Memo for Berman by xzibit


									Memo: Ideas for a Sentencing Website
INTRODUCTION A new Sentencing Website (SW) should provide the same services and content as the Sentencing Law and Policy blog, but on a grander scale. It should be a place for legal practitioners, academics, and laypeople to research sentencing issues, communicate with each other, share information and ideas, and collaborate on reform. The SW should be a permanent storage place and clearinghouse for useful information. This would especially be beneficial to legislators and academics who wish to research sentencing issues. The SW should also be something legal practitioners can rely on and quickly use. For example, if an attorney wants to make a particular point in a brief or argument, the SW should have updated information available to him, covering all the states and circuits. For the site to be useful to practitioners, articles from law journals and legal newsletters may not be timely enough. But the SW should be a place where attorneys can find up-to-date information, and can even test their ideas. An effective SW will allow for dialogue and communication between all those involved in every stage of sentencing, alleviating the disconnect between them. The SW should in a certain respect be decentralized so that there is a distribution of the workload, with many contributors. Perhaps specific people could be in charge of certain states or regions, culling the important or interesting cases and developments.

CONTENTS The Sentencing Website should serve as a repository and clearinghouse for every conceivable category of information and content related to sentencing issues. Cases The SW should obviously be a central location where all significant sentencing decisions are archived, and where new cases are constantly added, so that anyone coming to the SW can instantly find relevant case law on any sentencing topic. These cases can be made available standing alone, but there can also be made available a forum for commentary, analysis, and criticism of these cases [see below under “FORMAT”]. Examples:  Delaware‟s SENTAC page ( has on its front page a section on “Delaware Law on Sentencing” with references to two cases, Benge v. State (briefly explaining Blakely does not apply to Delaware) and Fuller v. State (more substantially explaining the nature of Delaware‟s SENTAC system, including a quote from the Delaware Sup Ct.). The SW should have a page covering all the states with the most important quotes from the most important cases, briefly explaining each state‟s sentencing system.  The website for Kansas‟s Sentencing Commission has helpful caselaw updates at These are recent cases involving


sentencing issues. Each case is briefed, and divided up into its facts, sentencing issue(s), and holding. There is also an appendix at doc which has older case law related to Kansas sentencing, from 1993 thru May 2004.

Briefs and Oral Arguments Legal blogs and websites do not seem to pay much attention to briefs and oral arguments. But quotes and excerpts from briefs and oral arguments could possibly be helpful. Posting them would allow readers to see the process involved in a case. In particular, practitioners might be helped by reading or listening to an oral argument, to learn what are the areas of controversy, what issues are troubling the justices, what were the responses by the arguers to difficult questions, etc. It may also give them insight into the specific justices before which they will be arguing. Example:  Delaware‟s SENTAC page ( not only has US v. Booker, but has the briefs filed on behalf of Booker, Fanfan, and the Government, and the oral arguments from the case.

Legal and Academic Articles The SW should maintain a collection of all relevant legal articles on sentencing, from law reviews, journals, etc. The SW could also be a place where academics and practitioners post articles without waiting for them to be formally published. Such entries could be something inbetween a blog post and a law review article, that is, more substantial than the typical blog post, but less thorough than the typical law review article. The SW could also allow people to “test the waters” with their ideas and hypotheses. Example:  The Martin Marty Center at the University of Chicago,, provides a good example of an academic post with both invited and public responses. Each month a full academic essay on a religious topic is posted, with invited responses from specific professors. Then there is an open forum for further discussion. The posts are much longer and more substantive than those on a typical blog. An example currently highlighted is “The Theology of George W. Bush,” at 102004/index. shtml with a full essay, an invited response, and then an open public discussion. (To look at examples on the discussion requires a generic username and password disclosed on the site.)  One structural approach is found at, which collects articles and book reviews from various online publications and puts them in a central location. There are three general columns, and one new article is posted in each column every day. These articles come from a wide variety of sources and span the political and ideological spectrum. Perhaps in a similar format new sentencing articles, reports, and studies could be posted, with a brief explanation and then a link to the content. But there should also be incorporated some way for readers to comment on or discuss the topic.


Legislative Reports and Developments State legislatures could report new developments on the SW, and even request input from other readers. Various legislative responses to sentencing issues and controversies could be compared and discussed. Many of the Sentencing Commission websites have their annual reports (i.e. to the governor or legislature) posted. The SW should be a central location which collects and hosts these reports, including from states that do not have a Sentencing Commission website. A SW could employ someone to read through these reports with a view to what might be helpful to a national audience (perhaps someone or some committee already does this). Examples:  The Kansas Sentencing Commission website,, includes Reports to the Legislature and Reports for the Fiscal Year.  Sentencing Law and Policy reports on legislative fixes across the country, which are then elaborately organized and compiled by faithful research assistants.

