Sentencing Class @ OSU Moritz College of Law

Anyone have any distinct views on who Joe Biden should pick as US Attorney General?

As perhaps my last substantive post for the semester, I will reinforce out common "who sentences" theme by asking whether anyone has any special thoughts concerning who Joe Biden should pick to serve as US Attorney General.  I probably would not assert that the US Attorney General is the most important "who" when it comes to sentencing, but I will say she is likely always among the top 10 most important "whos."  And especially at a time when there is much (justified) focus on the role that so-called "progressive prosecutors" can play in advancing criminal justice reform, I think the selection of an Attorney General is especially consequential circa 2020.

I have done two posts over at my main blog discussing the two people whom I still consider the likely front-runners:

• Is Sally Yates on track to be the next US Attorney General?
• Is Alabama Senator Doug Jones now the front-runner to be Joe Biden's pick for Attorney General? 

For a variety of reasons, I would like to imagine a world in which reform advocates like Michelle Alexander or Bryan Stevenson might be realistic options for the role of AG.  But for a variety of reasons, I suspect folks like Doug Jones and Sally Yates may be about as progressive as any "realistic" US AG pick is going to be.  And I would love to hear any views on any possibilities (realistic or unrealistic) for who should be directing the Justice Department come 2021.

A final (too brief) foray into what metrics and data matter for assessing a sentencing system

After our first few weeks of class discussing theories of punishment, you likely recall that we never reached any kind of firm conclusive resolution as to what goals a sentencing system must or should pursue.  For that reason (and others), it should not be a surprise that there is no firm conclusive view of what metrics or data matter most for judging a sentencing system or the criminal justice system more generally.  But this is not for lack of possible options, and here I will list some broad categories and sub-categories for you to consider as possible data points of greatest interest or concern for a sentencing system:

CRIME

• Overall crime rates and/or total crimes (per year or over an extended period)
• Violent crime rates and/or total violent crimes
• Murder rates and/or total murders

ARRESTS

• Overall total arrests (per year or over an extended period)
• Arrest rates relative to crime rates
• Arrests for certain crimes

CONVICTIONS

• Total convictions, felonies and misdemeanors (per year or over an extended period)
• Conviction rates relative to crime rates or arrest rates
• Conviction rates for certain crimes

SENTENCES IMPOSED

• Total sentences for many types of punishments (death, prison, jail, probation, fine)
• Prison/jail sentences for more any crimes
• More severe sentence of death, life or more than, say, 20 years in prison

PRISON, JAIL, SUPERVISION POPULATIONS

• Total persons in prison, jail. supervision at one snapshot in time
• Total persons in prison, jail. supervision over a year or longer
• Total persons in prison, jail. supervision for certain crimes

RECIDIVISM RATES

• Persons arrested within one year (or 5 or 10 years)  after arrest
• Persons sentenced for a new crime within one year (or 5 or 10 years) after release from custody
• Persons convicted of a new serious crime within one year (or 5 or 10 years) after prior CJ contact

CRIMINAL RECORDS AND COLLATERAL CONSEQUENCES

• All persons ever subject to arrest/conviction
• All persons who see or secure record relief from a prior conviction
• All persons receiving longer sentences due to criminal past

FINANCIAL/SOCIAL COSTS

• Total expenditures by governments on entire criminal justice system
• Total expenditures by governments on prisons and jails
• Social/human costs (and benefits) from interactions with criminal justice system

I could go on and on, but I am sure you get the idea and that you can now reflect a bit on how many different possible sentencing "outputs" could  be a focal point for data collection, review and analysis.  This is the broad topic I am eager for us to cover in our last few classes, and I especially want to highlight that this long list of possibilities does not begin to engages various social justice issues — e.g., should we focus on "output" numbers in any or all of these categories particularly for people of color?  for women?  for juveniles?  for persons with mental illness?  for veterans?

We can perhaps start the discussion here in the comments, but know I will be asking you in our final classes to share your views on these issues through this particular question: What two of three metrics or data points should the incoming Biden Administration give special and sustained attention to in the coming months and years?

Reactions to our look behind the robes with federal sentencing judges?

I hope everyone enjoyed as much as I did the Zoom visit today by US District Judge Douglas R. Cole (SD Ohio) and US District Judge Robert W. Pratt (SD Iowa).  This post provides an opportunity to share comments and reactions to what we heard.

Are there any "offender characteristics" that you think must be considered at sentencing? If so, how?

As we continue digging into the challenging and dynamic topics of offender characteristics at sentencing, I urge you to think about what offender characteristics should or must always be considered at federal sentencing with two particular "whos" in mind: the US Sentencing Commission and US District Judges.  

The challenge for the USSC 

You should closely review Problem 5-4 in the text and the notes that follow (pp. 322-26).  You will see that Congress in the Sentencing Reform Act of 1984 instructed the USSC to consider the "relevance" of various offender factors at sentencing (and only declared a few factors like race and sex and socio-economic status off-limits).  In other words, Congress gave the Sentencing Commission considerable discretion to include various offender factors in guideline calculations, but the USSC has historically deemed nearly all offender factors — such as "disadvantaged upbringing" and "drug or alcohol dependence" and "education and vocational skills" and "employment record" and "family ties and responsibilities" — as either "not relevant" or "not ordinarily relevant" at sentencing.

