February 17, 2020

What went wrong (or right) with the Obama Administration's clemency initiative? What are its substantive and procedural lessons?

Us_presidential_pardons_obamaOur last class of general discussion (before we turn to student presentations) will focus on the ground-breaking and controversial clemency activity during the final years of the Obama Administration.  I handed out in class last week this basic web review of the initiative as described by the US Department of Justice.  Among many topics I am eager to discuss in class, I would like to get your reaction to the substantive criteria that the were set out as part of the initiative.  Specifically, as explained by DOJ:

Under the initiative, the Department prioritized clemency applications from inmates who met most, if not all of the following factors:

  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.

I have linked in this prior post, and will link here again for convenience, two reports on the Obama Administration's clemency initiative that were prepared after President Obama left office: (1) U.S. Sentencing Commission, An Analysis of the 2014 Clemency Initiative (2017); (2) NYU Law School Center on the Administration of Criminal Law, The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative (2017).  Another important report reviewing the Obama Administration's clemency initiative came from the Department of Justice's own (3) Office of the Inspector General, Review of the Department’s Clemency Initiative (2018).  The executive summary of this OIG report provides important background as to some reasons why the clemency initiative was problematic and subject to considerable criticisms:

We found that the Department did not effectively plan, implement, or manage the Initiative at the outset.  However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline.  In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

Our review identified several shortcomings in the Department’s planning and implementation of the Initiative.  Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning.  Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate.  As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions....

Further, the Department experienced challenges in working with external stakeholders to implement the Initiative.  For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations.  We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative.  In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition.  As a result, the Department believes CP 14 took longer to complete its work.

Our review also identified several weaknesses in the management of the Initiative in its early stages.  For example, there were differing views on how to interpret the Initiative’s six criteria.  The Initiative’s announcement stated that the criteria would be used to prioritize consideration of clemency petitions.  However, we were told by then Deputy Attorney General James Cole that petitions from inmates who did not meet all six criteria would not be considered.  Yet, then Pardon Attorney Deborah Leff directed OPA staff to review and provide recommendations to ODAG on every clemency petition, regardless of whether the inmates met all six criteria.  We found that OPA continued to view the criteria as subjective even after being advised by ODAG that it was applying the criteria strictly.  Lastly, although not one of the six criteria, the Administration decided that non-citizens would not be considered for clemency.  This was a significant criterion given that, at the time, approximately 25 percent of all federal inmates were non-citizen; yet the Administration did not publicly announce this decision and, as a result, non-citizen inmates filed clemency petitions and OPA spent time reviewing and processing them.  While under Deputy Attorney General Sally Yates, the Department did recommend clemency for some non-citizens, President Obama ultimately did not grant clemency to any non-citizens under the Initiative.

Additionally, we found that U.S. Attorneys did not always provide their views on clemency petitions to OPA within 30 days, as required by Department policy.  For example, as of December 1, 2016, nearly 600 OPA requests to U.S. Attorneys had been awaiting a response for more than 30 days.

There has been some writing in various law reviews about the Obama Administration clemency initiative, and here are examples:

I do not expect students to read all that much of all these materials, but I will like to talk about how you think future Presidents will react and should react to all that transpired with President Obama's clemency work.

February 17, 2020 in Class activities, Clemency, Who decides | Permalink | Comments (0)

February 07, 2020

The rest of our class readings ("save the trees" edition)

Though you are soon to turn to conducting research and preparing your presentation/papers, I am here going to be recommending additional reading for background information to advance our on-going class discussions.  Specifically, there are two sets of readings that were on the syllabus that I want to provide here (and I may print out and distribute some of these pieces, but for now I am going to spare the trees and just enable/encourage your review on-line).

For some more history and ideas about the federal clemency power: (1) Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Fed. Sent’g Rept. 13 (2000); (2) Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010)

For lots of details on Prez Obama's use of the federal clemency power: (1) U.S. Sentencing Commission, An Analysis of the 2014 Clemency Initiative (2017); (2) NYU Law School Center on the Administration of Criminal Law, The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative (2017)

February 7, 2020 in Clemency, Who decides | Permalink | Comments (0)

January 18, 2020

Great podcast on clemency after wars (in Vietnam and on drugs)

In last week's class we briefly discussed some of the federal clemency efforts for those who dodged the draft during the Vietnam war.  Excitingly, right after our class, the folks at Vox posted an on-point article/podcast under the headline, "A plan to reverse the war on drugs, from the Vietnam War era: What Democrats running for president have learned from President Ford on criminal justice."  I recommend finding 30 minutes to listed to the podcast at this link, and here is the text providing a preview:

In 1974, Gerald Ford became president after some of the most difficult years in our country’s history.

In addition to Watergate and President Nixon’s resignation, the Vietnam War had divided the country for more than a decade.  While millions of Americans served in Southeast Asia, many others protested the war at home — some of them by evading the draft.  Ford wanted to find a way to bring the country back together. Just a few weeks after he took office, he announced a plan “to bind up the nation’s wounds.”

For the young men convicted of draft evasion — a felony — during the Vietnam War, Ford promised, “I’m throwing the weight of my presidency into the scales of justice on the side of leniency.”

Ford gave those young men an opportunity to apply to a Clemency Board, a small group appointed by the president who would decide whether to erase that felony from the men’s records.  Now, many of the Democratic candidates for president want to follow Ford’s model for a new group of people in federal prison: those convicted of nonviolent drug crimes.

In this episode, The Impact looks back on President Ford’s clemency plan through the lives of two men: one who fought in Vietnam and served on the Clemency Board, and one who evaded the draft.  We explore how the Board transformed their lives and what it might mean for a new generation of young people behind bars.

UPDATE: The Vox podcast includes discussion with LawProf Mark Osler, with whom I have had the honor to work with on various projects. Perhaps Mark and I get along well in part because he also likes to blog, and does so regularly here at Osler's Razor.  His latest post there, "Sunday Reflection: Into the high desert prison," discusses his "tour of sorts, going to prisons to talk about clemency in the federal system."

January 18, 2020 in Who decides | Permalink | Comments (0)

January 12, 2020

Some clemency news and notes from the week that was

I may try to make a habit, perhaps consistently on the weekends, to provide a brief round-up of some of the week's clemency news and commentary.  My Google news feed might not justify this round-up every week, but this morning these pieces very much seemed worth spotlighting, and I have below provided the jurisdiction, headline and link:

January 12, 2020 in Recent news and developments, Who decides | Permalink | Comments (0)

December 26, 2019

Thanks for a great class ... and a few more posts to highlight the ("who") learning never stops

I have now officially printed out all the class submission, and I am reasonably far along at ready what all you folks had to say in mini- and final papers.  I wanted to use this space not only to say thanks again for a great semester, but also to encourage staying in touch (especially if you might want to seek to have your final paper published).  Also, I cannot resist here one last review of some interesting "whos" appearing in some of the posts from this past month on my main blog:

Following pardon board recs, Pennsylvania Gov Wolf commutes eight life sentences

Another round of headlines highlighting continuing controversies surrounding former Kentucky Gov Bevin's pardon flourish 

"The progressive prosecutor movement is great — but without funding public defenders it won't work" 

"Who should oversee implementing the First Step Act?" 

