Sentencing Class @ OSU Moritz College of Law

Update on amicus draft (and draft text of the summary of argument)

I am making slow and steady progress on our collective amicus efforts (more slow than steady, but still progress is being made).  I hope that no later than Tuesday to be able to post a full working draft of the document I am putting together.  For now, I can start with this (too?) brief passage that is now serving as the "summary of argument" section:

Interpreting the Eighth Amendment’s prohibition on cruel and unusual punishments, this Court has repeatedly stressed that juveniles, especially young juveniles, are a special and unique class of criminal offenders with a distinct level of maturity, mental capacity, and vulnerability to negative influences. In addition, this Court’s Eighth Amendment jurisprudence has repeatedly recognized that not all homicide offenses are constitutionally equivalent; because murders can and will differ in their severity, a constitutional scheme of punishment must sometimes differentiate between and among murder offenses of differing severity.   And, last but not least, this Court’s Eighth Amendment jurisprudence has identified constitutional problems with certain aspects of certain mandatory sentencing schemes.  Collectively, these established principles of this Court’s Eighth Amendment jurisprudence connote that any and all statutory schemes which mandate that a juvenile offender convicted of a certain class of homicide must be sentenced to life without the possibility of parole, without any consideration of the offender’s age or any other potential mitigating offense circumstances, violate the Eighth Amendment’s prohibition on cruel and unusual punishments.

Thoughts?

Student guest-post asks "Shaming as a punishment… is society too soft to re-embrace it?"

Here is the final "top-flight" guest-post material I received before the holidays.  Though I will not be posting any more guest-posts for extra credit, students can keep earning class participation credit by commenting on this and other posts until the start of classes in January:

We no longer recognize just the first place winner, but also the second, the third, the fourth…well you get the idea.  We have gone soft and part of that softness means we no longer like to shame people for their mistakes.

However, Texas State District Judge Kevin Fine has a different idea.

Daniel Mireles and his wife, Eloise Mireles, stole $250,000 from the Harris County Crime Victim’s fund. They were sentenced to each spend six months in jail—one month a year for six years, pay restitution and 400 hours of community service.

But that was not all.  Judge Fine also decided as part of the sentence that they must both wear signs for five hours every weekend, him on Saturday and her on Sunday, near the Galleria mall in Houston. The sign says: “I am a thief.  I stole $250,000 from the Harris County crime fund. Daniel Mireles” -– here is a link to video

But wait…Judge Fine was still not done with them. They must also post signs outside their residence stating “The occupants of this residence are convicted thieve. They stole $250,000 from the Harris County Crime Victim’s fund.  Signed, Judge Kevin Fine.”

The prosecutor said he will conduct random drive-bys in order to ensure compliance. More story here.

I for one say good job Judge Fine.  I think it is high time that public shaming become a more common form of sentencing alternative.  Obviously this will not work in all cases, but with first time offenders and people who are members of the community it can be more effective than a few weekends in jail, a fine or community service.

Just a couple of the obvious benefits in my opinion:

1) Help reduce prison overcrowding and save money

2) Effectively informs the public about crimes and punishments—general deterrence

3) Creates a greater long-term impact on the offender then a fine or community service—specific deterrence

Questions:

Is society capable of toughening back up and embrace public shaming or is it for naught in today’s world of no one should be ridiculed in public—no matter how just the cause.

Can public shaming be transferred to the online community where an offender must post a status on Facebook weekly about his crime? Would this be more effective for juvenile and young adult offenders?

Ohio requires in certain circumstances special yellow colored license plates for drivers to display who have been convicted of DUI. Is this OK because it is less personal and likely not even noticed by others, whereas the shaming in Texas might be less tolerable because it is in the public’s face?

Update on my latest thinking on juve LWOP amicus project

I continue to enjoy and learn from reading and re-reading the seven juve LWOP amicus brief efforts sent my way.  And the more I think about what might be most useful to say to the Court, the more I am finding myself drawn to the idea that the mandatory nature of the LWOP sentences in Jackson and Miller are what make them especially constitutionally problematic given both the young age of the defendants and the (many?) other mitigating factors involved in the murderers for which they were convicted.

A number of the draft briefs (though not all) focus in whole or in part on assailing the mandatory nature of the LWOP sentences in Jackson and Miller.  And even the drafts that do not have this particular focus still have at least a few passages that could be incorporated into a brief with that focus.  Consequently, I am thinking/planning in the next few days to take a stab at assembling sections/passages from all the drafts I now have in hand to make a "mega-draft" with the focus on the mandatory nature of the LWOP sentences.

