December 02, 2020

What data in the federal system would indicate the Biden Administration is drawing down the federal drug war?

Rates_drug_use_sale_1080_737_80With my usual apologies for only scratching the data/metrics surface in class yesterday, I wanted to link here to some of the materials I mentioned and then set up our final discussion giving particular emphasis to the (federal) war on drugs.  To start, on the crime front, I flagged graphics in class drawn from this short FactTank report, titled "What the data says (and doesn’t say) about crime in the United States," from the Pew Research Center.  I recommend the full piece, though I could easily cite to dozens more articles about so many other uncertain metrics regarding crime.

And when it comes to uncertainty about crime, I always think about drugs because illegal drug activity is the kind of behavior that is unlikely to be regularly reported to police and that is so wide-spread that it has to be, by necessity, only selectively enforced by police and prosecutors.  One reason the so-called "War on Drugs" is often called racist is because survey evidence suggests that blacks and whites use and sell drugs at roughly similar rates, but blacks are much, much more likely to be subject to drug-related arrests, sentences, and incarceration.  This data visualization (also reprinted) from The Hamilton Project is a little dated, but it captures the basic disconcerting data realities of seemingly extraordinarily disparate enforcement patterns.

But, as is often the case, there are reasonable debates based on existing data as to whether we ought to worry particularly about drug war disparities if our biggest concern is mass incarceration.  LawProf John Pfaff wrote an interesting book a few years ago (summarized here) stressing data showing the relatively low percentage of state prisoners incarcerated for drug offenses to argue that we ought not focus on drug offenses as a cause or driver of modern mass incarceration.  Sure enough, if you check out the amazing "Whole Pie" accounting of incarceration, one sees that "only" about 15% of the state prison population is made up of drug offenders.  (One quibble I have always brought up in discussions with Prof Pfaff is his failure to consider sufficiently how prior drug offenses impact and extend the sentences of state (and federal) offenders for other crimes.  Many folks in the states subject to particularly harsh three-strikes or habitual offender laws often have prior convictions based in drug enforcement.  As I see it, folks getting decades in prison for, say, a robbery in 2015 based in part on prior drug offenses in 2010 and 2005 are still "drug war" prisoners.)

However one considers drug war realities in state justice systems, the significant impact of drug enforcement at the federal level is indisputable.  I noted in class this US Sentencing Commission Quick Facts document about caseloads and sentencing in drug cases in the federal system, and that data document shows that more than a quarter of all federal cases sentenced last year were drug cases and the average sentence for all these cases was 77 months (whereas the average sentence for all fraud offenses last year was 23 months).  Another way to see the impact of drug cases in the federal system is this other USSC Quick Facts document on the federal prison population as of June 2020.  That document shows that roughly 45% of the federal prison population is incarcerated for drug offenses and that there are more than 10 times as many current federal prisoners serving time for drug offenses than for fraud offenses.  Indeed, it appears that there are roughly the same number of meth offenders in federal prison as there are federal firearm and robbery offenders combined (and firearm and robbery offenders are the two biggest categories of prisoners after drug offenders according to this USSC data).

ChartBut the story gets even more interesting if you look at some of the quite divergent racial patterns in federal drug enforcement and sentencing.  In this Vox article is a slightly dated chart (also reprinted here) that breaks down the racial composition of offenders for different drugs in the federal system, and it shows that almost all sentenced crack offenders are black whereas very few marijuana and meth offenders are black.  These data suggest that if one had the goal of significantly reducing the number of black federal prisoners serving time for drug offenses, reducing significantly the number of crack (and powder cocaine) prosecutions would be sufficient.  But it the concern was more broadly about all people of color, marijuana and meth prosecutions are key because they are disproportionately involving Latinx individuals.  And, if gender intersectionality is of concern, check out this USSC Quick Facts on female offenders which reports that "Among female drug trafficking offenders, 41.6% were Hispanic followed by White (40.1%), Black (13.4%), and Other races
(5.0%)" as compared to "female fraud offenders, [who were] 43.6% were White, followed by Black (31.3%), Hispanic (18.6%), and Other races (6.5%)."

