Sentencing Class @ OSU Moritz College of Law

How should overdose deaths factor into any sentencing of the "offense" of drug distribution?

CLASS LOGISTICS REMINDER:  On Nov 3, we will have an election day optional on-line Zoom class; I'll be on Zoom at the usual time for an unstructured discussion of how the 2020 election could impact sentencing matters (some noted here); on Nov 5, we will have an in-person regular class (perhaps about election results and) finishing up discussion of "the crime" at sentencing.  The materials below will help inform some of that discussion.

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I briefly mentioned the modern rise in so-called "drug-induced-homicide" (DIH) prosecutions when quickly overviewing the challenges of figuring out the "offense" for purposes of sentencing.  I referenced the work of the Heath in Justice Action Lab at Northeastern University School of Law, which has created this great resource about these prosecutions describing the issue and some of its data analysis:

Under pressure to respond to the nation’s fatal overdose crisis, prosecutors are increasingly treating accidental overdose deaths as homicides. 

We compiled news reports of “drug-induced homicide” (DIH) prosecutions nationwide, using big data analytics tools.  In contrast to the stated intent to target major drug traffickers, our preliminary analysis found that a majority of prosecutions are being brought against individuals who do not fit the characterization of a “dealer” at all, such as friends, family, and co-users of the overdose decedent.

In cases that do involve organized drug distribution, the defendants are typically low-level dealers, with a disproportionate number of charges being brought in cases where the victim is white and the dealer is a person of color.  Racial bias is also evident in the gaping disparity of the sentences being handed down to DIH defendants of color: a median of nearly nine years, contrasted to five years for whites.  

These disconcerting data do not even highlight how where a drug defendant is prosecuted can matter more than whether a defendant actually faces a formal homicide charge.  For example, under Ohio law, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 16.5 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP if "death or serious bodily injury results from" a distributed drug under 18 USC § 841(b)(1)(A)–(C). 

Whether prosecuted in state court or federal court, a defendant facing homicide charges or a specific mandatory minimum sentence based on the fact of a resulting death can hope a prosecutor will not be able to prove to a jury beyond a reasonable doubt that there is a sufficient causal link between a distribution offense and an overdose death.  But even if an overdose death is not raised or proven by prosecutors prior to sentencing, it is common for prosecutors to discuss alleged community harms caused by a drug defendant's distribution activities and judges can also hear from families of overdose victims at sentencing. 

Should any associated harms to drug users and their family members be relevant when a judge exercises sentencing discretion in a drug distribution case regardless of whether formal charges are brought concerning overdose deaths?  Shouldn't sentencing judges reasonably view dealing drugs like fentanyl that are more likely to result in accidental overdoses as more serious than dealing, say, marijuana or cocaine or even prescription opioids?

As I also briefly mentioned in class, I was part of a group of law professors that late last year asked the Ohio Criminal Sentencing Commission (OCSC) to conduct "a public examination of the use of homicide charges in accidental overdose cases throughout the state
and their impact on public safety and the opioid crisis."  You might find the letter we sent to OCSC and the written response it generated from Ohio Prosecuting Attorneys Association of interest:

Open Letter to the Ohio Criminal Sentencing Commission

Letter from Ohio Prosecuting Attorneys Association

Response to letter from Ohio Prosecuting Attorneys Association

 

Some (of many) older posts on this topic from my main blog:

• "America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane" 
• Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death 
• "Heroin, Murder, and the New Front in the War on Drugs"
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

Reviewing the (tentative) choppy class plans for weeks ahead

As I mentioned in class, over the next few weeks we will have a somewhat "choppy" schedule as we start diving deeply into "Sentencing Inputs" (starting "The Crime" and then "The Criminal" readings as listed on our syllabus).   For clarity and planning purposes, here is what I am (tentatively) expecting to cover our in time together:

 

Tuesday, Oct 27: In-person regular class about "the crime," discussing Watts (previewed here) and victim impact 

Thursday, Oct 29: pre-election class off, potentially, if folks keep reporting time spent on other class-related activities (more opportunities here) or if you pledge to use the time to vote or help others vote

UPDATE: Enough folks reported enough extra hours, so class on Oct 29 is OFFICIALLY CANCELLED.  Use this extra time well to stay healthy and to gear up for an exciting November to come!

