Sentencing Class @ OSU Moritz College of Law

A final (too brief) foray into what metrics and data matter for assessing a sentencing system

After our first few weeks of class discussing theories of punishment, you likely recall that we never reached any kind of firm conclusive resolution as to what goals a sentencing system must or should pursue.  For that reason (and others), it should not be a surprise that there is no firm conclusive view of what metrics or data matter most for judging a sentencing system or the criminal justice system more generally.  But this is not for lack of possible options, and here I will list some broad categories and sub-categories for you to consider as possible data points of greatest interest or concern for a sentencing system:

CRIME

• Overall crime rates and/or total crimes (per year or over an extended period)
• Violent crime rates and/or total violent crimes
• Murder rates and/or total murders

ARRESTS

• Overall total arrests (per year or over an extended period)
• Arrest rates relative to crime rates
• Arrests for certain crimes

CONVICTIONS

• Total convictions, felonies and misdemeanors (per year or over an extended period)
• Conviction rates relative to crime rates or arrest rates
• Conviction rates for certain crimes

SENTENCES IMPOSED

• Total sentences for many types of punishments (death, prison, jail, probation, fine)
• Prison/jail sentences for more any crimes
• More severe sentence of death, life or more than, say, 20 years in prison

PRISON, JAIL, SUPERVISION POPULATIONS

• Total persons in prison, jail. supervision at one snapshot in time
• Total persons in prison, jail. supervision over a year or longer
• Total persons in prison, jail. supervision for certain crimes

RECIDIVISM RATES

• Persons arrested within one year (or 5 or 10 years)  after arrest
• Persons sentenced for a new crime within one year (or 5 or 10 years) after release from custody
• Persons convicted of a new serious crime within one year (or 5 or 10 years) after prior CJ contact

CRIMINAL RECORDS AND COLLATERAL CONSEQUENCES

• All persons ever subject to arrest/conviction
• All persons who see or secure record relief from a prior conviction
• All persons receiving longer sentences due to criminal past

FINANCIAL/SOCIAL COSTS

• Total expenditures by governments on entire criminal justice system
• Total expenditures by governments on prisons and jails
• Social/human costs (and benefits) from interactions with criminal justice system

I could go on and on, but I am sure you get the idea and that you can now reflect a bit on how many different possible sentencing "outputs" could  be a focal point for data collection, review and analysis.  This is the broad topic I am eager for us to cover in our last few classes, and I especially want to highlight that this long list of possibilities does not begin to engages various social justice issues — e.g., should we focus on "output" numbers in any or all of these categories particularly for people of color?  for women?  for juveniles?  for persons with mental illness?  for veterans?

We can perhaps start the discussion here in the comments, but know I will be asking you in our final classes to share your views on these issues through this particular question: What two of three metrics or data points should the incoming Biden Administration give special and sustained attention to in the coming months and years?

Are there any "offender characteristics" that you think must be considered at sentencing? If so, how?

As we continue digging into the challenging and dynamic topics of offender characteristics at sentencing, I urge you to think about what offender characteristics should or must always be considered at federal sentencing with two particular "whos" in mind: the US Sentencing Commission and US District Judges.  

The challenge for the USSC 

You should closely review Problem 5-4 in the text and the notes that follow (pp. 322-26).  You will see that Congress in the Sentencing Reform Act of 1984 instructed the USSC to consider the "relevance" of various offender factors at sentencing (and only declared a few factors like race and sex and socio-economic status off-limits).  In other words, Congress gave the Sentencing Commission considerable discretion to include various offender factors in guideline calculations, but the USSC has historically deemed nearly all offender factors — such as "disadvantaged upbringing" and "drug or alcohol dependence" and "education and vocational skills" and "employment record" and "family ties and responsibilities" — as either "not relevant" or "not ordinarily relevant" at sentencing.

Notably, in a 2014 law review article, a former Chair of the US Sentencing Commission, US District Judge William Sessions, criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct."  In his article, titled "The Relevance of Offender Characteristics in a Guideline System," Judge Sessions asserted that the "Commission needs to embrace the relevance of human factors and educate judges and practitioners as to their impact on the sentencing process;" drawing from his own sentencing experiences, Judge Sessions suggested that factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new "guidelines that encourage consideration of those characteristics where appropriate."  

Do you agree that it is problematic that the federal sentencing guidelines largely seek to exclude consideration of offender characteristics and that the US Sentencing Commission consider a new approach to these matters?  Judge Sessions says "the Sentencing Commission should take more of an initiative to collect data on offender characteristics, draft guidelines that encourage consideration of those characteristics where appropriate, and educate judges about the reasons why those characteristics are relevant should what might these guidelines look like."  If you were serving on the USSC, what kinds of "data on offender characteristics" might you want to collect and what kind of "draft guidelines" might you start to compose?

