Sentencing Advocacy Practicum
University of Minnesota Law School
Prof. JaneAnne Murray
Spring 2019; Room TBD; Mondays, 4:05 to 6:00 p.m
At a CLE panel in New York City in 2010, Benjamin Brafman, one of the country’s leading criminal defense lawyers (Michael Jackson, Dominique Strauss-Kahn, Harvey Weinstein), made what to many may sound like a startling admission: 90% of what his law firm does in criminal cases is sentencing advocacy. But on closer reflection, the statement is simply consistent with the reality of a criminal justice system in which 97% of adjudicated cases end in guilty pleas and most trials end in guilty verdicts. It turns out that sentencing advocacy is one of the most important (and unappreciated) skills of the criminal defense lawyer. In fact, it is increasingly at the heart of what criminal defense lawyers do. And the best ones are doing it the moment they are introduced to a case -- analyzing the charged offense and the individual client’s life and circumstances for mitigating facts; setting the client on the path of rehabilitation with programs, restitution, and self-reckoning; marshaling mitigators for the prosecutor in plea bargaining negotiations; and ultimately, presenting all these threads of mitigation into a coherent whole that can move the sentencer -- be they judge or prosecutor -- towards leniency.
Not only is this work key to modern criminal defense, it is a form of advocacy that is sophisticated, creative and challenging for the individual lawyer -- encompassing complex legal analysis, meticulous fact development, and enlisting insights from experts, all enriched by an empathetic client relationship. Who is your client? Why did she engage in the conduct she did? How does her conduct compare to that of defendants in other similarly-charged cases? What deprivations, mental deficits, addictions, personality traits, or idiosyncratic predicaments brought her to this moment when she faces a possible loss of her liberty?
Our class will explore the role of sentencing advocacy in state and federal sentencing systems, the factors that influence its quality, and the insights from social scientists that can critique and improve it. Drawing on the wealth of expertise we have here on campus as well as in our local professional community, I will introduce you to several guest speakers who will give context to the role and potential quality of sentencing advocacy.
But more importantly, you will learn by doing -- through hands-on involvement in actual pending cases. Assisting the counsel of record in an indigent case, you will each get to know a real human being and their family in the cross-hairs of the criminal justice system, and you will strategize, research, and develop an effective sentencing petition for him or her.
Each class will involve a discussion of the assigned readings, and frequently, an opportunity to discuss the topic with an expert in the field. But the heart of this class is our collaborative work on real cases. As such, the class is modeled on a “teaching hospital” concept -- we will brainstorm each student’s case, critique the sentencing strategy, and learn from our successes and failures. Everyone in the class must execute a confidentiality agreement related to the individual representations assigned to you or your classmates. This allows us all to discuss the cases communally. These classes will not be recorded and will be conducted in a spirit of professionalism, seriousness, generosity and humility.
There is no required casebook - readings are posted on my web syllabus or on TWEN. Recommended readings/videos are linked on the web syllabus. I have assigned approximately 40 to 50 pages of readings per week, and I do expect you to have read them prior to the class session and to come prepared to discuss them. Our class is structured thematically, but the order may not necessarily flow intuitively, as it is subject to speakers’ availability. In addition, speaker availability may periodically require the syllabus to change.
Every student in the class will be required to visit a prison with me. In addition, if logistically possible to organize, and subject to the generosity and support of our local judges, every student will be required to attend a settlement conference in a local district court.
The class will be graded on an A to F basis, with 50% of the grade based on written work in the assigned case and 50% based on participation and performance in class. Note that because so much of your grade is based on class participation, poor or unexcused attendance will negatively impact your grade.
The use of laptops or other electronic devices during class is banned unless necessary for a presentation.
1/28/2019: Introduction to Sentencing Theory
Sentencing is the point where the heart of the law - and its human face - is most clearly revealed.