 

Tuesday, Nov 3: election day optional on-line Zoom class.  I will be on Zoom at usual time to have unstructured discussion of how the election could impact a range of federal and state and local sentencing stories (some noted here).  Also, that morning brings SCOTUS oral argument in Jones v. Mississippi, which I believe can be listened to live thanks to our COVID world.

Thursday, Nov 5: In-person regular class perhaps about election results and certainly finishing up discussion of "the crime"

 

Tuesday, Nov 10: Guest lecture by Jonathan Wroblewski, Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice.  There will be some special reading for this class, which I will post next week.

Thursday, Nov 12: In-person regular class beginning our review of "the criminal" at sentencing

 

As I mentioned in class, because there are too many great hard "Sentencing Input" issues for us to cover them all, I would be particularly eager to hear from you about any issues you might be especially eager to discuss.  I expect everyone to do the readings from the text that are set forth in our syllabus, but I would urge everyone to scan quickly through all the contents of Chapters 4 and 5 to see if any particular issues or problems in those chapters really pique your interest.

Just what is "acquitted conduct" sentencing and is it a really big problem or really no big deal?

To start the final week of October, we will turn to discuss the (insufficiently 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.  I would like us in class (and here in the comments) to explore just what "acquitted conduct" is and whether it should be a big concern.  As I will note in class, the Michigan Supreme Court last year grappled with this issue (as noted here) and decided that "once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime."  The state of Michigan appealed this ruling to SCOTUS, but (as noted here) the Supreme Court declined to reconsider this issue.

Watts was a federal sentencing case, and it bears remembering that US Sentencing Commission or Congress could seek to preclude the use of "acquitted conduct" as a matter or guideline or statutory rule for the federal system.  In fact, just last year, 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, 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 need we worry that prosecutors will move to dismiss charges mid-case in order to avoid limits on sentence enhancements for acquitted conduct)?

Why do you think this bill was not introduced until 2019, more than two decades since Watts?  Why do you think this bill, despite having notable bipartisan support, has not yet made any progress in Congress?  Is it important to have this issue prioritized in future federal sentencing reform bills or do you consider this matter of only marginal concern?

Additional video content for "earned time" opportunities

I am hopeful that all the videos of all the speakers and panels from last week's NACDL conference, Prison Brake: Rethinking the Sentencing Status Quo​, will be available on-line before too long.  In the meantime, any and all students who would like to "earn" some more class time credits should consider checking out some slightly older video content that just became available online.

Specifically, this summer, the Drug Enforcement and Policy Center (DEPC) co-hosted a series of workshops in collaboration with the National Association of Sentencing Commissions (NASC) and the Ohio Criminal Sentencing Commission (OCSC).  The series brought together leaders from sentencing commissions, the judiciary, and academia.  Workshops focused on the role of sentencing commissions in advancing criminal justice reform in times of change, the impact and importance of criminal justice data, and efforts in Ohio to create a unified sentencing entry.  All of the workshops are linked on this DEPC page, and here are brief accounts of each of the three workshops with direct links to the videos (via the titles):

The Work of Sentencing Commissions in Time of Change

Recorded June 25, 2020 | In collaboration with NASC

Panelists:

Judge Stephen L. McIntosh, Franklin County, Ohio and member, Ohio Criminal Sentencing Commission
Meredith Farrar-Owens, director, Virginia Criminal Sentencing Commission
Mark H. Bergstrom, executive director, Pennsylvania Sentencing Commission
Kelly Lyn Mitchell, chair, Minnesota Sentencing Guidelines Commission