 

The challenge for US District Judges

Even when the guidelines were mandatory before Booker, US District Judges had some limited authority to give some effect to offender characteristics at sentencing when selecting an exact sentence within the guideline range.  (For example, a judge impressed by a defendant's charity work could reference this personal history when giving a 51-month term to a defendant facing a guideline sentencing range of 51-63 months.)  But US District Judges before Booker largely understood that most "usual" offender characteristics were of little importance within the guideline structures, and that reality in turn often led defense attorneys to spend little or no time developing any offender-based mitigating factors to present to judges at sentencing.

But when Booker made the guidelines advisory, US District Judges became obligated to focus upon and follow the statutory instructions in 18 U.S.C. § 3553(a).  And the very first subsection of this statutory provision states judges "shall consider the nature and circumstances of the offense and the history and characteristics of the defendant" (emphasis added).  In other words, Congress gave US District Judges a formal instruction to consider offender considerations, and this instruction became a focus point for advocacy and decision-making after Booker.  This provision was also stressed by US District Judge Robert Pratt when he initially sentenced Brian Gall to 36 months of probation rather than within the guidelines sentencing range of 30-37 months in prison.  The Eighth Circuit reversed Judge Pratt's sentence as unreasonable, but the Supreme Court reversed that reversal (excerpted in our text at pp. 341-48) to essentially confirm that offender characteristics could play a much larger role in federal sentencing after Booker.

If you were able to advise a group of federal judges about modern sentencing under the advisory guideline system, what advice might you give circa 2020 as to how best to approach the consideration of offender characteristics?  Are there any offender characteristics that you think federal district judges should or must always consider at sentencing?  If so, how should judges now approach these matters without creating the risk of unjust sentencing disparities or other potential problems?

Reviewing class plans for the rest of November

Amidst all the recent uncertainty and angst, I wanted to be certain to remind everyone about our class plans for the rest of November:

Tuesday, Nov 10: Guest lecture via Zoom by Jonathan Wroblewski, Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice.  (No in-person class, background reading/prep detailed here.)

Thursday, Nov 12: In-person regular class beginning our review of "the criminal" for sentencing (skim Johnson and read Tiernan closely in the text for this class)

Tuesday, Nov 17: In-person regular continuing our review of "the criminal" for sentencing (read Gall closely in the text for this class) 

Thursday, Nov 19: Guest visits via Zoom by US District Judge Douglas R. Cole (SD Ohio) and US District Judge Robert W. Pratt (SD Iowa)

Tuesday, Nov 24: Constructive Wednesday so ... NO CLASS

 

Reviewing class plans and readings/prep for our Zoom visit from Jonathan Wroblewski on Nov 10

As we all deal with post-election day uncertainty, I wanted to be certain to remind everyone about out certain class plans for this week and next:

Thursday, Nov 5: In-person regular class to discuss the election and finish up discussion of "the crime" for sentencing (some additional optional materials here on drug offenses)

Tuesday, Nov 10: Guest lecture on Zoom by Jonathan Wroblewski, Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice.  

Thursday, Nov 12: In-person regular class beginning our review of "the criminal" for sentencing (skim Johnson and read Tiernan closely in the text for this class)

Director Wroblewski has told me his is eager to discuss during the Nov 10 class "what 2021 might mean for federal sentencing reform" and he also plans to do his "revised long-term sentencing trends PowerPoint."  He has also provided this additional preview and questions/readings for our collective consideration:

I will focus my presentation on mass incarceration and will present lots of numbers.  I’ve attached two readings [available below]: an excerpt from the book The New Jim Crow by Michele Alexander and Professor James Forman’s response to this book.  Please also ask the students to come to class having thought about the following questions (I will call on some of them) —

1. How do we define mass incarceration?

2. What were the factors that led to our current incarceration numbers?

3. Should we have a target level of incarceration that policymakers should be aiming at?  How do we figure out what that level is?

4. What policy steps should be taken, if any, to reduce our current level of incarceration?

 

Download NewJimCrow_Intro+ch2

 

Download Forman_Racial Critiques of Mass Incarceration

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.

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.

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 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

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.

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."

What punishment theories and "whos" explain Alice Marie Johnson being sentenced to LWOP and then having the sentence commuted and then pardoned?

One main goal of our first few weeks of classes is to enable you to be able to analyze and assess in a sophisticated way the theories of punishment and institutional players that formally and functionally have key roles in the operation of our sentencing systems.  As I have already started to emphasize and will continue to highlight, it is persistently challenging to decide precisely which theories and players normatively should be predominate in an ideal sentencing system.  But, for practicing lawyers and effective advocates, it is particularly important and valuable just to be able to notice which theories and players descriptively are shaping our actual sentencing systems.

This coming week, we will spend time unpacking which punishment theories and which "whos" are playing key roles in the historic Williams case and in the enactment and application of mandatory minimum sentencing statutes.  But, because Alice Marie Johnson is in the news and makes for a great case study, I will likely start our class on Tuesday by asking the question in the title of this post, namely "What punishment theories and 'whos' explain Alice Marie Johnson being sentenced to LWOP, and then having the sentence commuted and then pardoned?".

