Sentencing Class @ OSU Moritz College of Law

Still more sets of mini-papers for review and reactions

As promised (and threatened), I am now continuing to post collections of mini-papers produced by students throughout the semester.  Here are three more of the collections:

Download Marijuana Reform

Download Juries

Download Drunk driving

 

A couple more sets of mini-papers for review and reactions

As promised, I will be posting throughout this week and next the collections of mini-papers produced by students throughout the semester.  Here are two more of the collections to go along with the death penalty collection posted previously:

Download The Prison Experience

Download Child Pornography Sentencing

 

The great opportunity (and great joy) of semester review via mini-papers

Thanks to the extraordinary help of my wonderful office assistant Allyson, I now have now finally assembled more than 60 of the mini-papers submitted over the last two months into nine subject-specific collections (in pdf form) for posting here and collective review.  Huzzah!

Though all the mini-papers are a whole lot to read in one sitting (running 120+ pages), I am hopeful the subject-specific organization will enable students to review topics of particular interest in smaller chunks.  And, as I continue to re-read all the mini-papers, I find that they serve as an interesting and effective review of much of what we formally covered in class through the semester. 

I will be posting these collections in a number of separate posts (to perhaps facilitate distinct comments concerning different collections), and I will start with the big topic of the death penalty that kept us especially busy the first half of the semester:

Download Death Penalty (pdf collection runs 31 pages)

If you are curious about federal child porn sentencing...

here is a link to the 400+ page report that the US Sentencing Commission published on the topic in December 2012.  The report's executive summary is only about a couple dozen pages, can be accessed at this link, and here are some interesting excerpts:

[S]entencing data indicate that a growing number of courts believe that the current sentencing scheme in non-production offenses is overly severe for some offenders.  As the Supreme Court has observed, the Commission’s obligation to collect and examine sentencing data directly relates to its statutory duty to consider whether the guidelines are in need of revision in light of feedback from judges as reflected in their sentencing decisions.

[A]s a result of recent changes in the computer and Internet technologies that typical non-production offenders use, the existing sentencing scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability.  Non-production child pornography offenses have become almost exclusively Internet-enabled crimes; the typical offender today uses modern Internet-based technologies such as peer-to-peer (“P2P”) file-sharing programs that were just emerging only a decade ago and that now facilitate large collections of child pornography.  The typical offender’s collection not only has grown in volume but also contains a wide variety of graphic sexual images (including images of very young victims), which are now readily available on the Internet.  As a result, four of the of six sentencing enhancements in §2G2.2 — those relating to computer usage and the type and volume of images possessed by offenders, which together account for 13 offense levels — now apply to most offenders and, thus, fail to differentiate among offenders in terms of their culpability.  These enhancements originally were promulgated in an earlier technological era, when such factors better served to distinguish among offenders.15 Indeed, most of the enhancements in §2G2.2, in their current or antecedent versions, were promulgated when the typical offender obtained child pornography in printed form in the mail....

[M]ost stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded.  Those stakeholders, including sentencing courts, increasingly feel that they “are left without a meaningful baseline from which they can apply sentencing principles” in non-production cases....

The Commission concludes that the non-production child pornography sentencing scheme should be revised to account for recent technological changes in offense conduct and emerging social science research about offenders’ behaviors and histories, and also to better promote the purposes of punishment by accounting for the variations in offenders’ culpability and sexual dangerousness.

In addition, you might find intriguing and informative the lengthy discussion of child porn sentencing in the split Third Circuit panel decision in United States v. David Grober (where the majority, inter alia, faults the district court for allowing me to testify at the sentencing hearing).

Basic finals information (and a place for any questions or concerns)

As I mentioned in class, the final paper for this class (and the final take-home exam which is available as an alternative to completing a final paper) is due at close of business on the last day of the exam period.  According to the Registrar's website, the final exam day is May 14, 2015.  (Note that, because this is truly the last day, I cannot readily give any kind of extension, especially to anyone supposed to graduate the next day.)

If you are taking the take-home final, I am certain it will be available no later than April 30 (and perhaps sooner), and you have the entire exam period to complete it.  In case you are wondering about the final's format, here are the general instructions I typically have for take-home finals in this class:

Typical Berman Take-Home General Instructions

1. To complete this exam you must answer at least 3 of the 4 questions.

2. As an open-book exam, you may refer to any (non-human) sources, but your answers must be prepared independently, without discussion or assistance from others.

