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.

Just what is "acquitted conduct" sentencing and is it a really big problem or really no big deal?

To start the final week of October, we will turn to discuss the (insufficiently discussed) Supreme Court ruling in US v. Watts upholding the constitutionality of the use of so-called "acquitted conduct" in the calculation of the sentencing guidelines.  I would like us in class (and here in the comments) to explore just what "acquitted conduct" is and whether it should be a big concern.  As I will note in class, the Michigan Supreme Court last year grappled with this issue (as noted here) and decided that "once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime."  The state of Michigan appealed this ruling to SCOTUS, but (as noted here) the Supreme Court declined to reconsider this issue.

Watts was a federal sentencing case, and it bears remembering that US Sentencing Commission or Congress could seek to preclude the use of "acquitted conduct" as a matter or guideline or statutory rule for the federal system.  In fact, just last year, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Do you think this statutory proposal works functionally to overturn the ruling in Watts at least for federal defendants?  Do you see any possible problems administering this statutory change if it were to become law?  And if acquitted conduct is worrisome, how about so-called dismissed or uncharged conduct (and need we worry that prosecutors will move to dismiss charges mid-case in order to avoid limits on sentence enhancements for acquitted conduct)?

Why do you think this bill was not introduced until 2019, more than two decades since Watts?  Why do you think this bill, despite having notable bipartisan support, has not yet made any progress in Congress?  Is it important to have this issue prioritized in future federal sentencing reform bills or do you consider this matter of only marginal concern?

Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

After a final review of what we should take away from the McClesky ruling and our discussion of a possible legislative response, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence placing categorical limits on what crimes cannot result in a capital sentence and what criminals cannot be executed for their crimes (this discussion will also serve as a bridge to starting discussions of non-capital sentencing).  Here are the major rulings in this jurisprudence:

Crime:

Rape: Coker v. Georgia, 433 U.S. 584 (1977)

Lesser Murders: Tison v. Arizona, 481 U.S. 137 (1987)

Rape of Children: Kennedy v. Louisiana 554 U.S. 407 (2008)

 

Criminal:

Insane: Ford v. Wainwright, 477 U.S. 399 (1986)

Juveniles: Thompson v. Oklahoma, 487 U. S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)

Intellectually Disabled: Atkins v. Virginia, 536 U.S. 304 (2002)

Can you identify any clear themes or philosophical underpinnings to these rulings, and are there any additional categorical limits that you think should be part of Eighth Amendment jurisprudence?  Arguments have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for new constitutional categorical restrictions on the death penalty. But it seems pretty unlikely that the current Supreme Court will take up these issues anytime soon.

Given that the Supreme Court's Eighth Amendment procedural jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender will have his or her individual circumstances considered by a sentencing jury, what justifies these kinds of categorical rulings that preclude legislatures from ever being permitted to allow a jury to even consider the death penalty for certain crimes or offenders?

Contextualizing these matters, consider the query in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker (pictured here decades later).  For a reminder, here is how the lead dissent in Coker v. Georgia described the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnapped and raped a second young woman.  After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead.  He was apprehended and pleaded guilty to offenses stemming from these incidents.  He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment.  Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently.   Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences.  He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.  It is this crime for which the sentence now under review was imposed.

The Court today holds that the State of Georgia may not impose the death penalty on Coker.  In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape.  The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist.  In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner — as well as others in his position — will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.

In the wake of the nomination of another woman to the Supreme Court, it bears recalling that the Court which handed down its 1977 ruling in Coker was comprised of nine men.  (Four years later, in 1981, Sandra Day O'Connor became the first woman nominated to the Supreme Court by President Ronald Reagan.)  In light of that reality, and especially given what more we now know about the impact of sexual violence, I often find this paragraph from the Coker ruling a bit disconcerting:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.  Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.  The murderer kills; the rapist, if no more than that, does not.  Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.  We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. at 187, is an excessive penalty for the rapist who, as such, does not take human life.