Notably, in a 2014 law review article, a former Chair of the US Sentencing Commission, US District Judge William Sessions, 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 these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct."  In his article, titled "The Relevance of Offender Characteristics in a Guideline System," Judge Sessions asserted that the "Commission needs to embrace the relevance of human factors and educate judges and practitioners as to their impact on the sentencing process;" drawing from his own sentencing experiences, Judge Sessions suggested that factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new "guidelines that encourage consideration of those characteristics where appropriate."  

Do you agree that it is problematic that the federal sentencing guidelines largely seek to exclude consideration of offender characteristics and that the US Sentencing Commission consider a new approach to these matters?  Judge Sessions says "the Sentencing Commission should take more of an initiative to collect data on offender characteristics, draft guidelines that encourage consideration of those characteristics where appropriate, and educate judges about the reasons why those characteristics are relevant should what might these guidelines look like."  If you were serving on the USSC, what kinds of "data on offender characteristics" might you want to collect and what kind of "draft guidelines" might you start to compose?

 

The challenge for US District Judges

Even when the guidelines were mandatory before Booker, US District Judges had some limited authority to give some effect to offender characteristics at sentencing when selecting an exact sentence within the guideline range.  (For example, a judge impressed by a defendant's charity work could reference this personal history when giving a 51-month term to a defendant facing a guideline sentencing range of 51-63 months.)  But US District Judges before Booker largely understood that most "usual" offender characteristics were of little importance within the guideline structures, and that reality in turn often led defense attorneys to spend little or no time developing any offender-based mitigating factors to present to judges at sentencing.

But when Booker made the guidelines advisory, US District Judges became obligated to focus upon and follow the statutory instructions in 18 U.S.C. § 3553(a).  And the very first subsection of this statutory provision states judges "shall consider the nature and circumstances of the offense and the history and characteristics of the defendant" (emphasis added).  In other words, Congress gave US District Judges a formal instruction to consider offender considerations, and this instruction became a focus point for advocacy and decision-making after Booker.  This provision was also stressed by US District Judge Robert Pratt when he initially sentenced Brian Gall to 36 months of probation rather than within the guidelines sentencing range of 30-37 months in prison.  The Eighth Circuit reversed Judge Pratt's sentence as unreasonable, but the Supreme Court reversed that reversal (excerpted in our text at pp. 341-48) to essentially confirm that offender characteristics could play a much larger role in federal sentencing after Booker.

If you were able to advise a group of federal judges about modern sentencing under the advisory guideline system, what advice might you give circa 2020 as to how best to approach the consideration of offender characteristics?  Are there any offender characteristics that you think federal district judges should or must always consider at sentencing?  If so, how should judges now approach these matters without creating the risk of unjust sentencing disparities or other potential problems?

Reviewing class plans for the rest of November

Amidst all the recent uncertainty and angst, I wanted to be certain to remind everyone about our class plans for the rest of November:

Tuesday, Nov 10: Guest lecture via Zoom by Jonathan Wroblewski, Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice.  (No in-person class, background reading/prep detailed here.)

Thursday, Nov 12: In-person regular class beginning our review of "the criminal" for sentencing (skim Johnson and read Tiernan closely in the text for this class)

Tuesday, Nov 17: In-person regular continuing our review of "the criminal" for sentencing (read Gall closely in the text for this class) 

Thursday, Nov 19: Guest visits via Zoom by US District Judge Douglas R. Cole (SD Ohio) and US District Judge Robert W. Pratt (SD Iowa)

Tuesday, Nov 24: Constructive Wednesday so ... NO CLASS

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How should overdose deaths factor into any sentencing of the "offense" of drug distribution?

CLASS LOGISTICS REMINDER:  On Nov 3, we will have an election day optional on-line Zoom class; I'll be on Zoom at the usual time for an unstructured discussion of how the 2020 election could impact sentencing matters (some noted here); on Nov 5, we will have an in-person regular class (perhaps about election results and) finishing up discussion of "the crime" at sentencing.  The materials below will help inform some of that discussion.

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I briefly mentioned the modern rise in so-called "drug-induced-homicide" (DIH) prosecutions when quickly overviewing the challenges of figuring out the "offense" for purposes of sentencing.  I referenced the work of the Heath in Justice Action Lab at Northeastern University School of Law, which has created this great resource about these prosecutions describing the issue and some of its data analysis:

Under pressure to respond to the nation’s fatal overdose crisis, prosecutors are increasingly treating accidental overdose deaths as homicides. 

We compiled news reports of “drug-induced homicide” (DIH) prosecutions nationwide, using big data analytics tools.  In contrast to the stated intent to target major drug traffickers, our preliminary analysis found that a majority of prosecutions are being brought against individuals who do not fit the characterization of a “dealer” at all, such as friends, family, and co-users of the overdose decedent.

In cases that do involve organized drug distribution, the defendants are typically low-level dealers, with a disproportionate number of charges being brought in cases where the victim is white and the dealer is a person of color.  Racial bias is also evident in the gaping disparity of the sentences being handed down to DIH defendants of color: a median of nearly nine years, contrasted to five years for whites.  

These disconcerting data do not even highlight how where a drug defendant is prosecuted can matter more than whether a defendant actually faces a formal homicide charge.  For example, under Ohio law, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 16.5 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP if "death or serious bodily injury results from" a distributed drug under 18 USC § 841(b)(1)(A)–(C). 

