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? 

-------

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

April 21, 2014

Helping President Obama use his constitutional clemency powers

In our last few classes, I want to wrap up our discussions of modern federal drug sentencing by turning attention to the work of the most powerful of sentencing "whos": the President of the United States.  There are lots of ways the President can and does make sentencing decisions, but the most historic means is through the exercise of his (constitutionally enshrined) power to grant clemency.  

There are lots of stories to discuss and debate relating to the President's clemency power and its use throughout American history, but I will want us to focus on how it might still be used (and/or should be used) by President Obama as he heads into his final few years in office.  This new Reason.com piece by Jacob Sullum provides some useful background and context for our discussions:

President Obama made appropriate use of his clemency powers this week, shortening the prison term of a drug offender who received a sentence that everyone agreed was too long but for which there was no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to 17.5 years in federal prison after he pleaded guilty to conspiracy and money laundering charges related to shipping marijuana from Mexico to Virginia. That term was three-and-a-half years longer than it should have been under federal sentencing guidelines because of a mistake in Cantu's presentence report, which erroneously listed his "base offense level" as 36 instead of 34. Cantu's lawyer never noticed the mistake, which Cantu himself discovered in 2012 after his family mailed him a copy of the report. By then he had missed the deadline for asking the courts to shorten his sentence....

"It's hard to imagine that someone in the federal criminal justice system could serve an extra three-plus years in prison because of a typographical error," said White House Counsel Kathryn Ruemmler in a speech at NYU Law School on Tuesday....

Obama should [not] be so stingy with commutations, which he so far has issued at a slower rate than all but three other modern presidents: George W. Bush (11 commutations in 96 months), George H.W. Bush (three in 48 months), and Ronald Reagan (13 in 96 months). Obama has now issued 10 commutations in 64 months, which by that measure makes him about 26 percent more merciful than Bush II, 46 percent more merciful than Bush I, and 14 percent more merciful than Reagan. (Obama still lags all three on pardons, which clear people's records, typically after they have completed their sentences.) But surely a man who has repeatedly criticized excessively long prison sentences should aspire to do more than surpass these truly awful commutation records. Obama is still a long way from Nixonian levels of mercy, since Tricky Dick shortened 60 sentences...

A few months ago, Deputy Attorney General James Cole indicated that Obama planned to pick up the pace, which was encouraging. Not so encouraging: Cole, whose department had at that point received about 9,000 commutation petitions since Obama took office, asked for help in finding worthy applicants, which suggested the government's lawyers are either lazy or extremely picky. Cantu's case seems to fit the latter theory....

By the president's own account, there are thousands of other clear injustices that he has the power to remedy. He could start with all of the crack offenders sentenced under pre-2010 rules that almost everyone now agrees were unreasonably harsh. The Smarter Sentencing Act would make the shorter crack sentences enacted in 2010 retroactive. But if Congress fails to approve that bill, Obama still has the authority to act on his own, which would be consistent with the statements he and his underlings have made regarding our excessively punitive criminal justice system.

"The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in her NYU speech. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories." Probably more than 10. The president's pitiful performance so far falls far short of these aspirations.

UPDATE: This brand new post at my main blog provides more explanation for how timely our discussion on clemency now is as a result this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith."  I highly recommend reading the full Yahoo piece.

April 21, 2014 in Clemency, Who decides | Permalink | Comments (6) | TrackBack

March 27, 2014

Some background and sentencing readings related to Ninth Circuit CJ Alex Kozinski

Kozinski-alexAs I have mentioned, on Wednesday April 2, we will have the honor and pleasure of having Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, visit our class. For basic background on this renown jurist, check out his Wikipedia entry and/or this (dated) Unofficial Judge Alex Kozinski Site and/or this 2005 Legal Affairs profile.  That profile has this headline and subheading: "THE BIG KOZINSKI; If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster."

Because he has written opinions and commentaries on every subject under the legal sun, it would be almost impossible to read even a small sample of all his views.  Fortunately, though, he has written a few especially high-profile (though now somewhat dated) pieces about death penalty jurisprudence and federal sentencing jurisprudence.  Here are links to a few highlights from this part of CJ Kozinski's corpus:

Concerning the death penalty, check out this lengthy co-authored 1995 op-ed in the New York Times given the headline "For an Honest Death Penalty." It starts this way:

It is a staple of American politics that there is very strong support for the death penalty; in opinion polls, roughly 70 percent consistently favor it. Yet the popular will on this issue has been thwarted.

To be sure, we have many capital trials, convictions and death sentences; we have endless and massively costly appeals; and a few people do get put to death every year. But compared to the number of death sentences, the number of executions is minuscule, and the gap is widening fast.

Note that, back in the early 1990s when this op-ed was authored, thoughtout the US there were often 300 death sentences imposed and only about 30 executions each year. Lately, in contrast, we have had in the US only about 75 death sentences and 40 executions each year.

On the topic of federal sentencing, I succeeded way back in 1999 to get CJ Kozinski to author this article for the Federal Sentencing Reporter a full five years before Booker made the Guidelines advisory.  It starts this way:

Once or twice a year I sit as a trial judge, usually in a criminal case. I've been doing it for many years and never cease to learn something new. I started before the Sentencing Guidelines, so I have sentenced defendants both with and without the Commission's guidance. I've had my doubts about the Guidelines; I even wrote an opinion saying they were unconstitutional. Doubts sometimes resurface when I sit as an appellate judge, but I have no doubts when I sit as a trial judge: I like the Guidelines and hope they're here to stay.