Judge Jack Weinstein
Sentencing does many things. First, most obviously, it punishes. It also protects society from the offender. It sends a message to potential lawbreakers. And, in its most enlightened form, it promotes rehabilitation. These competing purposes have produced what Law School Professor Michael Tonry has called the “crazy quilt of diverse and . . . irreconcilable elements” we see in U.S. sentencing systems: mandatory minimum sentencing statutes along side structured advisory guideline sentencing regimes, for example, or traditional trial-based criminal courts along side restorative and community justice initiatives. Indeed, as the U.S. Sentencing Commission acknowledged, in passing the Sentencing Reform Act of 1987, Congress did not -- perhaps because it could not -- elect to give precedence to any single purpose of sentencing. Rather, it was believed that “each of the four purposes of sentencing [retribution, incapacitation, deterrence and rehabilitation] should be considered” and individual case circumstances would dictate the paramount consideration. So what is a judge to do with several potential sentencing paths in a given case? And what theory or theories of punishment make sense today? This is what we will discuss in our first class, setting the stage for the potentially meaningful role the defense lawyer can play in framing their client as a human being capable of redemption.
- Joel Feinberg, The Classic Debate, in PHILOSOPHY OF LAW (Joel Feinberg & Hyman Gross eds., 1995)
- Michael Tonry, Sentencing in America: 1975-2025, 42 Crime & Just. 141 (2013), pages 141 - 169 (excluding footnotes) (pages 1-29 in the linked pdf)
- United States v. Rivera, 2017 WL 6210813 (E.D.N.Y. December 7, 2017), pages *10 - *18 (pages 19-33 in the linked pdf)
- Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811 (2017), pages 816 - 822
2/4/2019: Telling Your Client’s Story
[The defense lawyer's job] in the sentencing process, as I see it, is to thwart the powerful convenience that encourages a laconic adherence to a thoughtless and passionless process.
Judge John Kane
However much our system may assign the sentencing process to statutes, guidelines and algorithms, at the heart of any sentencing is the client’s story: what personal circumstances and experiences, personality traits, choices and pure bad luck drove her to engage in the conduct at issue? And more importantly, what is her path to a productive life when sentence is pronounced? Psychologists tell us that we absorb and process information through stories, and these insights are as true for judges, probation officers and prosecutors, as they are for lay people. Moreover, well-developed stories can counter-act implicit biases and prejudices. In this class, we explore how we can most effectively tell our client’s story - by word, deed, or visual images. And who better than a veteran reporter with a journalist’s eye and capacity for capturing the essence of human stories on the page.
- Jonathan Gottschall, THE STORYTELLING ANIMAL: HOW STORIES MAKE US HUMAN (2013) (pages 95-108)
- Jonathan Haidt, The Emotional Dog and its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 Psychological Review 814 (1995) (pages 814-823)
- Nancy Pennington and Reid Hastie, The Story Model of Juror Decisionmaking, in Reid Hastie, INSIDE THE JUROR (1994) (pages 192-203)
- Doug Passonal, Using Moving Pictures to Build the Bridge of Empathy at Sentencing, Champion June 2014
Guest Speaker: James Shiffer, Star Tribune editor overseeing coverage of Minneapolis & St. Paul
2/11/2019: Introduction to Sentencing Guidelines
[The sentencing judge] consider[s] every convicted person as an
individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.
Justice Anthony Kennedy
In the early 70s, decrying the "blank check" powers of sentencing judges, Marvin Frankel proposed the establishment of "sentencing commissions" that would formulate binding sentencing guidelines aimed at introducing uniformity and predictability. Minnesota was the first state to implement this proposal, and Congress soon followed, under the leadership of Senator Ted Kennedy. But, it turned out, guidelines were not the panacea to rampant sentencing disparities and punitiveness; rather, in many cases, particularly at the federal level, they exacerbated them. Sentencing guidelines have been criticized for empowering prosecutors and dehumanizing the sentencing process. Moreover, their capacity to reign in rising inmate populations through, for example, evidence-based prison use forecasting has been continually undermined by enactments of harsh mandatory minimum sentencing statutes. In this class, we will examine how guideline systems operate, compare different kinds of systems, analyze their advantages and flaws, and explore the obligations they generate for the sentencing advocate.
