Sentencing Class @ OSU Moritz College of Law

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.

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.

 

Unearthing federal sentencing realities for some celebrity federal defendants

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. Continuing a series of posts providing a suggestions about possible federal defendants you might consider examining for mini-paper #3, here are some links to posts from my main blog from the last few years about "famous" or high-profile offenders whose federal sentencing stories you might find engaging:

Rene Boucher (that guy who attacked Senator Rand Paul)

Michael Flynn

Jared Fogle

Dennis Hastert (former speaker of the US House)

Abby Lee Miller (star of Dance Moms)

Larry Nasser

Sholom Rubashkin (rabbi who receive commutation from Prez Trump)

Sheldon Silver (former speaker of New York Assembly)

Martin Shkreli (that Pharmo Bro guy)

Michael Slager

Kevin Trudeau (infamous infomercial star)

Ross Ulbricht (creator of Silk Road website)

Anthony Weiner

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

This blog got started over 10 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 the archives still generates web traffic, I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course.  

On the eve of 2018, I am excited again to be gearing up again to teach Sentencing Law at the Moritz College of Law and to be again planning to use this blog to flag current events and cases to supplement our class readings and discussions.  Because I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, students can and should be on the look out for class materials and announcement posted here. So, for example, 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 Monday, January 8, 2018 you should:

1.  Get a copy of the THIRD edition of the casebook for the course, along with the course description/syllabus.

2.  Access the questionnaire and fill it out before our first class.  (In addition to being posted below, the questionnaire and course description/syllabus are available in hard-copy in front of my office, Room 313.)

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 2018 Course description

Download 2018 Fall pre Class Survey 

 

You will discover that the last item in the questionnaire references recent clemency activity by recent presidents, and here are a few links with background:

Background on President Obama's Clemency Initiative

"Obama used clemency power more often than any president since Truman"

An Analysis of the Implementation of the 2014 Clemency Initiative

 

"Trump commutes sentence of kosher meatpacking executive"

"Trump Did a Good Thing: In praise of the president’s decision to commute Sholom Rubashkin’s sentence."

"Immigration hawks protest Trump giving Sholom Rubashkin first prison commutation"

Game planning next week's final(?) capital punishment discussions (and requests for expressions of any continued DP interest)

As I surmise you could tell from the last few classes, I am not at all troubled that our discussions of how Teddy K.'s capital case might play out in states like Florida and Texas has gone on longer than I had initially planned.  I am hopeful you were able to get a real feel from this week's two classes concerning the various important structural and practical realities of modern death penalty decision-making that have resulted from the Supreme Court's modern Eighth Amendment "guided discretion" jurisprudence. 

With the Teddy K. hypo and some of its lessons now covered, I want to update/clarify our plans and my expectations for next week's classes and beyond:

Monday, Oct 10:  Guest presentation/discussion with Kevin Stanek, Assistant Chief Counsel for Ohio Governor John Kasich (and OSU Moritz College of Law Class of 2013). There is no need to prepare anything formal this class, but this Dispatch article and this part of a Wikipedia entry provides a quick overview of the Ohio execution administration issues that ACC Stanek will likely be discussing.  (And for a lighter (and not-so-tasteful) look at these issues, check out this satire video from The Onion, "Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine.")

Tuesday, Oct 11: We will finally get to discussing McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)

Wednesday, Oct 12:  Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons ....

UNLESS YOU REPORT IN THE COMMENTS OR ELSEWHERE ABOUT ADDITIONAL CAPITAL PUNISHMENT ISSUES YOU WOULD LIKE TO HAVE US COVER IN CLASS.  If nobody raises any addition death-penalty issues in the comments or in other ways with me, I will assume that everyone has already had more than their fill of death penalty discussions and thus will feel all that much more confident moving on to discussions of non-capital sentencing realities ASAP.

For those students hoping and eager for us to move on beyond our death penalty discussions, please feel free to get started on our first set of prison readings, in the form of:

• All of Chapter 7, paying particular attention to pp. 549-558, 570-581 and 595-623 (especially Graham v. Florida)
• A bit of Chapter 5, pp. 401-415 (especially Miller v. Alabama)

UPDATE: ACC Stanek suggested that everyone read this DC Circuit case, Cook v. FDA, to get a flavor of some of the challenges states face when trying to acquire the drugs needed to conduct a lethal injection.

