Sentencing Class @ OSU Moritz College of Law

Updated accounting of upcoming events of note and possible interest

I was pleased to see some students were able to attend some of the events previous flagged in September, and I now can provide an updated and expanded list of online events that might be of interest to sentencing fans throughout the month of October.  Here is a quick run down of these events with links for more information:

Tuesday, Oct. 6  1pm   Two Views: An Exploration of SCOTUS's Criminal Law Docket

Every(!) Wednesday in October  ASU State of Incarceration Virtual Summit

Wednesday, Oct. 7  3pm  Criminal Justice Reform Workshop Series: Prosecutor Caseloads and Sentencing Outcomes

Wednesday, Oct. 7   6pm    Forces of Freedom or Fraud? Do Conviction Integrity Units Matter in Wrongful Conviction Cases

Friday, Oct. 9  3pm   Apprendi at 20

Monday-Thursday Oct. 19-22  Prison Brake: Rethinking the Sentencing Status Quo​ (attending the October 20 afternoon sessions will be in place of our class)

Wednesday Oct. 21  12noon  Bodiker Lecture on Criminal Justice

I continue to welcome folks identifying other notable online events to include on this list.  And, as I have mentioned in class, I urge students to keep a "billing sheet" of time spent attending these or other sentencing-instructive events.

Which of the amicus briefs in Jones v. Mississippi do you find especially effective or interesting?

As I mentioned in class today, I think the case of Jones v. Mississippi presents an important opportunity for the Supreme Court, and especially the newer Justices, to address the application of the Eighth Amendment to juvenile murders.  Here is the official question presented:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. 

As highlighted by the many links below, there is a lot of friendly interest in this case as expressed in a sizable number of friends of the court briefs.  Though I do not expect anyone to read carefully all (or even many or even any) of the briefs linked below, you might be interested in clicking through to check out some of the groups being friendly and the friendly advice they are giving to the Justices.

As suggested in the title of this post, if you have time and interest, I would be eager to hear whether you find any of the amicus briefs especially effective or interesting.

 

Briefs on behalf of Brett Jones

Brief of petitioner Brett Jones

Brief amici curiae of National Association of Criminal Defense Lawyers, et al.

Brief amici curiae of Juvenile Law Center, et al.

Brief amici curiae of Madge Jones, Tony Jones, Marty Jones and Nicolle Olson

Brief amici curiae of The American Civil Liberties Union Foundation, The ACLU of Mississippi, The American Conservative Union Foundation, The Rutherford Institute, The R Street Institute, and Larry W. Yackle

Brief amici curiae of Erwin Chemerinsky, et al.

Brief amici curiae of Current and Former Prosecutors, Department of Justice Officials, and Judges

Brief amicus curiae of The American Bar Association

 

Briefs on behalf of neither party

Brief amicus curiae of Jonathan F. Mitchell & Adam K. Mortara in support of neither party

 

Briefs on behalf of Mississippi

Brief of respondent Mississippi

Brief amicus curiae of United States

Brief amici curiae of State of Indiana, et al.

Brief amicus curiae of Populi

Brief amicus curiae of Criminal Justice Legal Foundation

Brief amici curiae of National Organization of Victims of Juvenile Murderers, et al.

Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

After a final review of what we should take away from the McClesky ruling and our discussion of a possible legislative response, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence placing categorical limits on what crimes cannot result in a capital sentence and what criminals cannot be executed for their crimes (this discussion will also serve as a bridge to starting discussions of non-capital sentencing).  Here are the major rulings in this jurisprudence:

Crime:

Rape: Coker v. Georgia, 433 U.S. 584 (1977)

Lesser Murders: Tison v. Arizona, 481 U.S. 137 (1987)

Rape of Children: Kennedy v. Louisiana 554 U.S. 407 (2008)

 

Criminal:

Insane: Ford v. Wainwright, 477 U.S. 399 (1986)

Juveniles: Thompson v. Oklahoma, 487 U. S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)

Intellectually Disabled: Atkins v. Virginia, 536 U.S. 304 (2002)

Can you identify any clear themes or philosophical underpinnings to these rulings, and are there any additional categorical limits that you think should be part of Eighth Amendment jurisprudence?  Arguments have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for new constitutional categorical restrictions on the death penalty. But it seems pretty unlikely that the current Supreme Court will take up these issues anytime soon.