 

The Power of Data: Impact on Criminal Justice Reform

Recorded July 28, 2020 | In collaboration with NASC

Panelists:

John Pfaff, professor of law, Fordham University
Anne Precythe, director, Missouri Department of Corrections
Michael Schmidt, executive director, Oregon Criminal Justice Commission; incoming District Attorney, Multnomah County

 

Creating a Felony Sentencing Database: Moving Ohio Forward

Recorded August 17, 2020 | In collaboration with OCSC

Panelists:

Judge Pierre Bergeron, First District Court of Appeals
Douglas A. Berman, executive director, Drug Enforcement and Policy Center, The Ohio State University Moritz College of Law
Associate Justice Michael Donnelly, Supreme Court of Ohio
Judge Ray Headen, Eighth District Court of Appeals
Ryan King, professor and chair, Department of Sociology, The Ohio State University College of Arts and Sciences
Judge Gene Zmuda, Sixth District Court of Appeals

For any of these videos, you are advised to fast-forward through my introductions and get to the array of interesting and diverse "whos" providing their distinct perspectives on these topics. And if you only have time to watch a little bit of these lengthy videos, I would especially recommend the first part of the "Power of Data" video in order to hear Professor John Pfaff rant for 10 minutes about how truly terrible our criminal justice data is across just about every metric.

And remember, if and when you spend any time watching these video or are involved other similar class-relevant activities, be sure to log your hours and loop me in.

Reminder: class today (10/20) is online and involves watching panels at NACDL "Prison Brake" symposium

As I have mentioned a few times in class (and in prior postings), today there is no in-person usual class, but you all should be watching live all week as much of Prison Brake: Rethinking the Sentencing Status Quo​ as possible.  And today (October 20), there are two great symposium panels during the time of our class (one I moderate starting at 2pm), and I highlight recommend tuning in starting at 1:30pm to hear the great Paul Butler.

I have been told by the organizers of this NACDL conference that all the sessions are being recorded and will be made publicly available in the not-too-distant future.  So, even if you are not able to watch many of the panels live, expect to see in this space before too long a link to the recordings for later watching (and mini-paper material).

I will be back in our usual space for class on Thursday (10/22), and I will be eager to start our next regular class by hearing reactions from students to any parts of the NACDL "Prison Brake" symposium.  Reactions can also begin in the comments here.  (We will also spend much of Thursday discussing the FIRST STEP Act, which is the subject of one of today's panels AND overviewed in this class posting.)

UPDATE:  There is a collection of written materials from the NACDL conference (including a huge set focused on the FIRST STEP Act) available in a dropbox link here.  Feel NO obligation to look at these materials, but you might find some of interest.

Some FIRST STEP Act basics and thoughts about possible next steps

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by Prez Trump into law on Dec. 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 relatively small modification to the federal criminal justice system.  Among the good questions we will explore in class is whether the FIRST STEP Act is a very big deal or much ado about very little.

Because lots of disparate provisions got rolled into the FIRST STEP Act with lots of different mandates or changes for lots of different parts of the system, it is hard to readily summarize all the Act's many elements or to effectively track its overall impact. The Congressional Research Service has 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.

As is true for many legislative reforms, the impact of the FIRST STEP Act is being shaped by many "whos" other than Congress.  How the US Sentencing Commission, the US Department of Justice and courts implement and respond to new sentencing law can often matter as much or more than statutory particulars.  One persistent question for advocates of major federal sentencing reforms is whether to now seek to amplify the impact of FIRST STEP Act by focusing on other "whos" or to pursue additional statutory reforms from Congress.  What advice might you give on this "who" front to the director of a new criminal justice group?  Do you think your advice on this front could change after Election Day?  