Basic finals information (and a place for any questions or concerns)

As I mentioned in class, the final paper for this class (and the final take-home exam which is available as an alternative to completing a final paper) is due at close of business on the last day of the exam period.  According to the Registrar's website, the final exam day is May 14, 2015.  (Note that, because this is truly the last day, I cannot readily give any kind of extension, especially to anyone supposed to graduate the next day.)

If you are taking the take-home final, I am certain it will be available no later than April 30 (and perhaps sooner), and you have the entire exam period to complete it.  In case you are wondering about the final's format, here are the general instructions I typically have for take-home finals in this class:

Typical Berman Take-Home General Instructions

1. To complete this exam you must answer at least 3 of the 4 questions.

2. As an open-book exam, you may refer to any (non-human) sources, but your answers must be prepared independently, without discussion or assistance from others.

3. Each question has a strict [1500 or 2000 or question-specific] word limit.  These are limits, not goals. Great answers are possible in fewer words.  Aided by your computer’s word count feature, please note the total number of words at the end of each of your answers.

4. You are not required to use sources other than class materials.  You are not precluded from conducting outside research, though extra time may be best invested in reviewing course materials and revising your answers to ensure they are clear and concise.

I welcome any question or concerns about any of this expressed in class or in the (now working) comment section here.  Remember my mantra: low-stress, high-learning.

Reminders and updates ... about class and sentencing cases we have been following

I hope everyone enjoyed Spring Break as much as I did and also that everyone is looking forward to an exciting final month of our sentencing class.  This post provides a couple of reminders about on-going activities as well as some updates that might be of interest as we close out March sentencing madness:

1.  Everyone has a chance to submit an extra mini-paper this week (requirements outlined here), ideally by 12noon on Monday, March 23.  The required prompt: "What topic(s) are you eager for us to discuss in class more before the end of the semester?"  Recall that, though all students are required to submit at least three mini-papers before the end of the semester, extra credit will be rewarded to those who submit more than the minimum.

2.  This week in class, we will focus on what should be "the offense"  for sentencing purposes.  Specifically, should only the formal specifics of the offense of conviction be considered at sentencing (the "charge offense") or should sentencing involve at least some real specifics of how the offense was actually committed (the "real offense").   As you consider this seemingly basic question, review your prior efforts sentencing Rob Anon prior to modern reforms and under the federal sentencing guidelines.   Did the charge offense or the real offense matter more to you when sentencing in the discretionary pre-guideline world?  How about in the guideline world?  And what does the US Constitution have to say about this according to the Supreme Court in the Watts case?  

3.   You may recall we talked earlier in the semester about the upcoming sentencing of former Connecticut Gov John Rowland.  Here is how that turned out:  Former Governor John Rowland Sentenced to 30 Months in Prison.  In addition, we have been following death penalty debate in Pennsylvania, and here is an interesting "who" development on that front: "Victim's wife: Keep me out of death penalty fight"

Quick reminder of class activities for last week of January

Just a quick note to remind everyone that...

1.  If you are submitting your first mini-paper this week (requirements outlined here), it is due by 12noon today (Monday, Jan 26).

2.  You should prepare for this week's classes by (re)reading Williams v. New York and by reading McGautha v. California.  (It is sufficient to read the shortened excerpts of these cases in the casebook, but I have here provided links to the full opinion for anyone interested in reading more.  Williams in not much longer in full text, but McGautha is a lot longer.)

3.  Our coming discussion of modern capital punishment administration in the United States is going to focus a lot on the "who sentences" question.  To that end, you should check out and reflect on the "who" aspects of these stories about high-profile on-going capital cases:

• High-profile capital trials put spotlight on dynamics of death-qualification of jurors

• The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

Basic logistics concerning mini-paper assignments/requirements

As discussed in our first class, one course requirement is for students to author and submit at least three mini-papers throughout the semester.  Each of these mini-papers must be no more than two pages long, and the papers can be (1) thoughtful reflections on the prior two week's classes and readings, or (2) engaging discussions of an original topic/question/idea/challenge that I pose in class.

