Faculty Scholarship Digest

Douglas A. Berman



Douglas A. Berman, A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death”, 34 OHIO NORTHERN L. REV. 861 (2008).

In recent years, the Supreme Court has decided fewer cases than at any point in the past 100 years, even though more cases than ever are submitted for its consideration. For example, in 1930 the Court decided 235 of the 1,300 cases presented to it on the merits. By 1970, the number of merits decisions had almost been cut in half, while the number of petitions had tripled. In this century, the Court decides less than 1% of the cases presented to it on the merits, reaching a low of 68 merits opinions in 2006. At the same time, death penalty issues, virtually absent from the Court prior to 1967, have become a significant part of the Court’s docket, averaging six cases per year over the last three decades. In this article, Berman canvasses these changes and the accepted reasons for them, and suggests that “the Court is caught up in a ‘culture of death,’ which leads the Justices to ‘waste’ an extraordinary amount of its scarce time and energy to reviewing capital cases.” Berman argues that the Court has taken on an “error correction” role in capital cases that has four categories of serious negative consequences.

One problem he notes is that death penalty cases are now a regional phenomena that arise in a tiny percentage of criminal cases. As far as criminal justice goes, he writes that “it is fair to suggest that the Supreme Court . . . essentially transforms itself from the highest court in the land into the highest court for serious murder cases in Texas and a few other states.” Berman contends that this attention has led the court to spend insufficient time on other criminal justice matters. Berman also argues that this attention from the Supreme Court has led the legislative and executive branches in state governments to abdicate their responsibilities in this area, even though they may be better situated to regulate death penalty litigation. Finally, Berman suggests that the greatest damage is the symbolic signal from the Court that only capital cases merit sustained attention. In his conclusion, Berman suggests that with Justices Roberts and Alito replacing Rehnquist and O’Connor, the Court may be starting to move away from “its troublesome affinity for obsessing over capital cases.”

Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 Wake Forest J.L. & Pol'y 151 (2014).

In this symposium essay, Doug issues a call for a separate doctrine regarding the weight to be given to “finality” in sentencing determinations from the heavy weight finality has in judgments of conviction. Doug introduces his subject with a clear demonstration of its current importance: Congress’ recent reduction of mandatory sentences for crack cocaine and the Supreme Court’s recent bar on mandatory sentences of life without parole for juveniles. These revisions have set off broad debates and litigation in state and federal court regarding the possibility of reconsideration of the prison terms of individuals sentenced before the changes. In these cases and many others, the strict finality doctrine applicable to judgments of conviction would bar reconsideration (and shorter sentences) that a more flexible approach for sentencing might allow. The essay constructs both historical and practical arguments for such an approach.

From a historical perspective, the essay explains that “finality” would have been an alien concept to the Framers because of the very different nature of criminal adjudications. Moreover, prior to the rise of the penitentiary in the latter half of the 19th century, “a defendant’s conviction and sentence were generally one and the same.” At the same time, Doug points to certain provisions of the Constitution (such as the pardon power) and historical practices (such as benefit of clergy) that suggest an openness to reconsideration of punishment in light of offender characteristics. The next great phase---the rehabilitation era which dominated the first three-quarters of the 20th century, Doug argues, de facto prohibited sentence finality by demanding constant reconsideration (through indeterminate sentences and parole) of the appropriate punishment. Doug then turns to the current period of mass incarceration, describing the role of sentence finality in creating the problem and as a justification for treating sentencing finality differently from conviction finality. With this background, Doug argues that core differences between backward-looking, offense-based and binary (guilty or innocent), guilt determinations and (partially) forward-looking, (partially) offender-based, (potentially) flexible sentencing determinations requires a “modern balance” for “the unique interests served (and not served) by sentence finality.” This means at a minimum, decoupling sentencing finality from conviction finality and, beyond that, Doug suggest a presumption of sorts against finality, at least in the case of severe sentences of incarceration.

Douglas A. Berman, Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 HARV. L. & POL. REV. ONLINE 1 (2008).

The thrust of this article is Berman’s contention that the well-intentioned efforts of progressives in criminal justice reform have become seriously problematic and perhaps even counter-productive, ignoring and likely exacerbating the overwhelming problem of mass incarceration. The article begins with an overview of mass incarceration: in less than three decades imprisonment rates quadrupled, and the United States imprisons more people than any other nation (more than #2 China) and at the greatest rate (more than #2 Russia and nearly double #3 Cuba).