- Marvin Frankel, CRIMINAL SENTENCES - LAW WITHOUT ORDER, (Doubleday, 1972), pp.12-25.
- Stith & Cabranes, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS (University of Chicago Press, 1998), pp. 82-91.
- Richard Frase, JUST SENTENCING: PRINCIPLES AND PROCEDURES FOR A WORKABLE SYSTEM (Oxford University Press, 2013), pp. 24-39.
- Kelly Mitchell, State Sentencing Guidelines: A Garden Full of Variety, 81 Federal Probation 28 (2017)
- Matthew Van Meter, One Judge Makes the Case for Judgment (The Atlantic Monthly, February 2016)
Guest Speaker: Kelly Mitchell, Executive Director of the Robina Institute of Criminal Law and Criminal Justice; former Executive Director of the Minnesota Sentencing Guidelines Commission
2/25/2019: Neuroscience and Sentencing
Recent scientific advances unlocking the “black box” of the brain have yielded a wealth of insights into the foundations of people’s actions and the culpability of their intentions. A prime example is age. In a trio of decisions, the United States Supreme Court cited developmental psychological research to conclude that “children are constitutionally different from adults in their level of culpability." Another is drug addiction. In 2014, surveying the latest research on addiction, brain development and behavior, Iowa Judge Mark Bennett concluded that addicts, like juveniles, tend to make “impetuous and ill-considered” decisions and as such, are generally less culpable. On the other hand, in a recent high-profile case with competing amicus briefs from groups of neuroscientists, Massachusetts’ highest court rejected the argument that it is unconstitutional to incarcerate someone who violates probation by relapsing. Neuroscience also provides insights into the effects of post traumatic stress disorder, from experiences such as childhood trauma, abusive relationships and combat duty. In addition to enhancing understanding of the individual to be sentenced, neuroscience research reveals the implicit biases of the sentencer, and the mechanisms by which these biases can be identified and countered. Finally, and most controversially, neuroscience informs the burgeoning field of “risk assessment,” including predicting future violent behavior and quantifying potential for recidivism.
- Nancy Gertner, Neuroscience and Sentencing, 85 Fordham L. Rev. 533 (2016)
- United States v. Hendrickson, 25 F.Supp.3d 1166, 1176 (N.D. Iowa 2014)
- Poldrack et al., Predicting Violent Behavior: What Can Neuroscience Add?, Trends in Cognitive Sciences, February 2018, Vol. 22, No. 2
Guest Speaker: Prof. Francis Shen, Law School
3/4/2019: The Presentence Process
Who in the world am I? Ah, that's the great puzzle.
An inmate’s “presentence report” - a detailed portrait of the client's personal and criminal history prepared by a probation officer during a “presentence investigation” - is a critical document that can impact whether or how long an individual is sentenced custody, and the kind of custody or probation conditions they will experience. From the prison’s perspective, it is akin to an academic transcript and is used to make critical determinations like designation, medical treatment, program eligibility, visitation lists, dietary restrictions and appropriate work assignments. Given its importance, it is critical that a defense advocate play an active role in ensuring the accuracy and comprehensiveness of the information in the final report, and its fidelity to the plea agreement negotiated with the prosecutor. Moreover, in many jurisdictions, as well as the federal one, probation officers make sentencing recommendations, which the sentencing judges often follow. An antagonistic presentence interview, or one where the client reveals additional misconduct or disavows any responsibility, can have an adverse impact on the sentence to be imposed. We will explore these issues and more with the senior probation officer in the District of Minnesota in charge of presentence report writing.
