Sentencing Class @ OSU Moritz College of Law

Listen to (and log time on) oral argument in Jones v. Mississippi

I found as a useful distraction the morning of 2020 Election Day listening to the oral argument in Jones v. Mississippi, 18-1259.  All the Justices had lots of interesting and hard questions concerning the issue of whether the Eighth Amendment requires a sentencer to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

And you can now LISTEN to the Jones oral argument HERE.

Which of the amicus briefs in Jones v. Mississippi do you find especially effective or interesting?

As I mentioned in class today, I think the case of Jones v. Mississippi presents an important opportunity for the Supreme Court, and especially the newer Justices, to address the application of the Eighth Amendment to juvenile murders.  Here is the official question presented:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. 

As highlighted by the many links below, there is a lot of friendly interest in this case as expressed in a sizable number of friends of the court briefs.  Though I do not expect anyone to read carefully all (or even many or even any) of the briefs linked below, you might be interested in clicking through to check out some of the groups being friendly and the friendly advice they are giving to the Justices.

As suggested in the title of this post, if you have time and interest, I would be eager to hear whether you find any of the amicus briefs especially effective or interesting.

 

Briefs on behalf of Brett Jones

Brief of petitioner Brett Jones

Brief amici curiae of National Association of Criminal Defense Lawyers, et al.

Brief amici curiae of Juvenile Law Center, et al.

Brief amici curiae of Madge Jones, Tony Jones, Marty Jones and Nicolle Olson

Brief amici curiae of The American Civil Liberties Union Foundation, The ACLU of Mississippi, The American Conservative Union Foundation, The Rutherford Institute, The R Street Institute, and Larry W. Yackle

Brief amici curiae of Erwin Chemerinsky, et al.

Brief amici curiae of Current and Former Prosecutors, Department of Justice Officials, and Judges

Brief amicus curiae of The American Bar Association

 

Briefs on behalf of neither party

Brief amicus curiae of Jonathan F. Mitchell & Adam K. Mortara in support of neither party

 

Briefs on behalf of Mississippi

Brief of respondent Mississippi

Brief amicus curiae of United States

Brief amici curiae of State of Indiana, et al.

Brief amicus curiae of Populi

Brief amicus curiae of Criminal Justice Legal Foundation

Brief amici curiae of National Organization of Victims of Juvenile Murderers, et al.

Timely "offender characteristic" news and notes from SCOTUS and from NJ

As we continue to discuss offender characteristics at sentencing, we have two notable new current events to add to the discussion:

A.  The US Supreme Court added another criminal history/ACCA case to its docket this afternoon.   Here via this post at SCOTUSblog is a link to the briefing and a brief description:

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case.  He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.  The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

B. The New Jersey Criminal Sentencing and Disposition Commission yesterday issued a big interesting report, available at this link, with all sorts of interesting recommendations including a call for the state to eliminate mandatory minimum sentences for all non-violent drug and property crimes.  And on the offender characteristic front, there was this:

Recommendation #5: Create a New Mitigating Sentencing factor for youth.

When determining a defendant’s sentence, the judge must consider a number of statutorily-defined aggravating and mitigating factors.  The CSDC recommends that the Legislature create a new mitigating factor that allows judges to consider a defendant’s youthfulness at the time of the offense.  The members of the Commission recommend that the mitigating factor read as follows:

       The defendant was under 26 years of age at the time of the commission of the offense.

It would be within the court’s discretion to determine the weight to be given to the factor in any given case.  If a juvenile prosecuted as an adult, after consideration of this mitigating factor, is nevertheless sentenced to a term of 30 years or greater, he or she would have the same right to apply for resentencing after 20 years with the required consideration of the factors established by the U.S. Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012), in light of the inmate’s record while incarcerated (e.g., evidence of rehabilitation, greater maturity, etc.

The full opinions in Graham and Miller....

are worth checking out if you are eager to think deeply about the future of Eighth Amendment limitations on extreme prison sentences.  And here are links to the original SCOTUS slip opinions:

• Graham v. Florida (2010) (all 84-fun-loving-PDF-pages)

• Miller v. Alabama (2012) (all 62-fun-loving-PDF-pages)

Major developments on Eighth Amendment juve sentencing fronts

Students should recall the class-preview post in which I noted two notable on-going cases concerning the Supreme Court's modern Eighth Amendment jurisprudence limiting the imposition of life without parole sentences on juvenile offenders.  The end of last week and this coming week involve developments on this front:

• Late last week, as reported in this post from my main blog, the petitioner at the center of the case SCOTUS took up to resolve whether its 2012 Miller ruling should be applied retroactively was released from prison.  In addition to providing yet another interesting story about "who sentences," the release of George Toca means that SCOTUS will need to take up a new case to resolve whether its Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively.

• The Ohio Supreme Court will hear oral argument this week in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence.  Helpfully, this post at Legally Speaking Ohio provides an effective argument preview, starting with the basic fact that "Brandon Moore was sentenced to a 112-year prison term for convictions in 2002 on three counts of rape, three counts of complicity to rape, three counts of aggravated robbery, kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old."