Alice Marie Johnson and Mark Holden provide their perspective on FIRST STEP and next steps

Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State

Noticing that little has been done since Prez Trump's executive order to establish a "Commission on Law Enforcement and the Administration of Justice" 

Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? 

SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 

"Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

AG William Barr announces "Operation Relentless Pursuit" to combat violent crime in seven US cities

After serving more than 13 years in federal prison, former WorldCom CEO Bernie Ebbers secures compassionate release thanks to FIRST STEP Act

Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum

December 26, 2019 in Who decides | Permalink | Comments (0)

November 04, 2019

Thinking about the work of prosecutors as we gear up for our special guest

I am hoping you are as exited as I am for our special guest during our usual class time this afternoon.  One way to gear up might be to come to the American Constitution Society's panel on Progressive Prosecution which just happens to be taking place this today at 12:10PM in Room 244. (I have been told lunch will be from Hot Chicken Takeover at the event!)

An event about the work of prosecutors serves as a fitting prelude to our discussion with our special guest (though much of our discussions throughout the entire semester have been in some way about the work of prosecutors).   This CNN piece highlights some of our special guest's 35 years of legal experience, most of which has been served in the role of a prosecutor.  Here is our special guest's bio page at the large NYC firm where she now works.  

It is my understanding that our guest only plans to talk for a few minutes about her experiences and then will be eager to answer questions.  I urge everyone i the class to think about questions for our guest, which can be substantive about the federal sentencing system and the role of prosecutors therein or can also be career-oriented about topic like how her own career path developed or advice she would give to law students today concerning careers in government service and/or the criminal justice system.

November 4, 2019 in Class activities, Who decides | Permalink | Comments (2)

October 21, 2019

Lurking mandatory minimum statute for consideration as we imagine the modern federal sentencing of Rob Anon

I hope everyone has now had the chance to work through the sentencing of Rob Anon under the modern federal sentencing guidelines, perhaps with the help of some of the materials linked in this post).  If you made an effort to do independent research in order to try to figure out how on your own all of the federal sentencing laws relevant to Rob Anon, you may realize that I left out of my prior posting an important statutory provision, namely 18 U.S.C. § 924(c), which imposes mandatory minimum sentences for people who use or carry a firearm during the commission of certain crimes.  Specifically, this statutory provision states:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Think about how this additional mandatory minimum statute, which would seem to be applicable to Rob Anon, should impact the work of various sentencing actors at various sentencing stages in this case.  

October 21, 2019 in Guideline sentencing systems, Who decides | Permalink | Comments (0)

October 02, 2019

Second-look materials for review and (competitive?) repackaging

Many thanks to the whole class for your terrific engagement with David Singleton in today's class.  I trust you enjoyed as much as I did hearing a lot from him (and not so much from me).  And, as we discussion, the issue of "second look" sentencing mechanisms in Ohio and elsewhere is a hot topic.  Here are some more background and links to some materials I briefly referenced in class:

The newly revised sentencing provisions of the Model Penal Code includes "second look" authority through § 305.6 urging legislatures to authorize "a judicial panel or other judicial decisionmaker to hear and rule upon applications for modification of sentence from prisoners who have served 15 years of any sentence of imprisonment."  MPC § 305.6, titled "Modification of Long-Term Prison Sentences; Principles for Legislation," and its engthy commentary can bel reviewed at this link.

Inspired in part by this MPC proposal, just this past July, US Senator Cory Booker (D-New Jersey) and Representative Karen Bass (D-California) introduced a federal second look bill named the Matthew Charles and William Underwood Second Look Act of 2019.   This press release discusses the essential elements of the bill and its full text can be found at this link.  The advocacy group FAMM has been a big supporter of these proposals, and it released the following materials in conjunction this the bill's introduction:

As mentioned in class, David Singleton and I are eager to bring "second look" interest and energy to Ohio in the form of a student legislative drafting competition.  I would be very grateful for comments here (or in person) about how we might run such a contest for maximum interest and impact.  Would law students be more interested in a (small) cash prize or a chance to get published and/or present their work to important people?  Any and all feedback on the basic idea of a contest or on how best to structure its particulars would be greatly appreciated.

October 2, 2019 in Class activities, Who decides | Permalink | Comments (2)

October 01, 2019

Reading up on "Beyond Guilt" before David Singleton visits

Cropped-bg_ojpc_gavelAs mentioned in class, on Wednesday October 2, we will have the pleasure of a visit from David A. Singleton, Executive Director and Attorney at Law at the Ohio Justice & Policy Center.  (He will also be speaking at lunchtime in Drinko Hall 245 from 12-1pm on Oct 2.)  Though there are many topics that David could usefully discuss, I have encouraged him talk about his new project "Beyond Guilt".  The initiative, in this recent New York Times article, is focused on excessive punishment of those who have admitted guilt and were convicted of more serious offenses, including violent crimes.  In preparation for his visit, I encourage you to look around the OJPC/Beyond Guilt website, and here is how the project is described on this "Our Mission" page

Our Mission

The mission of Beyond Guilt is to transform our punitive legal system to one focused on justice, redemption, and humanity for those over-punished. 

Strategies

Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence. Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement—freeing innocent prisoners and people convicted of low-level, non-violent offenses. Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released. The project will do so in four ways:

First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release. The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released. Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes. The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website. The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws. The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety. Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.

October 1, 2019 in Scope of imprisonment, Who decides | Permalink | Comments (0)

September 29, 2019

As we wrap up death penalty unit, some recent reminders of all the "who" stories

On Friday, as discussed in this post over at my main blog, the Pennsylvania Supreme Court decided to decline to exercise a form of extraordinary jurisdiction in order to avoid considering on the merits a challenge to the state's death penalty system. Among the many notable aspects of this story is who was arguing for and against the state's death penalty system: among those arguing that the state's capital system is unconstitutional were (a) lawyers in the capital habeas unit at the Federal Community Defender Office in Philadelphia and (b) lawyers in the Philadelphia District Attorney’s Office, while among those arguing in support of the state's capital system were (y) lawyers for the Pennsylvania Attorney General’s Office and (z) lawyers for the Pennsylvania District Attorneys Association.  The article from my blog also recounts how PA legislators and the PA Governor have been engaging with capital punishment in recent time.

In addition to being a fascinating story about the administration of capital punishment in a neighboring state and challenges thereto, this Keystone state tale serves as a useful reminder of all the overlapping "whos" that the death penalty brings into focus.  Continuing that theme, consider taking a few moments to notice all the "whos" in play in these additional recent death penalty posts from my main blog on recent death penalty developments and commentary:

September 29, 2019 in Death penalty history, Who decides | Permalink | Comments (1)

September 26, 2019

Background on race and death sentencing for our discussion of McClesky and Racial Justice Act

Next week, we will start the final part of our death penalty discussions by exploring the issue of race in the application of the death penalty.  I (too briefly) mentioned in class some data on race and the death penalty, and I thought I would link to some resources related to this issue to get a running start to our discussion of why this kind of data has not prompted much of a constitutional or policy response:

From the ACLU: "Race and the Death Penalty" (somewhat dated)

From the Death Penalty Information Center: "Executions by Race and Race of Victim" (up-to-date)

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies)

Recent news article following announcement of federal execution dates: "Death Penalty Makes a Comeback in US as Racial Disparities Persist."  An excerpt:

The most telling statistic when talking about discrimination in capital punishment is the race of the victim and how the courts’ attitudes change when the victim is white versus when the victim is a person of color, said Robert Dunham, the executive director of the Death Penalty Information Center.