Given that the Supreme Court's Eighth Amendment procedural jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender will have his or her individual circumstances considered by a sentencing jury, what justifies these kinds of categorical rulings that preclude legislatures from ever being permitted to allow a jury to even consider the death penalty for certain crimes or offenders?

Contextualizing these matters, consider the query in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker (pictured here decades later).  For a reminder, here is how the lead dissent in Coker v. Georgia described the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnapped and raped a second young woman.  After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead.  He was apprehended and pleaded guilty to offenses stemming from these incidents.  He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment.  Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently.   Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences.  He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.  It is this crime for which the sentence now under review was imposed.

The Court today holds that the State of Georgia may not impose the death penalty on Coker.  In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape.  The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist.  In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner — as well as others in his position — will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.

In the wake of the nomination of another woman to the Supreme Court, it bears recalling that the Court which handed down its 1977 ruling in Coker was comprised of nine men.  (Four years later, in 1981, Sandra Day O'Connor became the first woman nominated to the Supreme Court by President Ronald Reagan.)  In light of that reality, and especially given what more we now know about the impact of sexual violence, I often find this paragraph from the Coker ruling a bit disconcerting:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.  Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.  The murderer kills; the rapist, if no more than that, does not.  Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.  We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. at 187, is an excessive penalty for the rapist who, as such, does not take human life.

Would it be appropriate to reconsider Coker now that we have a more diverse set of Justices and especially since we now better understand that rape in fact does by definition involve "the serious injury to another person"?

Some timely data and discussion about race as we consider McClesky (and also about execution methods)

Though I provided in this post a working draft of a proposed "Ohio Racial and Gender Justice Act" (which I hope to discuss in class on Thursday), I now realize it makes sense to also provide here some recent data and discussion on how race seems to impact our capital justice systems.  

From the Death Penalty Information Center: "Executions by Race and Race of Victim" and a huge new report titled "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty."  An excerpt:

Throughout the modern era of capital punishment, people of color have been overrepresented on death row.  In 1980, 45.6% of death row prisoners were people of color, and this percentage has increased every decade. By 2019, this percentage had risen to 57.8%.  Currently, white and African-American prisoners each comprise 42% of those on death row and Latinx prisoners make up 13%, with 3% of death row comprised of other races/ethnicities.   These figures can be contrasted with the racial and ethnic makeup of the population as a whole. Approximately 60.4% of the population is white.

The opposite trend is apparent in the racial composition of the victims of those who have been executed in the modern era. Seventy-five percent of murder victims in cases resulting in an execution have been white, even though only half of murder victims are white.  In cases with victims of a single race, 295 African-American defendants have been executed for the murder of white victims, while only 21 white defendants have been executed for the murder of African-American victims.

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies).

From NPR here is a brand new piece, titled "How A Perpetrator's Race And Age Factor Into Who Is Executed," speaks to these issues in the federal system with the scheduled upcoming execution of Christopher Vialva, a black man who killed white victims.  An excerpt:

REPORTER: Vialva is not claiming he's innocent. Instead, his case resembles most of those that end in the death house in Indiana. Like Vialva, who was 19 when he killed the Bagleys, 1 in 4 of the men on federal death row committed their crimes before they reached the age of 21. And of the 57 people on the row, more than half are people of color. Sam Spital is director of litigation at the NAACP Legal Defense Fund.

SAM SPITAL: There have been over 500 cases between 1988 and now where the attorney general of the United States authorized federal prosecutors to seek death. And in over two-thirds of those cases, the defendant was either Black or Latinx. And in only about a quarter of the cases was the defendant white.

REPORTER: Spital says the race of the victim also matters a lot.  Defendants who kill white people are 17 times more likely to be executed.  He says those disparities exist in both the state system and the federal system.