Would it be appropriate to reconsider Coker now that we have a more diverse set of Justices and especially since we now better understand that rape in fact does by definition involve "the serious injury to another person"?

Unearthing federal sentencing realities under federal defendants now before SCOTUS

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. In a series of posts, I will be providing a series of suggestions about possible federal defendants you might consider examining for mini-paper #3.

In this post, for example, I thought it worth highlighting federal defendants whose cases are currently before the Supreme Court.  Sentencing issues are the focal point for SCOTUS in some of these cases, but other matters concern SCOTUS for the first five cases listed below.  Below I have provided links to SCOTUSblog materials on cases involving federal criminal defendants now pending before the Justices, along with the sentences the defendants received according to the briefs of the US Solicitor General:

Class v. United States ("sentenced to 24 days of imprisonment, to be followed by 12 months of supervised release")

Carpenter v. United States ("sentenced ... to 1395 months in prison")

Marinello v. United States ("sentenced ... to 36 months of imprisonment, to be followed by one year of supervised release")

Byrd v. United States ("sentenced to 120 months of imprisonment, to be followed by three years of supervised release")

Dahda v. United States ("sentenced to 189 months of imprisonment, to be followed by ten years of supervised release")

----

Lagos v. United States ("sentenced petitioner to 97 months of imprisonment, to be followed by three years of supervised release, and ordered $15,970,517 in restitution")

Rosales-Mireles v. United States ("sentenced ... to 78 months of imprisonment, to be followed by three years of supervised release")

Hughes v. United States ("sentenced to 180 months of imprisonment, to be followed by five years of supervised release")

Koons v. United States ("sentenced ... to 180 months in prison, to be followed by ten years of supervised release")

Chavez-Meza v. United States ("sentenced to 135 months of imprisonment, to be followed by five years of supervised release")

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)

Looking back and looking forward in our final few classes

I hope everyone enjoyed yesterday's visit by Jonathan Wroblewski (and the Duke game) as much as I did. I am sorry we did not have more time in class for questions, but I plan to use the first part of Thursday's class to follow-up on his lecture and also on the second short-paper assignment.  I also will discuss again all of the options (and challenges) for the final paper/project for the class.

For substantive content, I plan to finish up the course by discussing mass incarceration (and sentencing severity) in general and life prison terms in particular.   Everyone is encouraged to read the selections from Chapter 7 noted on our syllabus (pp. 517-24, 552-78), as well as the Supreme Court's recent Eighth Amendment opinion in Graham v. Florida (which appears in the on-line supplement at pp. 96-112, and in full form here).

In addition, and especially if you are working on an amicus brief for your final assignment, I also recommend checking out this very short and very recent opinion from the Supreme Court of Louisiana concerning the application of Graham to three cases involving persons sentenced decades ago to life sentences for nonhomicide crimes committed when they were juveniles.

Plans, papers and other notes on other of fronts

CLASS PLANS:  Today and next Tuesday we will be discussing: (1) Tiernan & USSG 3E1.1 & Pepper and sentencing discounts for pleas and cooperation, (2) Problem 5-4 & Pepper and sentencing based on offender characteristics, and then (3) McMillan & Blakely & Problem 6-1 (in casebook).  A timely and interesting circuit ruling that touches on many of these issues was handed down yesterday in US v. Robertson, No. 11-1651 (7th Cir. Nov. 16, 2011) (available here).  I recommend it highly as a compliment/follow-up to many of the issues we will discuss in the next few classes.

SHORT PAPER LOGISTICS: The short-paper assignment (explained here) must be submitted no later than Monday 9am on November 28.  Your names should be on the assignment, and you can hand in either a hard-copy or via a pdf attachment to an e-mail to me.  Important note: earlier this week, Jonathan Wroblewski's boss gave a significant speech on federal sentencing law and policy (which I suspect Jonathan helped draft).  The text of this speech is available at this link and may help your short-paper drafting efforts.

