Sentencing Law and Policy

Another notable sign of our modern legal on-line times (and a suggestion)

Via the always timely How Appealing, I came across this new Harvard Crimson piece headlined "Harvard Law Review Increases Online Presence." Here is the heart of the report:

The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.

Increasing the online staff from two to five, these new editors will join the Forum Committee, which is responsible for developing the website and editing the material published online.  In the next year, the Law Review hopes to enhance the functionality and design of its website in addition to increasing the quantity of published content, according to second-year Law School student Gillian S. Grossman ’10, the recently elected president who will lead 127th Volume of the organization....

The majority of returning editors voted to add two additional students to this year’s pool of rising editors in order to expand the online content while maintaining the quality of the current print operations, according to Grossman.

The Law Review will also grow the amount of material published online in an effort to increase the resources available for scholarly research.  “The Law Review recognizes that legal conversations and legal scholarship are taking place online in addition to print mediums,” Grossman wrote in an email.  “The Law Review’s Forum provides a platform for authors to engage with the articles we publish in our print issues and to engage with current legal developments through various forms of online scholarship.”

In line with this mission, the Law Review began publishing its print materials online in 2006.  The organization also created a “Forum” section on its website where contributors can write exclusively online content.  In the past, these articles have come in the form of “Responses,” approximately 2,500 word pieces written in response to articles published in the print journal.  With the new push towards expanding the Law Review’s web presence, the “Forum” will also begin publishing “Reactions,” shorter pieces commenting on recent developments in the law, as well as other scholarly essays.

I am always quite pleased to see any and all efforts from the folks at Gannett House to continue to innovate with the form and function of modern legal scholarship.  And, ever eager to encourage my favorite kinds of engagement "with current legal developments through various forms of online scholarship," I will make one big suggestion for the new HLR leaders: try to use the new on-line spaces to try to cover much more state "developments in the law" both legislative and judicial (and, to make me really giddy, give special attention to state criminal justice developments).

Welcome to the blogosphere Judge Richard Kopf via "Hercules and the Umpire"

I am so very pleased and intrigued to be able to report that one of my very favorite district judges has now decided to get more actively involved in one of my very favorite activities. Specifically, U.S. District Court Judge Richard G. Kopf has started this notable new blog under the notable name "Hercules and the Umpire."

Judge Kopf's first big post is titled "The Who, the Why and the Title of this Blog," and here are excerpts which highlight why I am so excited to follow what Judge Kopf does in his new cyber-space:

The Why

About seven years ago, a bright law student asked me about blogging and that exchange became part of a blog.  See Ian Best, Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap,

The student asked me whether I would consider blogging.  I answered this way: “If I were to write my own blog, it would have something to do with what it means to be a federal trial judge on a day-to-day basis. I am not sure, however, that I want to reveal that much about myself.”

I am now on senior status, and with that change in status (plus advancing age) my reticence to blog has lessened.  I think I have something worth writing about.

I am very interested in the role of judges and particularly the role of federal trial judges. So, that is what I will write about in this blog.

As an aside, even though I am a senior judge, I still have an active caseload.  Thus, I must not comment upon pending or impending matters. I will strive hard to live up to that restriction.  Fair warning: nothing I write about in this blog should be taken as a comment upon those forbidden areas.

The Title

I hope the title evokes an image of two poles.

On the north, we have the late great Ronald Dworkin’s all knowing judge, Hercules.

On the south, we have Chief Justice Roberts’ formulation of the judge as umpire.

I am interested in knowing (1) which pole is the better and (2) whether there is a longitude and latitude between those poles that locates the proper role of a federal trial judge.

"How Many People Have Been Killed by Guns Since Newtown?"

The question in the title of this post is the headline of this interesting new web-based project now up at Slate.  Here is how authors Chris Kirk and Dan Kois explain the project:

The answer to the simple question in that headline is surprisingly hard to come by.  So Slate and the Twitter feed @GunDeaths are collecting data for our crowdsourced interactive.  This data is necessarily incomplete.  But the more people who are paying attention, the better the data will be.  You can help us draw a more complete picture of gun violence in America.  If you know about a gun death in your community that isn’t represented here, please tweet @GunDeaths with a citation. (If you’re not on Twitter, you can email slatedata@gmail.com.)  And if you’d like to use this data yourself for your own projects, it’s open.  You can download it here.

Some holiday-themed sentencing headlines for Festivus celebrants

I am not sure if there is any enduring importance to the stories linked below, but they all caught my eye today as I was making my usual review of sentencing headlines via Google news. 