Whether prosecuted in state court or federal court, a defendant facing homicide charges or a specific mandatory minimum sentence based on the fact of a resulting death can hope a prosecutor will not be able to prove to a jury beyond a reasonable doubt that there is a sufficient causal link between a distribution offense and an overdose death.  But even if an overdose death is not raised or proven by prosecutors prior to sentencing, it is common for prosecutors to discuss alleged community harms caused by a drug defendant's distribution activities and judges can also hear from families of overdose victims at sentencing. 

Should any associated harms to drug users and their family members be relevant when a judge exercises sentencing discretion in a drug distribution case regardless of whether formal charges are brought concerning overdose deaths?  Shouldn't sentencing judges reasonably view dealing drugs like fentanyl that are more likely to result in accidental overdoses as more serious than dealing, say, marijuana or cocaine or even prescription opioids?

As I also briefly mentioned in class, I was part of a group of law professors that late last year asked the Ohio Criminal Sentencing Commission (OCSC) to conduct "a public examination of the use of homicide charges in accidental overdose cases throughout the state
and their impact on public safety and the opioid crisis."  You might find the letter we sent to OCSC and the written response it generated from Ohio Prosecuting Attorneys Association of interest:

Open Letter to the Ohio Criminal Sentencing Commission

Letter from Ohio Prosecuting Attorneys Association

Response to letter from Ohio Prosecuting Attorneys Association

 

Some (of many) older posts on this topic from my main blog:

• "America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane" 
• Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death 
• "Heroin, Murder, and the New Front in the War on Drugs"
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

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

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

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

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

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

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

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

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

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

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

Additional video content for "earned time" opportunities

I am hopeful that all the videos of all the speakers and panels from last week's NACDL conference, Prison Brake: Rethinking the Sentencing Status Quo​, will be available on-line before too long.  In the meantime, any and all students who would like to "earn" some more class time credits should consider checking out some slightly older video content that just became available online.

Specifically, this summer, the Drug Enforcement and Policy Center (DEPC) co-hosted a series of workshops in collaboration with the National Association of Sentencing Commissions (NASC) and the Ohio Criminal Sentencing Commission (OCSC).  The series brought together leaders from sentencing commissions, the judiciary, and academia.  Workshops focused on the role of sentencing commissions in advancing criminal justice reform in times of change, the impact and importance of criminal justice data, and efforts in Ohio to create a unified sentencing entry.  All of the workshops are linked on this DEPC page, and here are brief accounts of each of the three workshops with direct links to the videos (via the titles):

The Work of Sentencing Commissions in Time of Change

Recorded June 25, 2020 | In collaboration with NASC

Panelists:

Judge Stephen L. McIntosh, Franklin County, Ohio and member, Ohio Criminal Sentencing Commission
Meredith Farrar-Owens, director, Virginia Criminal Sentencing Commission
Mark H. Bergstrom, executive director, Pennsylvania Sentencing Commission
Kelly Lyn Mitchell, chair, Minnesota Sentencing Guidelines Commission

 

The Power of Data: Impact on Criminal Justice Reform

Recorded July 28, 2020 | In collaboration with NASC

Panelists:

John Pfaff, professor of law, Fordham University
Anne Precythe, director, Missouri Department of Corrections
Michael Schmidt, executive director, Oregon Criminal Justice Commission; incoming District Attorney, Multnomah County

 

Creating a Felony Sentencing Database: Moving Ohio Forward

Recorded August 17, 2020 | In collaboration with OCSC

Panelists:

Judge Pierre Bergeron, First District Court of Appeals
Douglas A. Berman, executive director, Drug Enforcement and Policy Center, The Ohio State University Moritz College of Law
Associate Justice Michael Donnelly, Supreme Court of Ohio
Judge Ray Headen, Eighth District Court of Appeals
Ryan King, professor and chair, Department of Sociology, The Ohio State University College of Arts and Sciences
Judge Gene Zmuda, Sixth District Court of Appeals

For any of these videos, you are advised to fast-forward through my introductions and get to the array of interesting and diverse "whos" providing their distinct perspectives on these topics. And if you only have time to watch a little bit of these lengthy videos, I would especially recommend the first part of the "Power of Data" video in order to hear Professor John Pfaff rant for 10 minutes about how truly terrible our criminal justice data is across just about every metric.

And remember, if and when you spend any time watching these video or are involved other similar class-relevant activities, be sure to log your hours and loop me in.

Some FIRST STEP Act basics and thoughts about possible next steps

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by Prez Trump into law on Dec. 21, 2018.  Many have rightly called this law the biggest federal criminal justice reform legislation in a generation, and yet others have rightly called this law a relatively small modification to the federal criminal justice system.  Among the good questions we will explore in class is whether the FIRST STEP Act is a very big deal or much ado about very little.

Because lots of disparate provisions got rolled into the FIRST STEP Act with lots of different mandates or changes for lots of different parts of the system, it is hard to readily summarize all the Act's many elements or to effectively track its overall impact. The Congressional Research Service has produced this intricate 20-page overview of Act, which is initially summarized this way:

The act has three major components: (1) correctional reform via the establishment of a risk and needs assessment system at the Bureau of Prisons (BOP), (2) sentencing reform via changes to penalties for some federal offenses, and (3) the reauthorization of the Second Chance Act of 2007 (P.L. 110-199). The act also contains a series of other criminal justice-related provisions.

