Sentencing Class @ OSU Moritz College of Law

Remember to attend Professor Kreit's class on drug sentencing in Room 344 at 3pm on 10/30

I missed seeing everyone this week at our usual Monday time, and I just waned to post this quick reminder that you should be sitting in on Professor Alex Kreit's class at our usual Wednesday time to hear him talk about sentencing drug crimes.  I handed out the Chapman case from his casebook last week, but I am also going to post his class materials here as well:

Download Kreit_10_30_ClassReading

As always, students are welcome and encouraged to use the comments here to share their take on readings or class discussions.

Can you see any problems with "The Prohibiting Punishment of Acquitted Conduct Act"?

As we turn to discuss the (little discussed) Supreme Court ruling in US v. Watts upholding the constitutionality of the use of so-called acquitted conduct in the calculation of the sentencing guidelines, in bears remembering that US Sentencing Commission or Congress could seek to preclude the use of this conduct as a matter or guideline or statutory rule.  In fact, just last month, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, today introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Do you think this statutory proposal works functionally to overturn the ruling in Watts at least for federal defendants? Do you see any possible problems administering this statutory change if it were to become law? And if acquitted conduct is worrisome, how about so-called dismissed or uncharged conduct (and do we need to worry that prosecutors will move to dismiss charges mid-case in order to avoid limits on sentence enhancements for acquitted conduct)?

Lurking mandatory minimum statute for consideration as we imagine the modern federal sentencing of Rob Anon

I hope everyone has now had the chance to work through the sentencing of Rob Anon under the modern federal sentencing guidelines, perhaps with the help of some of the materials linked in this post).  If you made an effort to do independent research in order to try to figure out how on your own all of the federal sentencing laws relevant to Rob Anon, you may realize that I left out of my prior posting an important statutory provision, namely 18 U.S.C. § 924(c), which imposes mandatory minimum sentences for people who use or carry a firearm during the commission of certain crimes.  Specifically, this statutory provision states:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Think about how this additional mandatory minimum statute, which would seem to be applicable to Rob Anon, should impact the work of various sentencing actors at various sentencing stages in this case.  

Some FIRST STEP Act basics for Friday's lunch and future use

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by President Donald Trump into law on December 21, 2018. Many have rightly called this law the biggest federal criminal justice reform legislation in a generation, and yet others have rightly called this law a very small modification of the federal criminal justice system. Among the good question to reflect on is whether the FIRST STEP Act is a big deal or much ado about very little.

Because lots of disparate provisions got rolled into the FIRST STEP Act, it is hard to readily summarize all its elements. The Congressional Research Service produced this intricate 20-page overview of Act, which is initially summarized this way:

The act has three major components: (1) correctional reform via the establishment of a risk and needs assessment system at the Bureau of Prisons (BOP), (2) sentencing reform via changes to penalties for some federal offenses, and (3) the reauthorization of the Second Chance Act of 2007 (P.L. 110-199). The act also contains a series of other criminal justice-related provisions.

The advocacy group FAMM has this webpage about the Act, which includes these general (multi-page) summaries:

FAQ: First Step Act

FAQ: First Step Act Risk and Needs Assessment

Read a full description of the bill here

The federal Bureau of Prisons and the National Institute of Justice also have useful webpages about the FIRST STEP Act, and their pages provide a particular focus on the work these agencies are doing under the Act (aka "Who sentences").

Hints and help for sentencing Rob Anon under the modern federal sentencing guidelines

As stressed in class, much of the rest of the class is going to involve detailed discussions of non-capital (and mostly federal) sentencing policies and practice before and after modern guideline reforms.  Our work will start and advance through a deep discussion of the sentencing realities faced in sentencing Rob Anon in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text).  In addition to imagining how you, as a judge, would sentence Rob Anon in this world, think also about how prosecutors and defense attorneys would approach sentencing in such a (pre-guideline and largely lawless) world. 

As we turn to sentencing Rob Anon under the modern federal sentencing guidelines, I continue to encourage class members to try to figure out how to identify and assess federal guideline sentencing laws relevant to Rob Anon with just the help of on-line search materials or traditional legal research resources (and feel free to use the comments to express frustration).  Consider that a federal defendant or a novice lawyer taking on his or her first federal criminal case will not likely have access to any perfect guide (or even "Guidelines for Dummies") to enable ready understanding of the federal sentencing guidelines.