Especially if one is celebrating Festivus today and is eager to have a special criminal-justice-portion of the traditional "Airing of Grievances", I suspect the stories below might make for helpful holiday dinner table conversations.  Indeed, though there are a number of serious (and not-quite-so-serious) stories lurking behind the various headlines below, I think we could have an amusing Festivus contest involving Feats of (intellectual) Strength by seeing who can come up with the most clever "Onion-type" story to accompany one or more of these headlines:

• "Toys for Tots giveaway cancelled after news of registered sex offender"

• "Pope pardons former butler who stole and leaked documents"

• "Santa's gifts are special deliveries from prison"

• "Naughty 'Santa' Mike Busey busted for selling booze at the Sausage Castle"

• "Windsor police investigate Bad Santa"

• "The Supreme Court's Twelve Days of Christmas, 2012"

Happy Festivus one and all.

Should high-profile prosecutor have a high-profile social media presence?

The question in the title of this post is prompted by this St. Louis Post-Dispatch article. The piece is headlined "Tweeting the law: St. Louis prosecutor gets praise and criticism," and here are excerpts:

She delivered her first tweet with gusto. “I know I’m getting to this party 5 years late but Hello Twitterverse!” Circuit Attorney Jennifer Joyce announced in a March 23, 2011, post, adding a #JMJ stamp to make it official.  From there, the St. Louis prosecutor — who until then preferred sticking to the confines of the courthouse — developed a loud and unabashed presence on the social networking site.

With daily, sometimes rapid-fire online messages, Joyce began announcing charges and sentences.  She expanded to Facebook, telling the stories of crime victims and neighborhood action.  She eschewed traditional news releases in favor of teasers linked to court documents on her website.  She rallied citizens and threatened criminals.

“Bad guys take heed: Lafayette Park folks WILL catch you & they WILL go to court to get your bond raised. Saw this today!” she tweeted in June 2011.  And in January: “Carl Barnes & David Townes came to City to steal dumpsters. Both now charged with felony stealing. Stay out of our town! #WELOVESTL.” 

At last check, Joyce had tweeted 2,557 times to 1,628 followers, and 917 people had subscribed to her office’s Facebook page.... [E]ven in the age of online everything, it is less common to see a prosecutor so prolific on these sites, and mixing personal with professional.

While Joyce has been praised for engaging the community, her musings — particularly the tone of them — have raised eyebrows in the buttoned-down legal community, where lawyers’ comments are bound by strict limits to protect the rights of the accused.  Twice this year, Joyce’s courtroom opponents have complained to judges in formal motions that she crossed the line....

On her Twitter page, Joyce juxtaposes case information with shout-outs to her husband and cheers and jeers on Notre Dame game days.  After reaching the 1,000-follower mark, she tweeted about a cupcake giveaway.  She praises police and neighborhood groups who show up to court. “It is very powerful in informing and engaging citizens to get involved in public safety issues in their community,” she explained.

Her message to criminals is pointed: Shape up or ship out.  “Stanley Bailey assaulted an 80 yr old lady & stole her purse,” she tweeted on Oct. 25.  “He now has 20 yrs to ask himself why he’s a jerk.”  In another: “Don’t threaten police with a weapon, unless you want to be shot AND charged with a felony (unlawful use of a weapon), like Carl Evans was today.”

The Facebook page, a collaboration of Joyce and her staff, has narratives of closed cases, crime-fighting tips and profiles of police and court players.  Those narratives are often dramatic, with talk of “bad guys” and the innocent victims they prey upon.  In one poignant exchange, she explained to the family of a traffic fatality why she could not file a manslaughter charge....

Joyce is not the only top prosecutor who tweets or finds friends on Facebook.  Charles Hynes, district attorney from Brooklyn, N.Y., and Craig Watkins, his Dallas counterpoint, are among many with a more neutral tone, offering posts that function as mini news releases about events and appearances.  They rarely talk about specific cases.

One exception is Ray Larson, district attorney in Lexington, Ky. Joyce has said on her Twitter page: “If you like tweeting prosecutors, you’ll love @raytheda. Much spicier than me!”  Larson displays a Superman-like emblem and likes to comment about “thugs, hoodlums and outlaws.”

Michael Downey, a lawyer specializing in ethics at the Armstrong Teasdale firm in St. Louis, said everyone should beware of the basic hazards of social media: It’s easy to be impulsive, the message reaches a broad audience and the words linger to haunt the writer later.  Beyond that, Downey emphasized, lawyers — especially prosecutors — have a special obligation not to publish something that might influence a jury and deprive a defendant of a fair verdict. “It’s a huge potential problem,” he said, and one that pops up increasingly. Ethics violations could lead to reprimand, suspension, or in more serious cases, disbarment....