This wikipedia page on Ms. Johnson provides an effective short accounting of her life history and the crimes that led her to being sentenced to life without parole.  As I mentioned in class, she spoke at the last night of the Republican National Convention and PBS has her short speech available via YouTube at this link.  For a lot more context, you might even check out this 2013 report from the ALCU titled "A Living Death: Life Without Parole for Nonviolent Offenses." Ms. Johnson's case is profiled at pages 56-58 of this 240-page(!) report.

I do not expect you to do a lot of reading about this case, but I am eager for you to think a lot about what theories may have driven her initial sentence and also her commutation and pardon.  I also want you to thinking broadly about all the different "whos" who played an important role in her initial sentence and also her commutation and pardon.

"Fighting for a Second Look: Efforts in Ohio and Across the Nation"

The title of this post is the title of this webinar that I would highly urge you to attend if you are available. It will take place online Wednesday, September 2, 2020, from 2-3:00 p.m. ET. You can register here, where you will see this description:

Draconian sentencing laws and practices stretch back decades and have yielded countless excessive prison terms nationwide.  As public awareness of this problem mounts, legal advocates and scholars have urged new legal mechanisms to allow courts to revisit unnecessarily long sentences.  In that spirit, the Ohio Justice & Policy Center and DEPC teamed up to create a writing competition for law students and recent graduates to propose such a "second-look statute" for Ohio.

Join us for a webinar that brings together leading advocates to discuss efforts across the country to create second-look provisions.  We will also announce the winner of our recent writing competition.

SPEAKERS

• Shakyra Diaz, managing director of partnerships/Ohio state director, Alliance for Safety and Justice
• William Johnston, senior program officer, Open Society Foundations
• Michael Serota, associate deputy director, Academy for Justice, Arizona State University Sandra Day O’Connor College of Law
• David Singleton, executive director, Ohio Justice & Policy Center

MODERATOR

• Douglas A. Berman, executive director, Drug Enforcement and Policy Center

Class recordings and office hours

I have now posted the Zoom recording of our first class to CarmenCanvas under the "Modules" heading.  I hope to make a consistent practice of posting the recording the evening of our afternoon classes.

As I mentioned in an email, I plan to have "virtual" office hours from 2 to 4pm on Wednesdays.  I do not plan to sit in the Zoom room this whole period, so anyone interested in meeting during that window of time should let me know of interest in chatting during that period. I will be happy to arrange appointments at other times, but I will try to keep the Wednesday afternoon window free on my calendar so you can know that you can always book a chat in that time frame (and using our class Zoom link).

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

This blog got started over a dozen years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) to facilitate student engagement in a Spring 2007 course on the death penalty.  Because the blog proved successful during that semester, and because the students' hard work as reflected in these archives still should be of interest to current students (e.g., PPT decks here), I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course. (A journey through the archives documents past courses that include a sentencing seminar during a visit to Fordham in 2010, and an LP3 focused on clemency in 2020, and many "traditional" sentencing classes in between.)

It is now summer 2020, the strangest summer I have experienced in my half-century on this planet, and I am very excited to be gearing up again to teach Sentencing Law and Policy at the Moritz College of Law.  I again expect to use this blog to flag current events and cases to supplement our in-class readings and discussions, as well as a convenient place to post information about class activities and plans and assignments. (I will also be posting essential materials on our CarmenCanvas site, but I expect this blog to be used more actively than that resource.)

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

In preparation for our first week of classes starting the week of August 24, 2020 you should:

1. Get a copy of the FOURTH edition of the casebook for the course, along with the course description/syllabus.
2. Fill out the questionnaire before our first class. (In addition to being posted below, the pre-class questionnaire and course description/syllabus are available in hard-copy in front of my office, Room 313, and will also be on our Carmen class webpage.)
3. Find/research on your own a real sentencing issue, case or story that is of significant interest to you, and come to our first week of classes prepared to explain this issue, case or story and why it is of significant interest to you.

Download 2020 Sentencing Law course description and syllabus

Download 2020 Sentencing Law preclass survey

You will discover that some items in the pre-class questionnaire reference real-world sentencing cases, and here are just a few links (of many you can find) with some background on these defendants and their cases:

Dzhokhar Tsarnaev

• "First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev" 
• "Boston Marathon bombing survivor Rebekah Gregory: ‘If this is justice, then I have the wrong definition'"

Amy Locane

• "Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard" 
• "Melrose Place Actress Amy Locane to Be Sentenced for the Fourth Time in Fatal DWI Crash Case"

Brett Jones

• "SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case"
• SCOTUSblog page on Jones v. Mississippi (with links to all the filed briefs)

 

 

 

 

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One last thanks and one last class presentation

So even though it has only been a few weeks since our last class, I miss seeing you all and I continue to hope you are enduring the pandemic (and finals) with good health and good cheer.  In addition to doing one last post to say thanks again for a great semester, I wanted to also post Hart's presentation on Clemency in North Carolina:

Download NC Clemency

I hope you all can find time for a study break to review this presentations.  I also hope you all continue to fell comfortable reaching out to me with any question about the final paper or about any other matters of concern as this very strange semester draws to an official close.