As set forth below, the submission dates and time for these mini-papers is generally every other Monday by 12noon:

• January 26
• February 9
• February 23
• March 9
• March 30 (extra week because of Spring Break)
• April 13

As also explained in class, one goal for this assignment is to engender additional inter-student substantive discourse; that is why, subject to any stated objections/concerns for certain submissions, I expect to distribute everyone's submitted mini-papers back to the class for all to read and consider.

I will generally provide the original question/idea/challenge for certain mini-papers in class on the Tuesday right after the dates listed above and then provide links in this space to any supportive materials.  

The first question/idea/challenge, as you may recall, is to make recommendations concerning what the new Executive Director of the Ohio Criminal Sentencing Commission (OCSC) ought to have the OCSC working on these days.  Here are links to some OCSC materials that can provide helpful background for this topic:

• Ohio Criminal Sentencing Commission FAQs

• Ohio Criminal Sentencing Commission Publications (most of which are dated)

With three weeks left, how are we doing on "low stress, high learning" on sentencing issues?

Sadly (at least from my perspective) we only have three more weeks together before classes conclude on April 23.  That means eight classes, and a mere 400 minutes, because we do not have class on Tuesday 4/15.  (Fortunately, as I will explain in class, this week and next we can have some extra time together through lots of extra-curricular sentencing activities on the calendar.)

As explained in prior posts and in class, we will be focused in our final few weeks on drug sentencing, offender characteristics and the back end of the (non-capital) sentencing system (e.g., parole and clemency).  In so doing, I hope to continue fulfilling my start-of-semester promise/desire to create a "low stress, high learning" environment for students.  And as we head into this final stretch, I want to provide this blog venue for expression of concerns, complaints, suggestions and any other feedback before it is too late for me to respond effectively.  (Obviously, you will all get a chance to share your views on the course in the formal evaluations at the very end of the semester, but at that point it will be too late for me to do anything in response that you will benefit from.)

In other words, I would be grateful for any/all student comments in response to this post about any subject related (or even not related) to the substance and style of our course.

REMINDER: for high learning and low stress this week...

everyone should be doing the first part (i.e., the first page) of the sentencing exercises ASAP:  after reading (or even while reading) the Frankel excerpt and the notes that follow at the start of Chapter 3, everyone should imagine herself as a federal judge at the time of Judge Frankel and come up individually with an exact pre-guideline sentence for Rob Anon (the federal back robber described at the start of Chapter 4).

Students are welcome to also try to figure out (both procedurally and substantively) how Rob Anon would be sentenced now in the modern structured sentencing era, but that will not be essential for our conversations during the first few classes this week.  After class on Tuesday, I will post some materials here on the blog that should make it somewhat easier to do the guidelines part of the exercise before Wednesday's class.    

Review of mid-term paper basics

As you all should know, every student is required to submit a very short paper (around 2+ pages, single or double spaced) in the next few weeks concerning a law or policy or article or book or movie or big idea related in some way to sentencing law, policy or practice that you think it will be valuable for me and your classmates to know more about. I emphasize the "you" in this post because I want and expect this paper will reflect your personal perspective on an issue of sentencing law, policy or practice that you consider interesting and/or important and that you wish to share with others in the class.

I would be grateful to get as many of these papers as possible before Spring Break so that I can read them during the break. And I would be especially grateful to get BOTH a hard copy AND an electronic copy of the paper from you.

If folks have questions or concerns about this (low-stress, high-learning?) assignment, please feel free to use the comments to raise them.

Final paper clarifications and timelines

To make sure all is clear about the final paper/assignment, let me go over my latest thinking on how you all can wrap up your work for this course:

1.  At our last class this Thursday (Dec. 8), I will have available copies of the "directed final paper" option that student may complete as their final paper/assignment for the class.  (As of this writing, I am planning for this "directed final paper" to have 5 questions, but students will only have to select and respond to three of these questions to complete the assignment and each question will have a 1500-word limit for answers.)  These final papers will be due on the last day of exams, December 21.