As is true for many legislative reforms, the impact of the FIRST STEP Act is being shaped by many "whos" other than Congress.  How the US Sentencing Commission, the US Department of Justice and courts implement and respond to new sentencing law can often matter as much or more than statutory particulars.  One persistent question for advocates of major federal sentencing reforms is whether to now seek to amplify the impact of FIRST STEP Act by focusing on other "whos" or to pursue additional statutory reforms from Congress.  What advice might you give on this "who" front to the director of a new criminal justice group?  Do you think your advice on this front could change after Election Day?  

Though the FIRST STEP Act is now nearly two years old, we are now only starting to get a sense of its impact.  Helpfully, US Sentencing Commission a few months ago produced this big intricate data report (and this infographic) detailing the impact of the FIRST STEP Act over the period it calls “First Step Year One” running from Dec 21, 2018 to Dec. 20, 2019.  Importantly, this document only examines key sentencing provisions and not all the bigger prison reforms and various other elements of the First Step Act.  Helpfully, the federal Bureau of Prisons and the National Institute of Justice have useful webpages about the FIRST STEP Act focused on the work these agencies are doing under the Act that are focused more on the prison-reform piece of the FIRST STEP equation.

The COVID pandemic, which has impacted federal criminal justice enforcement in many ways known and unknown, has made certain provisions of the FIRST STEP Act especially important (e.g., the new "compassionate release" rules) and other provisions harder to implement (e.g., the prison programming plans).  Especially because of the extra COVID complications, if you are interested in really digging into any aspect of the FIRST STEP Act (for mini-paper 5 or for any other reason), I would urge you to consider focusing on just one particular provision and maybe even just one "who" working to apply or implement that provision. 

As I mentioned in class, both Prez Trump and former VP Biden has spoken about there interest in supporting additional sentencing reforms in Congress.  We will be sure to talk in class about what kinds of reforms you would be eager to champion if (and when?) Congress turns back to sentencing reform in the (near?) future.

Reviewing again how mandatory minimums impact (and distort) the federal sentencing system

In this post from last month, back when we were focused on "whos," I highlighted some data on mandatory minimums in the federal sentencing system.  Back then, we were talking somewhat generally about how prosecutors garner sentencing power from mandatory minimum sentencing statutes.  Now that we are working through the sentencing of Rob Anon, we can focus with even greater particularity on how one of these statutes, 18 U.S.C. § 924(c), can operate to put federal prosecutors into a powerful position in the application of all facets of the federal sentencing system.

Notably, way back in 1991, only a few years into the functioning federal sentencing guideline system, the US Sentencing Commission wrote this lengthy report explaining why mandatory minimums undermined many of the goals of guideline reforms.  And in 2011, the Sentencing Commission wrote another lengthy report detailing lots of problems with mandatory minimums in operation.  And yet, mandatory minimums persist in the federal system.  And this USSC Quick Facts details that the number of § 924(c) offenders has grown considerably in recent years.

If you are interested in some background on, and lot of information about litigation surrounding, 924(c) offenses, this 2015 Congressional Research Service report is effective.  And this 2020 Firearm Primer from the USSC also has some coverage of 924(c) caselaw.  Feel no obligation to review these long documents, but do take note of how much law surrounds just one small part of a federal sentencing system now filled with law.

UPDATE: Especially because we are going to focus on prosecutoral power in conjunction with one federal firearm law, I found this new Columbus Dispatch article especially interesting and timely.  The piece is headlined "Harsher federal charges to be sought to help combat deadly Columbus gun violence," and here are excerpts (with my bolding added):

U.S. Attorney David DeVillers said Wednesday he hoped to bring "shock and awe" to criminals committing gun violence on Columbus streets with a focused effort on getting harsher sentences for those who have firearms illegally.  "We want this to be a warning, we want this to be a shock and awe to the people committing these violent crimes and firearm offenses," he said.

The effort will focus on two Columbus neighborhoods that have been hot zones for gun violence — Linden and the Hilltop — and on charging defendants in federal court with crimes that have harsher sentences than what state law can provide.

The federal prosecutor announced the initiative Wednesday alongside partners Columbus police Chief Thomas Quinlan, Roland Herndon, special agent in charge of the Bureau of Alcohol, Tobacco and Firearms Columbus field office; Franklin County Prosecutor Ron O'Brien and City Attorney Zach Klein.  The announcement occurred as The Dispatch completed the final day Wednesday of a four-part series on the rising gun violence in the city.

Herndon said of the 126 homicides this year in Columbus as of mid-afternoon Wednesday, 100 have been the result of gunfire and 18% of those have been juveniles. He said there have been an additional 440 non-fatal shootings in 2020. "Our youth, our future," Herndon said. "We cannot stand for that anymore."...  Authorities will not seek federal charges against juveniles, but will aim to charge any adults that provide them with guns.

The initiative will involve dedicated attorneys from the city attorney, county prosecutor and U.S. Attorney's offices focusing on identifying convicted felons in possession of firearms, those providing guns to juveniles in order to commit crimes, possessing weapons with filed-off serial numbers, and other firearms offenses, such as misdemeanor domestic violence offenders possessing guns.

Klein said his office has seen a 250% increase in the number of domestic violence cases involving firearms. “Gun violence in our community is creating fear, ruining lives, and in far too many situations, taking lives," he said in a prepared statement later. “Think about the innocent bystanders, especially children, whose lives change in an instant due to gunfire and violence."