 

Many thanks for the terrific in-class presentations, and apologies for only being able to post this additional one... AND ONE MORE

I keep wanting to believe that I have a handle on technology, but it seems I only can figure out blogging (sometimes). 

To that end, here is Andrea's terrific presentation (in two parts because of the size of the file):

Download Part 1 -- Clemency for Victims of Sex Trafficking Who Commit

Download Part 2 -- Clemency for Victims of Sex Trafficking Who Commit

I am a bit fearful that the embedded audio may still not be working, but I will keep trying to make this work. 

 

Also, the recording of our Zoom class on March 31 is available at this link (which I have also posted in Carmen):

https://osu.zoom.us/rec/share/z-hYIovOqXhIabfLwmPyc7cqQdvnX6a8h3AfqKUMmUvteUR_EYW7YQuOc8hcfBXU 

 

UPDATE:  Carly has submitted a recorded version of her presentation on "Clemency in the UK" and here is the link:

Download Carly Sinclair Clemency LP3

 

Eager to be flexible with remaining class presentations (and final papers)

With the news that Ohio State has now suspended face-to-face instruction and is moving to virtual instruction through at least Monday, March 30, I am eager to hear from those students who still need to make their clemency presentations about how best to move forward (recalling my mantra of low stress/high learning).  Here are some thoughts as we move forward:

1.  Because of travel restrictions, we have had to cancel the guest speaker who was supposed to speak at our class session on March 31.  As a result, we have five "open" scheduled class periods for the eight remaining presentations (March 17, 24, 31 and April 7, 14).

2.  With the hope that we will be back to regular classes by March 31 or April 7, we could just cancel our classes during the face-to-face suspension period and plan to have the final eight presentations during our regular scheduled Tuesday class times upon return.

3.  Using this blog or other technology (e.g., Carmen), we could "post" online student presentations in the form of just a PowerPoint deck or a video presentation.  Students could create/record whatever form of online presentation they would like to develop at their own pace, and then send them to me for posting for all of us to watch/review at our own pace.  (We can even arrange to record a presentation at Drinko if that would be helpful or more convenient for any interested students.)

4.  We can plan to "meet" online via Carmen Zoom at our regularly scheduled Tuesday times and students could plan/seek to present at their regularly scheduled times.  (UPDATE: I have been playing with Carmen Zoom, and it seems pretty easy to use if we would all like to try to conduct our "normal" class in this less-than-normal way.)

As of right now, I am inclined to (A) cancel our March 17 class so that students can spend the first week "back" figuring out just what "virtual instruction" looks and feels like in all your other classes, (B) encourage anyone interested in creating any online presentation to go ahead and do so in order to satisfy this part of the course requirements, and (C) welcome/encourage any and all feedback so we can do our best to keep achieving low stress/high learning in the weeks ahead.

Feedback is welcome in the comments here or via email.  Also, the lack of face-to-face instruction ought not create any major barriers to completing your final papers (which are not due until May 7), and I welcome any questions or concerns on that front (or any others) during these uncertain times.   And remember, as I have said repeatedly, you are all going to pass.

If I can help any of you with any challenges you may be facing, please do not hesitate to reach out.

Excited for student presentations after a week of clemency commentary

Just a reminder to everyone that, as we start the first week of student presentations, we will be going back to meeting in Room 348.  I look forward to seeing everyone there no later than 4pm so we have adequate time for the scheduled presentations.

Meanwhile, I assume all clemency fans have been seeing some of the commentary that Prez Trump's grants last week have engendered.  Just a very small sample of the buzz his clemency work engendered is covered in these posts at my other blog:

• "Trump grants clemency to 11, including former junk bond king Michael Milken" 
• Recognizing historic modern first-term commutation work by Prez Trump in a single day 
• Lots of notable clemency news and notes and commentaries after Prez Trump's flourish of mercy 
• Whom else should Prez Trump pardon?

What went wrong (or right) with the Obama Administration's clemency initiative? What are its substantive and procedural lessons?

Our last class of general discussion (before we turn to student presentations) will focus on the ground-breaking and controversial clemency activity during the final years of the Obama Administration.  I handed out in class last week this basic web review of the initiative as described by the US Department of Justice.  Among many topics I am eager to discuss in class, I would like to get your reaction to the substantive criteria that the were set out as part of the initiative.  Specifically, as explained by DOJ:

Under the initiative, the Department prioritized clemency applications from inmates who met most, if not all of the following factors:

• They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
• They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
• They have served at least 10 years of their prison sentence;
• They do not have a significant criminal history;
• They have demonstrated good conduct in prison; and
• They have no history of violence prior to or during their current term of imprisonment.