This plan should not preclude (or even slow down) those folks who have not yet completed a full draft brief from getting me a full draft, and it also should not preclude (or even slow down) those folks with a full draft from coming to talk with me about how to refine their full draft for possible SCOTUS filing.  But this plan should allow those of you eager now to work collectively on something of a "class" brief to know that, within the next few days, you can review a "mega-draft" that may become the focus of our collective briefing activities over the next few weeks if there is continued student interest in completing and filing a "top-flight" amicus brief.

Student guest-post discusses "Wide Receiver Busts (Non-Draft Edition)"

A couple more students got me some more "top-flight" guest-post material in time to get a little credit for the effort. I will post the entries periodically, and start with this sports-related sentencing post for all those who have (like me) already spent a little too much time watching football since classes ended:

It’s no great surprise to learn that an athlete is in legal trouble, but the recent investigations of (now former) Bears receiver Sam Hurd and Bengals receiver Jerome Simpson break the mold of DUI’s and t-shirt thefts.  Simpson and Hurd were both investigated for drug distribution crimes that carry major federal sentencing consequences, yet Simpson is still reeling in passes for Cincinnati’s playoff drive while Hurd was quickly waived by Chicago.

Hurd wasn’t just waived because he isn’t as good a player -– 8 catches for 109 yards to Simpson’s 40 catches for 629 yards and 3 TD’s –- his situation is far more dire.   Both cases are federal and implicate the sentencing guidelines. Simpson received a shipment of 2.5 pounds of Northern California marijuana while Hurd told an undercover federal agent that he wanted to buy between 5 and 10 kilograms of cocaine and 1,000 pounds of marijuana per week.

Hurd has been charged with conspiracy to distribute 500 or more grams of cocaine, and his case has been transferred to Texas. Under the federal guidelines § 2D1.1(c), that amount carries a base offense level of 26.   This is raised to 38, however, for a conspiracy of a continuing criminal enterprise under § 2D1.5 and a mandatory minimum of 20 years under 21 U.S.C. § 848.  Hurd could face life imprisonment under the same statute if his gross receipts over 12 months were over $10 million and he was a principal administrator.   Given that Hurd had offered to pay around $2.8 million a month for drugs, it seems likely he would meet these thresholds. It is an enormous jump under the statute from the base level 38 which would result in a sentence of 235-293 months (20-25 years) without any criminal history adjustments.

By contrast Simpson’s marijuana package would carry a base offense level of 10, and 6-12 months with no criminal history, though he may be subject to mandatory minimums if he is found to be part of an ongoing conspiracy and other packages were found in his home could lead to a higher base level. California federal prosecutors have taken over his case, and he is yet to be charged.   These facts indicate that Simpson may be cooperating to reduce his penalties and to help investigators go after drug suppliers in Northern California’s “Emerald Triangle.”

Given the penalties faced by Hurd, he is incentivized to follow Simpson’s lead (if he is in fact cooperating).   Though his lawyer has indicated that a guilty plea is not immediately forthcoming, the mandatory minimums provide a huge reason for him to identify bigger fish for the federal prosecutors to fry.

Background links:

• On Hurd Charges and transfer to Texas 
• Simpson investigation linked to California 

Juve LWOP amicus brief project update

As of this writing (4:30pm on Wednesday, December 21), I now know of seven distinct groups(!) of students that have developed and/or are still developing a draft amicus brief for possible submission in the SCOTUS juve LWOP cases.  Four of these groups involve just a pair of students working together, one group is a trio, one is a quartet, and one group needed six cooks to complete their amicus brief stew.

I am very pleased and quite impressed that 21 students took up the amicus brief project/challenge (which amounts to almost exactly 1/2 of the class), and I can already tell from a quick scan that much impressive and important work is reflected in the drafts that have been so far submitted.  I hope that everyone learned a lot about the substance of these cases and the process of collaborative brief writing along the way.  I also hope many students remain interested in actually getting their briefs filed, although I trust everyone appreciates how hard (and costly) it would be to try to submit seven briefs and ensure that they are all top-flight efforts.

Here is my plan going forward:  I will be reviewing all of the draft briefs closely over the next few days in order to see if I can develop a tentative plan for refining/consolidating these various efforts.  I will aspire to provide an update on my review efforts and plans no later than next Monday (the day after X-mas). 

In the days ahead, students are HIGHLY ENCOURAGED via the comments to this post and/or via e-mails to me to let me know if they are (1) eager to spend (lots of?) time? after X-mas and before the start of classes on revising briefs for potential SCOTUS submission, OR (2) eager to call it quits and not give any more time/energy/attention to these matters.  (I will probably try to convene a meeting of any/all eager beavers who will be around after X-mas to discuss in person plans for moving forward on this project.) 

