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January 8, 2014

Seeking input on "must-teach" units as I start a new version of my Sentencing Law course

CasebookI am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course.  I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines.  Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course. 

As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years.  Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.  

Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring.  But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate.  The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.

Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester.  Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics.  But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.

So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course.   Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.

Cross-posted at PrawfBlawg

January 8, 2014 at 01:37 PM | Permalink


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You aren't likely to be surprised at my recommendation but I think any course in Sentencing Law would be remiss if it did not at least touch upon the role that psychology plays in sentencing decisions, whether that be Atkins, Comstock, or any other case(s).

Posted by: Daniel | Jan 8, 2014 1:54:02 PM

{“why the US still allowed the execution of juvenile and mentally retarded murderers” ]

“The overwhelming weight of international opinion against the juvenile death penalty”
“The United States is the only country in the world that continues to give official sanction to the juvenile penalty.” -- ROPER v SIMMONS 543 U.S. 551 (2005)
----- ----- ----- -----
“The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
“Proportionality review under such evolving standards should be informed by objective factors to the maximum possible extent …
In addition to objective evidence, by asking whether there is reason to agree or disagree with … the direction of change...” -- ATKINS v VIRGINIA 536 U.S. 304 (2002)

In other words, Prof. Berman, we allowed such executions in 1999 because we were disobeying our European masters and global commissars,
and since our decency, well, was not so evolved.

Posted by: Adamakis | Jan 8, 2014 2:09:48 PM

From a practioner's perspective, I would recommend some coverage of Taylor/Shepard categorical and modified categorical analysis. In federal court, these issues come up all the time--far more than anything to do with the Eighth Amendment.

Posted by: Todd | Jan 8, 2014 2:22:31 PM

Collateral consequences, fines, forfeiture, and restitution were not covered in my srntencing policy class many moons ago. These things often are of great concern to white collar clients, non-citizens and others. They can have a huge impact on a client's life long after the prison term has ended. It took me several years of practicing criminal law to fully grasp the impact financial penalties can have. Its also a very interesting issue in the context of child pornography cases, which the Supreme Court is taking up this year, so its ripe for discussion of all kinds of good stuff. Can/should a client be able to buy a lower sentence with restitution . . .

Posted by: defendergirl | Jan 8, 2014 2:53:08 PM

As far as non-casebook materials go (read: materials that post-date even the third edition), I found that Attorney General Holder's speech and memo from last August meaningfully added to the Sentencing course content when I taught it this Fall. I supplemented the speech + memo reading assignment with an audio assignment to listen to the first 24:20 of the Doug Berman - Bill Otis teleforum on the same topic. I found that the podcast supplement helped to set up two points of view that the students could debate/expand/reject as a jumping off point for the class discussion. (I recognize that the podcast may be less helpful as a discussion springboard when the class is taught by one of the podcast commentators, but I sure found it useful.) In any event, I found that Holder materials were (1) exciting and important sentencing "current events," (2) helpful to frame the policy issue of when/how executive branch discretion is best exercised, (3) helpful to stimulate at least some discussion about (the lack of) constitutional limits on executive branch discretion, and (4) a (hopefully) more engaging way to introduce students to the statutory "safety valve" (via comparison to the Attorney General's "charging safety valve") and mention some of the proposed sentencing legislation currently before Congress.

Posted by: Kevin Bennardo | Jan 8, 2014 3:11:23 PM

Some introduction to decision-making theory would be important. Daniel Kahenman's book "Thinking, Fast an Slow" is a must read. I would also suggest that you cover the risk of recidivism, emphasizing that intuition is a poor guide. Be sure and extend your reach outside the case law. Finally, why has the so-called sentencing revolution been such a failure?

Posted by: Tom McGee | Jan 8, 2014 5:11:31 PM

The concept of "relevant conduct" is a topic that new attorneys should be aware of in federal sentencing and which may be quite different from what they see in state courts. Also, Career Offender provisions and cases invovlving undischarged terms of imprisonment (and related adjustments under 5G1.3) can have huge impacts on the sentence imposed and amount of time ultimately served if they aren't anticipated by Counsel.

Posted by: uspo esq | Jan 8, 2014 6:02:00 PM

The problem is always figuring out the lines between different substantive course -- i.e. what should be in an evidence course, what should be in a procedure course, and what should be in a sentencing course, and what should be in a specialized course (e.g. death penalty proedures).