News Articles and Editorials The SW should be a place where news articles and editorials are constantly updated. There should be a specific portion of the website devoted to “Today‟s Sentencing News.” This would require someone to look at all the major newspapers online each day, or otherwise search the Internet daily for sentencing news and editorials. If this is too much for one person, there could be people designated in every state to contribute. There should also be a place for reaction and commentary to each article, where readers can challenge the data, offer testimonies verifying the opinions of the writer, etc. Examples:  The Alabama Sentencing Commission site,, collects local news reports and editorials.  The Council of State Govts. site,, has a section on the right margin for “States News,” which names the particular state and summarizes the news item. Real Clear Politics,, has editorials and news articles from online newspapers and political websites posted every morning and evening, covering a wide variety of topics and view points (but mainly right-leaning).


Speeches and Testimonies The SW should include speeches and testimonies on sentencing issues. Example:  The U.S. Department of Justice website,, has speeches and congressional testimonies linked on the right.


Research Studies The SW should be a place where research studies are accessible. Some of the sentencing commission pages have research studies, but there does not seem to be a place where they can all be accessed via the web. A number of research studies deserve to be more accessible. An SW should be a „clearinghouse‟ where such reports could be easily found and viewed. Examples:  On the Alaska Judicial Council, at, there is the study, “Evaluation of the Outcomes in Three Therapeutic Courts.” It is unlikely many people involved in sentencing would know about such a report, or where to find it, although it is hidden in plain sight on the right margin of the website.  Maryland‟s Sentencing Commission website has collected resources at, including (from the National Institute of Justice) “Incorporating Restorative and Community Justice into American Sentencing and Corrections” and “Managing Prison Growth in North Carolina through Structured Sentencing.”

Statistical Database The SW should include a Sentencing Statistical Database, where details from specific cases can be entered and collected. (Perhaps the USSC does this already?) Such a database would allow comparisons to be made for specific crimes, i.e. drugs, sex-offenses, etc. A reader could quickly find out what the guidelines or typical sentences are for a particular kind of case. Comparisons could be made across states and circuits, and sentencing trends and patterns could emerge. Such a database may even help highlight unreasonable disparities. The database should be a place where statistics are kept and continually updated, similar to the way that crime statistics are constantly collected and analyzed. The SW could host any number of PDF documents – trends, figures, reports, etc. Examples:  A model might be JRSA's Incident-Based Reporting Resource Center,, which states: This site is being supported by the Bureau of Justice Statistics (BJS) to provide comprehensive information on accessing and using incident-based reporting data for the analysis of crime and reporting of justice statistics. The goal of the Center is to facilitate the use of state incident-based reporting (IBR) systems and the National Incident-Based Reporting System (NIBRS) by crime analysts, researchers, and other justice professionals. The Center seeks to put practical analytical information and tools into the hands of analysts who want to work with incident-based data, and to provide a forum where analysts can exchange information and ideas about using IBR data. [See also the JRSA database index at]  The United States Sentencing Commission ( has useful collections and analysis of post-Booker/Fanfan data at: and PostBooker_060605Extract.pdf.



Oregon‟s Sentencing Commission website,, has sentencing reports by county.

Program Evaluations The SW should have a list of state sentencing programs that are currently being implemented, especially those that are unusual, progressive or cutting-edge (i.e. boot camps, faith-based prisons, victim-offender mediation, etc.). The SW would be a place where various sentencing programs, including alternative sentences and programs for reform, could be analyzed, evaluated, and discussed. Example:  The JRSA page links to the Bureau of Justice Association Center of Program Evaluation,

Forms The SW should have a database storing all sentencing forms from each state and from the federal government related to sentencing. Although such forms can no doubt be accessed at the state level (for example on the sentencing commission websites), the SW should be useful as an authoritative source for finding useful documents. This will indirectly encourage greater participation from those who find it useful. Example:  Arkansas‟s Sentencing Commission website,, has the state‟s sentencing forms available for practitioners.

Reports from Think Tanks Requests could be made at various think tanks for a description of their philosophy of sentencing. There appears to be very little written about a political or ideological view of sentencing. Is there such a thing as a “progressive,” or “conservative,” or “libertarian,” or “moderate” philosophy of sentencing (other than the stereotypical debate between a “reformminded” versus “hard-line” approach)? Does sentencing transcend traditional politics and ideologies? An SW could invite and host these reports and philosophical statements, and allow for debate and discussion.

International Resources There may be benefit in studying other countries‟ sentencing law and policies. An SW should have a section devoted to appropriating useful information from the international community. What appears to have worked in other countries to reduce crime? What types of sentencing reform are advocated or utilized? Are there court cases from other countries that have any relevance or insights?