Student guest-post asks intriguing questions about HIV crimes (and sentencing?)

A second student has now sent me guest-post material which I consider "top-flight" in terms of being an interesting topic, but the materials seems to me to be more suited to a Criminal Law Class blog than a Sentencing Law Class blog.  Nevertheless, this student will still get some credit for this effort:

Topic: "Having HIV may get you 25-years in prison"

In fact, 34 states and 2 U.S. territories have HIV-specific laws on their books that state if a person (knowingly) living with HIV has sexual relations without prior disclosure of his or her HIV-positive status, then that person is committing a crime.  Some of these laws permit sentencing a person living with HIV up to 25 years imprisonment for having consensual sex with someone who is HIV-negative (or does not know his or her HIV status) without prior HIV disclosure. A person may even be convicted if a condom is used and no HIV is transmitted, while some convictions occur with absolutely no sexual conduct, but rather the transmission of bodily fluid, such as saliva.

This link connects to an interesting article and video at the Huffington Post regarding this topic, entitled "HIV Is Not a Crime... Or Is It?":

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Follow-up questions are as follows (some are aligned with the article):

1. Is this crime synonymous to attempted murder?

2. The article addresses the following concern: the CDC estimates that up to 20% of HIV-positive Americans do not know they are living with HIV.  Because the laws absolve untested individuals, does this provide an incentive for the sexually promiscuous (those at the greatest risk of contracting HIV) to abstain from getting tested for HIV?

3. Should people living with HIV have to register as sex offenders? (If so, should this registration be required before or after the potential transmission of the HIV virus?)

4. Should people living with HIV be able to be sentenced up to 25 years in prison for a sexual act that did not result in the transmission of the HIV virus?

5. Should there be some responsibility (e.g. contributory negligence) on the victim if s/he did not ask whether the infected person had any diseases before engaging in sexual conduct with the infected person?

I am inclined to describe this issue and these queries as not quite sentencing issues because I have not heard/read any reports about defendants getting a harsher sentence based on HIV status alone.  (Interestingly, I know that many HIV-positive defendants will request shorter prison terms by asserting the likelihood of poor medical care and/or a larger chance of dying in prison because of the disease.)

The Huff Post piece linked above reports some data on charges involving so-called HIV crimes:

Prosecutions against HIV-positive individuals have occurred in at least 39 states (some states have used non-HIV-specific laws for sexual assault), invoking a spectrum of charges including attempted murder, sexual assault, and assault with a deadly weapon.  Yes, ignorance has led to defining blood, semen, vaginal fluid, vomit, and saliva of people living with HIV as "deadly weapons" by the courts -- and has even led to claims of "bio-terrorism" -- even though HIV is now considered a chronic manageable disease.  In five states alone more than 500 people have been charged under these laws.

Obviously, being charged in special ways because of HIV status can have serious plea bargaining and sentencing consequences.  But the concerns and questions raised by this issue still stike me as more fundamental criminal law concerns than distinct sentencing issues (even though, of course, every criminal law concern becomes a sentencing issue at some point).

Student guest-post asks great questions about prison labor

So far, one student has succeeded in earning extra credit by sending me "top-flight" guest posting material.  Here is the content of this guest-post (along with the picture) that was sent my way this past weekend:

One topic that we have not had time to discuss in detail in class this year has been prison labor.  See, for example, this article from the New York Times, published earlier this year and headlined "Enlisting Prison Labor to Close Budget Gaps."  And this article from the Dayton Daily Newss published about a month ago, which is headlined "Bureaucracy, politics hinder prison labor force," and explains problems with Ohio’s prison labor force.

As the first article explains, nearly all states have some form of prison labor, and the use of prison labor seems to be rising in response to cuts in federal financing and decreased tax revenue. Supporters of prison labor say that this could be a win-win for prisons because it could (1) allow prisons to use the labor to reduce their own costs and (2) help inmates develop skills which will help them to re-enter society. Because of these advantages, coalitions supporting prison labor have included both conservative budget hawks and liberal humanitarian groups.

But prison labor continues to have its share of critics as well (e.g. labor unions and civil rights advocates).  What do you think?  

Is prison labor a good idea?  

Does it matter whether it is required or voluntary?

Should it only be available to some inmates?

Other comments?

Students should remember that they can earn class participation by simply commenting on this effective post.  And the offer to send me guest-post fodder for extra credit remains open at least through this week.

