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CRIMINAL PROCEDURE SENTENCING Adjunct Professor Josh Lee Spring Powered By Docstoc
					                                      CRIMINAL PROCEDURE: SENTENCING
Adjunct Professor: Josh Lee
Spring 2009

I.      Purpose: The purpose of this course is to familiarize you with the general principles of substantive law,
        procedural law, and practice that determine how criminal offenders are sentenced—with particular emphasis on
        the federal and Arkansas state sentencing systems. By the end of the course, you should be able to articulate
        these principles, explain the policy arguments and philosophical perspectives by which they are justified and
        critiqued, and apply them to scenarios likely to arise in the everyday practices of judges, prosecutors, and defense
        attorneys. In addition, after this course, you should be comfortable utilizing the primary statutes, guidelines, and
        case law that governs sentencing in Arkansas state and federal courts.

II.     Course Materials:

        A.      Required Book - Nora Demleitner, Douglas Berman, Marc Miller, Ronald F. Wright, Sentencing Law
                and Policy: Cases, Statutes, and Guidelines (2nd ed. 2007) (“SL&P”).

        B.      Required Supplement (Free Download) - Demleitner et al., 2008-09 Supplement for Sentencing Law
                and Policy: Cases, Statutes, and Guidelines (“Supp.”), available as a handout.

        B.      Other Required Reading - Handouts, usually focused on Arkansas law, will be posted at the class

        D.      Suggested Reading -

                •        Free weblog - Douglas Berman, Sentencing Law and Policy,

                •        Class outlines - my personal notes of the material we covered in class, posted to the class site.

III.    Class Agendas and Reading Assigments:

                    Agenda                                                      Reading
       Review Syllabus                       SL&P 1-9, 12-16
       Ch. 1: The Purposes of                Ark. Code Ann. § 16-90-801(a)
                                             Henderson v. State (Ark. 1995)
       Sources of Sentencing Law

       State/Federal Jurisdiction

       Ch. 2: Who Sentences?                 SL&P 85 thru the bottom of 89, note 4 on page 93, note 5 and problem 2-1
                                             on page 94
       a) The Indeterminate/
       Discretionary Sentencing System       Arkansas Parole Board Handout

       b) Jury Sentencing                    Review Henderson
                                             SL&P 100-04, (skip Military Rules), 105-07

                                             Ark. Code Ann. § 5-4-103

                                             Ark. Code Ann. § 16-97-102
       c) A Primer on                        SL&P 107-20
       Determinate/Guided Sentencing
                                             SL&P 120-21, 126-28.
       d) The Prosecutor
                                             Handout: The Prosecutor’s Charging Discretion Under Arkansas Law.
       e) Appellate Courts
                                             SL&P Chapter 2:D—first two paragraphs on 129-30 and note 2 on 136-37.

                                             Donaldson v. State, 257 S.W.3d 74 (Ark. 2007)
1/21 MLK holiday                             MLK holiday
       Guest Speaker:                        SL&P 139 thru first paragraph of 147; 150-52; 154-59.

       Larry Jegley,                         From Arkansas Sentencing Commission website:
       Prosecuting Attorney                  •     “Introduction to Sentencing Standards” (at “About Us” link).
       6th Judicial District of Ark.         •     “Short Table of Common Crimes” (at link “Offense Seriousness
       Ch. 3: Regulating Discretion          •     “Arkansas Sentencing Standards Grid” (at Benchbook link p. 11)
                                             •     “Criminal History Worksheet Instructions (at “Forms” link)
       a) Introduction to Sentencing         •     “Criminal History Worksheet” (at “Forms” link)
       Guidelines                            •     “Departure Report” (at “Forms” link)
                                                           Note: It is particularly important that you print the ASC
       b) The Nuts and Bolts of                            materials for class, as we will be calculating Arkansas
       Calculating an Arkansas                             Guideline Sentences.
       Guidelines Sentence
       c) Are the Arkansas Sentencing        Pickett v. State, 321 Ark. 224, 902 S.W.2d 208 (1995)
       Guidelines Irrelevant?
                                             Harmon v. State, 8 S.W.3d 472 (Ark. 2000)
                                             Ark. R. Crim. P. 25.3