Examples:  The Vera Institute of Justice ( has a section on “Working Internationally.”  Maryland‟s Sentencing Commission website has collected resources at, including “National Institute of Justice Research Preview: Alternative Sanctions in Germany, An Overview of Germany's Sentencing Practices.”

FORMAT Besides serving as a collection of information, the Sentencing Website should provide a format conducive to the thorough discussion of sentencing issues. Web-Forum The SW should have a web-forum where all of the contents on the SW can be discussed. The usual format of a web-forum is a home page with several „boards‟ (general topics), with each board containing several „threads‟ (specific topics where the discussions take place). Readers could post excerpts from cases, quotes from politicians, statistics from studies, etc. They can also post their reactions to this content, or their personal testimonies and experiences. Difficult questions and issues can be raised and addressed. If a new case comes out, readers can comment on the case, point out interesting but overlooked aspects, discuss the various judges‟ reasoning, etc. The Sentencing Law and Policy blog often asks for feedback, but for some reason the comments feature is underutilized by readers. A forum would allow for greater feedback from readers and create a perpetual dialogue on important and interesting issues. These forums allow for registered users to post, but also for the public to read. The SW forum could answer specific questions or address specific concerns. People can build up an informal professional relationship that allows them to commiserate and bounce ideas off each other. Unlike a blog, a forum builds up an audience of participatory members who are directly involved in the direction of discussions. This forum would be a place for discussing cases, statutes, publications (i.e. the Federal Sentencing Reporter), research studies, and any number of miscellaneous items. People can come on the forum to look for a particular case, write about the latest research, give their own personal experiences, etc. If a judge or legislator makes a statement about a sentencing issue, such as mandatory minimums, the SW could be a place where someone can post it, and other readers can respond. When a new research study comes out, it could quickly be discussed. For example, one „thread‟ could be Vera‟s reports on Blakely‟s impact. Excerpts could be posted, leading to open discussions on the forum. On web-forums, people can suggest their own topics by initiating a new thread. The topic might dead end, or continue indefinitely. Even a topic that dies out will remain there for others to read if it is helpful. People who come to the forum for the first time can do a search and find an old thread that might contain still-relevant information. The moderator of the SW forum could highlight posts that are particularly significant or insightful. Any registered user can begin a new thread, perhaps on a case, or article, or new statute, and invite others to respond. Users can suggest ideas and proposals for sentencing reform, and others can react. When an important case comes down, perhaps from a state supreme court, then others can comment. Perhaps after some time that case will be outdated and other cases will hold 6

more interest. Then other threads will push that case‟s thread off the front page of the board. However, that thread will remain in the archives, and if that original case comes into play again (perhaps because it becomes a model for another state supreme court), and if someone posts on that old case‟s thread, it will instantly be moved to the front page on that particular message board. Thus a thread can be renewed if it becomes relevant again. Forums can also provide anonymity. Perhaps an attorney wants to discuss a case candidly, but without personally offending the judge who made the decision. Someone who works in a prison might wish to give his opinions without being known to his superiors. A lawyer may prefer to remain unidentified because his firm might not approve his seeking of input from other readers. A user might want to protect the identify of a family member who is a criminal defendant. Most forums allow for anonymity, and people can choose whether their “username” is their actual name or a pseudonym. Of course, anonymity might involve other ethical considerations and difficulties, which would need to be considered. There remains the question about how open the forum should be. Perhaps in some instances it shouldn‟t be completely open. It may be appropriate to limit access to specific boards to a particular group of practitioners. At the same time there might be boards which should be inclusive towards non-specialists. On the SW forum there could be an individual board for probation and parole officers. There could be one for prosecutors, and another for defense attorneys. There could be a board for people who work on sentencing commissions. A board could be made available for people with family members in the criminal justice system, and another board for victims and their families. Each specific board would need a moderator to remove any offensive or inappropriate posts. The SW should be a centralized place where these forums can be observed and participated in. This would also allow people in different categories to read the other boards and threads and perhaps grow in their understanding and sympathies. Forums could be limited to particular personnel, open to other registered users, or open to the general public. Example:  The Victim Service Providers Forum at is a “place where victim service providers and allied professionals can connect to peers, share ideas about best practices, and help change lives.” At this forum (as is typical), people can choose a topic and then post a question or comment, and others can respond to the initial post. The original posters can then update their topic or post a follow-up question, leading to more responses. This forum also has a “Guest Host” advertised ahead of time who is an expert on a particular topic.  [See more examples below.] An excellent forum-building program is “SMF 1.0.5,” from Simple Machines, available at www.simple Besides being user-friendly, the program format shows the most recent posts on the entire forum, which might be helpful when there are so many threads that it is hard to keep track. It also shows which users have been recently active. When reading a particular user‟s post, you can click on his name and it will show all of his recent posts. You can also quickly access responses to your own posts. If you want to contact someone directly you can write them through the forum (which allows for retaining anonymity), or directly if they provide their own personal email. Thus the forum encourages one-on-one dialogue. Also the SMF program automatically compiles statistics, i.e. the most frequent users, the most popular topics,