Race of the victim plays a significant role in whether the death penalty is pursued by jurors. In Alabama, fewer than five percent of murders involve a black defendant and a white victim, yet over half of black death row prisoners have been sentenced for killing someone who is white. In Louisiana, the odds that a defendant will receive a death sentence are 97 percent higher if the victim was white

Also, for anyone really engaged by these issues, consider checking out the Fall 2012 issue of the Ohio State Journal of Criminal Law which had a symposium focused on "McClesky at 25."

September 26, 2019 in Data on sentencing, Death penalty history, Race and gender issues, Who decides | Permalink | Comments (2)

September 12, 2019

Notable statements by Gov DeWine spokesman and defense lawyer in wake of lethal injection ruling

As mentioned in this prior post, the Sixth Circuit panel ruling in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), sets up the "next big question" of whether Ohio Gov DeWine will now be eager to move forward with the scheduled executions that he previously stayed.  This local article about the ruling ends with an interesting discussion of this matter:

Following Merz’s ruling [not overturned by the Sixth Circuit], DeWine ordered a review of the state’s execution protocol and to search for new drugs to use.  The state so far has been unable to find alternative drugs, though, and the governor has asked state lawmakers to consider finding an altogether different way to put condemned inmates to death besides lethal injection.

DeWine’s apprehension stemmed from the concerns Merz laid out in his opinion. With the 6th Circuit saying that Merz was mistaken and that attorneys for the condemned inmate didn’t prove the method is unconstitutional, it was unclear whether DeWine’s thinking will change on the issue.

Gubernatorial spokesman Dan Tierney, when asked whether Wednesday’s ruling affected DeWine’s apprehension about Ohio’s lethal-injection protocol, said that the governor, who’s currently in Japan as part of a trade delegation, and other administration officials are still reviewing the ruling.

However, Tierney noted that the governor has previously expressed concern about other aspects of Ohio’s execution method besides constitutional issues -- including the ongoing difficulty Ohio has had buying lethal-injection drugs from pharmaceutical manufacturers that have become increasingly reluctant to sell the drugs (most of which have other, medicinal uses) for use in executions.

Since taking office in January, DeWine has deflected questions about whether he continues to personally support the death penalty.  Rather, he has answered such questions by saying capital punishment is the law in Ohio....

David Stebbins, a federal public defender representing Henness, said Wednesday’s opinion “does not reflect the known facts about how the three-drug protocol acts upon the human body.”

“We are hopeful Governor DeWine continues to thoughtfully consider how to implement capital punishment in Ohio and will not reinstate executions using the torturous midazolam method of execution," Stebbins said.

September 12, 2019 in Execution methods, Ohio news and commentary, Who decides | Permalink | Comments (1)

September 11, 2019

The full McGautha and Furman...

are worth reading in full if you find constitutional history and/or death penalty procedure really interesting (and these are great topics for final papers).

The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.

The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our handout seeks to provide strategic highlights from each of the nine(!) opinions.  As mentioned, I will ask you in class  which of the nine opinions you would be most likely to join, so you might want to consider skimming the full version of the one opinion you find most appealing from our casebook.

September 11, 2019 in Class activities, Death penalty history, Who decides | Permalink | Comments (0)

September 05, 2019

Should Mike Davis, the 10TV weatherman, face only state charges for sending and receiving "significant" amount of child pornography?

I had no idea during our discussion on Wednesday of federal sentencing ranges for child pornography offenses that there would be a high-profile arrest in our own neighborhood on state charges involving this behavior just the next day.  This local article, headlined "Ohio TV station's chief meteorologist charged with child pornography," provides these details (with some highlighted in bold):

A meteorologist for an Ohio television station has been arrested and charged with pandering sexually oriented matter involving a minor.  Mike Davis, chief meteorologist for WBNS-TV in Columbus, Ohio, was booked into the Franklin County Jail on Thursday for the second-degree felony.

The alleged offense occurred on Aug. 5, 2019, according to Franklin County Municipal Court Records.  The records allege that Davis knowingly advertised for sale or dissemination an image of a young girl participating or engaging in sexual activity, according to WCMH-TV.

Franklin County Sheriff Dallas Baldwin said in a news conference that two weeks ago, the Internet Crimes Against Children (ICAC) task force received a tip that Davis had allegedly sent and received a “significant” amount of child pornography, the station reported. “This establishes a pattern of behavior.  One week ago that information was confirmed and more evidence was gathered,” Baldwin said.

ICAC executed search warrants Thursday morning at multiple locations that included Davis’ home and the WBNS-TV studios, WCMH-TV reported. ICAC detectives arrested Davis at his home Thursday morning.

“These are kids that are clearly being exploited for sexual appetite,” Chief Deputy Rick Minerd said.

“There’s no question that it was him versus someone else living in that home?” a WCMH-TV reported asked Minerd. “Yes,” Minerd said.

The Ohio Revised Code provision, § 2907.322 Pandering sexually oriented matter involving a minor or impaired person, which serves as the basis for the charge against Davis, sets forth a second-degree felony which means the the sentencing range under Ohio law is "an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term [that is "plus fifty per cent of that term"].  In other words, if convicted under Ohio law for only this single charge, Davis could get as low as 2-3 years in state prison or as high as 8-12 years in state prison.  If he were subject to multiple charges, which certainly seems possible given the report of a “significant” amount of child pornography, the sentencing possibilities could expand.

And, as we discussed in class, there are complicated federal criminal statutes, particularly 18 U.S.C. § 2252 and 18 U.S.C. § 2252A, under which Davis might be charged in federal court for this conduct. (And the Supreme Court confirmed this past Term that a defendant can be charge in two distinct jurisdictions based on the same criminal conduct.)  This chapter of a lengthy US Sentencing Commission report on child porn offense provides (just some of) the statutory ranges for this conduct under federal law:

Upon conviction of any [child porn] production offenses, an offender faces a mandatory minimum term of 15 years of imprisonment and a maximum of 30 years...  Advertising child pornography carries a mandatory minimum penalty of 15 years of imprisonment....

The offenses of receipt (or solicitation), transportation (including mailing or shipping), distribution, and possession with the intent to distribute or sell child pornography each carry a mandatory minimum term of five years of imprisonment and a maximum term of 20 years...

The current statutory range of imprisonment for possession is zero to ten years of imprisonment if an offender possessed child pornography depicting a minor 12 years of age or older who was not then prepubescent and zero to 20 years of imprisonment if an offender possessed child pornography depicting a prepubescent minor or a minor under 12 years of age.

I am not concerned that you know all of these particulars, but I am eager for you to see (a) how complicated this can get, and (b) how consequential the decision to charge in state versus federal court can sometimes prove to be.  Last but not least, I am already eager to hear any early musings about an appropriate sentence for Mike Davis.

September 5, 2019 in Interesting new cases, Ohio news and commentary, Recent news and developments, Who decides | Permalink | Comments (0)

August 29, 2019

Readings for wrapping up "whos" and heading into the capital sentencing world

As mentioned in our last class, we will start wrapping up our formal "who" unit by reviewing the latest, greatest Supreme Court sentencing case, United States v. Haymond, 139 S. Ct. 2369 (June 26, 2019).  You are welcome to read Haymond in any form, and the full SCOTUS slip opinion can be accessed at this link.