I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison. Some judges may have the wisdom of Solomon in figuring out where in that range to select just the right sentence, but I certainly don't. Would too heavy a sentence destroy a young life and snuff out any chance of rehabilitation? Would too light a sentence embolden the defendant, endangering the lives of innocents? What deterrent effect will the sentence I impose have on others?

Deciding whether someone spent the next twenty years in prison or got straight probation was a burden almost too heavy to bear. Somehow I felt it was wrong for one human being to have that much power over another. Imposing sentence was, for me, almost an act of sacrilege.

Nor did it help that there was no appeal from the sentence. On the contrary, the very finality of the decision made it all the more difficult. If the sentence had been subject to appeal, someone else could have told me if I was way off the mark. But with no sentencing appeals, the burden lay entirely on my shoulders, and I didn't like it a bit.

Enter the Sentencing Guidelines and all this changed for the better. Gone are the wide open spaces for sentencing discretion. Sentencing ranges are narrow and presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition--they're all engineered into the machine; all I have to do is wind the key. The Probation Officers in the Central District of California, where I mostly sit, do an excellent job and there are seldom disputes over the accuracy of the PSR. When there are, I do what I am competent to do--make factual findings.

Once I have figured out the range, I always sentence at the very bottom; I never depart up or down, unless it's a guided departure like substantial assistance or acceptance of responsibility. This is true whether a defendant has pleaded guilty or proceeded to trial; generally, I have found that the bottom end of a given Guideline range sufficiently captures a defendant's criminal culpability, and I very seldom run across a case so unusual as to warrant departure. If the sentence seems too harsh or too light, I no longer feel responsible.

March 27, 2014 in Class activities, Death penalty history, Who decides | Permalink | Comments (5) | TrackBack

February 26, 2014

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

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

Here are the top-side briefs:

Here are the bottom-side briefs:

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

February 23, 2014

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

After a final review of what we should take away from the McClesky ruling, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence which places categorical limits on what crimes cannot result in capital sentence and what criminals can not be executed for their crimes.  Here, in order, are the major rulings in this series:

Offense-based Eigth Amendment categorical prohibitions on the death penalty:

Coker v. Georgia, 433 U.S. 584 (1977) (precluding imposition of the death penalty for offense of adult rape)

Tison v. Arizona, 481 U.S. 137 (1987) (precluding imposition of the death penalty for homicide accomplice lacking reckless indifference to life)

Kennedy v. Louisiana, 554 U.S. 407 (2008) (precluding imposition of the death penalty for offense of child rape)

Offender-based categorical prohibitions on the death penalty:

Thompson v. Oklahoma, 487 U.S. 815 (1988) (precluding imposition of the death penalty on offenders under age 16 at time of crime)

Atkins v. Virginia, 536 U.S. 304 (2002) (precluding imposition of the death penalty on offenders who suffer from mental retardation (reversing 1989 ruling holding otherwise))

Roper v. Simmons, 543 U.S. 551 (2005) (precluding imposition of the death penalty on offenders under age 18 at time of crime (reversing 1989 ruling holding otherwise))

As I asked at the end of last week, given that the Supreme Court's Eighth Amendment jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender with have individual circumstances considered by the sentencing judge and/or jury, what justifies another set of Supreme Court rulings that preclude legislatures from ever being allowed to even consider the death penalty for certain crimes or offenders?

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

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

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

February 23, 2014 in Death eligible offenses, Death penalty history, Deterrence, Who decides | Permalink | Comments (4) | TrackBack

February 17, 2014

"Let's put the political correctness aside and debate this issue on the grounds that we really want to: is the death penalty moral or not?"

The title of this post is the final senitment expressed by Gus L. in conjunction with the terrific comment discussion that is now energized in response to this post noting Washington Governor Jay Inslee's remarkable decision to take his state's death penalty into his own hands by declaring a moratorium on executions while he serves as Governor.  Though I do not want to distract from discussion about Governor Inslee's decision, I wanted to "tee up" the fundamental question Gus identifies while also contextualizing it with my usual who and how concerns.

I am grateful to Gus for cutting to the heart of the issue in all capital punishment debates and discussions, namely whether one believe the death penalty is moral (or just or righteous or legitimate or approrpiate or whatever other word one wants to adopt for this ultimate normative question).  I am grateful because I hope and assume that everyone in the class realizes and recognizes (1) that one's own views on this ultimate issue inevitably colors one's perspective on all other capital punishment questions/debates, and (2) that reasonable people with reasonable and diverse views on theories of punishment reach reasonable and diverse conclusions concerning whether the death penalty is moral/just.

With this critical background, the who and how questions we are discussing in class take on an extra dimension in modern American society committed to democratic rule structured by a Constitution designed to safeguard some individual rights against majoritarian preferences.

1.  If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?   

2.  If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

3.  If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

4.  If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

Arguably, if you have a very strong opinion on the morality of the death penalty and a very strong belief that "death is different" so that matters of life and death are to be treated different in kind than all other matters, then the answer to these four questions might be identical: you should use all your legal, political and social powers to further your moral vision no matter what your role in American society.  But, if you think one's role in American society should influence the answer to the questions above, then arguably you think that there are moral considerations of even greater importance that the question Gus highlights as to whether the death penalty moral or not.

February 17, 2014 in Pro/Con arguments surrounding the death penalty, Who decides | Permalink | Comments (6) | TrackBack

February 11, 2014

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

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

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

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

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

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

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

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

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

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

I believe that’s too much uncertainty.

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

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

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

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

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

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

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