Sentencing Class @ OSU Moritz College of Law

Looking back and looking forward in our final few classes

I hope everyone enjoyed yesterday's visit by Jonathan Wroblewski (and the Duke game) as much as I did. I am sorry we did not have more time in class for questions, but I plan to use the first part of Thursday's class to follow-up on his lecture and also on the second short-paper assignment.  I also will discuss again all of the options (and challenges) for the final paper/project for the class.

For substantive content, I plan to finish up the course by discussing mass incarceration (and sentencing severity) in general and life prison terms in particular.   Everyone is encouraged to read the selections from Chapter 7 noted on our syllabus (pp. 517-24, 552-78), as well as the Supreme Court's recent Eighth Amendment opinion in Graham v. Florida (which appears in the on-line supplement at pp. 96-112, and in full form here).

In addition, and especially if you are working on an amicus brief for your final assignment, I also recommend checking out this very short and very recent opinion from the Supreme Court of Louisiana concerning the application of Graham to three cases involving persons sentenced decades ago to life sentences for nonhomicide crimes committed when they were juveniles.

If interested in lunching with Jonathan Wroblewski...

come by my office around 11:45am on Tuesday.  I know we will have "room" enough for the three folks who have already expressed interest to me directly, and I think we might have room for a few more.  I plan on heading to Woody's in the Union, so folks could also think about heading to that locale to meet us at 12noon.

Start posing questions for DOJ visitor (and/or react to short paper assignment)

As you all know, everyone needs to turn in short-paper advice for Jonathan Wroblewski, the director of the Justice Department's Criminal Division Office of Policy and Legislation, by mid-day on Monday. While or after you complete this task, I hope you are thinking about hard questions to ask Mr. Wroblewski concerning his work for the Justice Department or his role on the US Sentencing Commission when he visits our class on Tuesday.

For a variety of reasons, it might be a good idea to get a list of questions for Mr. Wroblewski started in the comments to this post. So, go for it. In addition, students should also feel free to react to the second short-paper assignment in the comments to this post.

Class on Tuesday, 11/22: a day for working on problems (with a running start here)

Our final pre-Thanksgiving class will be a day for discussing problems: (a) I can/will respond to any problems anyone has with completing the second short paper, (b) I can/will respond to any problems anyone has figuring out what they are doing for the final paper, and (c) I can/will ask a bunch of hard questions about Problems 5-4 and 6-1 from the casebook (pp. 383-84 and 456-58 in our text).

I am (justifiably) fearful that 75 minutes on Tuesday will not be sufficient to do justice to both Problems 5-4 and 6-1 from the casebook, especially if/when everyone has a belly full of turkey and stuffing from the SBA lunch.  Consequently, I am eager for initial student discussion/debate in the comments here about the issues posed by Problems 5-4 concerning the role/significance in federal sentencing of these eight offender characteristics:

1. age
2. education
3. vocational skills
4. mental and emotional condition
5. physical condition, including drug dependence
6. previous employment record
7. family ties and responsibilities
8. community ties

To foster targeted discussion, I would like to hear in the comments views on whether students think one or more of these offender characteristics absolutely should or absolutely should not be considered at sentencing.  

To get the conversation started, I will assert my (devil's advocate?) opinion that EDUCATION absolutely should be considered at sentencing (based in part on this criminal justice report on "Education and Public Safety"), while PHYSICAL CONDITION absolutely should not be considered at sentencing (based in part on my fear that there is a worrisome tendency of persons to judge poorly those who look different).  Does everyone agree?  

For anyone who agrees that education should be considered at sentencing, would you also agree with operationalizing this view by providing sentencing rules/guidelines stating that for each and every degree obtained (high-school, college, graduate school), there should be a presumptive 25% reduction in the imposed prison term?  If you do not like that rule/guideline, how else might be craft rules for considering education (or other offender characteristics) at sentencing?