I am planning to attend the oral argument, which starts at 9am on Wednesday February 4, at the Supreme Court of Ohio. Folks interested in this case can read all briefs submitted via this Ohio Supreme Court link, including this short amicus brief that I helped author for the National Association of Criminal Defense Lawyers.

SCOTUS cert petition in Young v. United States asserting 15-year ACCA prison term violates the Eighth Amendment

As mention in class, I am working on an amicus brief in support of a petition for certiorari in Young v. United States. I just received a copy of the petition, which was filed today, and the petition's appendix includes a copy of the Sixth Circuit opinion which rejected the defendant's assertion that a 15-year mandatory minimum sentence for being a felon in possession of shotgun shells violated the Eighth Amendment's prohibition on cruel and unusual punishments. The full petition and appendix can be downloaded below, and here is how the petition styles the Question Presented:  

Whether the Eighth Amendment to the U.S. Constitution’s “evolving standards of decency” standard bars the application of a sentencing enhancement, the Armed Career Criminal Act, 18 U.S.C. section 924(e), to a conviction for being a felon in possession of ammunition in violation of 18 U.S.C. section 922(g)(1), when the defendant’s possession of the seven shotgun shells at issue was passive, innocent, and initially unwitting, when the defendant’s most recent prior felony conviction was twenty years old, and when the resulting mandatory minimum sentence is 18 times greater than the minimum sentence the defendant would have otherwise received and more than 11 times greater than the maximum sentence the defendant would have otherwise received.

Download Young v US -- Petition for Writ of Certiorari with Appendix

Seeking engagement on "offense" for sentencing purposes (with or without emphasis on "acquitted/uncharged conduct")

In this post from my main blog, titled "As a matter of law, policy and practice, what should be the 'offense' a sentencer considers?," I set out some ideas that I referenced in last Wednesday's class and that I am eager to review during our two classes this coming last full week of March. (Remember, class does not meet on 3/26; I suspect I have already conducted a make-up class with the extra minutes I have run class late some days.)

In that post (which I urge students to review), I explain why many challenging and controversial issues of modern sentencing can often relate to the consensus viewpoint that (1) offense(s) of conviction are a necessary and critical part of the "offense" to be considered at sentencing, but also that (2) at least some non-conviction, offense-related factors (such as a defendant's motive and role and the impact on victims) should also be considered sentencing.  The constitutional issues considered by the Supreme Court in Watts and the broader debate over whether sentencing guidelines should focus mostly/exclusively on the "charged" offense or the "real" offense depend to a large extent on whether concern (1) or concern (2) is considered most important at sentencing.

Usefully, an interesting and notable variation on the Watts case was decided by the DC Circuit less than 10 days ago in a multi-defendant case involving one defendant named Antwuan Ball.  I discussed the background and ruling in the Antwuan Ball case in this SL&P post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims."  Here are the factual basics:

Ball put the government to its burden of proof concerning allegations of his involvement running a massive drug conspiracy in Washington DC; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

At sentencing, federal prosecutors urged the district judge to rely heavily on all sorts of alleged wrongdoing by Ball to impose a (statutory maximum) sentence of 40 years on the crack charge/conviction.  Relying on the prosecution's allegations that Ball was the leader of a huge crack conspiracy (claims which the jury concluded were not proven beyond a reasonable doubt), the district calculated Ball's guideline sentencing range to be 292 to 365 months (whereas Ball's guideline range would have been only 51 to 71 months absent consideration of "acquitted conduct").

District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy," and he ultimately decided to give Ball a (below-guideline-range) 225-month prison sentence for his conviction based on the 2001 hand-to-hand drug transaction. In other words, like the defendants in the Watts case that came before the US Supreme Court, Antwuan Ball's calculated guideline range and his actual sentence was significantly impacted by "real offense conduct" considered by the sentencing judge but not the basis for a conviction. But, as was likewise true for at least on of the Watts defendants, Antwuan Ball ultimately was eligible for and received a much lower sentence than he would have gotten had been convicted of all the offenses with which he had been charged. (Ball likely would have been facing a statutory mandatory LWOP if he had been convicted by the jury of being the leader of a big crack conspiracy.)

I have strong (but quite nuanced) views about what is wrong and what is not-so-wrong with how federal sentencing law now deals with defendants like Antwuan Ball, and you can become more informed and insightful than 99% of practitioners if/when you can understand why these issues are so philosophically and doctrinally challenging. And, to aid analysis, my post about the Ball case generated a pair of thoughtful posts at The Volokh Conspiracy:  Professor (and former federal sentencing judge) Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?". And then Professor Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence." 

Among the reasons you might want to invest time/energy thinking through this case is because I likely will be authoring an amicus brief this coming summer in support of a cert petition if/when the lawyers for Antwuan Ball and his co-defendant decide to pursue further appeals.  I would welcome any and all student help and input now or later concerning such a project.

