Sentencing Class @ OSU Moritz College of Law

Lots of extra credit for writing about lethal injection for JURIST

Late last night, I received this invitation/inquiry via e-mail:

Dear Professor Berman:

My name is Elizabeth Hand, and I am writing on behalf of the University of Pittsburgh JURIST's Dateline service. JURIST is an ABA and Webby award-winning legal news service that reaches hundreds of thousands of readers weekly. JURIST has been cited 700 times in law reviews and briefs to the US Supreme Court, state supreme courts, and federal appellate courts. It has also been cited in nearly 500 published books, and several hundred times by the Library of Congress Website.  Dateline is JURIST's student commentary service, and we seek original opinion-based articles from law students regarding their personal and work experiences in a field of law.

JURIST is looking for student commentary pieces covering the recent lawsuit over the state of Oklahoma's lethal injection drugs.  You can see our brief coverage of the case here: http://jurist.org/paperchase/2014/04/oklahoma-high-court-stays-executions-over-lethal-injection-drug-challenge.php.

We are looking for student op-eds exploring the legal issues surrounding the legality of the drugs and the overarching issues of capital punishment. If you could please extend this invitation to write to the any law students that you think would be interested in contributing it would be greatly appreciated.

Our authors, including our academic and professional authors, generally list their JURIST articles on their resumes along with journal, law review, and other publications.

Articles are approximately 1200 words in length and do not require Bluebook citations. For examples of recent articles please see: http://jurist.org/dateline/

I will give extra credit to any and every student who submits and op-ed, and double extra credit if you get your op-ed published!

Helping President Obama use his constitutional clemency powers

In our last few classes, I want to wrap up our discussions of modern federal drug sentencing by turning attention to the work of the most powerful of sentencing "whos": the President of the United States.  There are lots of ways the President can and does make sentencing decisions, but the most historic means is through the exercise of his (constitutionally enshrined) power to grant clemency.  

There are lots of stories to discuss and debate relating to the President's clemency power and its use throughout American history, but I will want us to focus on how it might still be used (and/or should be used) by President Obama as he heads into his final few years in office.  This new Reason.com piece by Jacob Sullum provides some useful background and context for our discussions:

President Obama made appropriate use of his clemency powers this week, shortening the prison term of a drug offender who received a sentence that everyone agreed was too long but for which there was no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to 17.5 years in federal prison after he pleaded guilty to conspiracy and money laundering charges related to shipping marijuana from Mexico to Virginia. That term was three-and-a-half years longer than it should have been under federal sentencing guidelines because of a mistake in Cantu's presentence report, which erroneously listed his "base offense level" as 36 instead of 34. Cantu's lawyer never noticed the mistake, which Cantu himself discovered in 2012 after his family mailed him a copy of the report. By then he had missed the deadline for asking the courts to shorten his sentence....

"It's hard to imagine that someone in the federal criminal justice system could serve an extra three-plus years in prison because of a typographical error," said White House Counsel Kathryn Ruemmler in a speech at NYU Law School on Tuesday....

Obama should [not] be so stingy with commutations, which he so far has issued at a slower rate than all but three other modern presidents: George W. Bush (11 commutations in 96 months), George H.W. Bush (three in 48 months), and Ronald Reagan (13 in 96 months). Obama has now issued 10 commutations in 64 months, which by that measure makes him about 26 percent more merciful than Bush II, 46 percent more merciful than Bush I, and 14 percent more merciful than Reagan. (Obama still lags all three on pardons, which clear people's records, typically after they have completed their sentences.) But surely a man who has repeatedly criticized excessively long prison sentences should aspire to do more than surpass these truly awful commutation records. Obama is still a long way from Nixonian levels of mercy, since Tricky Dick shortened 60 sentences...

A few months ago, Deputy Attorney General James Cole indicated that Obama planned to pick up the pace, which was encouraging. Not so encouraging: Cole, whose department had at that point received about 9,000 commutation petitions since Obama took office, asked for help in finding worthy applicants, which suggested the government's lawyers are either lazy or extremely picky. Cantu's case seems to fit the latter theory....

By the president's own account, there are thousands of other clear injustices that he has the power to remedy. He could start with all of the crack offenders sentenced under pre-2010 rules that almost everyone now agrees were unreasonably harsh. The Smarter Sentencing Act would make the shorter crack sentences enacted in 2010 retroactive. But if Congress fails to approve that bill, Obama still has the authority to act on his own, which would be consistent with the statements he and his underlings have made regarding our excessively punitive criminal justice system.

"The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in her NYU speech. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories." Probably more than 10. The president's pitiful performance so far falls far short of these aspirations.

UPDATE: This brand new post at my main blog provides more explanation for how timely our discussion on clemency now is as a result this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith."  I highly recommend reading the full Yahoo piece.

Lunchtime sentencing activities on 4/17 and 4/18

As briefly mentioned in in class earlier this week, you can have still more sentencing fun in the coming days during the lunch hour.  Here are the details:

April 17 at 1pm:  Federalist Society Teleforum Conference Call involving Profs Berman and Cassell on "Controversial Sentencing in the Antwuan Ball Case"

April 18 at 12noon in Drinko Room 244: ACS Chapter presents "Lethal Injection and Legal Problems with New Drug Combinations" with Allen Bohnert and Jessica Felker of the Federal Public Defender Capital Habeas Unit, Southern District of Ohio, to discuss some of the legal issues surrounding recent changes in drug combinations used for lethal injections.

UPDATE:  A podcast recording of the Federalist Society Teleforum Conference Call is now available at this link. 

