Sentencing Class @ OSU Moritz College of Law

Mini-paper submission review

I have reviewed my inbox and files to check my records on how many mini-papers I have so far received from each student.  My current cumulative accounting has me with 45 total submissions to date, with the following particularity:

Mini #1: What topic interests you and might be basis for final paper --- 18 submissions so far

Mini #2: Advise a real official on expedited DP for mass shooters (or advise DeWine on Ohio issues) --- 8 submissions so far

Mini #3: Reflections/take-aways from the death penalty until --- 4 submissions so far

Mini #4:  Do we need a functioning US Sentencing Commission --- 7 submissions so far

Mini #5: Are drug offenses/offenders different  --- 8 submissions so far

In addition, as of this writing, my records show that 16 students have already completed the required two or more mini papers.  An additional 9 students are half way to that goal, and 10 students have not yet turned in any minis.  Feel free to follow up by email if you have any uncertainty about where you fall among these categories.

Previewing "College Behind Bars"

This recent USA Today article, headlined "'Undoing a mistake': Ken Burns film looks inside the push to bring college education back to prison," provides some important backstory on a notable new documentary about a notable prison education program in New York.  I suspect the full documentary with be worth watching/streaming, and I think just the preview serves as a potentially useful watch before our special guest scheduled for a visit on Monday.  Check it out:

An interesting slice of data thanks to South Dakota being on meth

I trust some of you have seen the (widely lampooned) new anti-drug campaign in South Dakota under the banner “Meth: We’re On It.”  Beyond thinking about how these campaigns get developed, I was really intrigued by this New Republic article that highlighted some data about drug crimes and punishments in South Dakota.  The piece is headlined "Locking People Up: South Dakota’s On It: South Dakota's viral meth prevention campaign masks a punitive, racist reality."  Here are the excerpts that struck me as blogworthy in the wake of our recent discussions (links from the original):

South Dakota has a penchant for putting people in jail.  Specifically, South Dakota jails drug offenders, and particularly Native citizens, at rates that boggle the mind.  And it’s the state’s lock-em-up approach to what is, at its core, a public health and economic crisis that shows not just the absurdity, but also the disingenuousness, of this new campaign.

South Dakota arrests juveniles at a rate double the national average and 25 percent higher than the next closest state’s; of those arrested children, one in five is sent away on drug-related charges.  In fact, half of all arrests in the state are for drugs, compared to 29 percent nationally.

Looking at the incarcerated population, 64 percent of the women in South Dakota prisons are there for drug arrests; 28 percent of men are locked up for the same reason.  Both of those rates are at least double the national average.  The soaring rates of drug arrests — up 148 percent from 2010, with over 3,000 meth-specific arrests in 2018 — unsurprisingly coincide with the state citizenry’s soaring rate of drug use and substance abuse.  In the first six months of 2019 alone, the Drug Enforcement Administration seized 78 pounds of meth in South Dakota; it grabbed just 66 pounds in all of 2018.

Within these already alarming statistics exists another trend: Natives make up 8.7 percent of the South Dakota population but account for half of all arrests in the entire state. On the whole, Native citizens are thrown in jail at a rate 10 times that of white South Dakotans.  State officials recently estimated that if one were to add the reservation crime stats to those kept by the state — tribal law enforcement is handled by a combination of the Native nation’s own police force and federal law enforcement — South Dakota’s crime rate would double.

The essential question is why the state’s response has been to throw people, and overwhelmingly Native people, in prison rather than carve out the funds for prevention and rehabilitation.

All of the above trends continue despite the fact that, in 2013, the state legislature passed legislation aimed at addressing prison overcrowding by, theoretically, reducing penalties for nonviolent offenders.  However, the South Dakota ACLU found in August that, six years out from the legislative updates, the overall prison population was just barely smaller than it would have been without the bills: a difference of 281 people.

Follow-up items from our class today on crime, alternatives and collateral consequences

Here are additional materials/links to follow up some matter discussed in class on Monday.  First, here are links to unpublished materials from our casebook for those really eager to dig deep into alternatives:

• Electronic Chapter 8: Non-Prison Punishments (see pp. 119-139 for coverage of the SCOTUS case Padilla and related discussions of collateral consequences)

• Electronic Chapter 10: Alternatives to Criminal Sentences (see pp. 31-62 for coverage of asset forfeiture, a topic that SCOTUS addressed in its recent Timbs ruling)

Second, here is  a link to the full huge new report from the US Commission on Civil Rights has today released in June titled "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities."   The report runs over 150 pages and provide a comprehensive modern accounting of collateral consequences along with reform recommendations. and here is part of the introductory letter from the Commission Chair:

This report provides an overview of the relevant data and arguments for and against the imposition of collateral consequences on people with criminal records.  Each year, federal and state prisons release more than 620,000 people to return to their communities.  While these individuals have often completely exited criminal supervision (for example, through a prison sentence or probation), individuals with criminal records still face potentially thousands of collateral consequences upon reentering society.  These collateral consequences are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history.  For example, individuals with criminal histories can face barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.  The reach of each collateral consequence extends past people with criminal records to affect families and communities.