2.  Students committed to doing an amicus brief for the SCOTUS juvenile LWOP cases should be making progress on their brief plans/contents ASAP.  Though the briefs may not be due to the Supreme Court until after the end of the exam period, I am going to expect students to have a reasonable working draft to submit by the last day of exams, December 21, so that I know serious work is afoot.

3.  Instead of routes 1 or 2 above explaing above, students can do a "substantial" final paper or project of some other variety on a sentencing topic of their choosing.  My working definition of "substantial" is something in the neighborhood of 20-25 pages of written product if in the form of a traditional research report or advocacy "white paper."  But if the project is to take some other form (e.g., field-work research or other innovate and time-consuming activities), students are advised to keep a record of hours invested on the project through an informal "billing sheet" so that I can be confident that the product is the result of some "substantial" efforts.  Absent special needs and special approval, these sorts of final papers will also be due on the last day of exams, December 21.

Any questions?

Basic expectations for second short paper assignment

As discussing in class, your second short paper assignment is a requirement that you write a very brief memo — no more than 2 pages! — to Jonathan Wroblewski, who is the director of the Justice Department's Criminal Division Office of Policy and Legislation.  Here is DOJ's description of that Office's work and mission:

The office's legislative component develops legislative proposals, legal memoranda, and Congressional testimony.  We prepare comments on pending legislation and other legislative matters affecting the federal criminal justice system; and help represent the Department before the U.S. Sentencing Commission on sentencing-related issues, and before the Judicial Conference's Advisory Committees on Criminal Rules and Evidence regarding the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.

The office's policy component analyzes policy and management issues related to criminal law enforcement and the criminal justice system.  We identify problems and emerging trends; analyze crime data, federal caseload statistics, and other criminal justice system information; develop policy options and recommendations; and provide research, technical, and management support to the Assistant Attorney General and other Division and Department policymakers.

The memo is to recommend how you think the Justice Department could and/or should (formally and/or informally) respond to the US Sentencing Commission recently-released report on Congress on "Mandatory Minimum Penalties in the Federal Criminal Justice System."

Game plan for Friday November 4 and next week... UPDATED!!

I am sorry the excitement of the first Ohio DP Task Force meeting (now reported here in the Columbus Dispatch and here by the AP) slowed us down today.  Fortunately, this just means less work for students next week as I adjust our readings/focus.  Here is a revised agenda for Friday and beyond, with some additional recommended events in the mix:

Friday 11/4: "Framing Innocence" event at 12noon in Room 252 (be sure to RSVP to make sure you get a lunch) AND Sentencing Movie Matinee at 3pm in Room 344 (at which snacks will be provided and after which will be a Berman happy hour).  In addition, for any early risers seeking a free breakfast, consider attending this event over in the Journalism Building in which Heather Washington, an OSU Ph.D. Candidate, will present her work on "Parental Incarceration and Children's Behavior Problems: Uncovering the Not-So-Universal Effects of Fathers' Imprisonment."

Tuesday 11/8: Class will focus on quantifying offense conduct with emphasis on Coker v. Georgia (in casebook) and Problem 4-7 (p. 321 in casebook).

Thursday 11/10: Bodiker Lecture at 12 noon in Saxbe Auditorium (be sure to RSVP to make sure you get a lunch) AND class will focus on quantifying "mitigating" offender characteristics with emphasis on State v. Tiernan & USSG 3E1.1 (in casebook), as well as Problem 5-4 & US v. Pepper (in on-line supplement at pp. 66-79, and also in full form at this link).

Friday 11/11: IF INTERESTED ... another Sentencing Movie Matinee at 3pm in Room 344 (at which snacks will be provided and after which will be a Berman happy hour). 

Monday AM UPDATE:  I was VERY pleased with the number of persons who made it to the Sentencing Movie Matinee last Friday, and I want to do another one (this time with an even better, but longer, movie).  

