Sentencing Class @ OSU Moritz College of Law

Some FIRST STEP Act basics for Friday's lunch and future use

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by President Donald Trump into law on December 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 very small modification of the federal criminal justice system. Among the good question to reflect on is whether the FIRST STEP Act is a big deal or much ado about very little.

Because lots of disparate provisions got rolled into the FIRST STEP Act, it is hard to readily summarize all its elements. The Congressional Research Service 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.

The advocacy group FAMM has this webpage about the Act, which includes these general (multi-page) summaries:

FAQ: First Step Act

FAQ: First Step Act Risk and Needs Assessment

Read a full description of the bill here

The federal Bureau of Prisons and the National Institute of Justice also have useful webpages about the FIRST STEP Act, and their pages provide a particular focus on the work these agencies are doing under the Act (aka "Who sentences").

Two projects for a week with possibly just one class

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

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

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

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

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

Plans, papers and other notes on other of fronts

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

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

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

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

Place and space for any final white-paper questions

This post is intended to provide a place and space for questions about the final white-paper assignment.  I will, of course, answer questions about the assignment in our final class and via personal e-mails, but I encourage students to feel comfortable asking questions here so that I can provide answers to questions in a forum that should remain accessible to all through the exam period.

Posting and/or sending out white papers to named audience

After a long few weeks to finish grading and to deal with other commitments that stacked up in the Spring, I am now ready to get serious about polishing, publishing and propagating all of the great white papers that were produced for this course.  I hope at least a few of you are interested, and have a little time, to turn your white paper into more than just a required assignment for our class.

If you are still interested in having your white paper posted on the blog and/or polished for sending to your chosen audience, please let me know via a comment here or e-mail.  Though a little work may be involved to update and formalize the presentation, I doubt more than a few hours of effort would be required to make anyone's white paper post-worthy.  (Consider the cool double meaning: post-worthy means worthy of posting on this blog and worthy of putting in the post (mail).)

Initial reactions to white-paper outlines

I have reviewed all the submitted white-paper outlines, and I am in the midst of preparing class-wide substantive feedback and suggestions.  In this post, let me just detail some of my initial reactions and thoughts:

1.  Thanks for providing such interesting Spring Break reading.  I really enjoyed seeing how everyone approached this novel assignment, and I learned a lot from your outlines.  Though a lot of you (understandably) expressed concerns about the scope and coverage of your outlines, my review of all your efforts confirmed my instinct that this assignment is proving to be much more valuable than any exam or even a traditional research paper I could have assigned.

2.  The thoughtfulness and diversity of your efforts was quite impressive.  Even the shortest outline — which ran just over a page double-spaced — revealed thoughtful reflection on this project.  The longest outline — which ran just under seven pages single-spaced — revealed how dangerously easy it will be for this project to consume you.

3.  I will mark-up submitted outlines only upon request.  As noted above, I am preparing a long memo with general feedback for everyone.  I am happy to provide individual feedback through conferences or by marking up an outline upon request.  A number of you stressed that the outline was a work in progress; I would rather spend time helping you move forward than marking up an effort you have already revised.

4.  I am excited about the importance and possible impact of this project; I am thinking dynamically about how we can and should disseminate the class's efforts.  Of course, I hope to post (with permission) the completed white papers on this blog.  But I am also thinking about (1) whether and how we might foster (and fund) sending the white papers directly to the official intended audience, and also (2) whether and how we might publish all the papers in some kind of compiled book form.

UPDATE:  I have now completed a detailed memo with class-wide substantive feedback and suggestions, which can be downloaded here: Download recommendations_for_dp_white_papers.rtf

An offer for (and encouragement of) "field research"

I am getting very excited about the white papers upon seeing the diverse and interesting selections of officials to whom you all (tentatively) plan to write.  I hope you are as excited about this part of the class as I am.  Though I will discuss the particulars of the papers more next week, it is never to early to start your research.

Wonderfully, some more friends in the field are providing offers of assistance.  Specifically, while digging out from snow yesterday, I got this kind e-mail from Ward Campbell, the Supervising Deputy Attorney General in the California Department of Justice:

One of your students may be interested in contacting Dane Gillette, who was recently promoted to chief assistant of the criminal division of the Calif AG's office.  He was our statewide coordinator and lead attorney in Morales [the case concerning California's lethal injection protocol being litigated in federal district court].  Here is a recent news article about him.

Please post this offer -- dane's e mail address is dane.gillette @ doj.ca.gov if someone contacts him, they may they say they were referred by Ward Campbell.

This kind California offer (along with the similar offer we've gotten from a friend in Arizona) reminds me that I want to actively encourage real "field-research" in conjunction with both the blog and white paper parts of this class.  As these offers spotlight, people working in the death penalty field are very eager to speak with bright, motivated and open-minded research and policy advocates.  And people in the field often have a lot more insights about the day-to-day realities of the death penalty than do most politicians, appellate judges or academics.