Berman then turns to his argument that “progressive criminal justice reform efforts concerning innocence issues, abolition of the death penalty, and sentencing disparities may contribute to, and even exacerbate, the forces that have helped propel modern mass incarceration.” The article carefully and respectfully details the way in which advocacy in each of these areas may have contributed to mass incarceration. For example, the article suggests that death penalty opposition has made any other punishment (such as life without parole) more acceptable and focused an extraordinary level of defense resources and judicial attention to the very worst offenders at the expense of others. Similarly, Berman contends that the focus on wrongful convictions, while justified and understandable, also causes a “desensitization to injustices other than wrongful convictions.”

The article’s final section offers prescriptions for “progressive punishment advocacy.” These include embracing originalist perspectives and “our nation’s traditions of seeking to limit governmental power and our nation’s enduring commitment to protecting individual liberty” to “question America’s modern incarceration explosion.” The article also urges greater systematic use of “the ample and ever growing evidence that ‘tough on crime’ imprisonment policies are costly and often ineffectual” in producing community safety.

Douglas A. Berman, Exploring the Theory, Policy, and Practice of Fixing Broken Sentencing Guidelines, 21 FED. SENT. REP. 182 (2009).

In this brief essay, published in the leading journal on sentencing, Berman discusses priorities for fixing the sentencing guidelines, as part of a symposium taking a “second look” at sentencing reforms. Felicitously paraphrasing Shakespeare, the essay describes, with specific examples, how some of the federal sentencing guidelines are “born broken,” some “achieve brokenness in application,” and some “have brokenness thrust upon them.” What cannot be gainsaid, as Berman points out, is that some guidelines are broken. Given the general decline in crime rates and the remarkable, unprecedented growth in imprisonment rates, Berman argues that priority in repair of the sentencing guidelines should be given to those “which are broken because of their unjust and/or ineffective harshness.”

The essay offers methods both for determining which specific guidelines this would point to and some means for achieving the fixes. Berman’s second prescription in this essay is to give those fixes retroactive effect. As an example of the plausibility and efficacy of such an approach, the essay describes the retroactive application of the “fix” that was finally put in place in 2007 for the famous crack-vs.-cocaine-100-1-ratio sentencing disparity. The base offense level (essentially, the starting point for any federal sentence, before application of various aggravating and mitigating factors) for all crack offenses was reduced by two levels and subsequently the Sentencing Commission gave its amendment retroactive effect — potentially affecting 20,000 federal prisoners. Berman concludes that “[d]espite ‘sky-might-fall’ concerns expressed by the Department of Justice, federal prosecutors in many districts have readily acknowledged how well the federal justice system has handled the process of retroactively fixing past broken sentences.”

Douglas A. Berman, The Virtues of Offense/Offender Distinctions, in CRIMINAL LAW CONVERSATIONS (Paul H. Robinson et al. eds. Oxford 2009).

This is an innovative book created through a process in which criminal law articles were nominated for inclusion and then voted on via offers to comment open to all English speaking criminal law scholars, with the goal of collecting important debates in the criminal law field in a single volume. The result is 31 chapters, each with a “core text” by the selected author followed by comments from interested scholars and a reply by the original author. Berman and Moritz Professor Joshua Dressler both have “core texts” in the book.

Berman’s core text is based on his 2005 article in the Stanford Law Review (an idea later cited in a Supreme Court dissent) offering a solution to the conundrum the Supreme Court has created regarding the role of judges and juries at sentencing, by mandating an important role for juries with regard to certain matters. Berman’s proposal is to divide sentencing considerations between “offense conduct” (e.g., injury suffered by victim, use of weapon, amount of loss, type of drug) and “offender conduct” (e.g., previous record, family history, future dangerousness) and to apply the Apprendi line of cases (which requires that certain facts be found by a jury before they can be considered at sentencing) to “offense conduct” but not to “offender conduct.”

Douglas A. Berman, Graham and Miller and the Eighth Amendment’s Uncertain Future, Criminal Justice, Winter 2012, at 19.

Doug Berman sorts out the future of the Eighth Amendment’s protection against cruel and unusual punishment in this article appearing in Criminal Justice, the official periodical of the ABA Section of Criminal Justice. Berman exposes the doctrinal difficulty of line-drawing by examining the Supreme Court’s recent juvenile sentencing cases, Graham v. Florida, 130 S. Ct. 2011 (2010) and Miller v. Alabama, 132 S. Ct. 2455 (2012). In Graham, the Court declared cruel and unusual a sentence of life without parole (LWOP) imposed on a juvenile for a pair of armed robberies. In Miller, the Court declared that a mandatory LWOP sentence imposed on a juvenile convicted for two murders was also cruel and unusual. Berman sees Graham as announcing a new categorical, substantive rule: no juvenile found guilty of a non-homicide crime may be sentenced to LWOP. In contrast, Berman sees Miller as establishing a new procedural rule: no juvenile offender guilty of the worst homicide may be automatically sentenced to LWOP because there must be an opportunity to consider mitigating circumstances. The combined effect is to untether Eighth Amendment jurisprudence from the longstanding “death is different” principle—leaving no reliable predictor of what will limit or shape it in the future.