Third, here is a recent report from the National Center for Missing and Exploited Children about the problem of child sexual abuse images (aka child porn). It starts with this accounting of its data:

At the National Center for Missing & Exploited Children® (NCMEC), our CyberTipline® has received more than 50 million reports of suspected child sexual exploitation from its launch in 1998 through June 2019 – 18.4 million in 2018 alone. The vast majority of these reports contain child sexual abuse images – a stunning indictment of the insatiable demand for this abusive imagery on the internet. In the last decade, there’s been enormous progress made to disrupt the distribution of these images and prosecute those who share the experience of victimizing children with other offenders. In large part, this progress is due to technological advances to find these images online, leading to an increase in the number of reports to NCMEC’s CyberTipline.

Timely "offender characteristic" news and notes from SCOTUS and from NJ

As we continue to discuss offender characteristics at sentencing, we have two notable new current events to add to the discussion:

A.  The US Supreme Court added another criminal history/ACCA case to its docket this afternoon.   Here via this post at SCOTUSblog is a link to the briefing and a brief description:

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case.  He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.  The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

B. The New Jersey Criminal Sentencing and Disposition Commission yesterday issued a big interesting report, available at this link, with all sorts of interesting recommendations including a call for the state to eliminate mandatory minimum sentences for all non-violent drug and property crimes.  And on the offender characteristic front, there was this:

Recommendation #5: Create a New Mitigating Sentencing factor for youth.

When determining a defendant’s sentence, the judge must consider a number of statutorily-defined aggravating and mitigating factors.  The CSDC recommends that the Legislature create a new mitigating factor that allows judges to consider a defendant’s youthfulness at the time of the offense.  The members of the Commission recommend that the mitigating factor read as follows:

       The defendant was under 26 years of age at the time of the commission of the offense.

It would be within the court’s discretion to determine the weight to be given to the factor in any given case.  If a juvenile prosecuted as an adult, after consideration of this mitigating factor, is nevertheless sentenced to a term of 30 years or greater, he or she would have the same right to apply for resentencing after 20 years with the required consideration of the factors established by the U.S. Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012), in light of the inmate’s record while incarcerated (e.g., evidence of rehabilitation, greater maturity, etc.

Other than criminal history, is there any "offender characteristic" that you think must be considered at sentencing? Aside from race, is there any "offender characteristic" that you think must not be considered at sentencing

As we continue 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 statement that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Notably, in 2013 the Ohio General Assembly amended Ohio Revised Code § 2929.12 to add Section (F) providing that the "sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses."

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 any kind of community service (and not just 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?  For example, should honorably military service for a number of years earn a presumptive 10% or 25% sentence reduction?  Should being under 25 and thus still having a developing brain lead to, say, a 10% or 25% sentence reduction? 

Understanding the challenges of criminal history through the Armed Career Criminal Act

Thanks to everyone for being a great audience for our special guest today, and now we get back to our regular programming.  As promised, we are starting a turn toward a discussion of whether, when and how "offender circumstances" should to be considered at sentencing.  Though I mentioned age in class, we will start with slightly less controversial topics like criminal history and plea/cooperation discounts.  I suspect we will only get through the criminal history discussion on Wednesday, in part because the issue is a lot harder than you might first imagine.

The Supreme Court's ruling in Johnson v. United States in particular, and the operation of the Armed Career Criminal Act (ACCA) in general, provide a great setting to unpack the challenges of criminal history.  The Johnson case is excerpted in our casebook at pp. 295-300, and you may find it helpful to first focus on the general provisions of ACCA at 18 U.S.C. § 924(e), which provides (with key language emphasized):

In the case of a person who violates section 922(g) [prohibiting certain kinds of illegal possession of a firearm] and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

In other words, commit a firearm possession offense when already having three significant priors and there is a mandatory minimum prison term of 15 years.  This US Sentencing Commission document provides some basic data about the sentencing of firearm offenders that shows ACCA's dramatic impact:

• The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 186 months.
• The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 59 months.

In other words, for the same basic offense conduct and convicted of the same criminal statute, federal defendants on average receive more than a decade longer in prison (roughly three times longer) due to having certain types of prior offenses.

ACCA was one part of the massive Comprehensive Crime Control Act of 1984 (the Act which also created the US Sentencing Commission), so this distinctive mandatory minimum sentencing statute was never voted on independently.  Imagine being a member of Congress right now being asked to sign on to a bill proposing to repeal ACCA in its entirety (as a partial response to Johnson).  Would you support outright repeal or instead seek to amend 924(e)?  What kind of amendment would you seek?

Thinking about the work of prosecutors as we gear up for our special guest

I am hoping you are as exited as I am for our special guest during our usual class time this afternoon.  One way to gear up might be to come to the American Constitution Society's panel on Progressive Prosecution which just happens to be taking place this today at 12:10PM in Room 244. (I have been told lunch will be from Hot Chicken Takeover at the event!)

An event about the work of prosecutors serves as a fitting prelude to our discussion with our special guest (though much of our discussions throughout the entire semester have been in some way about the work of prosecutors).   This CNN piece highlights some of our special guest's 35 years of legal experience, most of which has been served in the role of a prosecutor.  Here is our special guest's bio page at the large NYC firm where she now works.  

It is my understanding that our guest only plans to talk for a few minutes about her experiences and then will be eager to answer questions.  I urge everyone i the class to think about questions for our guest, which can be substantive about the federal sentencing system and the role of prosecutors therein or can also be career-oriented about topic like how her own career path developed or advice she would give to law students today concerning careers in government service and/or the criminal justice system.