I know that processing all this data is near impossible, and my main goal is just to highlight how many different metrics one might wish to consider.  But I also wanted to finish by focusing on how the new Biden Administration players might set goals for these data as part of an effort to "de-escalate" the drug war.  The number of drug cases prosecutors by federal authorities would seem to be a matter largely of prosecutorial discretion and a matter that the Biden Administration could significantly alter over time.  Given that recent history details about 20,000 federal sentences imposed for drug cases averaging around six years in prison, that means roughly 120,000 years of federal prison is being allocated to federal drug enforcement each year.  Would it be reasonable for a new Attorney General to announce that by, say, 2024 she thinks the federal system ought to allocate only around 50,000 years of federal prison to federal drug enforcement each year (e.g., there should be only 10,000 cases averaging 5 years)?  Or how about only 20,000 years of federal prison to federal drug enforcement each year (only 5,000 cases averaging 4 years)?  Or is this crazy talk?

December 2, 2020 in Current Affairs, Guideline sentencing systems, Scope of imprisonment | Permalink | Comments (2)

August 29, 2020

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

Alice_Johnson_-_2019_State_of_the_Union_Guests_(40035011983)_(cropped)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.

August 29, 2020 in Class activities, Clemency, Current Affairs, Theories of punishment, Who decides | Permalink | Comments (1)

August 27, 2020

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

Second lookThe 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.


  • 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


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

August 27, 2020 in Class activities, Current Affairs | Permalink | Comments (0)

February 03, 2020

Another round-up of clemency news and notes

I will here continue rounding up of some clemency news and commentary from a little Google news searching.  Once again, here I will provided the jurisdiction, headline and link:

UPDATE:  The Washington Post has this long new article about the federal clemency power headlined "Most Trump clemency grants bypass DOJ and go to well-connected offenders."  It gets into the nitty-gritty of the federal clemency process.

February 3, 2020 in Current Affairs | Permalink | Comments (0)

November 23, 2019

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:

November 23, 2019 in Class activities, Current Affairs, Scope of imprisonment, Television | Permalink | Comments (0)

October 20, 2016

Some more "who sentences" stories from my main blog, now focused on non-capital sentencing

In this post earlier this month, I flagged a number of "who sentences" stories relating to the death penalty on my Sentencing Law & Policy blog.  Here is now a similar round up of some recent non-capital sentencing stories and commentaries that provide some more "who" perspectives:

October 20, 2016 in Class activities, Current Affairs, Who decides | Permalink | Comments (0)

February 21, 2015

Some notable gubenatorial capital developments

Though I am eager to start migrating our class discussions away from capital sentencing and punishment to non-capital sentencing and punishments, the notable death penalty news keeps coming.  Specifically, check out these two recent posts from my main blog:

As always, I am eager to hear student reactions to these developments and others in the comments or elsewhere.

February 21, 2015 in Clemency, Current Affairs, Death penalty history | Permalink | Comments (2) | TrackBack

February 11, 2015

Two fascinating new Ohio "who" sex offense sentencing stories

As mentioned in class, this week and next our class discussions will migrate from the basics of modern capital sentencing to the basics of modern non-capital sentencing.  And, as the Coker and Kennedy cases highlight, all modern capital cases now involve only the crime of murder even though any number of sex offenses often lead legislatures to make special (and severe) sentencing laws and rules.  On the topic of sex offenses, and with unique aspects of the "who" story in the mix, I recommend everyone check out these two new stories from my main blog concerns sentencing developments in our own state of Ohio:

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

February 11, 2015 in Class activities, Current Affairs, Ohio news and commentary, Recent news and developments, Who decides | Permalink | Comments (1) | TrackBack

March 30, 2014

With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums

As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff.  (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence.   Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact?  Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)

We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence.  Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case:  should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)?  How about her status as a newlywed?  Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?   