For maximum appreciation and understanding, you should be sure to read McMillan and Blakely in our text before turning to Haymond.  I doubt we will get through all three of these cases on Wednesday after the long holiday break, but I might try.  (Students are highly encouraged to start any discussions of McMillan and Blakely and Haymond in the notes, if so inclined.)

Thereafter, we will turn to an (all-too-quick) review of capital sentencing law, procedures and practices.  As the syllabus reveals, the readings for this unit (which will keep us busy through most of the rest of September) are to be provided via handouts.  Those handouts will be provided in hard-copy in class, but I wanted to provide links here to electronic copies:

Chapter 3, Topic A: Regulation of Discretion in Capital Sentencing

Electronic Chapter 9: Race, Gender, and Class in Sentencing

I plan to cover the first 69 manuscript pages in the Chapter 3 materials linked here and the first 21 pages manuscript pages in the Chapter 9 materials linked here.  (Of course, you are always welcome to read more.)

August 29, 2019 in Class activities, Who decides | Permalink | Comments (1)

August 26, 2019

Honing your "who" radar

IN the next few weeks, we will be spending a lot of time discussing in various ways "who" plays a significant role in the sentencing process.  We will start with some normative discussion of just who you think are the "whos" who should (and who should not) be the most significant players in the sentencing process.  But the day-to-day work of the best criminal lawyers often involve (1) being able to effectively identify descriptively "who" actually plays a major role, and then (2) figuring out how best to influence the decisions of that "who."  

In other words, those with good "who" radar can often be the most effective sentencing lawyers.  So I will spend a lot of time in class encouraging you to identify important "whos" in important sentencing setting.  And you can start honing your "who" radar by checking out some recent pieces from my sentencing blog that highlight some notable "who" realities:

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes" 

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Sixth Circuit judge in separate opinion makes case for Eighth Amendment precluding execution of persons under 21 at time of murder 

Lots of advice on federal prisons for AG Barr and the new leadership at the Bureau of Prisons

Terrific review of localities that are "Addicted to Fines"

August 26, 2019 in Who decides | Permalink | Comments (4)

April 15, 2018

Examining the "why" and "who" of modern mass incarceration and its potential alternatives

As we finish up the semester with a final few classes examining the particulars of modern mass incarceration and possible alternatives, I realize it would be useful and fitting to return to some of the early themes of the class concerning the "why" and "who" of sentencing.  Specifically (and building off themes stressed by Fordham Law Professor John Pfaff at the Reckless-Dinitz Lecture), I will likely start Monday's class by exploring:

(1) "why" incarceration has become such a popular punishment in modern American history, and

(2) "who" has been most responsible for the particular emphasis on incarceration in modern American history.

I think some reasonable answers to these questions are important for anyone eager to move the nation away from modern mass incarceration: without having some sense of just why incarceration has proved so popular and just who has had a leading role in inflating incarceration levels, it will be hard to engineer a successful change of course.

Especially because there have recently been a whole lot of notable new court opinions about Eighth Amendment limits on extreme juvenile prison sentences — see examples here and here and here and here and here from the Third Circuit, the District of Connecticut, the Iowa Supreme Court, the Georgia Supreme Court and the Wyoming Supreme Court — I am especially eager to discuss what role we think courts have played in creating modern mass incarceration and what role courts could play in moving us away from modern mass incarceration.

In this context (and again to serve as a kind of semester review), I think it important to recognize that courts have played a major role in the modern decline of the death penalty in the United States over the last two decades.  All sort of litigation has played all sorts of roles in "gumming up" the modern machinery of death, and many abolitionists have come to expect that the US Supreme Court will play a starring role in a final push to have the death penalty fully abolished throughout the United States. 

Is there any basis to hope or expect courts to play a major role in a decline in the use of incarceration in the United States over the next two decades?

April 15, 2018 in Alternatives to imprisonment, Class activities, Theories of punishment, Who decides | Permalink | Comments (4)

March 25, 2018

Some recent posts about the Department of Justice and the US Sentencing Commission that might inspire mini-paper #4

As highlighted in previous posts,  on April 2, Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As repeatedly mentioned, and as shown at the end of this list of US Sentencing Commissioners, Zachary Bolitho also now serves as the designated ex officio member of the United States Sentencing Commission representing the Attorney General. 

As also repeatedly mentioned, mini-paper #4 should be a short memo addressed to ADAG Bolitho on whatever topic you would be eager to raise with him.  If looking for ideas, here are links to a few posts from my main blog highlighting news of various sorts involving the US Sentencing Commission and the US Department of Justice (and the Trump White House):

 

Regarding US Sentencing Commission:

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs 

Prez Trump makes (tough) nominations to US Sentencing Commission 

Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission

 

Regarding US Department of Justice:

New spending bill includes a lot more money for Justice Department to fight drug war even harder 

AG Jeff Sessions issues memo to "strongly encourage federal prosecutors ... when appropriate" to pursue "capital punishment in appropriate cases" 

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed? 

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control" 

AG Sessions gives full accounting of his full law-and-order approach to his work as Attorney General

 

Regarding Trump White House:

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry 

Trump White House expresses opposition to sentencing reform part of SRCA of 2017

Highlights from Prez Trump's tough talk about the opioid crisis and federal response

March 25, 2018 in Class activities, Mini-papers, Who decides | Permalink | Comments (0)

March 06, 2018

Appreciating the subtle and significant impact of DOJ charging policies on sentencing outcomes

We will wrap up our two-week sentencing of Rob Anon on Wednesday by noting the persistent discretion that still subsists within a federal sentencing system now filled with all sort of sentencing law.  The most obvious locus of modern federal sentencing discretion, and the form that still garners the most attention, resulted from the Supreme Court's landmark Booker ruling making the guidelines advisory instead of mandatory.  Please come to class thinking about whether and why you would be, as sentencing judge, inclined to "vary" from the guideline range you calculated for Rob Anon.  Please also think about what a federal prosecutor or public defender might argue to you that might make you more inclined to "vary" from the guideline range.

Also to be covered, as mentioned on Monday, is the prospect of Rob Anon being subject to a 924(c) charge carrying a seven-year mandatory minimum consecutive term for brandishing a gun while committing  "any crime of violence or drug trafficking crime."  This possibility highlights the extraordinary sentencing impact that prosecutorial charging/bargaining discretion can have, and we will work through its potential echo effects.  Notably, the import and impact of federal prosecutorial charging/bargaining discretion got some distinctive public attention in May of 2017 when Attorney General Jeff Sessions issued a new memorandum establishing charging and sentencing policies for the Department of Justice that essentially reversed memoranda issued by Attorney General Eric Holder giving more discretion to individual prosecutors as to what charges and sentences to pursue.  A post at my main blog provided this accounting (with my added highlights):

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

My hope is you can, with the help of our engagement with the Rob Anon case, now have a fuller and deeper appreciation for the potential impact, in individual cases and across a range of cases, of the May 2017 Sessions Memo.  We will discuss this matter a bit further in class on Wednesday.