Though the FIRST STEP Act is now nearly two years old, we are now only starting to get a sense of its impact.  Helpfully, US Sentencing Commission a few months ago produced this big intricate data report (and this infographic) detailing the impact of the FIRST STEP Act over the period it calls “First Step Year One” running from Dec 21, 2018 to Dec. 20, 2019.  Importantly, this document only examines key sentencing provisions and not all the bigger prison reforms and various other elements of the First Step Act.  Helpfully, the federal Bureau of Prisons and the National Institute of Justice have useful webpages about the FIRST STEP Act focused on the work these agencies are doing under the Act that are focused more on the prison-reform piece of the FIRST STEP equation.

The COVID pandemic, which has impacted federal criminal justice enforcement in many ways known and unknown, has made certain provisions of the FIRST STEP Act especially important (e.g., the new "compassionate release" rules) and other provisions harder to implement (e.g., the prison programming plans).  Especially because of the extra COVID complications, if you are interested in really digging into any aspect of the FIRST STEP Act (for mini-paper 5 or for any other reason), I would urge you to consider focusing on just one particular provision and maybe even just one "who" working to apply or implement that provision. 

As I mentioned in class, both Prez Trump and former VP Biden has spoken about there interest in supporting additional sentencing reforms in Congress.  We will be sure to talk in class about what kinds of reforms you would be eager to champion if (and when?) Congress turns back to sentencing reform in the (near?) future.

Watch a lot of NACDL's Prison Brake, and I will respond with a class break

As I have mentioned a few times in class (and in prior postings), next week is full of exciting online events.  Specifically:

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

As I have also said a few times, I encourage everyone to "log" or "bill" any and all extra hours you spend watching class-relevant programming outside our class. And, in addition to having mini-paper #4 possibly based on reactions to the NACDL event, I want to provide an extra incentives to attend a lot of "Prison Brake": if enough students watch an extra hour or two of the NACDL conference, I will cancel class on Thursday, October 29.  Remember, I expect you to try to watch the panels that are taking place during our normal class hour on Tuesday, but extra time watching that day or others should be "logged" or "billed" and sent my way via email.

In addition to great NACDL panels, next week also has the 10th Annual Bodiker Lecture on Criminal Justice, featuring Aya Gruber, Professor of Law at the University of Colorado, who will discuss her book titled "The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration."  Attending the Bodiker lecture can also "count" in the class substitution offer!

Reviewing again how mandatory minimums impact (and distort) the federal sentencing system

In this post from last month, back when we were focused on "whos," I highlighted some data on mandatory minimums in the federal sentencing system.  Back then, we were talking somewhat generally about how prosecutors garner sentencing power from mandatory minimum sentencing statutes.  Now that we are working through the sentencing of Rob Anon, we can focus with even greater particularity on how one of these statutes, 18 U.S.C. § 924(c), can operate to put federal prosecutors into a powerful position in the application of all facets of the federal sentencing system.

Notably, way back in 1991, only a few years into the functioning federal sentencing guideline system, the US Sentencing Commission wrote this lengthy report explaining why mandatory minimums undermined many of the goals of guideline reforms.  And in 2011, the Sentencing Commission wrote another lengthy report detailing lots of problems with mandatory minimums in operation.  And yet, mandatory minimums persist in the federal system.  And this USSC Quick Facts details that the number of § 924(c) offenders has grown considerably in recent years.

If you are interested in some background on, and lot of information about litigation surrounding, 924(c) offenses, this 2015 Congressional Research Service report is effective.  And this 2020 Firearm Primer from the USSC also has some coverage of 924(c) caselaw.  Feel no obligation to review these long documents, but do take note of how much law surrounds just one small part of a federal sentencing system now filled with law.

UPDATE: Especially because we are going to focus on prosecutoral power in conjunction with one federal firearm law, I found this new Columbus Dispatch article especially interesting and timely.  The piece is headlined "Harsher federal charges to be sought to help combat deadly Columbus gun violence," and here are excerpts (with my bolding added):

U.S. Attorney David DeVillers said Wednesday he hoped to bring "shock and awe" to criminals committing gun violence on Columbus streets with a focused effort on getting harsher sentences for those who have firearms illegally.  "We want this to be a warning, we want this to be a shock and awe to the people committing these violent crimes and firearm offenses," he said.