But rather than continue to obsess over the killer bride  (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms.  Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:

March 30, 2014 in Class activities, Current Affairs, Guideline sentencing systems, Interesting new cases | Permalink | Comments (4) | TrackBack

February 26, 2014

Links to SCOTUS briefing in Hall v. Florida (and extra credit opportunity)

The issue presented to the Supreme Court in Hall v. Florida is "Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia."

Here are the top-side briefs:

Here are the bottom-side briefs:

February 26, 2014 in Class activities, Current Affairs, Death eligible offenses, SCOTUS cases of note, Who decides | Permalink | Comments (0) | TrackBack

February 11, 2014

Should Washington Gov. Jay Inslee be praised or condemned for unilaterally suspending executions in his state?

I am intrigued to have learned right after class that  Washington Governor Jay Inslee decided to take his state's death penalty into his own hands today by declaring a moratorium on executions while he serves as Governor.  I have blogged about this notable decision here at my main blog; and these comments from Governor Inslee’s remarks announcing his execution moratorium (which can be accessed in full at this link) seemed especially notable in the wake of our conversations in class recently:

Over the course of the past year, my staff and I have been carefully reviewing the status of capital punishment in Washington State.

We’ve spoken to people in favor and strongly opposed to this complex and emotional issue, including law enforcement officers, prosecutors, former directors of the Department of Corrections, and the family members of the homicide victims.

We thoroughly studied the cases that condemned nine men to death. I recently visited the state penitentiary in Walla Walla and I spoke to the men and women who work there. I saw death row and toured the execution chamber, where lethal injections and hangings take place.

Following this review, and in accordance with state law, I have decided to impose a moratorium on executions while I’m Governor of the state of Washington.

Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred....

I have previously supported capital punishment. And I don’t question the hard work and judgment of the county prosecutors who bring these cases or the judges who rule on them.

But my review of the law in Washington State and my responsibilities as Governor have led me to reevaluate that position....

In 2006, state Supreme Court Justice Charles Johnson wrote that in our state, “the death penalty is like lightening, randomly striking some defendants and not others.”

I believe that’s too much uncertainty.

Therefore, for these reasons, pursuant to RCW 10.01.120, I will use the authority given to the Office of the Governor to halt any death warrant issued in my term.

Is this move further proof of the astuteness of the Marshall Hypothesis? And that "death is different"?

That Governor Inslee is (foolishly? rightfully?) much more concerned about equal justice than about individual justice?

That Governor Inslee lacks the stomach needed to faithfully execute his state's laws?

That Governor Inslee has the courage to be a statesman and not merely a politician?

UPDATE:  This post over at Crime and Consequences by Kent Scheidegger takes apart the statement by Gov Inslee to express the view that concerns about equal justice should not preclude application of individual justice to carry out existing death sentences.

February 11, 2014 in Current Affairs, Pro/Con arguments surrounding the death penalty, Who decides | Permalink | Comments (6) | TrackBack

January 30, 2014

Other than the defendant, which "whos" would you say should be considered most responsible for the death sentences in...





The principal goal of our pre-sentencing conversation about the Williams case on Wednesday was to shake everyone away from the (incomplete) view that a trial judge imposing a sentence is the most responsible (or even most important) decision-maker in the sentencing process.  

A sentencing judge (or, in some cases, a sentencing jury) is often the most visible decision-maker in the sentencing process, but all the formal and informal criminal justice players who act before the official moment of sentencing (as well as many that act later) can often be, both formally and practically, much more responsible for the sentence that is actually imposed and served than the sentencing judge.

So, with these thoughts in mind and our "who" insights and radar now heightened, I would love to start a discussion here about which "whos" you would be inclined to say should be considered most responsible for the death sentences in any or all of the high-profile cases referenced above.