I have linked in this prior post, and will link here again for convenience, two reports on the Obama Administration's clemency initiative that were prepared after President Obama left office: (1) U.S. Sentencing Commission, An Analysis of the 2014 Clemency Initiative (2017); (2) NYU Law School Center on the Administration of Criminal Law, The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative (2017).  Another important report reviewing the Obama Administration's clemency initiative came from the Department of Justice's own (3) Office of the Inspector General, Review of the Department’s Clemency Initiative (2018).  The executive summary of this OIG report provides important background as to some reasons why the clemency initiative was problematic and subject to considerable criticisms:

We found that the Department did not effectively plan, implement, or manage the Initiative at the outset.  However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline.  In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

Our review identified several shortcomings in the Department’s planning and implementation of the Initiative.  Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning.  Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate.  As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions....

Further, the Department experienced challenges in working with external stakeholders to implement the Initiative.  For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations.  We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative.  In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition.  As a result, the Department believes CP 14 took longer to complete its work.

Our review also identified several weaknesses in the management of the Initiative in its early stages.  For example, there were differing views on how to interpret the Initiative’s six criteria.  The Initiative’s announcement stated that the criteria would be used to prioritize consideration of clemency petitions.  However, we were told by then Deputy Attorney General James Cole that petitions from inmates who did not meet all six criteria would not be considered.  Yet, then Pardon Attorney Deborah Leff directed OPA staff to review and provide recommendations to ODAG on every clemency petition, regardless of whether the inmates met all six criteria.  We found that OPA continued to view the criteria as subjective even after being advised by ODAG that it was applying the criteria strictly.  Lastly, although not one of the six criteria, the Administration decided that non-citizens would not be considered for clemency.  This was a significant criterion given that, at the time, approximately 25 percent of all federal inmates were non-citizen; yet the Administration did not publicly announce this decision and, as a result, non-citizen inmates filed clemency petitions and OPA spent time reviewing and processing them.  While under Deputy Attorney General Sally Yates, the Department did recommend clemency for some non-citizens, President Obama ultimately did not grant clemency to any non-citizens under the Initiative.

Additionally, we found that U.S. Attorneys did not always provide their views on clemency petitions to OPA within 30 days, as required by Department policy.  For example, as of December 1, 2016, nearly 600 OPA requests to U.S. Attorneys had been awaiting a response for more than 30 days.

There has been some writing in various law reviews about the Obama Administration clemency initiative, and here are examples:

• Mark Osler, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System
• Paul J. Larkin, Jr., 'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014
• Multiple authors in special June 2017 issue of the Federal Sentencing Reporter, "Obama’s Clemency Project: Looking Back"

I do not expect students to read all that much of all these materials, but I will like to talk about how you think future Presidents will react and should react to all that transpired with President Obama's clemency work.

Continuing discussion of "ideal" clemency process

In class this week, we will finish up discussing Woodard's account of what the Constitution demands (and does not demand) in the form of required process for those seeking clemency.  And then, as mentioned at the end of last class, I want us to explore various visions of what we might view as an ideal clemency process.

As we think about the clemency process, we might find it useful to discuss both (A) the broad "system structure" for clemency decision-making, and (B) the individual "case specific" process.  As for structure, questions arise concerning, e.g., whether to prefer decisions to be entirely in the hands of Governors/Presidents or to involve some kind of reviewing board; whether to want a legislature to create some standards or limits for clemency work. As for the case-specific, questions arise concerning, e.g., whether and how defendants can have legal counsel and present evidence; whether clemency decision-makers should provide some formal explanation for its rulings.

In addition to contemplating these sort of matters, please also remember to send me your top two presentation dates from these options.

Be ready to discuss Woodard as well as "ideal" clemency process

Though I hope you have had a chance to review the cases distributed last week -- Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) and Ohio v. Boykin, 138 Ohio St. 3d 97 (2013) -- I expect that we will spend the bulk of out time in class discussing Woodard's rulings about what the Constitution demands (and does not demand) in the form of required process for those seeking clemency.  So be sure to take extra time to review the various opinion in Woodard, and think about whether a person alleging some extreme behavior by clemency authorities (e.g., a state official receiving a large campaign donation in order to vote against clemency) would make out a viable due process claim in light of Woodard.

In addition to considering the minimal clemency process that may be constitutionally required, in class I will also want to explore your views of an ideal clemency process.  In criminal trials, defendants have well-established rights to the assistance of legal counsel and to call witnesses (and contest the government's witnesses).  Even if these constitutional rights do not extend fully to the clemency process, should states provide for these processes in their clemency laws and procedures?  Should at least some persons seeking clemency (e.g., death row defendants) not only have a right to help from counsel, but also be able to get help from a lawyer paid for by the state?  Should the clemency process and any procedural rights afforded to an applicant vary based on his basis for seeking clemency (e.g., asserting innocence) or based on the underlying crime and relief being sought (e.g., a juvenile offender seeking just a commutation of a prison term)?