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:

• Brief of petitioner Freddie Lee Hall
• Motion for leave to file amici brief filed by Professors Adam Lamparello and Charles MacLean in support of neither party
• Brief amici curiae of American Psychological Association, et al.
• Brief amici curiae of Former Judges, and Law Enforcement Officials
• Brief amicus curiae of American Bar Association
• Brief amici curiae of The American Association on Intellectual and Developmental Disabilities, et al.

Here are the bottom-side briefs:

• Brief of respondent Florida filed 
• Brief amici curiae of States of Arizona, et al.
• Brief amicus curiae of Criminal Justice Legal Foundation

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

Williams?

McGautha?

Furman?

Tsarnaev?

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.

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.

Update on my latest thinking on juve LWOP amicus project

I continue to enjoy and learn from reading and re-reading the seven juve LWOP amicus brief efforts sent my way.  And the more I think about what might be most useful to say to the Court, the more I am finding myself drawn to the idea that the mandatory nature of the LWOP sentences in Jackson and Miller are what make them especially constitutionally problematic given both the young age of the defendants and the (many?) other mitigating factors involved in the murderers for which they were convicted.

A number of the draft briefs (though not all) focus in whole or in part on assailing the mandatory nature of the LWOP sentences in Jackson and Miller.  And even the drafts that do not have this particular focus still have at least a few passages that could be incorporated into a brief with that focus.  Consequently, I am thinking/planning in the next few days to take a stab at assembling sections/passages from all the drafts I now have in hand to make a "mega-draft" with the focus on the mandatory nature of the LWOP sentences.

This plan should not preclude (or even slow down) those folks who have not yet completed a full draft brief from getting me a full draft, and it also should not preclude (or even slow down) those folks with a full draft from coming to talk with me about how to refine their full draft for possible SCOTUS filing.  But this plan should allow those of you eager now to work collectively on something of a "class" brief to know that, within the next few days, you can review a "mega-draft" that may become the focus of our collective briefing activities over the next few weeks if there is continued student interest in completing and filing a "top-flight" amicus brief.

SCOTUS grants cert on juve LWOP for young murderers ... and creates new final paper opportunity

Big sentencing news from the Supreme Court today, as reported in this blog post at SL&P: "Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!"  These cases now on the Supreme Court's agenda are Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas).

I will discuss these two new SCOTUS cases briefly in class this week (in part to explain how writing an amicus brief for filing in the Supreme Court can be an alternative to the final take-home paper in the class).  In the meantime, here are links to the state court rulings now to be reviewed by SCOTUS: 

• Miller v. Alabama
• Jackson v. Hobbs
  

Which Furman opinion would you have joined? Why?

I suggested in class some time ago that you should read (and re-read) Furman thinking about which of the nine Justices' opinions you would have been most likely to join (assuming you had been a hypothetical additional Justice in 1972 and could only join an opinion rather than write your own).  Because I suspect we will not have enough time in class to discuss all the opinions in Furman, I wanted to created this blog space to allow/encourage folks to weigh in on which of the opinions they found most convincing or compelling.

UPDATE on 9/16:  Though she presumably did not indicate which of the Furman opinions she liked best, Justice Ruth Bader Ginsburg made some comments during a law school speech this week (as reported here) which suggest she is quite fond of what was the outcome in Furman and would like to get four more votes among the Justices on the current Supreme Court to once again halt death sentencing.

Supreme Court rules in favor of Curtis Johnson on ACCA issue

As you may recall, we discussed the case and potential sentencing fate of "Tommy Johnson" in our first seminar session this semester.  Today, the Supreme Court ruled in favor of the real defendant, Curtis Johnson, on whom our case facts were based. 

I encourage everyone to read the (relatively short) SCOTUS ruling in Johnson, which is available at this link, and to then think about the various broad "meta-topics" we have discussed in class in light of what the Supreme Court said (and did not say) about Curtis Johnson's case.

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:

• Mandatory minimums and automatic weapons: United States v. O'Brien and Burgess, [SCOTUS] Argument preview
• Canada's Supreme Court authorizes discount for police misconduct while upholding mandatory sentencing term
• DOJ suggests "extraordinary" leniency justified for Bernie Madoff's lieutenant
• "Race and Gender as Explicit Sentencing Factors"
• "Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"

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.

More background on Johnson v. United States

I mentioned in class that the supplemental problem involving Tommy Johnson is based on a real case now pending before the US Supreme Court.  The case is Johnson v. US, and this webpage at SCOTUSwiki provides lots of background on the technical legal issue in Johnson that is currently before the Supreme Court.  That page also provides links to all the briefs filed in the Supreme Court.

Because many students are interested in mandatory minimum sentencing provisions, and especially because the Armed Career Criminal Act (“ACCA”) is among the most important (and most severe) federal mandatory minimum sentencing provisions, I encourage everyone to take a little time to check out some of the briefs in Johnson.  For law geeks like me, the Brief for National Association of Criminal Defense Lawyers in Support of Petitioner is especially interesting because it argues that "the rule of lenity has special force in interpreting criminal statutes that impose a mandatory minimum sentence."