- Nancy Glass, The Social Workers of Sentencing? Probation Officers, Discretion, and the Accuracy of Presentence Reports Under the Federal Sentencing Guidelines, 46 Crim. L. Bull. 1 (2010)
- JaneAnne Murray, Easing Your Client’s Experience of Federal Prison, NYLJ, Dec. 7, 2006
- Felicia Sarner, “Fact Bargaining” Under the Sentencing Guidelines: The Role of the Probation Department, 8 Fed. Sent’g Rep. 328 (1996)
- United States v. Lee, 653 F.3d 170 (2d Cir. 2011)
Guest Speaker: Leah Heino, Senior U.S. Probation Officer
3/11/2019: Specific Mitigation Issues: Family Circumstances
They f**k you up, your mum and dad. They may not mean to, but they do. They fill you with the faults they had And add some extra, just for you. - Philip Larkin
It is the rare sentencing where mitigating family circumstances are not present. Most commonly, we see it in the form of a plea for mercy because of the impact of incarceration on family members, especially minor children. In fact, there is deep and developing research on the devastating impact of parental incarceration on the estimated five million children affected. Described as “the invisible victims of mass incarceration,” these children are at a higher risk for poverty, instability, substance abuse, mental health problems, and incarceration themselves. Children of color are disproportionately affected.
Family issues also feature in the defendant’s path to crime. The “affluenza” defense was met by many with derision, but it originates from the less controversial point that a child raised poorly, or in an environment of neglect or abuse, is especially disadvantaged and more likely to replicate antisocial behaviors.
Finally, family circumstances resonate through the experience of incarceration, as well as post-release supervision. Incarcerated parents are far more likely to have their parental rights terminated. Visitation may be difficult or simply televisual because of prison location. Conditions of probationary supervision can further strain fragile familial bonds.
- United States v. Bannister, 786 F.Supp.2d 617 (E.D.N.Y. 2011), pp. 635-644, 653
- Rebecca Shlafer et al., Children with Incarcerated Parents: Considering Children's Outcomes in the Context of Family Experiences (University of Minnesota Extension, Children, Youth and Family Consortium, 2013)
- Murray, J., Farrington, D. P., & Sekol, I., Children’s antisocial behavior, mental health, drug use, and educational performance after parental incarceration: A systematic review and meta-analysis, 138(2) Psychological bulletin 175–210 (2012) (discussion section)
- Damir S. Utržan & Julianna Carlson, Parental Incarceration and Children: A Review of Recent Findings (Children of Incarcerated Caregivers, University of Minnesota, 2017)
Guest Speaker: Professor Rebecca Shlafer, Medical School
3/25/2019: Conversation with Sentencing Judges
- Hornby, D. Brock. “Speaking in Sentences” Green Bag 2d 14 (2011)
- Mark W. Bennett, The Implicit Racial Bias in Sentencing: The Next Frontier, 126 Yale L.J. Forum 391 (2017)
- Nancy Gertner, Neuroscience and Sentencing, 85 Fordham L. Rev. 533 (2016)
- Jack B. Weinstein, The Role of Judges in a Government of by, and for the People: Notes for the Fifty-Eighth Cardozo Lecture, 30 Cardozo L. Rev. 1 (2008)
- United States v. Singh, 2017 WL 6327823 (2d Cir., December 12, 2007
Guest Speakers: Judge Mark J. Kappelhoff, Judge Margaret A. Daly, Judge Kerry W. Meyer (all from Fourth Judicial District, Hennepin Co.)
4/1/2019: Quality of Incarceration (Prison visit)
Architecture sends a silent message to everyone walking into any place. It tells you what to expect and where the limits of behavior are. Prisons are the same. In my view, design is crucial to creating an environment in which prisoners can live and not become institutionalized. This means providing spaces for staying in contact with families, work, education, and playing sport.