If I were in law school or teaching such a course, I would at least want some discussion of what qualifies as relevant evidence in a sentencing hearing and IAC claims for non-capital sentencing. I would also want at least a segment on sentencing options (e.g. fines, probation, treatment in the community, treatment inside a correctional facility, parole, etc.)

There are also potential regional issue, if students are likely to practice in a place with jury sentencing, it would probably be good to include a segment on differences between sentencing trials to a jury and sentencing hearings in front of a judge and when/how a judge can overrule a jury recommendation.

Posted by: tmm | Jan 8, 2014 6:47:50 PM

A section on diversion/probation subject to conditions after a plea bargain sentences is an absolute must. This is the single most common situation where a good lawyer can make a difference for a client. The difference between a sentences of rehab and community service (perhaps on a deferred judgment basis) and a brief jail sentences is huge (with the former better for most, but the latter better for a client who knows he won't be able to perform the conditions).

Posted by: ohwilleke | Jan 8, 2014 8:42:17 PM


Posted by: bruce cunningham | Jan 8, 2014 11:20:40 PM

Here is something no one else has discussed. These are potential appellate points.

1) The sole cruelty of the death penalty is the set date. In Japan, the date is revealed the day of the execution. This is the way all of die, unannounced, not making us count down. Even the extremely moribund in hospice care are spared that cruelty.

2) Should credit or mitigation be allowed for extra-judicial punishments that may be a natural consequence of a crime? These are real mitigating factors. An arsonist spends an agonizing year in a burn unit, having lost his face, eyes and ears in the fire he set. Should the sentence be the same as that of an arsonist committing the same exact act, and causing the same damage, but emerging totally healthy. A bank robber is shot and bullet fragments cause him continual agonizing pain. The genitals of a rapist are cut up by a victim defending herself, with full justification.

3) List all mitigating factors. They are really aggravating factors, making the criminal more dangerous to the public. Youth, mental retardation, insanity, veteran status, spousal abuse, lack of intent.

4) The utter failure of the criminal law allows 20 million index felonies, 5 million being violent, 15,000 being murders. Isn't it time for the end of its self dealt immunity for either false prosecution or for negligent failure to prosecute someone who damages another later? Doesn't the police have a duty to the individual who pays his salary, and not a fictional entity, the city? Shouldn't liability be extended to those deviating from professional standards of due care?

5) Explain the racial disparity in crime victimization.

6) Provide a multi-factorial analysis of the drop in crime rate.

Posted by: Supremacy Claus | Jan 8, 2014 11:53:41 PM

The ability of the lawyer to connect with the sentencing judge can make a difference in some cases where there is judicial discretion. If there is a two person legal defense team then the tough guy or gal should not be the one who works the case for sentencing and argues the case. Often a tough defense lawyer can not beg very well. But it is not about begging. It is about showing the human side of the defendant to the judge. Get the defendant's family to the trial, especially when the verdict comes down and of course to the sentencing. Aside from any particular case, a good lawyer is a networker. Go to the law library and chum with the court clerks, the legal clerks, the judges. Eat in the cafeteria at the courthouse. Join committees on jury instructions and other issues. If the judge likes the lawyer he or she might be a bit more generous to the client at sentencing.

Posted by: Liberty1st | Jan 9, 2014 12:57:46 AM

Pleas are already bound to be part of the discussion but maybe a little spice would be interesting.

Let's Make a Deal: The Plea Bargain

Aired: 12/09/2012 on NJ|TV.

The Plea | FRONTLINE | PBS aired on Jun 17, 2004.

The Problem With Pleas | Criminal Justice | FRONTLINE | PBS
Oct 31, 2011

Posted by: George | Jan 9, 2014 2:56:34 AM

I agree with defendergirl about Holder's August memo.

I am a law student and sought to teach myself about the Guidelines during my internship last summer. I became very interested in the Child Pornography guidelines and, in particular, the enhancements. Many policy arguments have been made comparing that guideline to the crack / cocaine sentencing scheme, but those arguments have been largely unsuccessful. Since so much of sentencing (from the defense side) is about either objections to enhancements or sentencing memos, a writing assignment arguing policy and mitigation factors would be a great assignment. A successful sentencing memo (as a previous poster commented) requires connecting with the judge in a meaningful way and can be a powerful advocacy tool at the "last stop" for a client. This kind of persuasive writing does not often find its way into law school. I think students could benefit from such an assignment. Thank you for your work - I wish I could take your class!