But having figured out that 11/11/11 is a holiday, I am thinking of doing the movie on Monday 11/14 at 3pm.  But only if some people are available/interested to watch this great movie at that time.  Please report in the comments whether you might be able/interested in attending an even better movie on Monday 11/14.

Reminder: Before Tuesday's class, do/review the pre-modern-reform federal sentencing exercise!

This coming week we are going to shift our look into modern (non-capital) sentencing reforms into high gear.  To have everyone on the same page, it is essential that you come to class on Tuesday having completed the pre-modern-reform sentencing exercise I handed out at the end of last Tuesday's class.

The front page of the exercise requires you to sentence Rob Anon (whose crime and history appear in short form at pp. 273-74 of our text) as if you were a federal judge sentencing in the pre-modern-reform era (say, around 1972, which was when US District Judge Marvin Frankel wrote his book criticizing then-common discretionary sentencing practices).  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 and 0 to $250,000 in a fine, and (2) that federal parole officials will have discretionary authority (but no requirement) to release Rob Anon after he has served at least one-third of the sentence you impose.

You need not yet (and I suggest you do not yet) try to sentence Rob Anon under current post-reform (and 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:  Please feel free (indeed, encouraged) now to comment with thoughts and insights as a result of our in-class sentencing exercise/discussion on Tuesday 10/18.  In particular, I am eager to hear perspectives on any special virtues or special vices that you identify in the pre-guideline sentencing world in which very little law limited or shaped your sentencing discretion.  (We will later discuss special virtues and vices of the modern structured sentencing system.)

Links with background reading on federal mandatory minimums and reasonableness review

I will talk more about (and provide more structure for) the second paper in coming classes.  But, as explained in class today, the topic choices for the paper are limited to two hot(?) federal sentencing issues: federal statutory mandatory minimum sentencing provisions and/or circuit review of federal sentences for reasonableness after Booker. 

There is an incredible amount of reading one can (and should?) do on either or both of these topics, and coverage of some basics on both topics can be found in our casebook.  In addition, here are a few "classic" and/or recent documents worth checking out for more detailed background reading:

• US Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991).  As described by the USSC: "This report responds to a statutory directive that the Commission examine the compatibility of the sentencing guidelines and mandatory minimum penalties, the effect of mandatory minimums on the federal system, and congressional alternatives to mandatory minimums for directing sentencing policy."

• Craig D. Rust, Student Note, When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough (March 2010).  From the abstract by the author: "Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.  This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits."

• William K. Sessions III (former USSC Chair), At the Crossroads of the Three Branches: The U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles (March 2011).  From the abstract by the author: "[T]he Sentencing Commission must assume a leadership role in developing an improved federal sentencing scheme that recognizes the legitimate interests of each branch.  I urge the Commission, working together with Congress and executive branch, to reformulate the guidelines in a manner that helps reduce unwarranted disparities while, at the same time, remove the main obstacle that has hindered lasting achievement of the aspirations of the SRA: the undue complexity and rigidity of the guidelines system, which have resulted in large part from congressional directives and draconian mandatory minimum statutes and which have caused increasing numbers of judges to resist (and, after Booker, in some cases entirely reject) substantial portions of the current guidelines."

None of these (lengthy) documents are required reading for the paper assignment, and there might be some value in doing some of your own web-exploration on both topics without reading these (lengthy) papers.  Here are links to a variety of websites that discuss modern federal sentencing practices in various ways:

• United States Sentencing Commission
• US Department of Justice
• US Office of Defender Services
• Families Against Mandatory Minimums
• The Sentencing Project

Seeking mid-break thoughts about mid-term paper assignment

As I mentioned last week in class, I am eager to receive any and all student feedback on the writing assignment I gave you for the first part of the semester.  I trust no one found it too burdensome (though you should tell me if you did), and I am especially hopeful some will report in the comments if they found the assignment fun or at least useful/educational.

As always, feel free to post comments with or without your name as you see fit.  (And please realize that I will take a lack of comments as a sign that there was not a strong disaffinity for this kind of assignment and that another similar small writing project before Thanksgiving would be just fine.)