Prison is punishing, especially in the United States where decades of punitive policies have starved our prison systems of much needed funding for programs and services, from adequate nutrition to medical and mental health care, from drug treatment programs to vocational and educational opportunities. But as the tide is turning on our sentencing policies, so too in the incarceration arena. The Obama administration, for example, phased out private prisons at the federal level, and adopted more humane disciplinary policies, among other reforms. Architects are beginning to look more closely at prison design, and our partner class with Professor Julia Robinson is exploring ways in which the prison environment can be restructured to promote programming, education and, ultimately, successful reintegration into society.
Note, we will not actually meet this day. Rather, you will satisfy this session by attending one of the prison tours I will schedule throughout the semester. We will discuss our experiences on these prison tours in other sessions of the class.
- Norman Johnston, FORMS OF CONSTRAINT: HISTORY OF PRISON ARCHITECTURE (University of Illinois Press, 2000) (excerpt)
- D.Moran, Y. Yewkes, J. Turner, Prison Design and Carceral Space, HANDBOOK ON PRISONS, 2nd Ed. (Routlege 2016)
- Piper Kerman, ORANGE IS THE NEW BLACK (Spiegel & Grau 2010) (excerpt)
- THE SENTENCE, a documentary film by Rudy Valdez
- Jessica Benkomarch, The Radical Humaneness of Norway’s Halden Prison, New York Times Magazine, March 26, 2015
4/8/2019: Specific Mitigation Issues: Mental Illness
- United States v. Dikiara, 50 F.Supp.3d 1029 (E.D. Wis. 2014) (for an article about the case, click here)
- United States v. Ferguson, 942 F.Supp.2d 1186 (M.D. Ala. 2013)
- KiDeuk et al., The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System, A Scan of Practice and Background Analysis (Urban Institute) April 7, 2015
- Schnittker, Massoglia and Uggen, Out and Down: Incarceration and Psychiatric Disorders, Journal of Health and Social Behavior 53:448-464 (2012)
- Michael L. Perlin, Representing Clients with Mental Health and/or Cognitive Impairments in Treatment Courts (American University, 2016)
4/15/2019: Kinds of Sentences
As a society, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them.
When we think about sentencing, the first image is often of a prison. But custodial sentencing is only part of the picture of our mass punishment landscape. More than twice as many people as those in custody are on parole or probationary supervision, which is punishing in its own way, and can often lead to re-imprisonment. U of M Department of Sociology Professor Michelle Phelps calls this phenomenon “mass probation.” Financial penalties, electronic monitoring and a host of collateral consequences, including perhaps most notably potential deportation for non-citizens, are further examples of the ramifications a criminal sentence can have beyond prison walls. Critical to effective sentencing advocacy (and its companion skill, plea bargaining) is a thorough understanding of the consequences of a particular sentence for the individual client.
- Michelle Phelps, Mass Probation: Toward a More Robust Theory of State Variation in Punishment, 19 Punishment and Society 53 (2017)
- Kleiman, Kilmer, Fisher, Theory and Evidence on the Swift-Certain-Fair Approach to Enforcing Conditions of Community Supervision, 78 Fed. Probation 71 (2014)
- Cullen & Pratt, It's Hopeless: Beyond Zero Tolerance Supervision, 15 Criminology & Public Policy 1215 (2016)
- United States v. Nesbeth, 188 F.Supp.3d 179 (E.D.N.Y. 2016)
- Wayne Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103 (2013)
Guest Speaker: Professor Michelle Phelps, Department of Sociology
4/22/2019: Developing Alternatives to Incarceration
- Amano Dube, Director of the Bryan Coyle Center
- Abdi Mukhtar, Director of Youth Programs, Bryan Coyle Center
(For this class, we will meet at the Bryan Coyle Center)
4/29/2019: Countering Bias
- Mark W. Bennett, The Implicit Racial Bias in Sentencing: The Next Frontier, 126 Yale L.J. F. 381 (2017)
- Additional readings to be inserted
Guest: Judge Mark W. Bennett (ret.)
5/1/2019: Restorative Justice
- Readings to be determined
Guest Speaker: TBD