January 30, 2014 in Current Affairs, SCOTUS cases of note, Who decides | Permalink | Comments (4) | TrackBack

January 21, 2014

Low-stress, high-learning opportunities via TV, radio and blogs

I made reference to a lot of current events stories to follow at the start of class, in part because the development of these stories highlight how many distinct and distinctive "who"s play a role in criminal justice reforms and ultimately in the operation of modern sentencing systems.

For example, the NFL can have a huge impact on social and political views and developments throughout the United States, especially this time of year.  Thus, I think folks ought to check out tonight's episode of HBO's Real Sports examining pot use in the NFL.

Similarly, doctors and medical groups have come to play a large role in modern discussions of execution methods, and this fact should be on display during the 10am Wednesday morning segment of All Sides with Ann Fisher on WOSU.

And the role of victims in the criminal justice system generally, and especially at sentencing, will be front-and-center before the U.S. Supreme Court tomorrow morning during the oral argument in the Paroline case.  This SCOTUSblog post provides a lengthy preview of the issues before SCOTUS in the case.

As the title of this post is meant to highlight, I see watching TV and listening to the radio and reading blogs to be great low-stress, high-learning opportunities.  I hope you all agree.

January 21, 2014 in Class activities, Current Affairs, Recent news and developments, SCOTUS cases of note, Television | Permalink | Comments (2) | TrackBack

January 20, 2014

Some past (and present) MLK-inspired perspectives on sentencing

As perhaps is already clear from our first full week of discussion, issues of race and class are necessarily important concerns when we consider the law, policy and practices of modern sentencing systems.  In part because of that reality, I have often through the years emphasized a number of MLK-inspired themes on my main sentencing blog, and here are some links to some of my favorite past MLK Day posts (as well as the one I did today):

January 20, 2014 in Current Affairs, Race and gender issues | Permalink | Comments (1) | TrackBack

December 01, 2011

Filings from government in US v. Blagojevich

I talk about some of the issues discussed in class concerning the upcoming sentencing on my main blog in this post, and here is a link to the government's sentencing memo in US v. Blagojevich.  I continue to look for an on-line version of the defense filing (and will give extra credit to any student who can find a link and post it in the comments).

In addition to the guideline stories I stressed in class, many other aspects of the government's memo merit consideration and comment.  And this local article from a Spingfield paper, titled "Federal sentencing a confusing process," might be of special interest and appeal as you think about how the public thinks about these sentencing issues in a high-profile setting without having had the benefit of an entire semester of Sentencing Class with Crazy Professor Berman.

Among other topics, I would very much welcome/encourage you to pretend to be Judge Zagel and script in the comments a sentence (and an explanation for the sentence) to be imposed on Rod Blagojevich.  For all we know, the Judge might read these comments before sentencing.

December 1, 2011 in Current Affairs, Guideline sentencing systems, Recent news and developments | Permalink | Comments (10) | TrackBack

September 20, 2011

Troy Davis denied clemency ... now what if you think he might be is innocent?

As a few folks have already noted in comments to a prior post and as this lengthy Atlanta Journal-Constitution article reports, this morning the Georgia Board of Pardons and Paroles declined to commute the death sentence of Troy Anthony Davis.  A couple quick thoughts and questions to set up a discussion here (and perhaps also in class):

1.  I was wrong in my prediction that the Georgia Board would grant clemency (and I have already proudly admitted this at my SL&P blog in this post).  Not that you needed proof that I can be wrong, but I hope you all realize that I am never ashamed to be wrong and I often then become eager to figure out why.

2.  Troy Davis got every layer of traditional appellate review of his original death sentence as well as (many) additional ones.  Should this fact make us more comfortable with his pending execution or more concerned about the value of lots and lots of review of death sentences?

3.  What should persons who are genuinely concerned that the Georgia might execute an innocent person tomorrow do now?  What if those persons work for the US President or Georgia's governor?