In addition to contemplating these sort of matters, please also remember to send me your top two presentation dates from these options.

Figuring out dates for clemency class presentations

As mentioned in class and in this post, this week everyone should be prepared to share their (tentative) plans for their class presentation.  In turn, it is now time to start figuring out a (tentative) schedule for these presentations.  If we want to schedule 3 or 4 presentations per week, we will need four class sessions to fit all 14 class presentation in during the normal class time.  In order to be able to cancel at least the last scheduled class (April 14) AND because we have a guest speaker scheduled on March 31, we have the following viable Tuesday presentation dates during the second part of the semester:

• Feb 25
• March 3
• March 17
• March 24
• April 7 (alternative if needed)

Because March 3 is the week before Spring Break and some of you might have assignments due in other classes around that time, I would be open to cancelling the March 3 class to provide for April 7 class as an alternative presentation date.  (We can make other class time adjustments if it is especially convenient for more than 4 people to present on a particular date, or we could even consider adding a "presentation lunch date" on a Friday if that might work better for some presenters.)

So, at your relative convenience, please send me via email at least two dates that you think would be best for you to do your class presentation.

Follow up information and links after our first class

As promised, here are links to the full articles that were passed around in partial hard-copy form in class today:

• William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 WM. & MARY L. REV. 475 (1977)
• Daniel T. Kobil, Do the Paperwork or Die: Clemency, Ohio Style?, 52 OHIO ST. L.J. 655 (1991)

If you were interested in the full documentary "College Behind Bars" that I previewed in class, here is a link to the PBS site where it can be streamed. And speaking of things to watch, here ate the IMDB pages for new criminal justice movies Just Mercy and Clemency.  I would be eager to organize a trip for class members if interested.

Last but not least, we will be sure in next week's class to discuss the real-world example of (state or federal) clemency which took place BEFORE the 21st Century that is of interest to you.  Sorry we did not get to that today, but we will for sure next week.

UPDATE:  It dawned on me that you all might like an electronic version of the course description and syllabus.  You will find that document (updated with our new room number) below:

Download Revised LP3 Berman for 2020

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:

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.

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.

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

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

Download Kreit_10_30_ClassReading

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

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

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

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

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

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

FAQ: First Step Act

FAQ: First Step Act Risk and Needs Assessment

Read a full description of the bill here

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

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

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

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

 

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

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

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

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

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

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

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

Materials (and fun) for considering the representation of Ted Kaczynski

As I have mentioned in class, we will be exploring in coming classes how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber, Ted Kaczynski.  You should imagine yourself preparing for getting a jury to recommend a life sentence rather than a death sentence for Teddy K.  The essentials for preparation appear in our handout, although you also need to check out two Ohio statutory provisions via the web:

• 2929.03 Imposition of sentence for aggravated murder 
• 2929.04 Death penalty or imprisonment - aggravating and mitigating factors.

For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out at least some of the Unibomber's (in)famous Manifesto, "INDUSTRIAL SOCIETY AND ITS FUTURE" as well as  this lengthy Time article by Stephen J. Dubner from 1999 about Teddy K. headlined "I Don't Want To Live Long.  I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison."

And if you want to have some old-school SNL fun while preparing for this discussion, these are fun to check out:

• Ted Kaczynski Meets His Lawyers

• Ted Kaczynski's Class Reunion

• Ted Kaczynski Wants to Represent Himself

• Nightline: Deep Blue Has Cornered Mankind

The full McGautha and Furman...

are worth reading in full if you find constitutional history and/or death penalty procedure really interesting (and these are great topics for final papers).

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 handout seeks to provide strategic highlights from each of the nine(!) opinions.  As mentioned, I will ask you in class  which of the nine opinions you would be most likely to join, so you might want to consider skimming the full version of the one opinion you find most appealing from our casebook.

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

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

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

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

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

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

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

Double checking on Mini-Paper submissions and the timelines for wrapping up

I have now finally double- and triple-checked my various files to confirm my records on how many mini-papers I believe I received from each student.  All 42 of you should be able to find you names on the spreadsheet uploaded here, and therein you will find an associated number for how many papers I have in hand from you.

Download Mini paper submissions for Spring 2018

If you see what you think is an error in my accounting, please let me know before the end of next week.

Speaking of the end of next week, please remember that you need to submit a final paper or a final exam to complete the course, and that submission needs to be no later than May 10.  (I am fearful that the Registrar is unable to prevent the exam software from demanding that exam takers submit their take home answers by May 9.  I hope that does not prove to be a problem for anyone, and I should be around on May 10 in case of any potential hiccups.)

I am continuing to enjoy re-reading your mini-papers and now reading some final drafts.  I try to provide some general feedback on drafts within a few days of receipt, but that opportunity will be extinguished in the next few days.  Feel free to email me with any questions. 