Posted by: julie | Jan 9, 2014 9:21:15 AM

I would include material on alternative punishments such as shaming sanctions, restorative justice, and diversionary programs for veterans and drug addicted persons.

Posted by: HGD | Jan 9, 2014 10:41:59 AM

I'm a lawyer working for an appellate court, and I really wish I'd had a better conceptual understanding -- any understanding -- of resentencing on remand when I started. Also, how double jeopardy works when juries are instructed in the alternative, and one of the alternatives is later struck.

Posted by: Laura | Jan 9, 2014 12:11:47 PM

Julie: You may be able to take Prof. Berman's class. His class is copyrighted upon publication, meaning at the time the class takes place. The ownership of that copyright is determined by the employment contract terms, if a contract was made. If not addressed in a contract, one assumes he is the owner. He may record the classes and post them on Youtube for everyone to benefit. If Prof. Berman believes the content is important, then viewing by 100,000 people on the Internet is more important than helping 30 kids understand the material.

Here are some appellate policy points you will never hear in a law school class.

1) Child pornography legalization is associated with marked decreases in the rates of the sexual abuse of real children, true in a few nations. Prohibition raise the price, profits and incentives of criminal mobs to produce more child porn. Production involves the severe abuse of real children, now being recorded. Prohibition induced an explosion in the number of child porn sites, now estimated at 4 million, because of their federal price support legislation.

2) I consider it near malpractice to not demand e-discovery of the prosecutor's personal and work computers. The government is the biggest downloader of child porn and its biggest subsidizer. Refer all dubious images to the FBI for investigation of the metadata. If child porn is found on a prosecutor or judge computer, I would invoke the clean hands doctrine from equity.

3) If they bring in a victim to boohoo her damages, I would ask how she found out about her recording of her being abused. If she did so through the Victim Notification Program, all mental damages would come from them, not the client. The client should file a cross claim against the Program.

4) There are many depictions of crimes in fiction and in documentary works. Should viewers of such depictions be arrested for suborning such crimes? If not, then viewers of child porn should not either. I confess to watching a video of a knockout game from Drudge. Should I get a lengthy prison sentence for downloading it, because it encourages more of them? If not, then neither should viewers of child porn, under a Fifth Amendment Due Process argument.

Posted by: Supremacy Claus | Jan 9, 2014 1:11:02 PM

Prof. Berman:

I think you should discuss the effects on the prisoner, on society, and on the criminal justice system, of too short a sentence and too long a sentence.

Posted by: Michael R. Levine | Jan 9, 2014 4:58:40 PM

What is or should be the purpose of sentencing law? Should it end all crime as a goal? How could that be done? Why is there so much crime (20 million FBI Index felonies)? What are the costs of crime, economic and personal?

Posted by: Supremacy Claus | Jan 10, 2014 9:49:41 AM

Doug. I would suggest a component on the use of therapeutic jurisprudence (TJ)principles beyond the context of problem-solving courts(such as drug court, mental health court and the like). In other words, how TJ can be used in 'ordinary' criminal/juvenile court context--or the " mainstreaming" of TJ.
A talk I gave at an oxford tj conference two summers ago is now in press in a special tj law review issue and is on SSRN as abstract 2065454-- it's called New Wine in New Bottles and speaks of how TJ principles can be used in diversion, bail, sentencing, conditional release,even appeal.
The piece also serves as the methodology of a hague innovating justice project on ' integrating the healing approach to criminal law'It's an int'l project I'm doing with arizona judge(now prof)michael jones and victoria australia magistrate pauline spencer.
The topic is of importance now because to the extent problem solving courts are effective,it would be appropriate to expand their reach where possible-and, at the same time, budgetary issues make it doubtful there will be major expansion of such courts and,indeed, we are even seeing their elimination in certain jurisdictions, notably queensland.

Posted by: david wexler | Jan 10, 2014 12:45:39 PM

Supreme Court Sentencing Insanity.

Victim impact statement is not testimony subject to the rules of Evidence. It is attestation, and allowed without rebuttal or cross examination. Most victims are low life and criminals themselves, half being drunk. They should be allowed to boohoo at trial without a cross examination.

Collateral consequences of criminal convictions, all 50,000 of them, are not additional punishment, but regulatory actions. These consequences are often far more punitive than the sentence, for example, the loss of a license to continue making a living.

Hopefully, evolving standards of decency will prompt a change in these decisions.

Posted by: Supremacy Claus | Jan 13, 2014 12:08:46 AM

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