Key facet of the first paper: it should be all about you, not me

As you all should know, every student is required to submit a short paper (of no more than 5 pages) before Fall Break concerning a topic of sentencing law, policy or practice that you believe is under-reported and/or under-researched and/or under-litigated.  I emphasize the "you" in this post because I want and expect this first paper will reflect your personal perspective on an issue of sentencing law, policy or practice that you believe should be getting more attention from the press and/or from researchers and/or from courts.

There are truly thousands of sentencing issues that I personally think merit a lot more attention from the press and from researchers and from courts.  That reality is part of the reason for this assignment so that I can hear from interested students about what specific issues you personally consider problematically under-reported and/or under-researched and/or under-litigated.  The best papers will not be trying to guess at what issue(s) I think merit more attention, but rather will be effectively explaining in clear and cogent terms the author's views.

Critically, at least some basic research may be required for you to confirm your beliefs as to what topic of sentencing law, policy or practice is under-reported and/or under-researched and/or under-litigated. In addition, the best discussion of this issue may explain not only why this issue deserves more attention, but also why you think the issue has heretofore not gotten the attention it deserves from the press and/or from researchers and/or from courts.

Make sense?

Place and space for any final white-paper questions

This post is intended to provide a place and space for questions about the final white-paper assignment.  I will, of course, answer questions about the assignment in our final class and via personal e-mails, but I encourage students to feel comfortable asking questions here so that I can provide answers to questions in a forum that should remain accessible to all through the exam period.

Commenting on each others' mid-term papers...

can and should get started in the comments to this post.  And, upon request (or based on my own assessment of which comments merit added attention), specific comments can and will be transposed into a new post (which in turn can and should enable continued and more focused commentary).

Most essentially, everyone is urged to recommend at least one of the mid-term paper (and as many as appropriate) that you think would merit publication and/or wider circulation either as is ASAP or in some modified form at some future date.

Reviewing the mid-term paper experience (and Joker's Wild)

As I mentioned in class, I am open to lots of different ways to review and reflect on the mid-term paper experience.  I especially like the idea of circulating (without identification) all the papers for all to see.  But I want to provide everyone a chance to object to this tentative plan (via comments or e-mails to me).

In addition, I am eager to hear ideas for going "off the board" concerning how we might review the mid-term paper exercise: i.e., folks should feel free to make novel suggestions concerning how to make the most of the mid-term experience.

Speaking of going "off the board," Jonathan was kind enough to help me find this YouTube link to a classic clip of the old Joker's Wild game show.  There is a reference to going "off the board" around the 2:15 mark.  (Also, this clip should make every feel good about being smarter than some folks were in the 1970s.)

Please turn in pre-class questionnaires ASAP

As of this writing, I have only received eight questionnaires with ranked purposes and proposed sentences for Richard Graves and John Thompson.  Class will be aided greatly if I get more of these forms before 12 noon on Wednesday so I can calculate "results" before our class.

THANKS!

2008 Supplement for Sentencing Law and Policy casebook available here

As noted in the course description, an 2008 on-line supplement providing additional materials to accompany our Sentencing Law and Policy casebook can be download from this blog/website. 

Specifically, the SL&P 2008 supplement can be downloaded at this link.  Though this supplement includes lots of notes covering various sentencing developments through summer 2008, its most critical materials are the edited versions of Kimbrough and Gall (which we will not discuss until probably mid-Frebruary).

Welcome to the reboot of this blog for another semester of punishment and sentencing

Welcome to the re-launch of a this blogging adventure.  This blog started two years ago, with the uninspired title of Death Penalty Course @ Moritz College of Law, to facilitate student engagement in the Spring 2007 course on the death penalty that I taught at OSU's Moritz College of Law. 

Though I formally closed this blog down not long after that course ended, I have been pleased to see all the students' hard work as reflected in the archives still generates significant traffic and much of the posts remain timely.  Consequently, as I gear up for teaching Criminal Punishment & Sentencing in Spring 2009 at the Moritz College of Law, I decided to reboot this blog to allow the new course to build indirectly in this space on some of the materials covered before.