Examining the "why" and "who" of modern mass incarceration and its potential alternatives

As we finish up the semester with a final few classes examining the particulars of modern mass incarceration and possible alternatives, I realize it would be useful and fitting to return to some of the early themes of the class concerning the "why" and "who" of sentencing.  Specifically (and building off themes stressed by Fordham Law Professor John Pfaff at the Reckless-Dinitz Lecture), I will likely start Monday's class by exploring:

(1) "why" incarceration has become such a popular punishment in modern American history, and

(2) "who" has been most responsible for the particular emphasis on incarceration in modern American history.

I think some reasonable answers to these questions are important for anyone eager to move the nation away from modern mass incarceration: without having some sense of just why incarceration has proved so popular and just who has had a leading role in inflating incarceration levels, it will be hard to engineer a successful change of course.

Especially because there have recently been a whole lot of notable new court opinions about Eighth Amendment limits on extreme juvenile prison sentences — see examples here and here and here and here and here from the Third Circuit, the District of Connecticut, the Iowa Supreme Court, the Georgia Supreme Court and the Wyoming Supreme Court — I am especially eager to discuss what role we think courts have played in creating modern mass incarceration and what role courts could play in moving us away from modern mass incarceration.

In this context (and again to serve as a kind of semester review), I think it important to recognize that courts have played a major role in the modern decline of the death penalty in the United States over the last two decades.  All sort of litigation has played all sorts of roles in "gumming up" the modern machinery of death, and many abolitionists have come to expect that the US Supreme Court will play a starring role in a final push to have the death penalty fully abolished throughout the United States. 

Is there any basis to hope or expect courts to play a major role in a decline in the use of incarceration in the United States over the next two decades?

Should particular pie pieces or particular populations be of particular concern for those troubled by modern mass incarceration?

The question in the title of this post will be one I will be eager to unpack in coming classes, and it is inspired in part by the points emphasized in the Prison Policy Initiative updated version of its terrific incarceration "pie" graphic and report now at this link.  Here is part of the PPI pie report's introductory text and subsequent discussion:

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....

Breaking down incarceration by offense type also exposes some disturbing facts about the youth confined by our criminal and juvenile justice systems: Too many are there for a “most serious offense” that is not even a crime. For example, there are over 8,500 youth behind bars for “technical violations” of the requirements of their probation, rather than for a new offense. Further, 2,300 youth are locked up for “status” offenses, which are “behaviors that are not law violations for adults, such as running away, truancy, and incorrigibility.” Nearly 1 in 10 is held in an adult jail or prison, and most of the others are held in juvenile facilities that look and operate a lot like prisons and jails.

Turning to the people who are locked up criminally and civilly for immigration-related issues, we find that 13,000 people are in federal prison for criminal convictions of violating federal immigration laws, and 13,000 more are held pretrial by U.S. Marshals. Another 34,000 are civilly detained by U.S. Immigration and Customs Enforcement (ICE) separate from any criminal proceedings and are physically confined in federally-run or privately-run immigration detention facilities or in local jails under contract with ICE. (Notably, these categories do not include immigrants represented in other pie slices because of non-immigration related criminal convictions.)

Adding to the universe of people who are confined because of justice system involvement, 22,000 people are involuntarily detained or committed to state psychiatric hospitals and civil commitment centers. Many of these people are not even convicted, and some are held indefinitely. 9,000 are being evaluated pre-trial or treated for incompetency to stand trial; 6,000 have been found not guilty by reason of insanity or guilty but mentally ill; another 6,000 are people convicted of sexual crimes who are involuntarily committed after their prison sentences are complete. While these facilities aren’t typically run by departments of correction, they are in reality much like prisons....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons.

Notably, last fall the Prison Policy Initiative working jointly with the ACLU’s Campaign for Smart Justice released this great report with a particular population perspective: "Women’s Mass Incarceration: The Whole Pie 2017."  The report explains that it provides "a first-of-its-kind detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even larger picture of correctional control."  In addition to thinking about how the female incarceration "pie" looks different, I wonder if you share my concern about discussion of "women's mass incarceration" given that there are around 165 million women in the United States and thus really less than 0.15% of all US women are incarcerated. 

Is it accurate and helpful to describe a phenomenon as "mass" if it directly impacts less than 1 out of 500 persons in a population?

Reading in preparation of John Pfaff's visit on April 12 and our discussions of mass incarceration

As repeatedly mentioned in class, Fordham Law Professor John Pfaff will be on campus this coming Thursday, April 12.  At 4pm at the Barrister Club he will be delivering the Reckless-Dinitz Lecture titled "Moving Past the Standard Story: Rethinking the Causes of Mass Incarceration." Here is the abstract for this lecture:

"Reducing America's exceptional reliance on incarceration is one of the few issues of genuine bipartisan cooperation these days. Yet despite years of work, change has been slow and halting.  One critical reason is that the story we tell about what has driven prison growth often emphasizes causes that matter less at the expense of those that matter more.