DeVillers said his office will be freezing work on other types of cases, such as immigration and white-collar crime, to focus on firearms crimes and violence. "We are going to take every single gun crime and federal violent crime we can take," he said. "It’s not bravado, it’s a warning."

O'Brien said he was "excited" and "thrilled" to be a part of the initiative, which can add additional prison time to sentences locally with the way crimes are charged in each court. "We will show the thugs on the street that we mean business," O'Brien said.

DeVillers said the program will be reevaluated every 90 days to see what is working and determine success, which will be measured in part by decreases in shootings and homicides. 

Preparing to sentence Rob Anon before (and later after) the enactment of the federal sentencing guidelines

As stressed in class, much of the rest of the semester is going to explore non-capital (and mostly federal) sentencing policies and practice before and after modern guideline reforms.  Our work will start and advance through a deep discussion of sentencing realities faced in sentencing Rob Anon — whose crime and history appear in short form at pp. 205-06 of our text.  We will be exploring the sentencing of Rob Anon in multiple eras: (1) in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text), then (2) in a pre-Booker mandatory federal guideline sentencing world, and then (3) in a post-Booker advisory federal guideline sentencing world.  (For historical reference, era 1 in federal sentencing extended from about 1910 to 1989, era 2 extended from 1989 to 2005, and era 3 has run from 2005 to the present.) 

We will not get started on these topics in earnest until Thursday of this coming week (because we will be watching a documentary on prison history on Tuesday).  But it is not too early for you to get started on thinking about sentencing Rob Anon the pre-reform system, especially because doing so should deepen your appreciation for some of the comments and criticisms of Judge Marvin Frankel about this system (which are required reading and appear in our text at pp. 126-131).

So, imagine yourself as a federal district judge in 1972 presented with the Rob Anon case for sentencing.  The only key legal concerns for you as a federal judge sentencing circa 1972 are (1) that Rob Anon's statutory sentencing range is 0 to 25 years in federal prison (see  18 U.S.C. § 2113(d)) and 0 to $250,000 in a fine (see 18 U.S.C. § 3571(b)(3)), and (2) that federal parole officials will have complete discretionary authority (but absolutely no requirement) to release Rob Anon after he has served at least one-third of whatever sentence you impose.

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 such a (pre-guideline) world.  You need not yet (and I suggest you do not yet) try to sentence Rob Anon under post-reform (pre- or post-Booker) modern federal sentencing laws.  After we have had a chance in class to talk about your experiences and judgments concerning Rob Anon's sentencing circa 1972, then I will give you guidance and help in sentencing him under modern federal sentencing laws and guidelines.

UPDATE:  I am now able to post below here a form/questionnaire for working through the pre- and post-guideline sentencing of Rob Anon.  I will talk more about this form and about the guideline part of the exercise in our coming class and in future blog posts.  But, if you want to get a running start, I will be grateful if you can use this form to work through the sentencing exercise(s) in the coming weeks. 

Download 2020 Guidelines exercise

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

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

Crime:

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

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

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

 

Criminal:

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

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

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

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

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

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

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

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

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

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

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

Some Buckeye death penalty whos and history

As I mentioned in class, we can only briefly touch on so many interesting big and little issues relating to the death penalty in class that I would eagerly give more time and attention in this forum.  Absent suggestions, I will share (and enhance) items from my inbox of interest.  Today, this involves this great new article from The Appeal: Political Report headlined "Cincinnati Is An Epicenter For The Death Penalty. Its Prosecutor Race Could End That In November." 

Though the piece covers lots of ground, the subheadline of the piece highlights its main focus: In Hamilton County, Joe Deters has sent more people to death row than any other prosecutor in Ohio. His challenger, Fanon Rucker, promises to stop that practice."  I highly recommend this lengthy article because it provides lots of background (and links) on the current state of the debate over capital punishment in the Buckeye State while also noting/quoting a wide array of interesting "whos" involved in this debate.  Here is just one of a number of notable passages:

“Things have shifted in the last two years, now we’re focused fully on repeal,” said Hannah Kubbins, the state director at Ohioans to Stop Executions.  Kubbins doesn’t expect much movement on the issue this fall because of the coronavirus pandemic, the lame duck session, and the presidential election.  But she says advocates are gearing up to push through a repeal bill in the next legislative session.

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association declined to comment for this story, but said in February that “we’re disturbed” by discussions of repealing the death penalty.  A month earlier Tobin said, “All of the challenges that we see to the death penalty right now will switch to life without parole.  And the next thing you know we won’t have life without parole either.”

Kubbins, who emphasized that her nonprofit organization does not endorse candidates, said prosecutors and prosecutor associations “oppose any reform that could reduce their power.”  She urged voters to pay attention to their county prosecutor races, and to consider how county resources spent on the death penalty could be redirected toward unsolved crimes.

Rucker told the Political Report he would be “very willing to offer my voice of advocacy” for statewide repeal of the death penalty.  “Justice demands consistency and it’s not consistent to have such overwhelmingly differing ends of punishment in a system that says it’s about treating all fairly regardless of their background,” he said.

I am not sure I entirely understand this last quote from Rucker, but earlier in this article he more directly explains his support its abolition: "'I would absolutely support repeal of it because our Supreme Court has identified, and folks across the country have realized, it’s ineffective, inefficient, and certainly there are arguments about the immorality as well,' Rucker told The Appeal: Political Report."  (I am not sure which Supreme Court Rucker is referencing here, but maybe he is thinking about this Ohio Supreme Court 2014 Task Force report to which I had the honor of contributing.)