etc. And it allows for polls to be taken on any topic suggested by a user, which are unscientific but potentially interesting. Examples of forums using SMF 1.0.5:  (piano forum). This is a good example of how a specialty web-forum can be useful and popular, with a wide variety of topics and participants in a narrow field. The piano forum is used by professional and amateur pianists, general music-lovers, piano salesmen, piano tuners, etc. Topical threads include individual pieces of music, performing styles, types of compositions, interpretive theories, specific composers, etc.        (general news forum – people can discuss and editorialize over current events) (computer program forum) (alternative energy forum) (game forum) (forum for community online administrators) (health forum - skin disorders) (aviation history)

Round Tables and Panel Discussions The SW could host round tables and panel discussions via the Internet. Readers could be invited to observe (like spectators in an auditorium), but with only a select panel actually engaging in the dialogue. Or there could be open participation throughout. There could also be a page for constant online discussion of sentencing issues, with a limited group of participants but an open and constantly changing topical discussion. Examples:  The Corner at National Review Online, exemplifies a model format for a continual discussion of a wide variety of issues. Similar examples from the other side of the political spectrum can be found at the New Republic‟s blog The Plank, at, and the American Prospect‟s blog Tapped, at

Message Boards Message boards are very similar to a forum, and might be an ideal format for practitioners to ask for help in dealing with a particular issue. Examples:  Attorney Alex Eisemann once asked for help on the Sentencing Law and Policy blog in responding to a letter brief from the government. This allowed other blog readers to


contribute to his argument. Such an experience could be replicated on a larger scale on the SW. Practitioners could „test‟ their arguments there and ask for reader input.  The National Youth Court Center has message boards at message_boards/overview.htm. (Requires username and password to enter.)

Live Chats/Interviews Specific sentencing experts and practitioners could be interviewed, either with a predetermined list of questions, or with live posts that are open to the public. Questions could be asked of judges, commission members, legislators, academics, leaders of public interest groups, etc. Example:  Howard Bashman, who maintains the How Appealing website, has interviewed several Appellate Court Judge at  The Washington Post,, has live online chats announced in advance for people in the news, where readers can submit their questions ahead of time or in real time.

Collection of Blogs The SW should serve as a headquarters of various blogs on sentencing matters, all linked in a central location. Examples:  The collection of Circuit Blogs at Federal Defender D-Web Law Blogs, home.ix.netcom. com/~fpdfls2/BlogRecap4.htm, allows various cases and developments to be posted. People in different regions could be employed to peruse recent cases and post them in a blog devoted to the state, circuit, or topic, and then linked by the centralized SW blog.  Talking Points Memo Café,, is a good example of a blog-collection. There is one master blog (“The Coffee House”) and several topical blogs linked on the right. Comments are easily enabled, and the format is attractive and user-friendly.

Questions and Answers The SW should have a Q and A section, where questions can be asked of sentencing experts. The expert who answers could be one who does it full-time, or the expert could change every week, or month. Eventually some questions could be treated an frequently asked questions and posted on their own page (FAQ‟s). There could be a FAQ page for non-practitioners who are interested parties – such as victims and their family members, or family members of criminal defendants. And there could be a separate FAQ page for practitioners to ask more complex and sophisticated questions. Examples:  Utah‟s Sentencing Commission website,, has non-technical FAQ‟s, such as: What is the Utah Sentencing Commission? What are sentencing


guidelines? What is indeterminate sentencing? What are the punishments for crimes in Utah? What are concurrent and consecutive sentences? What is the difference between probation and parole?  Arkansas‟s Sentencing Commission website,, has a much more technical FAQ page, with questions like: Who is responsible for judgment and commitment forms? Which form do I use: Judgment and Commitment or Judgment and Disposition? Is a Departure Report needed for a statutory override or an habitual offender? Are the offenders really being kept until their transfer eligibility dates? When and how can a conviction be expunged?

Search Engines There should be a search engine for the user to find the information he needs. The search engine should be able to search everything on the SW, including the forum.

Contact Information The SW should have a page with contact persons in each state, perhaps sentencing commission members. This would provide users of the SW a way to know who to call or email for insight into a sentencing problem or situation. Example:  The Justice Research and Statistics Association,, has a map of the U.S., and when you click on any state, you see that state‟s contact information.

Newsletters Every week or month, the best posts, news articles, reports, case excerpts, etc. could be collected and mailed out as a newsletter.

Calendar of Events The SW should have an events calendar that links all the sentencing events worth noting (perhaps even including state events, so that interested outsiders can attend). Example:  The Justice Research and Statistics Association,, has a calendar of events, with links to the websites of each association hosting the conferences.


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