If and when you would like some basic guideline sentencing help, you can turn to these links which take you to key guideline provisions for Rob Anon appearing in the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

• §1B1.1. Application Instructions

 

• §2B3.1. Robbery
• §3B1.1. Aggravating Role
• §4A1.1. Criminal History Category

 

• Sentencing Table

 

I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (again feeling free to use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want or need even more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

• Worksheets for Individuals

As you work through this assignment, give particular thought to the array of challenges that modern federal sentencing law may present for modern federal sentencing lawyers.   If you want to think particularly about the import and impact of sentencing law for the work of defense attorneys, perhaps check out this article I wrote some years ago seeking to highlight "the array of challenges that the Federal Sentencing Guidelines create for defense counsel."

Use your free time to start reading about federal sentencing system.... UPDATE on Oct 14

Just a quick post to remind you we do not have class this Monday, but we will make up for lost time on Wednesday by jumping into our review of the federal sentencing system. So get started on the readings from the syllabus, and get excited about coming discussions about the operation of the federal sentencing guidelines!

If the FSG don't quite keep your interest while I am away, note that SCOTUS gets back in action on Monday with two notable criminal cases.  I collect some previews of the action in this post at my main blog.

 

UPDATE:  Remember that we are going to be starting our discussion of the Rob Anon sentencing exercise this week.  We will start with a focus on what it was like to sentence in the federal system before modern guideline reforms and what it is like to sentence under the modern guideline system.  It is CRITICAL that you have started working on the Rob Anon exercise and done the associated reading (e.g., Frankel and then Booker).

Second-look materials for review and (competitive?) repackaging

Many thanks to the whole class for your terrific engagement with David Singleton in today's class.  I trust you enjoyed as much as I did hearing a lot from him (and not so much from me).  And, as we discussion, the issue of "second look" sentencing mechanisms in Ohio and elsewhere is a hot topic.  Here are some more background and links to some materials I briefly referenced in class:

The newly revised sentencing provisions of the Model Penal Code includes "second look" authority through § 305.6 urging legislatures to authorize "a judicial panel or other judicial decisionmaker to hear and rule upon applications for modification of sentence from prisoners who have served 15 years of any sentence of imprisonment."  MPC § 305.6, titled "Modification of Long-Term Prison Sentences; Principles for Legislation," and its engthy commentary can bel reviewed at this link.

Inspired in part by this MPC proposal, just this past July, US Senator Cory Booker (D-New Jersey) and Representative Karen Bass (D-California) introduced a federal second look bill named the Matthew Charles and William Underwood Second Look Act of 2019.   This press release discusses the essential elements of the bill and its full text can be found at this link.  The advocacy group FAMM has been a big supporter of these proposals, and it released the following materials in conjunction this the bill's introduction:

• A white paper explaining the background of and need for a second look bill;
• A short video that provides firsthand perspectives of four formerly incarcerated individuals, including Matthew Charles;
• An infographic that explains how a second look provision would work in practice.

As mentioned in class, David Singleton and I are eager to bring "second look" interest and energy to Ohio in the form of a student legislative drafting competition.  I would be very grateful for comments here (or in person) about how we might run such a contest for maximum interest and impact.  Would law students be more interested in a (small) cash prize or a chance to get published and/or present their work to important people?  Any and all feedback on the basic idea of a contest or on how best to structure its particulars would be greatly appreciated.

Reading up on "Beyond Guilt" before David Singleton visits

As mentioned in class, on Wednesday October 2, we will have the pleasure of a visit from David A. Singleton, Executive Director and Attorney at Law at the Ohio Justice & Policy Center.  (He will also be speaking at lunchtime in Drinko Hall 245 from 12-1pm on Oct 2.)  Though there are many topics that David could usefully discuss, I have encouraged him talk about his new project "Beyond Guilt".  The initiative, in this recent New York Times article, is focused on excessive punishment of those who have admitted guilt and were convicted of more serious offenses, including violent crimes.  In preparation for his visit, I encourage you to look around the OJPC/Beyond Guilt website, and here is how the project is described on this "Our Mission" page: 

Our Mission

The mission of Beyond Guilt is to transform our punitive legal system to one focused on justice, redemption, and humanity for those over-punished. 

Strategies

Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence. Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement—freeing innocent prisoners and people convicted of low-level, non-violent offenses. Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released. The project will do so in four ways:

First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release. The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released. Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes. The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website. The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws. The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety. Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.