4.  Is the Davis case getting so much attention only because of innocence issues?  How much of a role do you think race and geography is playing here?  If all the offense facts were the same, but the state about to execute Davis was Ohio and Davis was white, do you think the case gets as much attention?  More?

I have lots of coverage of both the history and current doings in the Davis case in this posts from my SL&P blog:

UPDATE:  The official statement from the Georgia Board of Pardons and Paroles is short and available at this link. Here is the text in full:

Monday September 19, 2011, the State Board of Pardons and Paroles met to consider a clemency request from attorneys representing condemned inmate Troy Anthony Davis. After considering the request, the Board has voted to deny clemency.

Troy Anthony Davis was convicted in 1991 of the murder of 27-year old Savannah Police Officer Mark MacPhail. On August 19, 1989, MacPhail was working in an off-duty capacity as a security officer at the Greyhound Bus Terminal which was connected to the Burger King restaurant located at 601 W. Oglethorpe Avenue.  At approximately 1 a.m., on that date, Officer MacPhail went to the Burger King parking lot to assist a beating victim where MacPhail encountered Davis.  Davis shot Officer MacPhail and continued shooting at him as he lay on the ground, killing MacPhail. Davis surrendered on August 23, 1989.

Davis is scheduled to die by lethal injection September 21, 2011, at 7 p.m., at the Georgia Diagnostic and Classification Prison in Jackson, Georgia.

September 20, 2011 in Current Affairs, Race and gender issues, Who decides | Permalink | Comments (11) | TrackBack

April 19, 2010

What are essential topics for discussions in our final few weeks of class?

I have arranged for US District Judge John Gleeson to come speak with our class on our final day together (next week, April 28), which means this coming week is essentially our last opportunity to cover formally in class any topic or topics that you are especially eager to discuss.  For that reason, I hope students will use the comments to this post as an opportunity to indicate any and all substantive or procedural sentencing topic(s) that should be on our agenda for our closing time together.

As always, I have plenty of topics/ideas in mind, and I am also hopeful (but not at all confident) that we might finally have a hot new SCOTUS sentencing ruling to discuss this week (as the Justices have announce that new opinions will be handed down on Tuesday and Wednesday mornings).  But I want to make extra sure we devote time to any topic that students are still eager to have formally covered in the classroom.

April 19, 2010 in Class activities, Current Affairs | Permalink | Comments (7) | TrackBack

February 20, 2010

Reconnecting on Feb 24 with the help of lots of notable current events

I have heard great reports about the class this past week from our two kind guest lecturers.  When we (finally!) get the chance to reconnect this coming Wednesday, I would be happy and eager to provide any kind of direct follow-up to what you covered this past week (and students are encouraged to use the this post for any follow-up comments or requests based on the guest presentation).

In addition to any needed follow-up, I plan for this week's class to involve mostly reconnection after we've been away from each other quite a while thanks to snow days and other complications.  Specifically, here are my main agenda items for this week's class on Feb 24:

1.  Confirm due dates and expectations for mid-term assignment and final white-paper

2.  Wrap up focused discussion on the death penalty with emphasis on appreciating the importance (and interplay) of the distinct concepts of discretion, disparity, discrimination and sentencing severity. 

For this part of the class discussion, consider how you (or others) would answer this question: Would you prefer a modern justice system in which the 500 worst murderers each year all got executed or one in which only 50 of these 500 worst murderers were executed, but that some (hard to identify) discriminatory factors will probably play a role in selecting which exact 10% of the worst 500 murderers get executed?

3.  Discuss which (of so many) interesting current-events developments we might want make a special focal point for focused discussion in the weeks before Spring Break. 

For this part of the class discussion, consider these posts of note from around the blogosphere:

As always, students are welcomed and encouraged to get a running start on a discussion of these (and other) topics via the comments to this post.

February 20, 2010 in Class activities, Current Affairs, Interesting new cases, Recent news and developments, SCOTUS cases of note | Permalink | Comments (0) | TrackBack