Comparing two federal drug offenders and the (now just amended) federal drug guidelines

To aid our discussion of drug sentencing under the existing federal sentencing guidelines (which were, as reported here, amended just yesterday) based on various offender and offense factors, let me briefly describe two notable federal drug offender:

Offender #1 was, at the time of his offense, a 21-year-old man in his second year at college and got involved in an ecstacy conspiracy through a friend.  This fellow himself used various drugs and served as a middle-man dealer of thousands of ecstacy pill for seven months, earning personally between $30,000 and $40,000.  Afraid of getting apprehended, this offender thereafter decided the drug business was not for him: he withdrew from the conspiracy on his own, graduated from college, stopped using drugs, and began lawful work in another state.  But, a few years later, when the ecstacy conspiracy was disrupted, and Offender #1 was indicted on various federal drug charges.  Offender #1 thereafter pleaded guilty and truthfully provided authorities with all the information he had about his offense and others involved in the conspiracy.

Offender #2 was, at the time of her offense, a 19-year-old woman who dropped out of high school when she got pregnant as a teenager.  Her half-sister got her involved in a methamphetamine conspiracy as a way to make money while she cared for two children and their mother.  She made at most a few thousand dollars as a drug courier, and was apprehended at a bus station by police during her third run as a courier with 2.35 kilograms of methamphetamine in her possession.  While on pre-trial/sentencing release, Offender #2 got married, had another child started, taking GED classes and got a low-paying job.  Offender #2 also pleaded guilty and truthfully provided authorities with all the information she had about her offense and others involved in the conspiracy.

Can you guess which of these two offenders faced a higher guideline sentencing range? 

Can you guess what federal sentence was ultimately imposed on these offenders?

Answers to both these questions are revealed by reading Gall v. US (in our text at pp. 415-423) and US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   Please review both these cases to facilitate our class discussions on Monday and Wednesday.

Military service in the federal sentencing guidelines, then and now (and in the future?)

As a follow-up to our class discussion about military service and to provide a specific proposal to debate in our next class, I thought it would be useful to review the history of how the federal sentencing guidelines have treated military service.

For starters, the original federal sentencing guidelines promulgated in 1987 said not one word about military service.  Then, in 1991, the following provision was added to the guidelines:

§ 5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works (Policy Statement)

Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.

Then, in 2010, § 5H1.11 was amended so that it now reads:

Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.

Civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.

Now, circa 2014, I propose mendment to the first paragraph of § 5H1.11 to read as follows:

If the defendant served in the active military prior to the commission of the offense, and if evidence suggests that personal or professional issues resulting from military service played any role in contributing to the commission of the offense or impacted the defendant's mental or emotional condition at the time prior to or during the offense, reduce the otherwise applicable guideline sentencing range by one third.

REAL-WORLD UPDATE: Here is a timely press report on an interesting and on-going federal case raising these issues and other offender-circumstances for consideration at sentencing:

A federal judge next week will re-start the sentence hearing for an Iraq combat veteran with PTSD who pleaded guilty to trying to hire the KKK to kill a black neighbor.  Chief U.S. District Court Judge Karon Bowdre on Wednesday set Monday, April 14, as the date for continuing the sentencing hearing for Allen Wayne "Big Dad" Morgan. The hearing will begin at 1:30 p.m. at the Hugo L. Black U.S. Courthouse in downtown Birmingham.

Bowdre had started the sentencing of Morgan on Feb. 27 but after it began she continued it to give prosecutors time to respond to a witness Morgan's attorneys planned to call. The hearing continued on Monday with testimony about Morgan's drug addiction, his alleged sexual abuse as a child, and his diagnosed PTSD from his combat missions. Defense attorneys argue that the Federal Bureau of Prisons is not equipped to handle combat veterans with PTSD. Bowdre announced that she would continue the hearing after more than four hours.

Morgan, 30, pleaded guilty to using and causing someone else to use interstate facilities and travel -- a telephone and a motor vehicle -- with the intent to commit a murder-for hire. He is charged with trying to hire the KKK to kill a neighbor, who is black, because he believed the man had raped his wife.

Other than criminal history, is there any specific "offender characteristic" that you think must be considered at sentencing? If so, how?

As we start digging into the  challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing.  As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).

Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing.  Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.

Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statment that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Relatedly, as discussed in this recent post on my main blog, a number of states have enacted laws or considered bills to require consideration of military service and/or PTSD at sentencing.

Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of military service?  If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing.

With three weeks left, how are we doing on "low stress, high learning" on sentencing issues?

Sadly (at least from my perspective) we only have three more weeks together before classes conclude on April 23.  That means eight classes, and a mere 400 minutes, because we do not have class on Tuesday 4/15.  (Fortunately, as I will explain in class, this week and next we can have some extra time together through lots of extra-curricular sentencing activities on the calendar.)

As explained in prior posts and in class, we will be focused in our final few weeks on drug sentencing, offender characteristics and the back end of the (non-capital) sentencing system (e.g., parole and clemency).  In so doing, I hope to continue fulfilling my start-of-semester promise/desire to create a "low stress, high learning" environment for students.  And as we head into this final stretch, I want to provide this blog venue for expression of concerns, complaints, suggestions and any other feedback before it is too late for me to respond effectively.  (Obviously, you will all get a chance to share your views on the course in the formal evaluations at the very end of the semester, but at that point it will be too late for me to do anything in response that you will benefit from.)

In other words, I would be grateful for any/all student comments in response to this post about any subject related (or even not related) to the substance and style of our course.