And what about Ohio? Helpfully, we have this fairly recent study from Frank Baumgartner, "The Impact of Race, Gender, and Geography on Ohio Executions."  An excerpt:

Between 1976 and 2014, the state of Ohio executed 53 men.  Here are a few key findings of this research:

• Sixty-five percent of all executions carried out in Ohio between 1976 and 2014 were for crimes involving White victims despite the fact that 43% of all homicide victims are White.
• Only 27% of all homicide victims are female, but 52% of all executions carried out in Ohio were for homicides involving female victims.
• Homicides involving White female victims are six times more likely to result in an execution than homicides in involving Black male victims.

And speaking of NPR and Ohio, NPR has also recently had two big pieces about lethal injection execution methods that have important coverage of Ohio (and discusses the work of a notable former member of this class). I highly recommend these pieces if you are interested in the debate over execution methods or Ohio's history with executions:

"Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection"

"Autopsies Spark Legal Fight Over Meaning Of Cruel And Unusual Punishment"

Working draft for proposed "Ohio Racial and Gender Justice Act"

As the casebook highlights, Kentucky in 1998 enacted the first statutory response to the McClesky ruling through its Kentucky Racial Justice Act.  There has not been much litigation over the Kentucky RJA because that legislation was expressly made not retroactive so that it could not be applied to any person sentenced to death in Kentucky before July 1998.  (In contrast, many defendants on North Carolina's death row were able to file claims based on its state's RJA enacted in 2009, which in turn contributed to its repeal by the NC legislature in 2013).

Though there is much to discuss concerning McClesky and the Kentucky and North Carolina RJAs, I wanted here to set forth my working draft of a proposed "Ohio Racial and Gender Justice Act" for discussion in the comments and in class.  So here goes (with language based in partially on the KRJA and the NC-RJA):

1.  No person shall be subject to or given a sentence of death or shall be executed or sentenced to life without parole (LWOP) pursuant to any judgment that was, in any part or in any way, sought or obtained on the basis of race or gender.

2.  A finding that race or gender was in any way any part of the basis of the decision to seek or impose a death or LWOP sentence may be established if the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death or LWOP.  Evidence relevant to establish a finding that race or gender was in any way any part of the basis of the decision to seek or impose a death sentence or LWOP may include statistical evidence or other evidence that:

(A) Death or LWOP sentences were sought or imposed any more frequently upon persons of one race or gender than upon persons of another race or gender.

(B) Death or LWOP sentences were sought or imposed any more frequently as punishment for offenses against persons of one race or gender than as punishment of offenses against persons of another race or gender.

(C) Race or gender was in any way any part of decisions to exercise peremptory challenges during jury selection.

3. The state of Ohio has the burden of proving beyond a reasonable doubt that race or gender was not in any way any part of decisions to seek or impose the sentence of death or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP sentence was sought or imposed.

4. If the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP sentence was sought or imposed, the court shall order that a death or LWOP sentence not be sought, or that the death or LWOP sentence imposed by the judgment shall be vacated and the defendant resentenced to a lesser sentence.

5. This act is effective when it becomes law and applies retroactively.

The language in bold and italics within my proposed Ohio statutory language highlights my tweaks to the Kentucky and NC RJAs, both of which concern only race and seem only concerned with race as a "significant" capital sentencing factor.  In addition, both acts place the burden on defendants to prove race was a significant factor in their cases.  As my draft reflects, I am very eager to ensure that neither race nor gender plays any role in the pursuit or imposition of the punishment of death or life without parole.  In service to that goal, my proposal puts the burden on the state of Ohio, once a claim is brought under this Act, to prove convincingly that neither race nor gender played any role in the death or LWOP sentencing process.

Thoughts?  Who is willing to co-sign this bill as proposed?  I am open to friendly amendments and also eager to hear if any legislators oppose this effort to eradicate the problem identified in McClesky through a legislative response.

