Sentencing Class @ OSU Moritz College of Law

Spotlighting federal government's ability (and efforts) to control both "charges" and "real" conduct in some drug cases

As we wrapped up a too-quick discussion of the "offense" for sentencing purposes with a focus on drug cases, I briefly mentioned the somewhat (in)famous litigation in Chicago surrounding so-called "stash-house sting" case.  I have done a series of blog posts about these cases at my main blog, some of which are linked below.  Here is a 2019 Chicago Tribune article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison," which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full (and posts linked below) for those interested in these stores, but here is an overview of the basics (with sentencing points bolded) drawn from this press piece (which also highlights the role of a bunch of different critical "whos"):

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison.  He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decades-long prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary. Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.  The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling.  While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

I was fortunate to get Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, to author a series of posts for my main blog about her remarkable work in these remarkable cases.  Provided below are links to my main blog of an early press piece, and there her three posts about the amazing and consequential work of defense lawyering in this setting:

• Deep dive into litigation over Chicago “Stash House Stings”

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

• Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation" 

Wrapping up review of capital sentencing realities with some "who" review

As mentioned in class, there are many lessons to draw from our Unibomber capital sentencing exercise, so the start of our next class will be continuing our discussion of capital sentencing laws and their application in Florida, Texas and Ohio.   One lesson we have already discussed in various ways in various settings is how many different "whos" can have an impact on the administration of sentencing systems, and I thought it might be useful to link to just a small slice of a huge body of research/commentary on various "whos" impacting capital sentences.  So:

Victims:

• "A Heavy Thumb On The Scale: The Effect Of Victim Impact Evidence On Capital Decision Making"
• "#BlackLivesDon’tMatter: Race-of-Victim Effects in US Executions, 1976-2013"

Prosecutors:

• "America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive The Death Penalty"
• "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri"

Defense attorneys:

• "Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer"
• "Capital Defense Lawyers: The Good, the Bad, and the Ugly"

Trial judges:

• "The Death Penalty: Should the Judge or the Jury Decide Who Dies?"
• "The Death Penaltyin Alabama: Judge Override"

Jurors:

• "Blind Justice: Juries Deciding Life And Death With Only Half the Truth; How Death Penalty Jurors are Unfairly Selected, Manipulated, and Kept in the Dark"
• "Capital Jurors in an Era of Death Penalty Decline"

Appellate judges:

• "A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States"
• "In states with elected high court judges, a harder line on capital punishment"

Governors:

• "The Death of Death Row Clemency and the Evolving Politics of Unequal Grace"
• "Rethinking the Timing of Capital Clemency"

Coincidentally, Ohio's own Gov. John Kasich provided today an interesting twist on capital sentencing "whos":

     "Ohio Gov Kasich issues reprieve days before scheduled execution so clemency process can consider new juror letter"

UPDATE:  And now another sad story of another serious crime provides another "who" example:

    "Prosecutor will seek the death penalty if Westerville shooting suspect survives"

Recent articles on prosecutorial tunnel vision

I mentioned in class that some of the latest scholarship on wrongful convictions and false confessions is focused on the idea of prosecutorial tunnel vision.  Here are two articles discussing this idea:

• The Multiple Dimensions of Tunnel Vision in Criminal Cases

Abstract:  The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent.  The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision.

Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system.  This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review.  The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal.  Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule.  This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

• Loyalty to One's Convictions: The Prosecutor and Tunnel Vision

Abstract:  This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision.  Specifically, it asks why prosecutors become loyal to a particular version of events - the guilt of a particular suspect - even when that version of events has been discredited.  The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor's office. It then considers the prosecutor's divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system.  Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one's beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.

Information on Ted Kaczynski and Ohio DP law

To give you a focus for examining modern death penalty statutes, the reading packet encourages thinking about how Ted Kaczynski might be prosecuted under the death penalty statutes in Texas and Florida.  Though not in the text, you should also consider how Ted might fare under Ohio's death penalty statute.  (Ignore for this exercise that these states would not likely have jurisdiction.)

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 this short article entitled "The Death Penalty Up Close and Personal" by David Kaczynski (Ted's brother).  Also worth a read is this 1999 article from Time magazine by Stephen Dubner.

UPDATE:  Life is all about timing, and apparently ours is good.  As we look back at the Unabomber's crimes and punishment in class, Ted Kaczynski writings are making new headlines.  From this article in the Yale Daily News:

Fourteen years after opening a package bomb sent by the Unabomber, Yale computer science professor David Gelernter ’76 still feels pain every day, and more may soon be coming. 

After nine years in prison, Ted Kaczynski has returned to both the headlines and the courtroom as he challenges a government plan to auction off his expansive writings to raise restitution for his victims. But as Kaczynski fights the auction on First Amendment grounds, some of his victims, including Gelernter, have raised concerns about the possibility that Kaczynski's musings about bombmaking could wind up the focus of a morbid bidding frenzy — and open up old wounds at the same time.

Important series on capital representation

Any lawyer or law student interested in the death penalty should be attentive to the realities of representation issues in capital cases.  And that means every lawyer or law student interested in the death penalty must read Stephen Henderson's fantastic series of related articles about the poor quality of capital defense assembled here under the heading "No Defense: Shortcut to Death Row."  The lead piece is available here and is entitled "Indefensible? Lawyers in key death penalty states often fall short."   

More information can be found at this post on my home blog and also from at CDW and ODPI.