UPDATE:  I have linked from this post at my main blog to this article reporting on research which suggest that, for American men, "marriage was associated with lower levels of crime and less frequent substance use [and that] following the birth of a first biological child, men's crime trajectories showed slope decreases."   Perhaps this provides support for, say, a 10% sentence reduction for men who get married and another 10% discount following the fathering of a first child."

Plans, papers and other notes on other of fronts

CLASS PLANS:  Today and next Tuesday we will be discussing: (1) Tiernan & USSG 3E1.1 & Pepper and sentencing discounts for pleas and cooperation, (2) Problem 5-4 & Pepper and sentencing based on offender characteristics, and then (3) McMillan & Blakely & Problem 6-1 (in casebook).  A timely and interesting circuit ruling that touches on many of these issues was handed down yesterday in US v. Robertson, No. 11-1651 (7th Cir. Nov. 16, 2011) (available here).  I recommend it highly as a compliment/follow-up to many of the issues we will discuss in the next few classes.

SHORT PAPER LOGISTICS: The short-paper assignment (explained here) must be submitted no later than Monday 9am on November 28.  Your names should be on the assignment, and you can hand in either a hard-copy or via a pdf attachment to an e-mail to me.  Important note: earlier this week, Jonathan Wroblewski's boss gave a significant speech on federal sentencing law and policy (which I suspect Jonathan helped draft).  The text of this speech is available at this link and may help your short-paper drafting efforts.

NEW SCOTUS CASES (AND AMICI OPPORTUNITIES):  In this post at my main blog, I report on two intricate sentencing issues that have split lower federal courts that now appear ready for Supreme Court review.  If (when?) the Supreme Court grants cert on these issues, they may become the focal point (along with the juve LWOP cases) of much of our post-Thanksgiving discussions during our last two classes following Jonathan Wroblewski's visit on Tuesday, November 29.

LUNCH/DINNER OPPORTUNITY WITH DOJ GUY: Speaking of Jonathan Wroblewski's visit on Tuesday November 29, I was thinking about trying to organize a lunch or dinner with students on that day if there is some student interest.  I do not want to make this a huge/formal event, but students should let me know ASAP if they would be interested in such an opportunity.

Thoughts about "Disturbing the Universe" or other future film options

I hope many of you enjoyed last week's movie about William Kunstler's remarkable life as a lawyer and activist.  I welcome comments about any aspects of the movie (including whether the picture reprinted here is conclusive proof of child abuse -- by both Bill Kunstler and whomever snapped this picture).  I especially encourage everyone to spend some time exploring the full stories of the many (in)famous cases and causes in which Kunstler was involved.  Of particular concern and interest for the themes of this class is the full story of the Attica Prison riot, which this Wikipedia entry summarizes this way:

The Attica Prison Riot occurred at the Attica Correctional Facility in Attica, New York, United States in 1971. The riot was based in part upon prisoners' demands for better living conditions. On September 9, 1971, responding, in part, to the death of prisoner George Jackson, a black radical activist prisoner who had been shot to death by corrections officers in California's San Quentin Prison on August 21, about 1,000 of the Attica prison's approximately 2,200 inmates rebelled and seized control of the prison, taking 33 staff hostage. During the following four days of negotiations, authorities agreed to 28 of the prisoners' demands, but would not agree to demands for complete amnesty from criminal prosecution for the prison takeover or for the removal of Attica's superintendent. On the order of Governor Nelson Rockefeller, state police took back control of the prison. When the uprising was over, at least 39 people were dead, including ten correctional officers and civilian employees.

Though there are a number of films and documentaries about Attica, I feel we have already had our share of prison-oriented movie experiences.  Consequently, I also want students in the comments to consider making recommendations or suggestions for other movie options for any future class showings.  (There is always Justice Scalia's favorite movie, "My Cousin Vinny," but I suspect and hope most of you have already seen that one.)