I was generally pleased with how this blog helped promote a new type of engagement with the death penalty and with on-line media with students in the 2007 class.  (Even after nearly five years of focused blogging at my main blog, I continue to be amazed by what can be discovered through the process of blogging.)  But because I did not assign a text in the Death Penalty Course, this blog was truly the focal point for reading materials in the 2007 course.  We have a traditional text for our 2009 Criminal Punishment & Sentencing course, this blog likely will play a less fundamental role in course activities.

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Class readings on McCleskey, race and the death penalty

Though I seriously doubt we will get to these materials before next week, I wanted to post now the materials and ideas that Benjamin and Katherine have sent my way to facilitate our examination of race and the death penalty:

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McCleskey v. Kemp has been called "the most far-reaching post-Gregg challenge to capital sentencing."  In covering the topic, we plan on briefly discussing the holding of McCleskey, looking at some of the statistics involved, looking at the arguments involved on both sides and talking about some current thoughts on racial disparity. Please re-familiarize yourself with the McCleskey decision (Professor Berman will hand out an excerpt on Wednesday) and read the following:

1. Article by John C. McAdams on Racial Disparity and the Death Penalty
2. Homicide Trends by Race
3. Text of the Kentucky Racial Justice Act
4. General link on DPIC concerning Race and the Death Penalty

We also ask everyone to respond to the following questions in the comments section of the blog:

1. What factors do you believe lead to the apparently overt disparate racial outcomes as reported by the Baldus Study?
2. If race is a factor, how do you believe it is factored into the death penalty equation?  Is it a statutory bias, a legislative purpose bias, a legislative intent bias, a prosecutorial bias, a juror bias, a victim bias, a defendant bias, a reality of criminal demographics, some other racial manifestation, something else entirely?
3. Assuming the validity of the Baldus Study and its statistical findings, what do you believe should be proper response to such disparate racial outcomes?
4. Do you believe that a statute such as Kentucky’s Racial Justice Act can properly safeguard against the use of race as a factor in meting out the death penalty? If not, can there be any effective safeguards that can protect against this bias short of getting rid of the death penalty?

Report your (tentative) white-paper official here

In this post, I provided some ideas as you consider options for which official your white paper will address.  Now it is time to set out your (tentative) choice in the comments (though Larysa here has already got us off to a thoughtful start). 

As before, you are welcome to explain the reasons for your choice, but it is sufficient if you just state your chosen official.  Thanks.

NOTE:  You are not forever committed to your indicated selection.  That's why I keep saying "tentative" in all these posts.  As you begin your research and writing, you are free to change jurisdictions and/or officials.  Remember that, as detailed here, everyone will be expected to submit a white paper outline (of at least two pages) by March 14.  The development of this outline is when your tentative choices ought to become firm.

Wednesday class postponed

All of OSU is closed today, so our schedule for student-led blogging and class discussion will have to be modified by moving everything back at least a day.  The execution method conversation (materials here and here) will thus begin with our class next Wednesday (2/21).  In that class, we will also talk about rescheduling the other planned weeks of blogging/presentations.

Though campus may be closed, this blog is always open.  A post later today will allow you to report your tentative white-paper official selection, which supposed to be made by today.

Considering your white-paper official selection

As indicated here, this week everyone is to (tentatively) select an official for their white paper.  In a subsequent post, I will ask for tentative choices to be reported in the comments.  This post provides some "food for thought" as you consider options.

1.  The kind of advice you want to give should impact your choice of official.  If you are eager to advocate strongly against the death penalty, consider selecting an official in your jurisdiction favoring or fostering the application of the death penalty; if you are eager to advocate strongly for the death penalty, consider selecting an official disfavoring or blocking the application of the death penalty.

2.  Consider the separation-of-powers realities of your choice.  Executive branch officials, legislative officials, and judicial officials all have different kinds of authority and limitations, and your white paper will need to be attentive to these realities.

3.  Feel free to be thoughtfully creative in your choice.  You can select non-government officials (e.g., the head of a local bar task-force); you can select "behind-the-scene" folks (e.g., Karl Rove or a governor's chief legal counsel); you can think very local (e.g., an assistant to the Harris County prosecutor); you can think very global (e.g., the head of the UN).