March 6, 2018 in Guideline sentencing systems, Who decides | Permalink | Comments (0)

Important scheduling matters for first few weeks of April

Even though March has just gotten started, it will be April before you know it, and I wanted to make sure everyone know of some class schedule issues of importance for the first part of April.  Some of this I have mentioned in class, but some of this is new news (and would be helped by student input):

Monday, April 2: Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As repeatedly mentioned, and as shown at the end of this list of US Sentencing Commissioners, Zachary Bolitho also now serves as the designated ex officio member of the United States Sentencing Commission representing the Attorney General.  As mentioned also repeatedly mentioned, mini-paper #4 should be a memo addressed to ADAG Bolitho.

Monday, April 9NO CLASS!!

Thursday, April 12: Make-up class possibilities:

March 6, 2018 in Class activities, Who decides | Permalink | Comments (0)

February 24, 2018

Some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines

As stressed in class last week, the next two weeks are going to involve detailed discussions of federal sentencing policies and practice before and after modern guideline reforms. 

We will begin on Monday with a deep discussion of the sentencing realities faced in sentencing Rob Anon in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text which you should read and re-read).  In addition to imagining how you, as a judge, would sentence Rob Anon in this world, think also about how prosecutors and defense attorneys would approach sentencing in a pre-guideline world. 

We will then turn to sentencing Rob Anon under the modern federal sentencing guidelines.  I highly encourage class members to try to figure out how to identify and assess federal guideline sentencing laws relevant to Rob Anon with just the help of on-line search materials or traditional legal research resources (and feel free to use the comments to express frustration).  Consider that a federal defendant or a novice lawyer taking on his or her first federal criminal case will not likely have access to any perfect guide (or even "Guidelines for Dummies") to enable ready understanding of the federal sentencing guidelines.

If and when you would like some basic guideline sentencing help, you can turn to these links which take you to key guideline provisions for Rob Anon appearing in the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (again feeling free to use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want or need even more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

As you work through this assignment, give particular thought to the array of challenges that modern federal sentencing law may present for modern federal sentencing lawyers.   If you want to think particularly about the import and impact of sentencing law for the work of defense attorneys, perhaps check out this article I wrote some years ago seeking to highlight "the array of challenges that the Federal Sentencing Guidelines create for defense counsel."

February 24, 2018 in Class activities, Guideline sentencing systems, Who decides | Permalink | Comments (4)

February 12, 2018

Reviewing categorical limits on death penalty created by US Supreme Court

Here is a list of (and links to) rulings by the Supreme Court declaring (or suggesting in the case of Tison v. Arizona) that the Eighth Amendment places substantive categorical limits on the application of the death penalty.  Can you see a common thread or theme to these rulings?

 

Crime:

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

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

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

 

Criminal:

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

JuvenilesThompson 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)

 

If you can identify a theme to these rulings, and there additional categorical limits that should be set forth by the Supreme Court?  Suggestions have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for categorical restrictions on the death penalty.

Also, as we will discuss when wrapping up the death penalty, if the Eighth Amendment places categorical limits on death sentences, should it also place some categorical limits on other extreme sentences like life without parole?  How about life with parole? 

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And if you want to spend a lot more time reflecting on race and the death penalty, McClesky and its aftermath, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a symposium focused on "McClesky at 25."  Here are links to all the articles in the symposium:

February 12, 2018 in Death penalty history, Who decides | Permalink | Comments (0)

February 08, 2018

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:

Prosecutors:

Defense attorneys:

Trial judges:

Jurors:

Appellate judges:

Governors:

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"

February 8, 2018 in Death penalty history, Quality of counsel, Who decides | Permalink | Comments (0)

January 25, 2018

The full McGautha and Furman...

are worth reading in full if you final constitutional history and/or death penalty procedure really interesting.

The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.

The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our casebook aspires to provide strategic highlights from each of the nine(!) opinions.  I will ask you in class to think about which of the nine opinions you would be most likely to join, so you might want to read the full version of the one opinion you find most appealing from our casebook.

UPDATE In addition to continuing our discussion of capital constitutional history in this coming week, we will migrate to a discussion of how capital punishment is now administered.  That will, of course, take us back to a discussion of "who sentences," and it also will perhaps have us focused on our own state of Ohio which now is scheduled to have the next US execution.  With Ohio and who in mind, folks might be interested in this recent post from my other blog:

Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?

January 25, 2018 in Class activities, Death penalty history, Who decides | Permalink | Comments (0)

January 22, 2018

A timely example of a victim seeking sentencing leniency

In many high-profile cases, one hears about a crime victim advocating for a particularly harsh sentencing outcome.  But as I mentioned in class, there are plenty of example of a crime victim advocating for a more lenient sentencing outcome.  One notable current example appears in this new posting via the Death Penalty Information Center in a case from Texas.  Here is part of the posting:

Kent Whitaker, who survived a shooting in which his wife, Tricia and younger son, Kevin were murdered, has asked the state of Texas to spare the life of his only remaining son, Thomas “Bart” Whitaker (pictured), who was convicted and sentenced to death for their murders.  Kent Whitaker told the Austin American-Statesman, “I have seen too much killing already. I don’t want to see him executed right there in front of my eyes," he said. The petition for clemency filed on January 10 by Bart Whitaker's lawyers asks the Texas Board of Pardons and Paroles to recommend commuting his death sentence to life without parole, saying the execution — scheduled for February 22 — will “permanently compound” Kent Whitaker's suffering and grief. The petition asks the Board: “Is killing Thomas Whitaker more important than sparing Kent Whitaker?” ...

The clemency petition, Kent Whitaker wrote, "tries to correct the district attorney's over reach in pursuing the death penalty and how it will once again hurt all of the victims. For 18 months pre-trial, every victim — my wife's entire family, me and all of my family—actually begged the district attorney to accept two life sentences and spare us the horror of a trial and an eventual execution.  But we were ignored.”  Kent Whitaker writes that the clemency petition "is asking the board to acknowledge that Texas is a victim's rights state, even when the victim asks for mercy.”  

January 22, 2018 in Who decides | Permalink | Comments (6)

January 18, 2018

Diving deeper into "who" and "how" with a little help from a new Massachusetts case

Next week we will continue to discuss the Williams case in order to continue to unpack the relationship between theories of punishment and the "who" and "how" of sentencing.  And, before we wrap up our Williams discussion, I will review what doctrines from Williams remain good law and what do not.  That discussion may lead us to discuss the more modern McMillan and Blakely cases, so be sure to have read those cases for next week.

The McMillan case also brings up the "why" and "who" and "how" of mandatory minimum sentencing.  So be sure to read (and re-read) the selection from the US Sentencing Commission about the debate over mandatory minimums (MMs) and think about who ends up with the most sentencing power in a jurisdiction that makes regular us of MMs.

Last but not least for next week, I hope we can take about the role of crime victims at sentencing and you have a reading selection in the text that covers this part of the who story.  But, conveniently, the Massachusetts Supreme Judicial Court handed down a notable short ruling on these issues just today: Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here).  Because I so enjoy bringing "hot new cases" into our discussions, I encourage everyone to read this new McGonagle case instead of (or in addition to) the victim-input section of the text.

January 18, 2018 in Class activities, Interesting new cases, Who decides | Permalink | Comments (1)

January 16, 2018

How can and should "why punish" issues influence the "who" and "how" of sentencing?