The effort will focus on two Columbus neighborhoods that have been hot zones for gun violence — Linden and the Hilltop — and on charging defendants in federal court with crimes that have harsher sentences than what state law can provide.

The federal prosecutor announced the initiative Wednesday alongside partners Columbus police Chief Thomas Quinlan, Roland Herndon, special agent in charge of the Bureau of Alcohol, Tobacco and Firearms Columbus field office; Franklin County Prosecutor Ron O'Brien and City Attorney Zach Klein.  The announcement occurred as The Dispatch completed the final day Wednesday of a four-part series on the rising gun violence in the city.

Herndon said of the 126 homicides this year in Columbus as of mid-afternoon Wednesday, 100 have been the result of gunfire and 18% of those have been juveniles. He said there have been an additional 440 non-fatal shootings in 2020. "Our youth, our future," Herndon said. "We cannot stand for that anymore."...  Authorities will not seek federal charges against juveniles, but will aim to charge any adults that provide them with guns.

The initiative will involve dedicated attorneys from the city attorney, county prosecutor and U.S. Attorney's offices focusing on identifying convicted felons in possession of firearms, those providing guns to juveniles in order to commit crimes, possessing weapons with filed-off serial numbers, and other firearms offenses, such as misdemeanor domestic violence offenders possessing guns.

Klein said his office has seen a 250% increase in the number of domestic violence cases involving firearms. “Gun violence in our community is creating fear, ruining lives, and in far too many situations, taking lives," he said in a prepared statement later. “Think about the innocent bystanders, especially children, whose lives change in an instant due to gunfire and violence."

DeVillers said his office will be freezing work on other types of cases, such as immigration and white-collar crime, to focus on firearms crimes and violence. "We are going to take every single gun crime and federal violent crime we can take," he said. "It’s not bravado, it’s a warning."

O'Brien said he was "excited" and "thrilled" to be a part of the initiative, which can add additional prison time to sentences locally with the way crimes are charged in each court. "We will show the thugs on the street that we mean business," O'Brien said.

DeVillers said the program will be reevaluated every 90 days to see what is working and determine success, which will be measured in part by decreases in shootings and homicides. 

Some resources for sentencing Rob Anon under the modern federal sentencing guidelines

As I have emphasized in our recent classes, much of the rest of our time together will have us discussing non-capital (and mostly federal) sentencing policies and practice after modern guideline reforms.   As we turn to sentencing Rob Anon under the modern federal sentencing guidelines, I would 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 on how hard this can be for novices).  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 guideline sentencing help, you can turn to these links which take you directly 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 worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

• Worksheet for Individual Offenders

In 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."

Watching the Eastern State Penitentiary video and thinking about other (in)famous US prisons past and present

As mentioned last week, Tuesday's class is to be devoted to the history of early prisons in the United States as told through a 53-minute documentary titled simply "Eastern State Penitentiary."  My savvy daughter astutely mentioned to me today that, in this Zoomy world, students might prefer watching this video on their own rather than being "forced" to watch it during the class hour.  If this is true, I wanted to provide this link to the full 53-minue documentary.  Assuming I can get the technology to work, I am still planning to show this video in class on Tuesday.  But you are welcome to watch at your pace (or again) as you see fit.

In this post (and a bit in class), we might talk further about Eastern State Penitentiary or more generally about the reality that time in jail or prisons is now something of a modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website.  In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America.  A number of notable Ohio-centric stories are to be found within in the history, as documented by this book entitled "Central Ohio's Historic Prisons."  That book is summarized this way:

With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States."  The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class."  However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.