NEW SCOTUS CASES (AND AMICI OPPORTUNITIES):  In this post at my main blog, I report on two intricate sentencing issues that have split lower federal courts that now appear ready for Supreme Court review.  If (when?) the Supreme Court grants cert on these issues, they may become the focal point (along with the juve LWOP cases) of much of our post-Thanksgiving discussions during our last two classes following Jonathan Wroblewski's visit on Tuesday, November 29.

LUNCH/DINNER OPPORTUNITY WITH DOJ GUY: Speaking of Jonathan Wroblewski's visit on Tuesday November 29, I was thinking about trying to organize a lunch or dinner with students on that day if there is some student interest.  I do not want to make this a huge/formal event, but students should let me know ASAP if they would be interested in such an opportunity.

Justice Breyer's Watts concurrence and the challenge of better guideline drafting

I made brief mention in class of Justice Stephen Breyer's concurrence in Watts, and I thought it might be useful to quote all of it here as the prelude to an (extra credit) challenge:

I join the Court’s per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.

In telling judges in ordinary cases to consider “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction,” United States Sentencing Commission, Guidelines Manual § 1B1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up the offense of conviction, but of certain related conduct as well. And I agree with the Court that the Guidelines, as presently written, do not make an exception for related conduct that was the basis for a different charge of which a jury acquitted that defendant. To that extent, the Guidelines’ policy rests upon the logical possibility that a sentencing judge and a jury, applying different evidentiary standards, could reach different factual conclusions.

This truth of logic, however, is not the only pertinent policy consideration. The Commission in the past has considered whether the Guidelines should contain a specific exception to their ordinary “relevant conduct” rules that would instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 57 Fed. Reg. 62832 (1992) (proposed USSG § 1B1.3(c)). Given the role that juries and acquittals play in our system, the Commission could decide to revisit this matter in the future. For this reason, I think it important to specify that, as far as today’s decision is concerned, the power to accept or reject such a proposal remains in the Commission’s hands.

Here is the (extra credit) challenge for members of the class: Can/will someone propose in the comments a formal US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted conduct (which may or may not also cover uncharged conduct of the sort at issue in Fitch)? 

(Note:  The US Sentencing Commission has, in fact, never formally proposed an "acquitted conduct" provision in response to Watts.)

In addition to being eager to see student efforts to draft a provision of the US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted (and/or uncharged) conduct, I wonder if folks think that, now that Booker has made the guidelines advisory, the "problem" in Watts is now better (or worse).

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.

Is there a strong constitutional basis for saying "death is different"?

We ended class with a question/issue/talking-point that may well haunt us throughout the semester and that has arguably haunted all modern legal debates over modern issues of crime and punishment: is "death" really different as a matter of constitutional law?

Couple of preliminaries as we unpack this question/issue/talking-point going forward:

1.  As a basic normative and empirical and factual matter concerning state punishment generally, the (too) simple assertion that "death is different" cannot be readily gainsaid.  John Stuart Mill in his renown “Speech in Favor of Capital Punishment” (worth reading and available here), observed punishment of death makes a unique "impression on the imagination" and "is more shocking than any other to the imagination."  The undeniable reality that death as a punishment "feels" different in kind than any other form of punishment necessarily means humans will react and respond to this punishment differently even if we try to treat it like any other form of punishment.

2.  As a basic historical and descriptive matter concerning state punishment generally, the observation that "death is (and always has been) different in criminal law's doctrines and practices" also cannot be readily gainsaid.  Much of both the common law history of criminal law's development, as well as much of modern statutory and related criminal punishment doctrines, reflect the reality that the people who make the law and shape its application "feel" differently about the death penalty than about any other form of punishment.

