Sentencing Class @ OSU Moritz College of Law

Readings for wrapping up "whos" and heading into the capital sentencing world

As mentioned in our last class, we will start wrapping up our formal "who" unit by reviewing the latest, greatest Supreme Court sentencing case, United States v. Haymond, 139 S. Ct. 2369 (June 26, 2019).  You are welcome to read Haymond in any form, and the full SCOTUS slip opinion can be accessed at this link.

For maximum appreciation and understanding, you should be sure to read McMillan and Blakely in our text before turning to Haymond.  I doubt we will get through all three of these cases on Wednesday after the long holiday break, but I might try.  (Students are highly encouraged to start any discussions of McMillan and Blakely and Haymond in the notes, if so inclined.)

Thereafter, we will turn to an (all-too-quick) review of capital sentencing law, procedures and practices.  As the syllabus reveals, the readings for this unit (which will keep us busy through most of the rest of September) are to be provided via handouts.  Those handouts will be provided in hard-copy in class, but I wanted to provide links here to electronic copies:

Chapter 3, Topic A: Regulation of Discretion in Capital Sentencing

Electronic Chapter 9: Race, Gender, and Class in Sentencing

I plan to cover the first 69 manuscript pages in the Chapter 3 materials linked here and the first 21 pages manuscript pages in the Chapter 9 materials linked here.  (Of course, you are always welcome to read more.)

Honing your "who" radar

IN the next few weeks, we will be spending a lot of time discussing in various ways "who" plays a significant role in the sentencing process.  We will start with some normative discussion of just who you think are the "whos" who should (and who should not) be the most significant players in the sentencing process.  But the day-to-day work of the best criminal lawyers often involve (1) being able to effectively identify descriptively "who" actually plays a major role, and then (2) figuring out how best to influence the decisions of that "who."  

In other words, those with good "who" radar can often be the most effective sentencing lawyers.  So I will spend a lot of time in class encouraging you to identify important "whos" in important sentencing setting.  And you can start honing your "who" radar by checking out some recent pieces from my sentencing blog that highlight some notable "who" realities:

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes" 

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Sixth Circuit judge in separate opinion makes case for Eighth Amendment precluding execution of persons under 21 at time of murder 

Lots of advice on federal prisons for AG Barr and the new leadership at the Bureau of Prisons

Terrific review of localities that are "Addicted to Fines"

Does the text or spirit of the US Constitution (or the federal criminal code) favor or prioritize any particular theory of punishment?

I am grateful for the 30 students who completed and submitted the class questionnaire, and I am eager to get completed surveys ASAP (in my faculty mailbox on the third floor or by email) from anyone who has not yet submitted the form. I will be eager to discuss the collective "results" in class, and I really appreciate all the thought that was evident in many answers.

Our discussion Wednesday will focus particularly on how students ranked the various theories of punishment.  But I want to make sure that our theory discussion is informed by some doctrine. Specifically, as the question in the title of this post reveals, I would be eager to discuss with some particularity whether you think the text or spirit of the US Constitution (or the federal criminal code) favors or prioritizes any particular theory of punishment.

Of course, there are lots of provisions of the federal criminal code, but 18 US Code § 3553(a) (which is reprinted in our casebook) seems most central to this discussion give its instructions to  federal judges about what they must consider at sentencing.  Some parts of 3553(a) speak to specific classic theories of punishment, but do any seem particularly favored or prioritized (or disfavored)?  What theory is served by instructions like the requirement to consider "the need to avoid unwarranted sentence disparities" among similar defendants?

And, of course, there are lots of provisions of the US Constitution.  But I think these two can usefully get a conversation started:

The Preamble:  "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Welcome the the class blog of Sentencing Law @ Moritz College of Law (with first week details)

This blog got started over a dozen years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) in order to facilitate student engagement in a Spring 2007 course on the death penalty.  Because the blog proved successful during that semester, and because the students' hard work as reflected in the archives still generates web traffic and might still be of interest to current students, I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course.  

It is now summer 2019, I am excited again to be gearing up again to teach Sentencing Law at the Moritz College of Law.  And, ever the web-savvy dinosaur, I am again planning to use this blog to flag current events and cases to supplement our in-class readings and discussions.  Because I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, students can and should be on the look out for class materials and announcements posted here.

So, for example, here is a repeating of what is posted on the Moritz official website for our first assignments (along with electronic copies of the basic course documents):

In preparation for our first week of classes starting Monday, August 19, 2019 you should:

1.  Get a copy of the FOURTH edition of the casebook for the course, along with the course description/syllabus.

2.  Access the questionnaire and fill it out before our first class.  (In addition to being posted below, the pre-class questionnaire and course description/syllabus are available in hard-copy in front of my office, Room 313.)

3.  Find/research on your own a real sentencing issue, case or story that is of significant interest to you, and come to our first week of classes prepared to explain this issue, case or story and why it is of significant interest to you. 

Download 2019 Sentencing Law pre-class survey

Download 2019 Sentencing Law course description and syllabus

You will discover that the last items in the pre-class questionnaire reference two real-world sentencing cases, and here are just a few links with some background on those cases:

Felicity Huffman 

• Blog post: Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal 
• Felicity Huffman's plea agreement
• News article: "Felicity Huffman pleads guilty in college admissions scandal"

Lee Boyd Malvo 

• News article: "Lee Boyd Malvo Fast Facts"
• News article: "Supreme Court To Take Up D.C. Sniper Case, Raising Issue Of Sentencing Minors"
  
• A few SCOTUS amicus briefs filled in Mathena v. Malvo such as ones from the Criminal Justice Legal Foundation or the Maryland Crime Victims’ Resource Center or the United States