3. Each question has a strict [1500 or 2000 or question-specific] word limit.  These are limits, not goals. Great answers are possible in fewer words.  Aided by your computer’s word count feature, please note the total number of words at the end of each of your answers.

4. You are not required to use sources other than class materials.  You are not precluded from conducting outside research, though extra time may be best invested in reviewing course materials and revising your answers to ensure they are clear and concise.

I welcome any question or concerns about any of this expressed in class or in the (now working) comment section here.  Remember my mantra: low-stress, high-learning.

Final weeks to focus on purposes, offense, offender, sentencing and post-sentencing for sex offenders

A number of stories I have recently covered on my blog leads me to conclude we would usefully bring our semester to an informative and challenging close by giving special attention to the uniquely dynamic purposes, offense/offender, sentencing/post-sentencing issues raised by an array of sex offenses and offenders.  Though I will assign some formal readings from our casebook on these topics on Tuesday, I will kick off this final segment of the course by urging everyone to cruise through the Sex Offender Sentencing archive on my main blog looking for stories they find especially interesting and thus worthy of in-class discussion.

To highlight how dynamic and challenging sex offender sentencing issues can be, consider these posts concerning notable sex offender sentencing rulings and stories making headlines just in the past few weeks and months:

Distinct goals/purposes issues:

• Depressing news that sentencing toughness is doing little to deter child porn offenses
  

• California Supreme Court rules blanket sex-offender residency restriction fails rational basis review
  

• Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable

 

 Distinct offense considerations:

• Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction

• Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term

• Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion

 

Distinct offender considerations:

• "Reality check: Is sex crime genetic?"
  

• Should age matter at sentencing of elderly child molester?

• Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?

 

Distinct post-sentencing consequences and concerns:

• Can a sheriff prohibit sex offenders from a church that is sometimes a school?
  

• Federal judge finds unconstitutional "geographic exclusion zones" for sex offenders in Michigan
  

• First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing

I would be especially grateful if student come to class on Tuesday having reviewed many of these linked stories and with an opinion about which aspect(s) of sex offender sentencing they would like us to focus particularly upon in the final weeks of class.

Understand the terms of USSC debate over the fraud guidelines

As mentioned in class on Wednesday, and as detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.  

I doubt the actual USSC meeting will be a must-see event, though I still urge you to tune in. But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases."

Two projects for a week with possibly just one class

Much to my chagrin, I fear this week our class will only be able to meet on Wednesday (4/8), and I fear that much of that class will involve going over current events and making sure the last few weeks of class are productive.  To that end, I have two potential projects for students to work on/think about which (1) could be the basis for additional mini-papers OR (2) the basis for a final paper OR (3) the answer to one of the question(s) likely to show up on the take home final.  Here are the basics, with more explanation to come during Wednesday's class:

Possible paper/project #1.  After the drug war: keys terms for the treaty (or reparations, or a Marshall Plan, or a truth and reconciliation commission or....)? 

As we have discussed in class, the so-called "war on drugs" has played a huge role in criminal justice developments over the last 40 years, and it has play an important role in debates over modern sentencing reform and mass incarceration. Now that there is a growing consensus that the harshest sentencing aspects of the drug war need to be reformed (and a remarkable move toward reform of marijuana and other criminal laws), a growing question is what the essential elements and terms of the post-drug-war sentencing and corrections system. Should past marijuana (and other drug) convictions be expunged? Should some kind of formal reparations be a critical part of modern reforms? And who --- legislatures, sentencing commissions, judges, executive officials --- should be principally charged with designing the terms of the "post-drug-war treaty"?

Possible paper/project #2.  Drafting new formal federal guidelines for the consideration of (one, a few, many?) offender characteristics.

In this (relatively short) law review article, a former Chair of the US Sentencing Commission criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear that these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct." He suggested factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new formal "guidelines that encourage consideration of those characteristics where appropriate."  Do you agree that new guidelines would be fitting for these (or other) offender characteristics, and what might these guidelines look like?