As we transition to a discussion of the "who" and "how" of sentencing — beginning with a deep dive into the 1949 case Williams v. New York — you should be giving particular thought to how a sentencing system can and should integrate its basic "why punish" commitments into its sentencing process.  You should see how the Williams ruling was driven in part by the punishment theories of the time: the "prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime" and "the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship." 

The class survey indicated a strong affinity for prioritizing rehabilitation and deterrence as theories of punishment.  If Ohio was to make these punishment theories predominant, which actors in the criminal justice system should have the most sentencing authority?  Which should have the least?  Should the answer to "who" sentences change if a jurisdiction prioritizes retribution or incapacitation?  What if it does not prioritize any particular theory?

January 16, 2018 in Class activities, Who decides | Permalink | Comments (0)

December 04, 2016

Reviewing the final fulsome mini-paper opportunities

In a coming post, I will try to clarify any lingering questions students have about completing the final paper.  But as classes technically are not yet done, I want to first clarify student mini-paper opportunities/expectations.

First, to complete the course is a satisfactory manner, a student has to have submitted at least two mini-papers.  (If I have not received at least two mini-papers from a student by Dec 12, I will notify the student of the deficiency and its consequences.)

Second, every student is encouraged to earn extra credit by submitting more than the two-mini-paper minimum.  But all mini-papers need to be submitted no later than Dec 12 to receive full credit/extra credit for your work.

Third, I put forth the following three final mini-paper possibilities:

  1. Reviewing Prez Obama's sentencing reform legacy
  2. Recommending activities/concerns for Attorney General designee Jeff Sessions
  3. Assessing the sentencing history/views of one (or more) of the 21 persons on Prez-Elect Donald Trump's SCOTUS short-list

Among the benefits/challenges of completing a mini-paper on this topics is the possibility that I may ask to publish your analysis on my main blog or maybe even in the Federal Sentencing Reporter.

Any questions?

December 4, 2016 in Class activities, Mini-papers, Who decides | Permalink | Comments (0)

October 24, 2016

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:

October 24, 2016 in Scope of imprisonment, SCOTUS cases of note, Supreme Court rulings, Who decides | 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)

October 17, 2016

Lies, damn lies and federal prison and commutations statistics

As I mentioned in class, as we turn our attention more to the history and modern realities of non-capital sentencing and especially to the history and modern realities of incarceration, having a basic understanding of a lot of number becomes important.   The title of this post is designed to make sure, before you dive too much into these data, that you keep in mind perhaps the most famous quote about statistics.  Once you have that quote in mind, consider some of the data and their sources.

The latest detailed breakdown of the federal prison population comes from this terrific "Quick Facts" document released this month by the US Sentencing Commission titled "Federal Offenders in Prison – March 2016."  Here are just some of the data therein that caught my eye:

• A large majority of offenders in the federal prison population are male (93.3%).

• Hispanic offenders make up the largest group of the federal prison population(35.2%), followed by Black offenders (34.4%), White offenders (27.0%), and Other Races (3.5%).

• More than three-quarters (77.9%) of these offenders are United States citizens.

• The majority of offenders pleaded guilty (88.5%).

• Nearly one-quarter (23.9%) of all offenders serving a sentence for a federal conviction possessed a firearm or other weapon in connection with their offenses.

• Half of all offenders (50.2%) in the federal prison population were sentenced to more than ten years in prison, while 5.2% were sentenced to 30 years or longer, and 2.7% were sentenced to life in prison.

• Approximately 17,000 offenders (9.9% of all incarcerated offenders) have served more than 10 years in prison.

• More than half (56.8%) of offenders in the federal prison population were convicted of an offense carrying a mandatory minimum penalty.

The data in the USSC report is already significantly dated because it analyzed a federal prison population of 195,676 "offenders in the custody of the Federal Bureau of Prisons on March 27, 2016."   But, just a little more than six months later according to the Federal Bureau of Prisons latest inmate population report, it is now only in charge of 191,322 total federal inmates.  In other words, in just the last 6 months alone, there has been more than a 2% decline in the overall federal prison population!

Speaking of changes over time in the population levels in the Federal Bureau of Prison, check out this BOP year-by-year report of the past federal prison population in modern times, which includes these numbers:

Fiscal Year      BOP Population

1983                 33,216

1993                 88,565

2003                 172,499

2013                 219,218

In other words, in just the last 20 years up to 2013 (12 of which had a Democrat in charge in the Oval Office and his appointees running the US Department of justice), there was 250% increase in the overall federal prison population!

As you may now realize, the number of federal prisoners for fiscal year 2013 was the year with the highest ever federal prison population (it was also, of course, the first year of Prez Obama's second term in office and the fifth year of the US Department of Justice being run by former US Attorney General Eric Holder). 

Also, as of the end of Fiscal Year 2013, this webpage from the Office of the Pardon Attorney reports that Prez Obama had received well over 8,000 federal commutation petitions and had granted a grand total of 1 commutation.  (If you are running the numbers, this means that as of the end of 2013, Prez Obama had granted only about .01% of commutation petitions received from federal prisoners.)

Of course, Prez Obama has picked up the pace on commutation grants: as this White House website highlights, by having now granted a total of 774 commutations, Prez Obama "has granted commutations to more prisoners than the past 11 presidents combined."  But his actions here ought to be put in some other statistical context, as does this webpage from the Office of Pardon Attorney, which reports that Prez Obama has received 29,078 commutation petitions during his time an office.  So, by having now granted 774 commutations from among the 29,078 commutation petitions received, Prez Obama has now upped his granted rate to about 2.5% of all commutation petitions received from federal prisoners.

As always, a great way for students to earn extra credit for the class would be to mine these numbers for further insights and data points worthy of highlighting in the comments to the blog (or in class).  And any student who can find good data on the race/gender of the 774 persons to have received commutations from Prez Obama and compares them to the general federal prison population will be sure to receive extra, extra, extra credit.

October 17, 2016 in Class activities, Clemency, Data on sentencing, Race and gender issues, Scope of imprisonment, Sentencing data, Who decides | Permalink | Comments (0)

October 12, 2016

How some Framers thought about "gradation of punishments" (and proposed sentencing guidelines) in a world before "modern" prisons

One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging.

And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth....

[PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder....

[PUNISHMENT FOR SEX CRIMES:] Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

October 12, 2016 in Alternatives to imprisonment, Class activities, Death penalty history, Theories of punishment, Who decides | Permalink | Comments (0)

October 10, 2016

Follow-up after (too little) time with the Assistant Chief Counsel for Ohio Governor John Kasich

I am sorry we did not have more time to allow Kevin Stanek, the Assistant Chief Counsel for Ohio Governor John Kasich, to complete his tales about Ohio's fulsome history with lethal injection litigation.  But I trust you all got a flavor of some of the major themes I consider most important for our broader class's purposes: a whole bunch of distinctive (unexpected?) "whos" can and often will have a huge impact on whether, when and how death sentences actually get carried out in Ohio and elsewhere.

For more on that front with a continued focus on lethal injection drug acquisition and litigation, it is worth checking out the WNYC's Radiolab: More Perfect program on state efforts to acquire lethal injection drugs, which is titled "Cruel and Unusual."  The 40-minute radio program covers a lot of ground in ways both familiar and unfamiliar, including a notable discussion of the political impact of the Furman ruling and its aftermath starting around the 16-minute-mark (which in turn inspired the Oklahoma legislator who came up with the medicalized three-drug lethal injection protocol).