Douglas A. Berman, Should Juries be the Guide for Adventures through Apprendi-land?, 109 COLUM. L. REV. SIDEBAR 65 (2009).

This essay is a response to David Ball’s article in the Columbia Law Review, Heinous, Atrocious and Cruel: Apprendi, Indeterminate Sentencing and the Meaning of Punishment. In Apprendi and its progeny, particularly Blakely v. Washington, the Supreme Court thoroughly upset the apple cart of criminal sentencing by finding a constitutional mandate that facts which raise the maximum sentence must be found by a jury.

As described by Berman, Ball’s article endorses Apprendi and urges greater respect for the founding era conception of juries so that, as Berman describes Ball’s position, jurors should serve as “community representatives who are well-positioned to make moral, retributivist judgments about criminal wrongdoing.” While Berman shares the enthusiasm of Ball and others for Apprendi, in this essay he pushes back against the jury-centric interpretation that both commentators and subsequent Supreme Court decisions have given that landmark decision.

In Berman’s view, Apprendi represented a recognition that “sentencing decisions are often far more consequential than basic guilt determinations” and that the vast disparity in procedural rights at trial and sentencing is therefore problematic. Because nine out of ten convictions result from guilty pleas, and because parties are tightly circumscribed under contemporary criminal law in the kinds of arguments they can make to juries, Berman contends that juries cannot, as a practical matter, be expected broadly to serve the important role of “retributive judgment” Ball would give them. Berman argues that, rather than having “juries serve as the chief tour guides through Apprendi-land,” the better approach is to recognize that Apprendi’s constitutional underpinning also lie in the Due Process Clause of the Fifth Amendment and the Sixth Amendment’s notice provisions.


Douglas A. Berman, The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions, 61 FLA. L. REV.. 709 (2009).

This article, part of a symposium on the revisions to the Model Penal Code: Sentencing (“MPCS”), levels a strong macro-critique of both the basic premises and the structural suggestions of the MPCS, charging it with failing to address the most important normative challenge of contemporary sentencing and, as result, amounting to a missed opportunity at best and a codification of disastrous dynamics at worst.

The original Model Penal Code sentencing provisions, completed in 1962, gave judges and parole officials enormous discretionary authority to fit individual sentences to specific, perceived rehabilitative needs. Berman concedes that, as a descriptive matter, this is a dated model; over the past 30-40 years, the rehabilitative ideal and the post-trial discretion that went with it have suffered innumerable attacks, and mandatory minimum sentences, parole abolishment and other means of limiting post-conviction discretion regarding incarceration have proliferated.

Simultaneously, as Berman details in this article, incarceration in this country has skyrocketed. Choose your statistic: 3% of the U.S. population has done time; more than 2,225 people are in prison for life for crimes committed as a child (in 154 countries for which Human Rights Watch has data, only three other countries provided life without parole for crimes committed by children, with only about a dozen combined cases in those three countries); the U.S. has the highest incarceration rate in the world, easily outpacing runners up China (which has the same total number of prisoners with a much larger population), Russia and Cuba.

In the context of this explosion of mass incarceration, Berman argues that the MPCS makes a grave mistake in failing to consider the values of liberty and progressivism that informed sentencing development from the 19th century through the Model Penal Code and by “throw[ing] out the parole baby with the sentencing reform bath-water.”

While approving in general of the model of sentencing commissions (administrative agencies designed to develop and implement coherent, jurisdiction-wide sentencing practices) that have become widespread and are the crux of the MPCS, Berman argues that experience has shown such commissions to be generally ineffective in the face of the pathologies of contemporary sentencing determinations that he describes, with the result that they often serve merely as handmaidens to “what is really broken in modern American sentencing and punishment systems.” Instead, he argues the MPCS “should directly assail and seek to remedy modern injustices that have come to define sentencing attitudes and practices.”

Douglas Berman, Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 TEMPLE POLITICAL & CIVIL RIGHTS L. REV. 429 (2010).