Mary Fox, head of the public defender’s office here, complained in a court motion after prosecutors opposed a gag order in the Ronald Little rape case.  Fox said Joyce’s tweeting, in general, had created “a heightened public condemnation of the accused.” That wording reflects a Missouri ethics rule on pretrial publicity.  Fox wanted to prevent any tweets about Little’s case.  The motion never received a ruling.

In June, an assistant public defender asked a judge to dismiss rape charges against his client, David Polk, after Joyce tweeted about it on the eve of trial.  Joyce continued to tweet through jury deliberations, noting that she could never defend a child rapist.  The judge denied the motion, but did question jurors extensively about whether they had seen the tweets, according to Fox....

Joyce said she is careful not to include her opinions on active cases, speaking only to what is in the public record.  The ethics rule is posted on her website, and her Facebook page reminds that defendants are innocent until proven guilty.  She noted no ethics complaints have been filed against her.  “I’m an elected official and I’m put in this position by the people of St. Louis, and I think they have an expectation that I’m going to inform them of what’s going on,” Joyce said. “To suggest I don’t have the right to speak to my bosses — the citizens of the city of St. Louis — is kind of crazy.”

ABA Journal looking for nominations for its Blawg 100

I received via e-mail this request from the ABA Journal:

We're working on our annual list of the 100 best legal blogs, and we'd like your advice on which blawgs you think we should include.

Use the form at this link to tell us about a blawg ... that you read regularly and think other lawyers should know about.  Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know. 

Send us a separate message for each blawg you want to support.  We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy — you have a 500-character limit. 

Friend-of-the-blawg briefs are due no later than 7 p.m. ET on Friday, Sept. 7, 2012 [and] by all means tell your readers about Blawg 100 Amici and invite them to send us messages....

Hearty welcome to a timely new blog: "Juvenile Justice Blog"

I am very pleased to welcome to the blogosphere Juvenile Justice Blog, a fantastic looking new blog by UNC law prof Tamar Birckhead.  Here is how Tamar, whose blog bio is available here, describes her new blog creation:

The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States.

It is intended for lawyers, academics, advocates, students, and all others interested in juvenile court practice, the fair sentencing of youth, and the criminalization of poverty, among other related topics.

If you would like to see something posted that fits within these themes, please email the blog administrator at tbirckhe@email.unc.edu.  As this is a work in progress, I welcome your thoughts, suggestions, and comments.

There is already a lot of great content on JJB.  And with a big SCOTUS ruling on the constitutional of juve LWOP coming wihtin the week, I am sure to make JJB a daily read in the weeks ahead.

Huge thanks to Prof Bibas for his Machinery (and seeking feedback on guesting)

I am so very grateful  pleased that Professor Stephanos Bibas served as such a dynamic guest-blogger to discuss sentencing issues raised by his terrific new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here.  I will in this post link below to my introduction and then to all seven of Stephanos's substantive posts:

• Professor Bibas guest-blogging on "The Machinery of Criminal Justice" 
• Colonial-Era Mercy
• Reintegrative Punishment
• Hiding Punishment Behind Prison Walls
• The Decline of Mercy
• From Idle Imprisonment to Work
• Military Service, Education, Treatment
• Collateral Consequences and Reentry

I hope that readers enjoyed this series of posts as much as I did.  I also hope folks will take a moment to add thanks for Stephanos's efforts via the comments and that folks will let me know if I should try to make a habit of soliciting folks to guest-blog about a recent sentencing project or to develop a series of posts around a particular topic.

Notable new blog on wrongful convictions

Via e-mail, I received this note from Professor Mark Godsey concerning a notable new criminal law blog:

I wanted to let you know that several of us involved in the Innocence Movement launched a new blog today, The Wrongful Convictions Blog.  The web address is www.wrongfulconvictionsblog.org, or you can just click the link above.

The purposes of the blog are to (1) provide one place where you can go to get all the news and info about wrongful convictions, and (2) foster discussion, debate, and learning.  You will see that we have contributing editors from all over the world, thus the tagline is:  "Addressing Wrongful Conviction and Actual Innocence Issues in an International Forum."  There is a place for comments and debate on each post....

The blog will involve more than just news and links.   We will also have frequent commentaries/editorials on various topics, such as the commentaries up now about forensic odontologists attempting to validate their "science," the state of junk science generally, reacting to prosecutorial misconduct, and conviction integrity units at prosecutor's offices.