In addition, the constitutional litigation that has gummed up the works of death penalty in Ohio over the last decade has also gummed up the work in a lot of other states.  Here is an  a report from my main blog about a (very red) state to Ohio's south that has been dealing with similar issues: "Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade."

October 10, 2016 in Death penalty history, Execution methods, Who decides | Permalink | Comments (0)

September 14, 2016

The full McGautha...

can be found here.  Reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.  I also think everyone should at least get started reading Furman and Gregg and subsequent SCOTUS cases in chapter 3 of our text ASAP.

September 14, 2016 in Class activities, Death penalty history, Who decides | Permalink | Comments (0)

September 13, 2016

Death penalty deterrence research and arguments that the death penalty is morally required

As I mentioned in class, some years ago Professors Cass Sunstein and Adrian Vermeule  produced a provocative article suggesting that new deterrence evidence might make the death penalty morally required for state actors seriously concerned with value of life.   Here is a link to this article and its abstract, with one line stressed to pick up the theme developed in class that government killing is different-in-kind from other kinds of killing:

Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs , 58 Stan. L. Rev. 703 (2005):

Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect.  But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.  The familiar problems with capital punishment -- potential error, irreversibility, arbitrariness, and racial skew -- do not require abolition because the realm of homicide suffers from those same problems in even more acute form.  Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.   The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.  The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

Alternatively, if you like digging into social science research, the modern empirical debate over the death penalty should be informed by a collection of some data-crunching on the deterrent effect of capital punishment available via this page assembled by the Criminal Justice Legal Foundation.  Notably, CJLF is supportive of the death penalty; the Death Penalty Information Center is opposed to the death penalty, and it has this webpage criticizing the studies appearing on the CJLF's page concerning deterrence.

September 13, 2016 in Deterrence, Who decides | Permalink | Comments (1)

September 12, 2016

Lots of interesting new buzz concerning the (sort of dormant) Ohio death penalty

Conveniently, my week away proved to be a period in which some interesting local death penalty news and commentary emerged, as evidence by these two recent posts from my main blog:

These topics and lots of others will be a part of our coming extensive discussion of death penalty theory, policy and practice over the next few weeks.

September 12, 2016 in Class activities, Death penalty history, Execution methods, Ohio news and commentary, Who decides | Permalink | Comments (0)

September 07, 2016

A glimpse into the hows (and whos) of federal death sentencing in a high-profile case

This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case.  Especially because we will be jumping into the history, law and practice of capital punishment next week, I recommend everyone consider checking out the motion.

September 7, 2016 in Class activities, Who decides | Permalink | Comments (0)

April 15, 2015

If you are curious about federal child porn sentencing...

here is a link to the 400+ page report that the US Sentencing Commission published on the topic in December 2012.  The report's executive summary is only about a couple dozen pages, can be accessed at this link, and here are some interesting excerpts:

[S]entencing data indicate that a growing number of courts believe that the current sentencing scheme in non-production offenses is overly severe for some offenders.  As the Supreme Court has observed, the Commission’s obligation to collect and examine sentencing data directly relates to its statutory duty to consider whether the guidelines are in need of revision in light of feedback from judges as reflected in their sentencing decisions.

[A]s a result of recent changes in the computer and Internet technologies that typical non-production offenders use, the existing sentencing scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability.  Non-production child pornography offenses have become almost exclusively Internet-enabled crimes; the typical offender today uses modern Internet-based technologies such as peer-to-peer (“P2P”) file-sharing programs that were just emerging only a decade ago and that now facilitate large collections of child pornography.  The typical offender’s collection not only has grown in volume but also contains a wide variety of graphic sexual images (including images of very young victims), which are now readily available on the Internet.  As a result, four of the of six sentencing enhancements in §2G2.2 — those relating to computer usage and the type and volume of images possessed by offenders, which together account for 13 offense levels — now apply to most offenders and, thus, fail to differentiate among offenders in terms of their culpability.  These enhancements originally were promulgated in an earlier technological era, when such factors better served to distinguish among offenders.15 Indeed, most of the enhancements in §2G2.2, in their current or antecedent versions, were promulgated when the typical offender obtained child pornography in printed form in the mail....

[M]ost stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded.  Those stakeholders, including sentencing courts, increasingly feel that they “are left without a meaningful baseline from which they can apply sentencing principles” in non-production cases....

The Commission concludes that the non-production child pornography sentencing scheme should be revised to account for recent technological changes in offense conduct and emerging social science research about offenders’ behaviors and histories, and also to better promote the purposes of punishment by accounting for the variations in offenders’ culpability and sexual dangerousness.

In addition, you might find intriguing and informative the lengthy discussion of child porn sentencing in the split Third Circuit panel decision in United States v. David Grober (where the majority, inter alia, faults the district court for allowing me to testify at the sentencing hearing).

April 15, 2015 in Class activities, Guideline sentencing systems, Offense Conduct, Who decides | Permalink | Comments (2)

April 09, 2015

Understand the terms of USSC debate over the fraud guidelines

As mentioned in class on Wednesday, and as detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.  

I doubt the actual USSC meeting will be a must-see event, though I still urge you to tune in. But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases."

April 9, 2015 in Offense Conduct, Who decides | Permalink | Comments (0) | TrackBack

April 06, 2015

Two projects for a week with possibly just one class

Much to my chagrin, I fear this week our class will only be able to meet on Wednesday (4/8), and I fear that much of that class will involve going over current events and making sure the last few weeks of class are productive.  To that end, I have two potential projects for students to work on/think about which (1) could be the basis for additional mini-papers OR (2) the basis for a final paper OR (3) the answer to one of the question(s) likely to show up on the take home final.  Here are the basics, with more explanation to come during Wednesday's class:

Possible paper/project #1.  After the drug war: keys terms for the treaty (or reparations, or a Marshall Plan, or a truth and reconciliation commission or....)? 

As we have discussed in class, the so-called "war on drugs" has played a huge role in criminal justice developments over the last 40 years, and it has play an important role in debates over modern sentencing reform and mass incarceration. Now that there is a growing consensus that the harshest sentencing aspects of the drug war need to be reformed (and a remarkable move toward reform of marijuana and other criminal laws), a growing question is what the essential elements and terms of the post-drug-war sentencing and corrections system. Should past marijuana (and other drug) convictions be expunged? Should some kind of formal reparations be a critical part of modern reforms? And who --- legislatures, sentencing commissions, judges, executive officials --- should be principally charged with designing the terms of the "post-drug-war treaty"?

Possible paper/project #2.  Drafting new formal federal guidelines for the consideration of (one, a few, many?) offender characteristics.

In this (relatively short) law review article, a former Chair of the US Sentencing Commission criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear that these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct." He suggested factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new formal "guidelines that encourage consideration of those characteristics where appropriate."  Do you agree that new guidelines would be fitting for these (or other) offender characteristics, and what might these guidelines look like?