                                             Ark. R. Crim. P. 26.1
       d) The Federal Sentencing             SL&P 159-178, notes 1 and 3 on 180-82.
       e) The Nuts and Bolts of              Prepare and present selected exercises from
       Calculating an FSG Sentence.
       f) The Impact of Booker and Rita      SL&P 182-215, except for the following: On pages 212-13, replace the last
                                             textual paragraph and charts with Supp. 5.
2/11 Exam 1                                  Review previous readings, as discussed.
       f) Constitutional Regulation of the   SL&P 217-47.
       Death Penalty
                                             SL&P 248 (first two paragraphs).
       Constitutional Regulation of the
       Death Penalty (continued)             Ark. Code Ann. § 5-4-602–05.
                                             SL&P 254-70.

                                             Supp. 6
       Ch. 4: Sentencing Inputs - The   SL&P 273-81, 283-88
       Crime and its Effects
                                        Review Henderson.
       a) Uncharged Misconduct
2/23                                    SL&P 288-89
       b) Multiple Convictions
                                        Acklin v. State, 606 S.W.2d 594 (Ark. 1980) .
       c) Role in a Group Offense
                                        SL&P notes 2, 3, 4, and 8 on pgs. 293-95; 296-01
       d) Offense Seriousness           SL&P 301-303

       e) Quantifying Harm              Review “Short Table of Common Crimes”

2/25 f) State of Mind                   SL&P 311-13

                                        Supp. 21 (first paragraph only)

                                        SL&P 313-20 (skip problem 4-7)

       Ch. 5: Sentencing Inputs - The   SL&P 339-63
                                        Review Henderson.
3/2 a) Prior Criminal Record
                                        Benson v. State, No. 03-623, 164 S.W.3d 495 (Ark. App. May 5, 2004).

                                        Ark. Code Ann. § 5-4-501(c)(1)-(3)
    b) “Acceptance of Responsibility”   SL&P 363-82
3/4 and “Assistance to the
       c) The Character and             SL&P 383-432
       Circumstances of the Defendant
                                        Crawford v. State, No. 04-1114, 208 S.W.3d146 (Ark. May 12, 2005).
                                        Marshall v. State, No. 00-019, 27 S.W.3d 392 (Ark. Sept. 28, 2000). \

                                        Marcel Wayne Williams v. Norris (E.D. Ark. 2008).

                                        Supp. 23-41
3/11 Exam 2

       Ch. 6: Procedure and Proof at    SL&P 433-60
                                        Ark. Code Ann. § 5-4-102
       a) Introduction
                                        Phipps v. State, No. 02-692, 2003 WL 22407429 (Ark. App. Oct. 22, 2003).
       b) The Jury Clause and
3/18 c) The Jury Clause and the         SL&P 460-75
3/23 Spring Break                       Spring Break
3/25 Spring Break                          Spring Break
       d) Plea Bargaining                  SL&P 475-512
       e) Presentence Reports and          Ark. Code Ann. § 16-90-102
       Probation Officers
                                           Ark. Code Ann. § 5-4-102
       f) Sentencing Hearings              SL&P 512-16
                                           Review SL&P 102-103 and Ark. Code Ann. § 16-97-102.

       Ch. 7/8/10: Imprisonment and
       its Alternatives
                                           SL&P 37-38, 524-46, 552-59.
       a) The human and social costs of
       mass imprisonment
       b) Probation                        SL&P 600-614

4/8                                        Reeves v. State, No. 98-872, 5 S.W.3d 41 (Dec. 2, 1999).