"We talk about the impact of long sentences — which certainly matter — but end up overlooking the even more important role of prosecutorial charging behavior in the process.  We emphasize the need to stop sending people to prison for drugs, but as a result fail to talk about changing how we punish those convicted of violence — even though only 15% of the prison population is serving time for drugs, compared to over 50% for violence.  And reformers frequently direct their attention on private prisons, and thus don't focus on the fact that public institutions hold over 90% of all inmates, and that (public) correctional officer unions and legislators with public prisons in their districts play far bigger roles than the private prison firms in pushing back against reform efforts. Even the modest reductions in prison populations since 2010 are something to celebrate, but more substantive cuts will require us to start asking tougher questions about the sorts of changes we need to demand."

As I have noted before, Professor Pfaff is the author of Locked in: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017), and I expect his lecture will be covering many points he develops in his book.  Were I an evil lawprof, I could demannd that you all read his full book ASAP.  Instead, I will be content to here link to some effective reviews of Locked In:

• From Pacific Standard, "Have We Been Looking at Mass Incarceration All Wrong?"
• From The New Yorker, "How We Misunderstand Mass Incarceration"

Though everyone should feel free to read Locked In, for class discussion purposes I think it might be useful for folks to read Professor Pfaff latest commentary titled "A Smarter Approach to Federal Assistance with State-Level Criminal Justice Reform."  Here is its abstract:

This brief explains how Congress and the president can best help reduce our country’s outsized reliance on imprisonment, a goal with rare, widespread bipartisan support. Successful interventions will need to target issues that previous efforts have overlooked or ignored, and they will need to take better account of the haphazard ways that costs, benefits, and responsibilities are fractured across city, county, state, and federal governments. If designed properly, however, federal efforts could play an important role in pushing our criminal justice system to adopt more efficient, as well as more humane, approaches to managing and reducing crime.

Reading in preparation of Zac Bolitho's visit on Monday, April 2

On April 2, Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As mentioned in class, here is how he would like all of us to prepare for his visit:

In terms of reading, it might be helpful if the students were familiar with Judge Pryor’s “presumptive guidelines” proposal (described in this speech to the American Law Institute).  I plan to spend a few minutes discussing how the Commission operates, what role DOJ plays in the process, what amendments are pending at the Commission now, and then I’d like to just have a discussion with the students.  I’d particularly love to hear their reactions to Judge Pryor’s proposal.

If there are particular questions that you would like me to address (or topics you know the students will want to discuss), please send them my way.

Some recent posts about the Department of Justice and the US Sentencing Commission that might inspire mini-paper #4

As highlighted in previous posts,  on April 2, Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As repeatedly mentioned, and as shown at the end of this list of US Sentencing Commissioners, Zachary Bolitho also now serves as the designated ex officio member of the United States Sentencing Commission representing the Attorney General. 

As also repeatedly mentioned, mini-paper #4 should be a short memo addressed to ADAG Bolitho on whatever topic you would be eager to raise with him.  If looking for ideas, here are links to a few posts from my main blog highlighting news of various sorts involving the US Sentencing Commission and the US Department of Justice (and the Trump White House):

 

Regarding US Sentencing Commission:

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs 

Prez Trump makes (tough) nominations to US Sentencing Commission 

Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission

 

Regarding US Department of Justice:

New spending bill includes a lot more money for Justice Department to fight drug war even harder 

AG Jeff Sessions issues memo to "strongly encourage federal prosecutors ... when appropriate" to pursue "capital punishment in appropriate cases" 

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed? 

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control" 

AG Sessions gives full accounting of his full law-and-order approach to his work as Attorney General

 

Regarding Trump White House:

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry 

Trump White House expresses opposition to sentencing reform part of SRCA of 2017

Highlights from Prez Trump's tough talk about the opioid crisis and federal response

Lots to consider and discuss as we get back together

I am looking forward to getting back to our discussion of federal sentencing realities this coming week, and I expect on Monday (3/19) to get us finally into a discussion of "acquitted conduct" and the Supreme Court's decision in United States v. Watts, 519 U.S. 148 (1997).  But before we get together, I want to make sure everyone also knows of this great event in Saxbe right before our class: 

The 2018 David H. Bodiker Lecture on Criminal Justice will feature James Forman Jr., professor of law at Yale Law School and best-selling author of the critically acclaimed book, Locking Up Our Own: Crime and Punishment in Black America (2017), which explores how decisions made by black leaders, often with the best of intentions, contributed to disproportionately incarcerating black and brown people....

This lecture is scheduled for noon on March 19 in Saxbe Auditorium, located inside Drinko Hall.

In addition, if you have been taking a well-deserved break, you might have missed some of these posts from my other blog that touch on issues we have been exploring:

• New Philly DA puts forward new policies intended to "end mass incarceration and bring balance back to sentencing"
• The latest account of Trump Administration's latest punitive ideas for responding to drug problems
• "Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System"
• Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution
• "Principles of Risk Assessment: Sentencing and Policing"
• Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs
• "More Imprisonment Does Not Reduce State Drug Problems"
• "'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014"