Interestingly, I noticed on this Issues page of "Fanon Rucker for Prosecutor" that there is no mention of the death penalty.  There is this promise: "Our office will aggressively pursue and put a significant amount of financial resources to the prosecution of those who physically harm children, the elderly and loved ones."  But apparently Rucker will not (ever?) consider pursuing a capital prosecution to that end.

Meanwhile for a broader and more comprehensive look at the modern death penalty in the Buckeye state, I also highly recommend the latest version of the Ohio Attorney General's annual report on the death penalty, the 2019 Capital Crimes Annual Report.  This document (which is nearly 400 pages long) gets updated on April 1 each year, and it provides information and a procedural history on each and every case that has resulted in a death sentence in Ohio since 1981.  This webpage provides this statistical summary:

According to the report, from 1981 through 2019, a total of 143 death sentences remained active including those currently pending in state and federal courts.  In 2019, six individuals received a total of seven death sentences and were added to death row. 

Since 1981, Ohio has issued a total of 340 death sentences.  A total of 56 death row inmates have been executed under Ohio’s current law since 1981.  Over the same period, a total of 21 death row inmates have received a commutation of their death sentence to a sentence less than the death penalty.

Last but not least, the Fall 2019 issue of the Ohio State Journal of Criminal Law included a bunch of original article authored by notable folks about the death penalty in the Buckeye State and elsewhere.  Of particular note and interest is this short piece by former Ohio Supreme Court Justice Paul Pfeifer titled "Ohio's Modern Death Penalty — From Architect to Opponent."  Here is its first sentence, and a line from near the end of the piece that reminded me of some language in McGautha:

Ohio's death penalty statute has, in practice, resulted in a "death lottery" that should be abandoned....

It is unevenly applied by prosecutors, juries, judges, and the Supreme Court — not out of malice or malfeasance, but because measurement and calibration are impossible.

Some data on mandatory minimums in the federal sentencing system ... UPDATED with new report with disconcerting (new and old) data

I reviewed a lot of SCOTUS jurisprudence (too) quickly in class today, and I will be eager to talk about all the who, why and how in cases like Blakely and Booker and others as folks see fit.  But, especially because of their enduring importance in modern debates about sentencing policy and practice, I also want to make sure we get to talk about mandatory minimums.  To get the conversation started, here are some general data about mandatory minimum penalties in the federal sentence from this Quick Facts document by the US Sentencing Commission (USSC):

26.1% of all cases carried a mandatory minimum penalty. 

Of all cases carrying a mandatory minimum penalty:
-- 72.7% were drug trafficking;
-- 5.4% were firearms;
-- 4.8% were child pornography;
-- 4.6% were fraud;
-- 4.4% were sexual abuse.

44.3% of offenders convicted of an offense carrying a mandatory minimum were relieved of the penalty because:
-- 21.8% received relief through the safety valve provision;
-- 15.9% provided the government with substantial assistance;
-- 6.6% received relief through both.

The average sentence length was:
-- 141 months for those subject to the mandatory minimum;
-- 61 months for those receiving relief;
-- 24 months for offenders who were not convicted of an offense carrying a mandatory minimum.

I mentioned in class how federal prosecutors can impact the application of mandatory minimums through their charging authority, and the child pornography statutes provide an especially interesting example of how this can work. In this 2012 Report to Congress, the USSC noted:

The Commission’s review of over 2,000 non-production cases has demonstrated that the underlying offense conduct in the typical case in which an offender was prosecuted for possession [with no mandatory minimum] was indistinguishable from the offense conduct in the typical case in which an offender was prosecuted for receipt [with a five-year mandatory minimum].  Yet the Commission’s analysis of §2G2.2 cases from fiscal year 2010 revealed significant unwarranted sentencing disparities among similarly situated offenders based in large part on whether they were charged with possession or receipt.  For these reasons, the Commission recommends that Congress align the statutory penalties for receipt and possession.  There is a spectrum of views on the Commission, however, as to whether these offenses should be subject to a statutory mandatory minimum penalty and, if so, what any mandatory minimum penalty should be.  Nevertheless, the Commission unanimously believes that, if Congress chooses to align the penalties for possession with the penalties for receipt and maintain a statutory mandatory minimum penalty, that statutory minimum should be less than five years.

And here are the latest USSC data in this arena from this Quick Facts document:

The average sentence for offenders convicted of receiving child pornography was 96 months:
-- 90.5% of offenders sentenced for receiving child pornography were convicted of an offense carrying a five-year mandatory minimum penalty; their average sentence was 87 months.
-- 9.5% had a prior sexual abuse or child pornography conviction and were subject to a 15-year mandatory minimum penalty; their average sentence was 185 months.

The average sentence for offenders convicted of possessing child pornography was 68 months:
-- 80.1% of offenders were convicted of an offense not carrying a mandatory minimum penalty; their average sentence was 53 months.
-- 19.9% had a prior sexual abuse or child pornography conviction and were subject to a 10-year mandatory minimum penalty; their average sentence was 129 months

Other areas of particular import and interest in the application of mandatory minimums in the federal system arise in the drug and firearm settings.  Here are USSC Quick Facts on firearm and on drugs and some notable data points:

The average sentence for all felon in possession of a firearm offenders was 64 months.
-- The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 188 months.
-- The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 58 months.

