it is up to the judge to decide for himself or herself which aggravating and mitigating circumstances to believe.

The person in my group brought up the fact of Rob being the mastermind behind all of this coming from his two co-conspirators and of course they are going to say he was the ringleader. In this case, I think it is in the judge's discretion to decide if this portion is true when it comes to making a sentencing decision.

Posted by: Sean B. | Oct 20, 2011 12:44:50 PM

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