Upcoming events of note and possible interest

As I have mentioned in class, in the coming weeks there are a number of online events that might be of interest to sentencing fans. Here is a quick run down of these events with links for more information:

Thursday, Sept. 24  10am   Ohio Criminal Sentencing Commission Meeting

Friday-Saturday, Sept. 25-26   Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform

Friday, Sept. 25  12noon   Understanding Racial Bias in Algorithms

Monday, Sept 28 12:10  Discussions from Drinko Hall - Supreme Court Year Preview

Friday, Oct. 9  3pm   Apprendi at 20

Monday-Thursday Oct. 19-22  Prison Brake: Rethinking the Sentencing Status Quo​ (attending the October 20 afternoon sessions will be in place of our class)

Wednesday Oct. 21  12noon  Bodiker Lecture on Criminal Justice

I welcome folks identifying other notable online events to include on this list.  And, as I have mentioned in class, I urge students to keep a "billing sheet" of time spent attending these or other sentencing-instructive events.

Working though modern death penalty statutes by imagining a capital defense of Theodore Kaczynski

As mentioned briefly in class, this coming week we are going to work through Problem 3-3 (at pp. 46-53 here) in order to more closely examine the operation of modern death penalty statutes.  This problem asks you to imagine how you might help represent Ted Kaczynski if he were to be prosecuted under applicable death penalty statutes in Texas and Florida and Ohio. 

Key provisions from the capital statutes in Texas and Florida appear in our online text, and here is a link to Ohio Revised Code Section 2929.04 with its own distinct specification of aggravating and mitigating circumstances.  (And if you are a glutton for capital punishment, you might also check out  18 United States Code Section 3592, the federal statute setting forth "Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified.")  I will not aggressively quiz anyone about and of these intricate doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Kaczynski's case might be litigated in prominent death penalty states. 

For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, and you might find the discussion of his crimes and the "Unabomber manifesto" especially important when considering his possible defense.  If you have the time and interest, I also would encourage checking out this lengthy 1999 Time article by Stephen Dubner headlined "I Don't Want To Live Long. I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison."  

Kaczynski is currently an LWOP resident at superman ADX Florence in Colorado after he accepted a plea to avoid the application of the death penalty.  This interesting 2016 Yahoo News article, headlined "The Unabomber takes on the Internet," highlights that Kaczynski can and does still write and corresponded from prison. 

Though his infamy has faded, Kaczynski was a particularly notorious celebrity in the mid 1990s.  And he was comically portrayed by Will Farrell on Saturday Night Live in the period.  For some diversionary (and somewhat tasteless) amusement, here are links to SNL skits about Teddy K.:

• Ted Kaczynski Meets His Lawyers
• Ted Kaczynski's Class Reunion
• Ted Kaczynski Wants to Represent Himself
• Nightline: Deep Blue Has Cornered Mankind

Some Buckeye death penalty whos and history

As I mentioned in class, we can only briefly touch on so many interesting big and little issues relating to the death penalty in class that I would eagerly give more time and attention in this forum.  Absent suggestions, I will share (and enhance) items from my inbox of interest.  Today, this involves this great new article from The Appeal: Political Report headlined "Cincinnati Is An Epicenter For The Death Penalty. Its Prosecutor Race Could End That In November." 

Though the piece covers lots of ground, the subheadline of the piece highlights its main focus: In Hamilton County, Joe Deters has sent more people to death row than any other prosecutor in Ohio. His challenger, Fanon Rucker, promises to stop that practice."  I highly recommend this lengthy article because it provides lots of background (and links) on the current state of the debate over capital punishment in the Buckeye State while also noting/quoting a wide array of interesting "whos" involved in this debate.  Here is just one of a number of notable passages:

“Things have shifted in the last two years, now we’re focused fully on repeal,” said Hannah Kubbins, the state director at Ohioans to Stop Executions.  Kubbins doesn’t expect much movement on the issue this fall because of the coronavirus pandemic, the lame duck session, and the presidential election.  But she says advocates are gearing up to push through a repeal bill in the next legislative session.

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association declined to comment for this story, but said in February that “we’re disturbed” by discussions of repealing the death penalty.  A month earlier Tobin said, “All of the challenges that we see to the death penalty right now will switch to life without parole.  And the next thing you know we won’t have life without parole either.”

Kubbins, who emphasized that her nonprofit organization does not endorse candidates, said prosecutors and prosecutor associations “oppose any reform that could reduce their power.”  She urged voters to pay attention to their county prosecutor races, and to consider how county resources spent on the death penalty could be redirected toward unsolved crimes.