The average sentence for drug trafficking offenders was 77 months, but varied by drug type.
-- 96.4% were sentenced to prison.
-- 65.6% were convicted of an offense carrying a mandatory minimum penalty; 57.6% of those offenders were relieved of that penalty.

The prestigious Council on Criminal Justice released this big report last month on the federal criminal justice system with 15 recommendations, and its second recommendation reads as follows: "Congress should eliminate mandatory minimum sentencing laws for all drug crimes and consider eliminating non-drug mandatory minimums while refraining from enacting any new mandatory minimums pending study."

UPDATE on September 9:  I just got an email spotlighting this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  It is a very long report covering lots of ground and data, but it includes this helpful summary of one key finding and other research quite relevant to our discussions (I have left in footnote numbers, but you will need to click through to see sources):

Taken together, the analysis above indicates that cases involving offenses that carry mandatory and statutory minimum sentences contribute to the disparities we see in incarceration length for people of color.  Defendants of color are more likely to face charges that carry mandatory incarceration time, and these more serious and high-risk sentencing possibilities translate into plea deals that are more likely to involve incarceration and longer sentences.  Further, existing mandatory minimums are rarely applied in cases involving charges commonly faced by White defendants, such a subsequent OUI offenses.

Our findings are consistent with other studies that find that Black and Latinx people are disproportionately impacted by more severe charging decisions.80  A study of the federal system found that racial disparities in how prosecutors charge people with offenses carrying mandatory minimum sentences were a major driver of sentencing length disparities.81  Similarly, a study of racial disparities in the Delaware criminal system attributed the significant racial disparities in incarceration sentence lengths primarily to differences in charge types and the seriousness of charges.82  In addition, numerous studies have found racial and ethnic disparities in prosecutor decisions to seek sentencing enhancements, such as decisions to designate people as “habitual offenders”83 and decisions to pursue charges that require mandatory minimum sentences.84  For example, a study of the exercise of prosecutorial discretion to bring charges carrying mandatory minimum sentences in Pennsylvania found that Latinx people in the criminal system were nearly twice as likely to receive a mandatory sentence as White people in the criminal system.85  Another study found that federal prosecutors charged cocaine weight amounts that “bunched” just above the threshold to trigger a mandatory minimum sentence more often for Black and Latinx defendants than for White defendants.86   After the Supreme Court required prosecutors to meet a stronger evidentiary threshold for drug amounts, the practice of bunching declined, indicating that prosecutors were previously claiming drug amounts that could not withstand scrutiny.87

Thoughts about a sentencing system that gives crime victims the chance to set forth a "presumptive" sentence?

As briefly mentioned in class, there have been waves of "victims' rights" movements that have sought to ensure crime victims have a more prominent role in the criminal justice process.  The latest wave has come in the form of a ballot initiative known as Marsy's Law, which has been approved by voters in 14 states.  In November 2017, Ohio voters passed Marsy's Law which enshines in our state constitution that victims have, inter alia, the right "to speak in public proceedings involving the accused’s release, plea, sentencing, disposition or parole."   Moreover, the modern restorative justice movement has often be motivated by and grounded in a view that victims are often poorly served by traditional adjudicatory and sentencing processes.  See, e.g., Lara Bazelon & Bruce A. Green, Victims’ Rights from a Restorative Perspective, 17 Ohio State Journal of Criminal Law 293 (2020)  And lots of restorative justice models are very "victim-centric."

So, with an eye to giving victims not just a voice but also a vote in the sentencing process, what would you think of a proposal that victims get a chance to set forth a "presumptive" sentence for consideration by a judge at sentencing?  Procedurally, this might be operationalized by giving a victim (perhaps with the help of a probation officer) a chance to prepare for the sentencing judge a "victim sentencing report" (VSR) --- which would be submitted to the judge before sentencing and be in addition to a traditional presentencing sentencing report --- and then instructing a judge that they can and should sentence in accord with that report's recommendation unless they can provide a reasonable basis based in punishment theory for giving a different sentence. 

Does the text or spirit of the US Constitution favor or prioritize any particular theory of punishment? Any special "who"?

As I mentioned briefly in class, and as will be useful as we turn to some famous and consequential Supreme Court rulings, I am eager for you to start giving thought to whether the text or spirit of the US Constitution favors or prioritizes any particular theory of punishment or any particular "whos" in a sentencing system.

Of course, there are lots of provisions of the US Constitution that might be considered in this discussion.  But this abridged set of provisions can usefully get this conversation started:

The Preamble:  "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."

Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

What punishment theories and "whos" explain Alice Marie Johnson being sentenced to LWOP and then having the sentence commuted and then pardoned?

One main goal of our first few weeks of classes is to enable you to be able to analyze and assess in a sophisticated way the theories of punishment and institutional players that formally and functionally have key roles in the operation of our sentencing systems.  As I have already started to emphasize and will continue to highlight, it is persistently challenging to decide precisely which theories and players normatively should be predominate in an ideal sentencing system.  But, for practicing lawyers and effective advocates, it is particularly important and valuable just to be able to notice which theories and players descriptively are shaping our actual sentencing systems.