A quick review of the new blog shows right away that there will be lots of notable and important internation perspectives covered in this space.  That reality, together with the terrific group of persons involved with the blog, means I will be sure to make this new resource a regular stop in my blogosphere travels.

Many hats for this road warrior...

over the next few days. I have my policy work hat on today as I head to the US Sentencing Commission to testify this afternoon. Then I will be wearing a real lawyer hat in DC briefly tonight before changing into an ivory tower outfit as I head down to Miami to participate in a two-day death penalty conference.

I expect blogging will be light through the weekend, though I hope to have some mid-travel reports to share.

UPDATE Friday mid-day: I am on-line with my laptop for the first time since Thursday AM, and I have so much to say about the remarkable USSC hearing that took all day on Thursday.   I fear I won't have time to share post-hearing comments until the weekend, but I recommend all federal sentencing fans find the time to review the testimony from the hearing (linked via the official agenda here).

I am now in sunny and warm Miami being hosted at this amazing symposium on "The Future of the Death Penalty."  Perhaps later tonight (or perhaps not), I will tear myself away for a little late-night blogging.

Lots of sentencing news of note via The Crime Report

As I have said before, and as I am happy to say again, all sentencing law and policy fans should be sure to make The Crime Report a daily read.  To reinforce this point, check out just some of these new posts from over there in the last 24 hours:

• CA Inmates In Shift Have More Serious Mental Ills Than Expected

• Restrictions Drive Sex Offenders to Live in Motels, Trailer Parks

• Experts Recommending Reforms to Oklahoma Offender Supervision

• CA Gov. Brown Again Proposes to Close State Youth Rehab Units

Seeking guest posts for 2011 sentencing "Year in Review" posts

When time and energy permits, I have had a habbit around the holiday season to develop some "Year in Review" kinds of posts for this blog (often with always-fun Top 10 lists).  Examples can be found from 2004 here and from 2005 here and here and from 2006 here and from 2007 here and from 2009 here and from 2010 here (I am not sure what the heck happened in 2008).

Time and energy may allow another such post in the weeks ahead, but this year I thought it might be fun and informative to encourage interested folks to send me fodder for guest posts in the "Year in Review" spirit.  I neither expect (nor really even desire) folks sending me comprehensive lists on all sentencing fronts, but I would especially welcome targeted year-end review (or even next-year preview) posts on particular topics. 

With luck, lots of different folks can and will send me via e-mail some (cut-and-paste- friendly) copy that reviews, say, the federal sentencing year or the drug sentencing year or the celebrity sentencing year or the legislative developments of the year or whatever else you might be interested in sending my way. 

Once again, I would like to thank the ABA and the criminals and their lawyers...

As I have said before and will say again, it is always an honor just to be nominated.  But, since the ABA's Blawg list nominations are not generally made public, it is even more exciting to win again -- for the fifth year in a row, I believe -- a (coveted?) place on the ABA's list of the best legal blogs. 

This report from the ABA Journal, titled "The 5th Annual ABA Journal Blawg 100," reports the background and the list:

On our 5th birthday, you’ll see some familiar faces at the party: bloggers who’ve been on our list in years past.

But 2011 also brought along a lot of newcomers, and we’re delighted that so many RSVP’d our invitation to nominate their favorites.  We received more than 1,300 Blawg Amici this year, and that made for a hard time narrowing the field to 100 law blogs in 12 categories.

As usual, we couldn’t help mixing things up a bit.  In print, you’ll find the blogs in alphabetical order, color-coded by category. And as always, you can vote for your favorites online through Dec. 30 at ABAJournal.com/blawg100.

Here is how this site gets described:

Sentencing Law and Policy: sentencing.typepad.com

Ohio State law professor Douglas Berman notes congressional hearings, scholarship and general trends related to sentencing, and sometimes handicaps the sentences that can be anticipated by those convicted in high-profile criminal cases. Unlike most criminal law bloggers, he writes with a fairly objective tone.

Speaking fairly objectively I kind of like this description of my writing: "with a fairly objective tone."  I wonder if all readers would agree.  And, via this ABA page, one can click through to see a bunch of other criminal law blogs making the list that, apparently, write in a fairly subjective tone.

So very thankful for so much this Thanksgiving

I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start.  I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that.  