Rucker told the Political Report he would be “very willing to offer my voice of advocacy” for statewide repeal of the death penalty.  “Justice demands consistency and it’s not consistent to have such overwhelmingly differing ends of punishment in a system that says it’s about treating all fairly regardless of their background,” he said.

I am not sure I entirely understand this last quote from Rucker, but earlier in this article he more directly explains his support its abolition: "'I would absolutely support repeal of it because our Supreme Court has identified, and folks across the country have realized, it’s ineffective, inefficient, and certainly there are arguments about the immorality as well,' Rucker told The Appeal: Political Report."  (I am not sure which Supreme Court Rucker is referencing here, but maybe he is thinking about this Ohio Supreme Court 2014 Task Force report to which I had the honor of contributing.)

Interestingly, I noticed on this Issues page of "Fanon Rucker for Prosecutor" that there is no mention of the death penalty.  There is this promise: "Our office will aggressively pursue and put a significant amount of financial resources to the prosecution of those who physically harm children, the elderly and loved ones."  But apparently Rucker will not (ever?) consider pursuing a capital prosecution to that end.

Meanwhile for a broader and more comprehensive look at the modern death penalty in the Buckeye state, I also highly recommend the latest version of the Ohio Attorney General's annual report on the death penalty, the 2019 Capital Crimes Annual Report.  This document (which is nearly 400 pages long) gets updated on April 1 each year, and it provides information and a procedural history on each and every case that has resulted in a death sentence in Ohio since 1981.  This webpage provides this statistical summary:

According to the report, from 1981 through 2019, a total of 143 death sentences remained active including those currently pending in state and federal courts.  In 2019, six individuals received a total of seven death sentences and were added to death row. 

Since 1981, Ohio has issued a total of 340 death sentences.  A total of 56 death row inmates have been executed under Ohio’s current law since 1981.  Over the same period, a total of 21 death row inmates have received a commutation of their death sentence to a sentence less than the death penalty.

Last but not least, the Fall 2019 issue of the Ohio State Journal of Criminal Law included a bunch of original article authored by notable folks about the death penalty in the Buckeye State and elsewhere.  Of particular note and interest is this short piece by former Ohio Supreme Court Justice Paul Pfeifer titled "Ohio's Modern Death Penalty — From Architect to Opponent."  Here is its first sentence, and a line from near the end of the piece that reminded me of some language in McGautha:

Ohio's death penalty statute has, in practice, resulted in a "death lottery" that should be abandoned....

It is unevenly applied by prosecutors, juries, judges, and the Supreme Court — not out of malice or malfeasance, but because measurement and calibration are impossible.

A claim that deterrence impact might make the death penalty morally required

I mentioned in class that I think conclusive evidence that executions saved (or cost) innocent lives would be a game-changer in capital punishment debates.  Some years ago, Professors Cass Sunstein and Adrian Vermeule authored a provocative article suggesting that deterrence evidence might make the death penalty morally required for state actors seriously concerned with the sanctity of human life.   Here is a link to this article and its abstract:

Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703 (2005):

Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect.  But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.  The familiar problems with capital punishment -- potential error, irreversibility, arbitrariness, and racial skew -- do not require abolition because the realm of homicide suffers from those same problems in even more acute form.  Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.   The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.  The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

If you like digging into social science research, the modern empirical debate over the death penalty should be informed by a collection of some data-crunching on the deterrent effect of capital punishment available via this page assembled by the Criminal Justice Legal Foundation.  Notably, CJLF is supportive of the death penalty; the Death Penalty Information Center is opposed to the death penalty, and it has this webpage criticizing the studies appearing on the CJLF's page concerning deterrence.

Readings for heading into the capital sentencing world

Next week, 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 mostly here online.  If requested, I can provided hard copies in class, and here are the electronic versions:

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.) 

For the first week(s) of discussion, we will be giving the sleeper case of McGautha and the historic case of Furman a lot of attention.   Though only small portions appear in the Chapter 3 excerpt, I think the full McGautha and Furman are worth reading (or at least skimming) if you find constitutional history and/or death penalty procedure really interesting. 