Basic expectations for second short paper assignment

As discussing in class, your second short paper assignment is a requirement that you write a very brief memo — no more than 2 pages! — to Jonathan Wroblewski, who is the director of the Justice Department's Criminal Division Office of Policy and Legislation.  Here is DOJ's description of that Office's work and mission:

The office's legislative component develops legislative proposals, legal memoranda, and Congressional testimony.  We prepare comments on pending legislation and other legislative matters affecting the federal criminal justice system; and help represent the Department before the U.S. Sentencing Commission on sentencing-related issues, and before the Judicial Conference's Advisory Committees on Criminal Rules and Evidence regarding the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.

The office's policy component analyzes policy and management issues related to criminal law enforcement and the criminal justice system.  We identify problems and emerging trends; analyze crime data, federal caseload statistics, and other criminal justice system information; develop policy options and recommendations; and provide research, technical, and management support to the Assistant Attorney General and other Division and Department policymakers.

The memo is to recommend how you think the Justice Department could and/or should (formally and/or informally) respond to the US Sentencing Commission recently-released report on Congress on "Mandatory Minimum Penalties in the Federal Criminal Justice System."

Game plan for November 10 and the others classes before Thanksgiving

Here is a revised agenda for Thusday and beyond so that you can plan readings et al accordingly:

Thursday 11/10: Bodiker Lecture at 12 noon in Saxbe Auditorium (be sure to RSVP to make sure you get a lunch) , followed by a showing of  "Disturbing the Universe " in our classroom around 1:30pm, followed by class in which we will discuss the who and how of developing sentencing law for offense conduct and perhaps start to explore the why for considering offender circumstances at sentencing.

Tuesday 11/15: Tiernan & USSG 3E1.1 (in casebook), as well as Problem 5-4 & Pepper (in on-line supplement at pp. 66-79, and also in recommended full form at this link).

Thursday 11/17 & Tuesday 11/22: Discuss McMillan & Blakely & Problem 6-1 (in casebook) and, if time permits, discussion of plea bargaining realities and practices.

Notable comments on judging (and sentencing) from a member of my "Sentencing Judges hall of Fame"

Seven years ago, back when my main blog was just getting going, I did this (silly?) post in which I imagined a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system.  As I explained in the post, the "first inductee of the Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms."

I then went on to ask these tough (and silly) follow-up questions: "Should there be separate capital and non-capital wings, state and federal wings, trial and appellate wings?  Would Supreme Court Justices and judges who serve on sentencing commissions have an unfair advantage because of the visibility of their sentencing work?  Would pre-guidelines judges be unfairly disadvantaged for sentencing during the 'dead law' era?"

I note these musing in part to encourage you to think about whether you think any particular Justices and judges ought to get special attention based on their sentencing work.  But I also share these comments to serve as a kind of introduction to my linking hereand presenting below video from one of the sure-fire members of this Sentencing Judges Hall of Fame, Judge Nancy Gertner.

Judge Gernter's professional career is too dynamic to summarize here, and I encourage you to check out all the interview videos on this HLS webpage.  And the video below includes some notable sentencing-specific comments starting just after the 3:00 mark.

SCOTUS grants cert on juve LWOP for young murderers ... and creates new final paper opportunity

Big sentencing news from the Supreme Court today, as reported in this blog post at SL&P: "Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!"  These cases now on the Supreme Court's agenda are Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas).

I will discuss these two new SCOTUS cases briefly in class this week (in part to explain how writing an amicus brief for filing in the Supreme Court can be an alternative to the final take-home paper in the class).  In the meantime, here are links to the state court rulings now to be reviewed by SCOTUS: 

• Miller v. Alabama
• Jackson v. Hobbs
  

Game plan for Friday November 4 and next week... UPDATED!!