                                           Thornton v. State, 590 S.W.2d 57 (Ark. App. 1979).
       c) Registration and other           Cecilio Gonzales v. W.A. Duncan (9th Cir. Dec. 30 2008).
       alternatives to imprisonment
4/13                                       SL&P 20-26.
       d) Statutory limits on the use of
       alternative sanctions               Ark. Code Ann. §§ 5-4-104, 301, 303(a)-(c), (e), 309(d), (f)(1)(A), 310(b).

     Ch. 11: Judicial                      SL&P 779-812
4/15 Review of
       Ch. 9: Race and Sentencing          SL&P 673-700.
                                           Supp. 43-44
4/22 Exam 3
4/27 Final Exam Review

IV.     Grades: The final grade will be calculated as follows:

        Attendance, Preparation, Participation:                  10%
        Interim Exam 1:                                          20%
        Interim Exam 2:                                          20%
        Interim Exam 3:                                          20%
        Final Exam:                                              30%

        An average exam will receive a grade of 3.0 (or B-).

V.      Exams: There will be four exams, each consisting of one or more essays and short-answer questions. The first
        three exams will be one hour long and cover only new material. The final exam will be three hours long and
        comprehensive. All exams will be open book and open notes. In accordance with general UALR policy, your
        exam may be rescheduled in cases of “extraordinary hardship.” You must request rescheduling from me prior to
        any exam.
VI.     Attendance, Preparation, and Participation:

        A.      Basic Policy: This class will meet every Monday from 7:05 pm to 9:05 pm and every Wednesday from
                6:00 pm to 6:55 pm in Room 303. You are expected to attend class, to be prepared for class, and to be on
                time. An attendance roster will be circulated at the beginning of every class period. You are responsible
                for initialing the roster. You will be counted as late if you arrive after the attendance roster has finished
                circulating. If you arrive more than thirty minutes after class begins, you will be counted as absent.
                Reading assignments are listed on the Syllabus above. I anticipate some adjustments to the assignments
                during the semester. Unless I announce a modification, you are responsible for completing the
                assignment stated on the Syllabus before the class period beside which it is listed.

        B.      Assessment: Attendance, preparation, and participation will be graded weekly on the following scale:

                Attending both classes for the week:                  10 points
                Attending only Monday:                                 6 points
                Attending only Wednesday:                              4 points
                Attending neither class:                               0 points

                The weekly grade will be reduced by two points each time you arrives late for class, leave early from
                class, or prove to be clearly unprepared during class discussion. You may receive a bonus point for
                making an exceptional contribution to class discussion, up to a maximum of one point per week. Class
                participation is judged on quality, not quantity. At the end of the semester, the fourteen weekly grades1
                will be averaged, and this average will represent the “AP&P” portion of the final grade. Because missing
                one or two classes will not have a significant impact on the final grade, there is no system of excused or
                unexcused absences.

VII.    Computer Policy: Laptop computers will not be allowed on ordinary class days, and you should come prepared
        to take notes with pen and paper. You are encouraged to use a laptop for test-taking purposes if you have one
        and feel comfortable using it.

VIII.   Contacting the Professor: You should feel free to contact me at any time with questions, concerns, or
        suggestions. I can be reached at and will almost always respond within a matter of hours.
        Although I do not maintain regular office hours, if you would like to speak with me in person, we can set up an
        appointment before or after class, or you can email me.

IX.     Disability Policy: It is the policy of UALR to accommodate students with disabilities as required by state and
        federal law. If you have a disability and need accommodation, for example, in seating placement or in
        arrangements for examinations, please inform me at the beginning of the course. Your personal information will
        not be disclosed to any other student or to anyone else other than those necessary to accommodate you. You are
        also encouraged to speak with the Associate Dean for Academic Affairs and with the Office of Disability Support
        Services, either before, after, or instead of speaking with me about these issues.

                 There are thirteen full weeks, and the week of the MLK holiday as well as the final week will each be
        counted as a 1/2 week for grading purposes.