The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.  The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our edited excerpt aspires to provide strategic highlights from each of the nine(!) opinions.  I will ask you in class to discuss which of the nine opinions you would be most likely to join, so you might want to read the full version of the one opinion you find most appealing from the Chapter 3 excerpt.

Some data on mandatory minimums in the federal sentencing system ... UPDATED with new report with disconcerting (new and old) data

I reviewed a lot of SCOTUS jurisprudence (too) quickly in class today, and I will be eager to talk about all the who, why and how in cases like Blakely and Booker and others as folks see fit.  But, especially because of their enduring importance in modern debates about sentencing policy and practice, I also want to make sure we get to talk about mandatory minimums.  To get the conversation started, here are some general data about mandatory minimum penalties in the federal sentence from this Quick Facts document by the US Sentencing Commission (USSC):

26.1% of all cases carried a mandatory minimum penalty. 

Of all cases carrying a mandatory minimum penalty:
-- 72.7% were drug trafficking;
-- 5.4% were firearms;
-- 4.8% were child pornography;
-- 4.6% were fraud;
-- 4.4% were sexual abuse.

44.3% of offenders convicted of an offense carrying a mandatory minimum were relieved of the penalty because:
-- 21.8% received relief through the safety valve provision;
-- 15.9% provided the government with substantial assistance;
-- 6.6% received relief through both.

The average sentence length was:
-- 141 months for those subject to the mandatory minimum;
-- 61 months for those receiving relief;
-- 24 months for offenders who were not convicted of an offense carrying a mandatory minimum.

I mentioned in class how federal prosecutors can impact the application of mandatory minimums through their charging authority, and the child pornography statutes provide an especially interesting example of how this can work. In this 2012 Report to Congress, the USSC noted:

The Commission’s review of over 2,000 non-production cases has demonstrated that the underlying offense conduct in the typical case in which an offender was prosecuted for possession [with no mandatory minimum] was indistinguishable from the offense conduct in the typical case in which an offender was prosecuted for receipt [with a five-year mandatory minimum].  Yet the Commission’s analysis of §2G2.2 cases from fiscal year 2010 revealed significant unwarranted sentencing disparities among similarly situated offenders based in large part on whether they were charged with possession or receipt.  For these reasons, the Commission recommends that Congress align the statutory penalties for receipt and possession.  There is a spectrum of views on the Commission, however, as to whether these offenses should be subject to a statutory mandatory minimum penalty and, if so, what any mandatory minimum penalty should be.  Nevertheless, the Commission unanimously believes that, if Congress chooses to align the penalties for possession with the penalties for receipt and maintain a statutory mandatory minimum penalty, that statutory minimum should be less than five years.

And here are the latest USSC data in this arena from this Quick Facts document:

The average sentence for offenders convicted of receiving child pornography was 96 months:
-- 90.5% of offenders sentenced for receiving child pornography were convicted of an offense carrying a five-year mandatory minimum penalty; their average sentence was 87 months.
-- 9.5% had a prior sexual abuse or child pornography conviction and were subject to a 15-year mandatory minimum penalty; their average sentence was 185 months.

The average sentence for offenders convicted of possessing child pornography was 68 months:
-- 80.1% of offenders were convicted of an offense not carrying a mandatory minimum penalty; their average sentence was 53 months.
-- 19.9% had a prior sexual abuse or child pornography conviction and were subject to a 10-year mandatory minimum penalty; their average sentence was 129 months

Other areas of particular import and interest in the application of mandatory minimums in the federal system arise in the drug and firearm settings.  Here are USSC Quick Facts on firearm and on drugs and some notable data points:

The average sentence for all felon in possession of a firearm offenders was 64 months.
-- The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 188 months.
-- The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 58 months.

The average sentence for drug trafficking offenders was 77 months, but varied by drug type.
-- 96.4% were sentenced to prison.
-- 65.6% were convicted of an offense carrying a mandatory minimum penalty; 57.6% of those offenders were relieved of that penalty.