I am sorry the excitement of the first Ohio DP Task Force meeting (now reported here in the Columbus Dispatch and here by the AP) slowed us down today.  Fortunately, this just means less work for students next week as I adjust our readings/focus.  Here is a revised agenda for Friday and beyond, with some additional recommended events in the mix:

Friday 11/4: "Framing Innocence" event at 12noon in Room 252 (be sure to RSVP to make sure you get a lunch) AND Sentencing Movie Matinee at 3pm in Room 344 (at which snacks will be provided and after which will be a Berman happy hour).  In addition, for any early risers seeking a free breakfast, consider attending this event over in the Journalism Building in which Heather Washington, an OSU Ph.D. Candidate, will present her work on "Parental Incarceration and Children's Behavior Problems: Uncovering the Not-So-Universal Effects of Fathers' Imprisonment."

Tuesday 11/8: Class will focus on quantifying offense conduct with emphasis on Coker v. Georgia (in casebook) and Problem 4-7 (p. 321 in casebook).

Thursday 11/10: Bodiker Lecture at 12 noon in Saxbe Auditorium (be sure to RSVP to make sure you get a lunch) AND class will focus on quantifying "mitigating" offender characteristics with emphasis on State v. Tiernan & USSG 3E1.1 (in casebook), as well as Problem 5-4 & US v. Pepper (in on-line supplement at pp. 66-79, and also in full form at this link).

Friday 11/11: IF INTERESTED ... another Sentencing Movie Matinee at 3pm in Room 344 (at which snacks will be provided and after which will be a Berman happy hour). 

Monday AM UPDATE:  I was VERY pleased with the number of persons who made it to the Sentencing Movie Matinee last Friday, and I want to do another one (this time with an even better, but longer, movie).  

But having figured out that 11/11/11 is a holiday, I am thinking of doing the movie on Monday 11/14 at 3pm.  But only if some people are available/interested to watch this great movie at that time.  Please report in the comments whether you might be able/interested in attending an even better movie on Monday 11/14.

Justice Breyer's Watts concurrence and the challenge of better guideline drafting

I made brief mention in class of Justice Stephen Breyer's concurrence in Watts, and I thought it might be useful to quote all of it here as the prelude to an (extra credit) challenge:

I join the Court’s per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.

In telling judges in ordinary cases to consider “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction,” United States Sentencing Commission, Guidelines Manual § 1B1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up the offense of conviction, but of certain related conduct as well. And I agree with the Court that the Guidelines, as presently written, do not make an exception for related conduct that was the basis for a different charge of which a jury acquitted that defendant. To that extent, the Guidelines’ policy rests upon the logical possibility that a sentencing judge and a jury, applying different evidentiary standards, could reach different factual conclusions.

This truth of logic, however, is not the only pertinent policy consideration. The Commission in the past has considered whether the Guidelines should contain a specific exception to their ordinary “relevant conduct” rules that would instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 57 Fed. Reg. 62832 (1992) (proposed USSG § 1B1.3(c)). Given the role that juries and acquittals play in our system, the Commission could decide to revisit this matter in the future. For this reason, I think it important to specify that, as far as today’s decision is concerned, the power to accept or reject such a proposal remains in the Commission’s hands.

Here is the (extra credit) challenge for members of the class: Can/will someone propose in the comments a formal US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted conduct (which may or may not also cover uncharged conduct of the sort at issue in Fitch)? 

(Note:  The US Sentencing Commission has, in fact, never formally proposed an "acquitted conduct" provision in response to Watts.)

In addition to being eager to see student efforts to draft a provision of the US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted (and/or uncharged) conduct, I wonder if folks think that, now that Booker has made the guidelines advisory, the "problem" in Watts is now better (or worse).

Readings (and videos) on Paul Butler's proposal for race-based jury nullification

I mentioned briefly in class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification.  The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link.  Here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African- Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all --- you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy ---American criminal justice --- to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated) 60 Minutes video (under 10 minutes) discussing Butler's ideas.

Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 here, part 2 here, part 3 here...) with Butler and other guests.