I know that I (and many others) do a fair share of complaining on this blog, but that goes with the lawyering territory: I often tell my law students that one of the greatest aspects of being a lawyer is that you get paid for complaining.  But, I am thankful that I have been successful as a professional complainer, and I hope readers know that much of my complaining on this blog about US sentencing law and policy is based in my belief that the greatest nation in human history can and should always be striving to be even greater in its commitment to human freedom and to fostering a national environment that enables all to enjoy life, liberty and the pursuit of happiness.

Sentencing Mad Max finally able to say thanks

After a whirlwind sentencing road warrior three days which included three amazing sentencing get-togethers in three different locations (in three different federal circuits), I am finally back at my home office with a few free moments that finally allow me to say a hearty thanks to all the amazing people who helped put together three amazingly effective and engaging events.  My head is still swimming with all that I learned at each of the events; I am also still giddy not only about victories by the Cards and the Buckeyes while I was a road warrior, but also about the fact that I was able to get out of Philly and home to Ohio in the midst of the October(!?!) snowstorm that has hit the East Coast this weekend.

So much happened at each of the events — and so many people were responsible for treating me so well — that I am certain I will not be able to effectively blog about everything worthy of commentary nor will I be able to adequately thank and congratulate all the lovely people responsible for my terrific experiences.  I can here report, however, something that ought to especially intrigue regular blog readers: for the very first time, I finally met the man behind Supremacy Claus in person (at the Penn Law Review event on Saturday)!

Sentencing road-warrior...

is what I am calling myself as I travel to three distinct locales to participate in four distinct sentencing events over the next 55 hours.  I fear blogging will be very light during this time, though I am hoping to have a little down time to report on any major sentencing news before the weekend.

Great new Rutgers resource reviewing crim books

Via Professor Stuart Green, I am please to be able to relay this notice concerning what looks like a great new criminal justice researcher and reader resource:

Rutgers Law School-Newark and the Rutgers School of Criminal Justice are pleased to announce the launch of a new website called Criminal Law and Criminal Justice Books.   We aim to publish high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

Among the great looking new books subject to great looking reviews are:

• Convicting the Innocent: Where Criminal Prosecutors Go Wrong
• The Boundaries of the Criminal Law
• Retributivism: Essays on Theory and Policy

An Independence Day open thread seeking comments on liberty and freedom in the US

Blogging has been light this holiday weekend as I have been enjoying sun, family, fireworks, tennis, golf and lots of company (not necessarily in that order). But the morning of July 4 gets me to my computer for a few minutes to link to my prior Independence Day blogging and to urge readers to use this space to comment on the state of liberty and freedom in the United States.

Prior July 4 posts:

• 2010: Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"
• 2009: What to the American imprisoned is the Fourth of July? 
• 2008: Celebrating liberty in the country leading the world in incarceration rates
• 2007: House hearing planned to examine Bush commutation
• 2006: A holiday retrospective on Blakely fireworks
• 2005: Celebrating liberty, Blakely-style

In Massachusetts to talk about federal sentencing at my alma mater

I am about to go off-line for the day because I have the pleasure of spending the afternoon and evening in (rainy) Cambridge, Massachusetts because of a kind invitation to participate in an event organized by the Harvard Law School Chapter of the American Constitution Society."  Here is the official event announcement:

Tuesday at 7PM in Ropes Gray (Second Floor of Pound Hall) at Harvard Law School:

Judge Nancy Gertner & Professor Douglas Berman

 on

“The New Sentencing Regime — Or Not!”

Come join two amazing speakers for dinner and a conversation about the future of sentencing in the federal system, touching on issues ranging from the crack/cocaine-powder disparity to child pornography, immigration, and white collar crime.  Judge Nancy Gertner is one of the nation’s leading progressive district judges and will join the HLS faculty next fall as a Professor of Practice.  Professor Douglas Berman, HLS ’93, maintains the Sentencing Law and Policy Blog, edits the Federal Sentencing Reporter, and regularly participates in high-profile sentencing litigation throughout the country.

I think this event is open to the public, so if you are in Cambridge and want a sentencing-related excuse to get out of the rain, head up Mass Ave this evening.

For those listening to the federal sentencing AFDA web program today...

apologies for the technical glitch.  Apparently, too many people tried to sign on to the program at once, and we managed to crash the Adobe server (which said it could handle 500 folks).  I am flattered to discover more than 500 people tried to log-on hear what I had to say with the help of the AFDA, but I am really sorry that we got cut offjust over half-way into the 90 minute program.

Thankfully, the folks at AFDA are going to put this program together again next week so I can finish discussing all topics we had planned to cover.  As of this writing, the plan is to try again next week (Wednesday, Feb. 23) at 12noon EST.