Hey sports fans, lots of federal sentencing stories to follow

As a big sports fan, I tend to get a kick out of being able to follow federal sentencing stories via the sports page.  And now, as detailed in these two recent posts from my main blog, there are two timely stories worth watching closely:

• Any predictions (or suggestions) for ... sentencing of Barry Bonds?
• NFL player arrested by feds for big-time drug dealing

The second story, concerning the Chicago Bears receiver Sam Hurd and his alleged involvement in a big cocaine distribution scheme, provides a particularly good opportunity for students to think about plea bargaining practices and high-profile defendants.  Should Hurd's defense attorney and/or the federal prosecutors handing the case be talking about trying to put together a quick plea deal before all the details of Hurd's alleged  offense conduct become the topic of ESPN debate?  Or should both sides be already thinking about the "fight to the death" approach that Jerry Sandusky's lawyers have adopted?

Anyone eager to talk more about these issues at a sports bar over drinks can/should come get me from my office late on Friday night.  In addition to working late this Friday to follow the Bonds' sentencing from the West Coast, I am a free agent through the evening because my family has a "girls night out" without me at a holiday cookie party.

Plans for me and the blog during the exam period

Just a quick post to note (1) I should be in or around my office most late afternoons during the exam period, though a quick e-mail to set up a meeting time (or happy hour plans) is always recommended if you want to be sure to find me, and (2) I expect to do a few substantive posts during the period, in part because I want everyone to be able to continue to earn class participation credit via thoughtful comments to postings.

And for anyone who is extra interested in earning some extra sentencing excitement during the exam period, here is an offer: I will give extra credit to anyone who sends me high-quality, cut-and-paste-ready material for this blog (or for my main blog).  The key to earning credit is this (vague) adjective "high-quality".  Though all blog-oriented materials sent my way will earn my respect, extra credit will only be earned by those who prepare and present "top-flight" guest-post content.

Constructing happy hour for constructive Friday

Today is Friday at Moritz, which for me means an excuse for a last-minute happy hour. I need to do real work until about 5pm today, but then would love to be dragged to EGs anytime after that until 7:30pm when I will have to head home. Rescue me from my office and I will buy the first round...

P.S. I was encouraged to do one last movie showing, but I was not able to get access to a great movie at the last minute. If others have suggestions for Today or anytime later this month, I am still game.

Final paper clarifications and timelines

To make sure all is clear about the final paper/assignment, let me go over my latest thinking on how you all can wrap up your work for this course:

1.  At our last class this Thursday (Dec. 8), I will have available copies of the "directed final paper" option that student may complete as their final paper/assignment for the class.  (As of this writing, I am planning for this "directed final paper" to have 5 questions, but students will only have to select and respond to three of these questions to complete the assignment and each question will have a 1500-word limit for answers.)  These final papers will be due on the last day of exams, December 21.

2.  Students committed to doing an amicus brief for the SCOTUS juvenile LWOP cases should be making progress on their brief plans/contents ASAP.  Though the briefs may not be due to the Supreme Court until after the end of the exam period, I am going to expect students to have a reasonable working draft to submit by the last day of exams, December 21, so that I know serious work is afoot.

3.  Instead of routes 1 or 2 above explaing above, students can do a "substantial" final paper or project of some other variety on a sentencing topic of their choosing.  My working definition of "substantial" is something in the neighborhood of 20-25 pages of written product if in the form of a traditional research report or advocacy "white paper."  But if the project is to take some other form (e.g., field-work research or other innovate and time-consuming activities), students are advised to keep a record of hours invested on the project through an informal "billing sheet" so that I can be confident that the product is the result of some "substantial" efforts.  Absent special needs and special approval, these sorts of final papers will also be due on the last day of exams, December 21.

Any questions?

Filings from government in US v. Blagojevich

I talk about some of the issues discussed in class concerning the upcoming sentencing on my main blog in this post, and here is a link to the government's sentencing memo in US v. Blagojevich.  I continue to look for an on-line version of the defense filing (and will give extra credit to any student who can find a link and post it in the comments).

In addition to the guideline stories I stressed in class, many other aspects of the government's memo merit consideration and comment.  And this local article from a Spingfield paper, titled "Federal sentencing a confusing process," might be of special interest and appeal as you think about how the public thinks about these sentencing issues in a high-profile setting without having had the benefit of an entire semester of Sentencing Class with Crazy Professor Berman.

Among other topics, I would very much welcome/encourage you to pretend to be Judge Zagel and script in the comments a sentence (and an explanation for the sentence) to be imposed on Rod Blagojevich.  For all we know, the Judge might read these comments before sentencing.