4.  As I suggested before, have fun and follow your interests: pick an official that truly interests you (or that you may aspire to be) so that the experience feels real and meaningful.

A great offer from Arizona

One student has indicated that her white paper will focus on Arizona, and perhaps others are still ruminating about their jurisdiction.  Consequently, I was very pleased to get this kind e-mail from a new friend in Arizona (who authorized this posting):

Professor:  My name is Jim Belanger.  I am a partner and the Director of the White Collar Criminal Defense Group at Lewis and Roca in Phoenix, Arizona. I have been doing death penalty work since 1991.  Your blog is excellent, among other things because it is useful.

In your class on the DP you are having students write white papers on the DP in certain states.  Arizona would be an extremely interesting jurisdiction to study, particularly with what is going on right now in Maricopa County.  For what appears to be gross but thinly thought-out political purpose, the recently elected Maricopa County Attorney has increased the noticing of capital cases quantumfold, to the point that he has personally fomented a crisis in the ability to defend these cases. 

Arizona has a long history with capital punishment, including its abolition in 1912.  It also recently became the first state to adopt mandatory adherence to the ABA Guidelines for defense counsel performance in Capital cases.  These isues are all coming to a head right now, and certainly will do so during the course of your semester.  If one of your students wants to do his or her paper on Arizona, I am available to help.

Thanks. jjb

Jim Belanger, Lewis and Roca LLP

Report your (tentative) white-paper jurisdiction here

In this post, I provided some ideas as you consider options for what jurisdiction will be the focal point for your white paper.  Now it is time to set out your (tentative) choice in the comments.  You are welcome to explain the reasons for your choice, but it is sufficient if you just state your chosen jurisdiction.  Thanks.

Considering your white-paper jurisdiction selection

As indicated here, this week everyone is to (tentatively) select a jurisdiction for the white paper.  In a subsequent post, I will ask for tentative choices to be reported in the comments.  This post provides some "food for thought" as you consider options.

1.  The kind of advice you want to give should impact your choice of jurisdiction.  If you are eager to advocate strongly against the death penalty, consider selecting a state or country in which the death penalty is still in place; if you are eager to advocate strongly for the death penalty, consider selecting a state or country in which the death penalty is inactive or in decline.

2.  If you like current events, consider selecting a jurisdiction in the midst of a robust legal and/or policy debate.  California, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota, Texas and Wisconsin are just some of the states that are sure to continue making death penalty headlines in 2007. 

3.  Feel free to be thoughtfully creative in your choice.  You can go international (e.g., China, Iran, Japan and the European Union all have lots of capital issues); you can go local (e.g., Harris County, Texas and Hamilton County, Ohio have together sent more people to death row than about 40 US states combined).

4.  Have fun and follow your interests.  Because this assignment should be more engaging than a traditional final (or even a standard research paper), you may spend lots of time on this project.  Pick a jurisdiction that truly interests you so that the experience feels like a labor of love.

Basic information about blog and "white paper" requirements

I have prepared a document with the basic parameters of the blog and "white paper" requirements in this class.  The document can be downloaded here:

Download dp_blog_and_white_paper_basics.rtf

As the document notes, all of these ground rules are tentative.  I welcome feedback and suggested improvements here in the comments or in class (where I will go over these basics).

The final "white paper" requirement

As I mention in the course description, I have decided to try a novel approach to the "final" in this class. Because the law, policy and politics of the death penalty is quite fluid (especially right now), I do not want to develop a final exam that forces students to focus narrowly n current (and ever-evolving) death penalty doctrines.  Instead, I am planning to require student to prepare a "white paper" discussing the history, law and politics of the death penalty in a particular jurisdiction.

I am still thinking about exact due dates and length requirements, and I an not even sure the term "white paper" precisely fits what I have in mind.  (Here is a wikipedia entry on the concept of a "white paper," and it has me thinking that I am really looking for students to do something more akin to a "green paper".)  Whatever we call this final assignment, my hope is that students will produce documents that not only justify posting on this blog, but also could be sent directly to officials in the jurisdiction being examined.