April 6, 2015 in Class activities, Who decides, Working on white papers | Permalink | Comments (0) | TrackBack

March 28, 2015

Working text of Amended RID bill for reducing drunk driving crimes and harms

As you should recall, we ended class on Thursday with a working draft proposal for new drunk-driving legislation.  Here is what has made it through our drafting committee so far:

First Offense DUI: imprisonment from minimum term of zero to five years max

Second Offense DUI: imprisonment from minimum term of six month to seven years max

Third (or Greater) Offense DUI: imprisonment from minimum term of two years to ten years max

In addition, a sentencing judge should (must?) give the minimum term for any DUI offense if and only when the defendant's BAC was .10% or lower and no tangible harm result from the offense.  A sentencing judge should (must?) impose a sentence above the minimum if the defendant's BAC was above .10% or tangible harm resulted from the offense.

We could (and perhaps should) continue to discuss and debate other offense-related provisions to incorporate into this sentenceing --- e.g., we might provide more specific guidance/mandates concerning what other BAC levels or types of harms should/must result in a certain amount of jail time.  But, in order to reduce the risk of potential unwarranted disparity, I think it may be even more important that we consider whether and how to provide some offender-related instructions to judges for the exercise of their sentencing discretion in this setting.  And to get the discussion started, here are some proposals for consideration:

Proposal 1.  A judge generally should (must?) sentence an offender at or near the applicable minimum term if and when the defendant has no criminal history, has pleaded guilty and accepted responsibility and shown remorse, and has demonstrated a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

Proposal 2.  A judge generally should (must?) sentence an offender at or near the applicable maximum term if and when the defendant has a significant criminal history, has refused to accept responsibility and shown remorse, and has failed to demonstrate a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

(Contrary) Proposal 3.  A judge generally should (must?) not in exercising his sentencing discretion consider in any way a defendant's criminal history, whether he has shown any remorse, or whether any substance abuse or personal problems may have contributed to the offense. 

As these proposals are written, it is possible (but not essential) to favor both Proposal 1 and Proposal 2.  But Proposal 3 is intended to be directly contrary to the Proposal 1 and my goal here is to explore whether and how you favor (or oppose) the consideration of some common offender-related sentencing factors.

I would encourage students to use the comments to discuss any part of this on-going debate over our new sentencing bill, and folks should feel especially free to propose any additional amendments and modifications to the bill.  We will build on what we have done to date in our class discussion on Tuesday and Wednesday.

March 28, 2015 in Aggravators and mitigators, Class activities, Offense Conduct, Who decides | Permalink | Comments (4) | TrackBack

March 22, 2015

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

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

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

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

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

March 22, 2015 in Class activities, Course requirements, Recent news and developments, Who decides | Permalink | Comments (0) | TrackBack

March 09, 2015

More evidence that the death penalty will keep pulling us back in...

To paraphrase the most memorable line from the least memorable Godfather movie, just when I thought we could be done with our discussions of the death penalty and who sentences, the media and the US Supreme Court keep pulling us back in.  Specifically, check out these recent notable posts from my main blog:

March 9, 2015 in Death penalty history, Who decides | Permalink | Comments (0) | TrackBack

March 04, 2015

Seeking reflections/reactions to today's pre-reform federal sentencing exercise

We will talk on Thursday about the experience of sentencing Rob Anon under the pre-reform discretionary federal sentencing system, but I wanted to start the process of reflection on the pre-reform system with this post and a place for comments. 

Did your experience strengthen your understanding for Judge Frankel's concerns and call for reform? 

What aspects of the sentencing experience surprised or concerned you the most?

March 4, 2015 in Class activities, Who decides | Permalink | Comments (2) | TrackBack

February 13, 2015

Speaking of "who" and the death penalty...

check out what new Pennsylvania Gov Tom Wolf did on Friday the 13th.  Turns out it was a lucky day for those on death row in the state.

Thoughts?  The Marshall Hypothesis as applied by a Governor?

February 13, 2015 in Clemency, Who decides | Permalink | Comments (5) | 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

February 04, 2015

Link to Ohio Supreme Court oral argument in Ohio v. Moore

This morning (Feb 4, 2015), the Ohio Supreme Court heard argument 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. The Justices asked many questions of both sides, and I believe only one of the seven Justices failed to ask at least one question.

The argument lasted for approximately an hour, and here is a link to the oral argument.  I highly recommend all students interested in Eighth Amendment issues take the time to watch these proceedings.

I suspect and fear we will not get a ruling from the Court before the end of the semester (but maybe that will be a kind of good news allowing me to ask a take-home exam question about the case).

February 4, 2015 in Ohio news and commentary, Scope of imprisonment, Who decides | Permalink | Comments (0) | TrackBack

February 02, 2015

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:

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.

February 2, 2015 in Ohio news and commentary, SCOTUS cases of note, Who decides | Permalink | Comments (0) | TrackBack

January 31, 2015

Ohio's current capital laws and the dynamic realities of Ohio and US death penalty history

As mentioned in class, one class activity for the coming week(s) will be to work through how modern post-Furman capital punishment laws might get applied to the (in)famous Unibomber, Ted Kaczynski.  (Ted is currently an LWOP resident at superman ADX Florence in Colorado and in the past was comically portrayed by Will Farrell).  I will not aggressively quiz anyone about doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Ted's case might be litigated in prominent death penalty states like Florida and Texas and Ohio. 

We could easily spend the rest of the semester discussing the history and modern specifics of the death penalty in specific jurisdictions like Florida and Texas and Ohio and US.  I will reference this history and modern practices in class over the next few weeks, and here are some links concerning the two jurisdictions in which we operate to provide a (low-stress, high-learning) chance to discover a lot more about these matters:

Links with background on Ohio's history and practices in the administration of the death penalty 

Links with background on US history and practices in the administration of the death penalty 

Based on my hope that your "who radar" is now fully operational, I would be eager to hear your views (in the comments or in class) as to which "whos" have had the most impact on the operation of Ohio's death penalty system throughout the state's history (based, perhaps, on the Ohio DRC's account of this history).

January 31, 2015 in Aggravators and mitigators, Class activities, Death penalty history, Who decides | Permalink | Comments (2) | TrackBack

January 20, 2015

Background on discretion, disparity and discrimination in Presidential clemency

With apologies for (once again) lecturing too much and running late, I hope that I was able in Tuesday's class to effectively lay out some of the basics of what I call the "Three Ds" of modern sentencing debates: Discretion, Disparity and Discrimination.  I got a bit behind because I was not planning to talk about Presidential clemency powers; but given that Prez Obama is giving a State of the Union Address tonight (sentencing background/commentary here), perhaps now is a good time to use clemency as a good focal point for analyzing the "Three Ds."

On this topic, we must start with a key provision of the U.S. Constitution: Article II, Section 2 provides that the President "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."   The US Supreme Court views this authority quite broadly and has repeatedly indicated that Congress cannot limit the President's discretionary use of this clemency power. 

In addition to vesting the President with broad discretion, this clause has resulted in considerable disparity in various ways in various eras as different Presidents have used (or not used) this authority in different ways.  Most notably for modern discussion, a recent investigation by ProPublica produced these notable headlines about modern clemency realities:

In light of these headlines and the realities they reveal about the modern exercise of Presidential clemency and discretion, disparity and discrimination, should we find this additional report comforting?:

January 20, 2015 in Who decides | Permalink | Comments (2) | TrackBack