The prestigious Council on Criminal Justice released this big report last month on the federal criminal justice system with 15 recommendations, and its second recommendation reads as follows: "Congress should eliminate mandatory minimum sentencing laws for all drug crimes and consider eliminating non-drug mandatory minimums while refraining from enacting any new mandatory minimums pending study."

UPDATE on September 9:  I just got an email spotlighting this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  It is a very long report covering lots of ground and data, but it includes this helpful summary of one key finding and other research quite relevant to our discussions (I have left in footnote numbers, but you will need to click through to see sources):

Taken together, the analysis above indicates that cases involving offenses that carry mandatory and statutory minimum sentences contribute to the disparities we see in incarceration length for people of color.  Defendants of color are more likely to face charges that carry mandatory incarceration time, and these more serious and high-risk sentencing possibilities translate into plea deals that are more likely to involve incarceration and longer sentences.  Further, existing mandatory minimums are rarely applied in cases involving charges commonly faced by White defendants, such a subsequent OUI offenses.

Our findings are consistent with other studies that find that Black and Latinx people are disproportionately impacted by more severe charging decisions.80  A study of the federal system found that racial disparities in how prosecutors charge people with offenses carrying mandatory minimum sentences were a major driver of sentencing length disparities.81  Similarly, a study of racial disparities in the Delaware criminal system attributed the significant racial disparities in incarceration sentence lengths primarily to differences in charge types and the seriousness of charges.82  In addition, numerous studies have found racial and ethnic disparities in prosecutor decisions to seek sentencing enhancements, such as decisions to designate people as “habitual offenders”83 and decisions to pursue charges that require mandatory minimum sentences.84  For example, a study of the exercise of prosecutorial discretion to bring charges carrying mandatory minimum sentences in Pennsylvania found that Latinx people in the criminal system were nearly twice as likely to receive a mandatory sentence as White people in the criminal system.85  Another study found that federal prosecutors charged cocaine weight amounts that “bunched” just above the threshold to trigger a mandatory minimum sentence more often for Black and Latinx defendants than for White defendants.86   After the Supreme Court required prosecutors to meet a stronger evidentiary threshold for drug amounts, the practice of bunching declined, indicating that prosecutors were previously claiming drug amounts that could not withstand scrutiny.87

Thoughts about a sentencing system that gives crime victims the chance to set forth a "presumptive" sentence?

As briefly mentioned in class, there have been waves of "victims' rights" movements that have sought to ensure crime victims have a more prominent role in the criminal justice process.  The latest wave has come in the form of a ballot initiative known as Marsy's Law, which has been approved by voters in 14 states.  In November 2017, Ohio voters passed Marsy's Law which enshines in our state constitution that victims have, inter alia, the right "to speak in public proceedings involving the accused’s release, plea, sentencing, disposition or parole."   Moreover, the modern restorative justice movement has often be motivated by and grounded in a view that victims are often poorly served by traditional adjudicatory and sentencing processes.  See, e.g., Lara Bazelon & Bruce A. Green, Victims’ Rights from a Restorative Perspective, 17 Ohio State Journal of Criminal Law 293 (2020)  And lots of restorative justice models are very "victim-centric."

So, with an eye to giving victims not just a voice but also a vote in the sentencing process, what would you think of a proposal that victims get a chance to set forth a "presumptive" sentence for consideration by a judge at sentencing?  Procedurally, this might be operationalized by giving a victim (perhaps with the help of a probation officer) a chance to prepare for the sentencing judge a "victim sentencing report" (VSR) --- which would be submitted to the judge before sentencing and be in addition to a traditional presentencing sentencing report --- and then instructing a judge that they can and should sentence in accord with that report's recommendation unless they can provide a reasonable basis based in punishment theory for giving a different sentence. 

Does the text or spirit of the US Constitution favor or prioritize any particular theory of punishment? Any special "who"?

As I mentioned briefly in class, and as will be useful as we turn to some famous and consequential Supreme Court rulings, I am eager for you to start giving thought to whether the text or spirit of the US Constitution favors or prioritizes any particular theory of punishment or any particular "whos" in a sentencing system.

Of course, there are lots of provisions of the US Constitution that might be considered in this discussion.  But this abridged set of provisions can usefully get this 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."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."

Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

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