3.  As a basic matter of constitutional text, the doctrinal basis for asserting that special substantive and/or procedural constitutional rules should control the death penalty is a pretty hard argument to make. The Fifth, Sixth and Eighth and Fourteenth Amendments contain nearly all the constitutional provisions and prohibitions that get the most attention in litigation over the death penalty (and other punishments), but the text of these provisions do not appear to call for many (or any) unique doctrines just for the death penalty.

With this background, I am eager to hear via comments or in class whether and how one can develop a strong argument for the claim that the Constitutionjustifies or demands or even allows special substantive and/or procedural constitutional rules for the operation and application of the death penalty.   Putting this point a little differently, I think the easiest way to understand (and justify?) the pro-prosecution outcomes in cases like Williams and McGautha and McClesky comes from understanding that the justices in those cases were (justifiably?) concerned that any pro-defendant constitutional rulings would subsequently have to get extended to all non-capital cases and defendants.

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.

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.

More on McGautha, Furman and Gregg

As hinted in Wednesday's class, I think the constitutional and social history surrounding the rulings in McGautha, Furman and Gregg are fascinating.  Here are some links and thoughts for anyone interested in digging deeper in this little piece of important constitutional history:

McGautha (1971)

Here is a link to all the full opinons in McGautha.  As a follow-up to our class discussions, check out Justice Brennan's dissent, which includes this potent paragraph at the outset:

It is of critical importance in the present cases to emphasize that we are not called upon to determine the adequacy or inadequacy of any particular legislative procedure designed to give rationality to the capital sentencing process.  For the plain fact is that the legislatures of California and Ohio, whence come these cases, have sought no solution at all. We are not presented with a State's attempt to provide standards, attacked as impermissible or inadequate.  We are not presented with a legislative attempt to draw wisdom from experience through a process looking toward growth in understanding through the accumulation of a variety of experiences.  We are not presented with the slightest attempt to bring the power of reason to bear on the considerations relevant to capital sentencing. We are faced with nothing more than stark legislative abdication. Not once in the history of this Court, until today, have we sustained against a due process challenge such an unguided, unbridled, unreviewable exercise of naked power.  Almost a century ago, we found an almost identical California procedure constitutionally inadequate to license a laundry. Yick Wo v. Hopkins, 118 U.S. 356, 366 -367, 369-370 (1886). Today we hold it adequate to license a life.

Furman (1972)

Here is a link to all the full opinons in Furman.  This on-line encyclopedia entry about Furman includes these two notable factiods about the prelude to and particulars of the case:

Ironically, the use of the death penalty declined in the 1960s.  Only two persons were executed in the United States between 1967 and the date of the Furman decision in 1972.  Public opinion polls showed that a majority of U.S. citizens were opposed to capital punishment.

Furman arose out of the convictions and death sentences of three African American men. William Henry Furman was convicted in Georgia for murder, Lucious Jackson was convicted in Georgia for rape, and Elmer Branch was convicted in Texas for rape.

Gregg (1976)

Here is a link to all the full opinons in Gregg.  Professor Michael Radelet has this recent article discussing Furman, Gregg and post-Gregg developments.  This passage explains what transpired in the four years between Furman and Gregg:

[After Furman, Florida] Governor Rubin Askew called the legislature into a special session, held in Tallahassee just after Thanksgiving, 1972.  Soon Florida had the nation's first "post-Furman" death penalty statute. Since it required that guilt and punishment decisions be held in separate proceedings, and specified factors that jurors must consider in deciding between a death and a prison sentence (e.g., the defendant's prior record; whether the murder is especially cruel), the Florida legislation is an example of what is called a "guided discretion" statute.  Within two years after Furman, fourteen other states had reacted in a different way by enacting statutes that required mandatory death sentences upon conviction for assorted types of criminal homicide.

By 1976, 35 states had passed new death penalty laws and more than 500 inmates were confined on America's death rows.  Public support for the death penalty had also grown markedly since Furman; by then some two-thirds of Americans supported it.  Clearly the Supreme Court's silence on the issue had to end.  It was time to decide whether these new, post-Furman death penalty laws were constitutional.