The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now this historic site.   And if you are ever looking for some web-surfing fun, check out these additional links to some good sites about some of the United States' most (in)famous prisons:

• Alcatraz
• Missouri State Penitentiary
• West Virginia Penitentiary 

Though we will not discuss prison history or prison practices too much in the week ahead as we shift into a discussion of sentencing law and the (non-capital) sentencing process, I start this unit with these materials because I think it important that everyone keep thinking about both the theory and practices of imprisonment as a form of punishment as we get into the nitty-gritty of modern sentencing doctrines.

In addition, if you are really interested in any aspects of the realities of prison past or present, so many aspects of prisons would make for great final paper topics.  And if you just want to spend time watching videos about prison realities, check out these links:

• TED talks about life in prison
• A (supposed) list of "Must-See Prison Documentaries"

As always, I welcome tips for other viewing (or reading) in the comments.

Preparing to sentence Rob Anon before (and later after) the enactment of the federal sentencing guidelines

As stressed in class, much of the rest of the semester is going to explore 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 sentencing realities faced in sentencing Rob Anon — whose crime and history appear in short form at pp. 205-06 of our text.  We will be exploring the sentencing of Rob Anon in multiple eras: (1) in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text), then (2) in a pre-Booker mandatory federal guideline sentencing world, and then (3) in a post-Booker advisory federal guideline sentencing world.  (For historical reference, era 1 in federal sentencing extended from about 1910 to 1989, era 2 extended from 1989 to 2005, and era 3 has run from 2005 to the present.) 

We will not get started on these topics in earnest until Thursday of this coming week (because we will be watching a documentary on prison history on Tuesday).  But it is not too early for you to get started on thinking about sentencing Rob Anon the pre-reform system, especially because doing so should deepen your appreciation for some of the comments and criticisms of Judge Marvin Frankel about this system (which are required reading and appear in our text at pp. 126-131).

So, imagine yourself as a federal district judge in 1972 presented with the Rob Anon case for sentencing.  The only key legal concerns for you as a federal judge sentencing circa 1972 are (1) that Rob Anon's statutory sentencing range is 0 to 25 years in federal prison (see  18 U.S.C. § 2113(d)) and 0 to $250,000 in a fine (see 18 U.S.C. § 3571(b)(3)), and (2) that federal parole officials will have complete discretionary authority (but absolutely no requirement) to release Rob Anon after he has served at least one-third of whatever sentence you impose.

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) world.  You need not yet (and I suggest you do not yet) try to sentence Rob Anon under post-reform (pre- or post-Booker) modern federal sentencing laws.  After we have had a chance in class to talk about your experiences and judgments concerning Rob Anon's sentencing circa 1972, then I will give you guidance and help in sentencing him under modern federal sentencing laws and guidelines.

UPDATE:  I am now able to post below here a form/questionnaire for working through the pre- and post-guideline sentencing of Rob Anon.  I will talk more about this form and about the guideline part of the exercise in our coming class and in future blog posts.  But, if you want to get a running start, I will be grateful if you can use this form to work through the sentencing exercise(s) in the coming weeks. 

Download 2020 Guidelines exercise

Some deep thoughts about how diverse experiences with prison might impact justifications for prison punishments

As I mentioned briefly at the very end of class, I fear that prison punishment (and especially diverse prison experiences) can often be "under-theorized" in our discussions of criminal justice systems and proposals for reform.  One article that has long influenced my thinking on these matters was Adam J. Kolber, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009) (available here).  Here is this provocative article's abstract:

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility.  I argue that they have identical punishments in name only.  One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it.  Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.

I make two central claims: First, a successful justification of punishment must take account of offenders’ subjective experiences when assessing punishment severity.  Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner.  Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly.  In civil litigation, we often make assessments of emotional distress.  Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now.

I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness.  I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

Lots of folks have had lots of reactions to Kolber's arguments, and one notable response is Kenneth W. Simons, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 Colum. L. Rev. SIDEBAR 1 (2009) (available here).