This coming week, we will spend time unpacking which punishment theories and which "whos" are playing key roles in the historic Williams case and in the enactment and application of mandatory minimum sentencing statutes.  But, because Alice Marie Johnson is in the news and makes for a great case study, I will likely start our class on Tuesday by asking the question in the title of this post, namely "What punishment theories and 'whos' explain Alice Marie Johnson being sentenced to LWOP, and then having the sentence commuted and then pardoned?".

This wikipedia page on Ms. Johnson provides an effective short accounting of her life history and the crimes that led her to being sentenced to life without parole.  As I mentioned in class, she spoke at the last night of the Republican National Convention and PBS has her short speech available via YouTube at this link.  For a lot more context, you might even check out this 2013 report from the ALCU titled "A Living Death: Life Without Parole for Nonviolent Offenses." Ms. Johnson's case is profiled at pages 56-58 of this 240-page(!) report.

I do not expect you to do a lot of reading about this case, but I am eager for you to think a lot about what theories may have driven her initial sentence and also her commutation and pardon.  I also want you to thinking broadly about all the different "whos" who played an important role in her initial sentence and also her commutation and pardon.

If castration seemed like a good idea to Thomas Jefferson, why not consider it for Richard Graves?

One idea worth consideration as we explore theories of punishment is whether prison, which is our modern default punishment for all serious offenses, is really any good at advancing any of the traditional theoretical goals.  When pressed on this front, advocates of prison and modern mass incarceration often claim that prison is at least good at incapacitation.  But this claim fails to reckon with the fact that (a) many persons in prison can and do commit all sorts of crimes while in prison, and (b) there may be non-prison means to incapacitating at least somewhat effectively.  At the end of class, I mentioned that, for a person convicted of rape perhaps castration (either physical or chemical) could and would be an effective incapacitative punishment. (As a preview of second week topics, I encourage considering whether your view on this punishment might be significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).)  

For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment.  In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.  Indeed, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson, "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital" suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  Here is a taste:

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 wholly forfeit 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.

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....

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....

I highly encourage everyone to read the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

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

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

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

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

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

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

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

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

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

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

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

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

• Mark Osler, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System
• Paul J. Larkin, Jr., 'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014
• Multiple authors in special June 2017 issue of the Federal Sentencing Reporter, "Obama’s Clemency Project: Looking Back"

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

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

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

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

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

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

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

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

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

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

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

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

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

Some clemency news and notes from the week that was

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

• Federal: "Army won't reinstate elite status of soldier given clemency by Trump"

• Florida: "Court says clemency fight ‘moot’ after Amendment 4"

• Kentucky: "'I made a monumental mistake': Prosecutor sorry for asking Bevin for pardon in sodomy case"

• Missouri: "Marijuana Legalization and The Crisis of Clemency in Missouri"

• New York: "Cuomo's Clemency and Cruelty of False Hope"

• Ohio: "How does Ohio’s new expedited pardon program work?: Q&A"

• Pennsylvania: "Delco DA drops old shoplifting charge that held up clemency for man serving life"

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

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

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

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

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

"Who should oversee implementing the First Step Act?" 

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

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

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

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

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

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

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

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

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

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

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

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

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

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.  

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:

• A white paper explaining the background of and need for a second look bill;
• A short video that provides firsthand perspectives of four formerly incarcerated individuals, including Matthew Charles;
• An infographic that explains how a second look provision would work in practice.

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.

Reading up on "Beyond Guilt" before David Singleton visits

As 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.

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:

• Texas completes its seventh execution of 2019 with killing of triple killer 
• Kentucky Supreme Court hears arguments to preclude death penalty for defendants under age 21
• "Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper?" 
• Tennessee AG seeking to make his state even more like Texas with respect to capital punishment 
• Federal officials reportedly considered using fentanyl for executions when restating machinery of death 
• Another indication from Oklahoma of how jurors are keeping the death penalty mostly dormant 

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."

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.

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.

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.

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.)

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"

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?

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

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.

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 9:  NO CLASS!!

Thursday, April 12: Make-up class possibilities:

• Attending, from 4pm-5:30pm, the Reckless-Dinitz Memorial Lecture featuring Professor John Pfaff, "Moving Past the Standard Story: Rethinking the Causes of Mass Incarceration." 
• Attending, from say 11:30 to 12 or more likely from 2:30 to 3, a mini-class/roundtable discussion with Professor John Pfaff, author of Locked in: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017) 

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:

• §1B1.1. Application Instructions

• §2B3.1. Robbery
• §3B1.1. Aggravating Role
• §4A1.1. Criminal History Category

• Sentencing Table

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:

• Worksheets for Individuals

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."

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)

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

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

 

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

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

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

• Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).

• Scott E. Sundby,  The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).

• John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).

• G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).

• Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).

• Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).

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

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

Victims:

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

Prosecutors:

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

Defense attorneys:

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

Trial judges:

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

Jurors:

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

Appellate judges:

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

Governors:

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

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

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

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

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

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:

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.”  

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.

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?

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?

The full opinions in Graham and Miller....

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

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

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

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:

• GOP Gov explains how sentencing reform has "Georgia's criminal justice system smarter, fairer, more effective and less costly, while in no way sacrificing public safety"

• Federal judge troubled by how Philadelphia DA is dealing with post-Miller resentencing

• Terrific Marshall Project review of notable (but lower-profile) criminal justice initiatives going to voters in various states

• Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter

• Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS

• Federal inmate refuses Prez Obama's commutation

• "The United States needs a defender general"