In this article, a keynote address Doug gave at Temple, Doug Berman argues that a procedure for a “second-look” at sentencing should be mandated by legislatures in every state. The article surveys the mass incarceration crisis and the evidence that one of its causes is the reduction in parole and clemency in combination with the fact of mandatory sentencing. Doug’s proposal is that prosecutors should be forced to give a “second look” in cases after sentence and be required to recommend at least one out of every 100 cases to the relevant authorities (e.g., the parole board or the governor) for more lenient treatment. Doug argues that this forced “second-look” would not only help ameliorate the mass incarceration problem, but would also help restore the habit of having a safety valve at the back end of the system. Doug has concluded elsewhere that the diminishment of parole has been a mistake, but he thinks that the absence of a role for prosecutors in the parole process is part of the explanation for its political demise. Thus by mandating a prosecutor-driven "1% solution," Doug hopes that the door will be opened to renewed review of punishments after the prosecutor's first look.

Douglas A. Berman, Making the Framer’s Case, and a Modern Case, for Jury Involvement in Habeas Adjudication, 71 OHIO ST. L.J. 887 (2010).

In this article Doug blends two prominent and distinct problems of criminal justice—the diminished role of the jury and the inefficiency and ineffectiveness of federal habeas corpus review—into an original and provocative suggestion: a role for juries in federal habeas corpus review. Doug documents the critical role the Framers saw for juries in the criminal justice process, both for protection of the accused and to involve the community in government administration, and the subsequent decline of juries, both in the percentage of criminal cases they actually decide (not more than 4% of felony cases) and in the scope of their authority (now limited to factual findings, often without knowledge of sentencing impact of different findings). Similarly, the article traces the decline of “the Great Writ” into a morass in which it takes six years from conviction to habeas filing, another year to resolve the habeas case and, in noncapital cases, only one in three hundred obtains habeas relief (the success rate is much higher in capital cases, and the time to resolution is much longer still).

The notion of a jury role in habeas corpus proceedings may seem radical to current practitioners, but Doug offers historical evidence that juries came to play no role in habeas proceedings principally to make sure that the adjudications were swift. Since contemporary habeas is now anything but swift, the article contends, the possibility for habeas to “provide the first and [often] only opportunity for the ‘political institution’ of the jury to express the community’s evaluation of the charges and the punishments sought by the state . . . and to play a role in the criminal law’s development,” should now be examined. The article explores how juries could bring added value to habeas proceedings because of key differences between juries and judges with regard to both interests and perspectives, and outlines some of the typical issues in a habeas case on which juries could have input.

Book Reviews

Douglas A. Berman, Digging Deeper Into, and Thinking Better About, the Interplay of Families and Criminal Justice (reviewing Dan Markel et al., PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES), 13 NEW CRIM. L. REV. 119 (2010).

While Doug lauds the authors for recognizing that family issues in criminal justice have not been adequately analyzed and assessed, he takes strong issue in this review with the authors’ “lack of engagement with some basic realties concerning the interplay of family ties, gender dynamics and crime and justice.”

The review describes the book as “flush with speculations about how criminal justice doctrines that benefit or burden family ties might possibly affect criminal justice accuracy and crime control” and as concluding that, as a general matter, family matters should not “count” one way or the other in criminal law rules. Doug finds this discussion fatally flawed by the authors’ failure to examine the extensive real-world evidence regarding the interaction of family, gender, and crime. The review notes the authors’ claim that “‘having a family’ is morally comparable to ‘being of a certain race or religion’” and suggests that rather than being primarily concerned with the criminal justice values of punishing the guilty and protecting the innocent, the authors are “fundamentally dedicated to assailing a ‘traditional conception of the family’ in favor of promoting ‘voluntary relationships of care.’”

While not necessarily averse to the authors’ normative concerns, Doug contends that the realities of criminal justice in practice “have a much more profound impact on inequality, gender bias, heteronormitivity, and repronormativity than . . . [the] formal criminal law doctrines” the book exclusively examines. Doug suggests that an evidentiary approach would reveal that, in fact, “supporting healthy, wholesome, and happy family ties [in criminal law doctrine and elsewhere] may be the best way to reduce serious criminal offending by men directed toward women” as well as other criminal pathologies.

Supreme Court Briefs

Douglas A. Berman (w/Jason Blake and Vasanth Ananth), Brief of Amicus Curiae in support of Respondents, McDonald v. City of Chicago, No. 08-1521 (U.S. Supreme Court 2009).

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment provides an individual right “to keep and bear arms.” In this closely-watched follow-up case, the Court faces the critical question of whether the Second Amendment and its newly invigorated individual right applies not only to the federal government (as it held in Heller) but to states and localities as well, in other words, whether the right is “incorporated.”

With only a few exceptions, over the years, the Court found almost the entire Bill of Rights incorporated against the states. Moreover, when a specific provision is incorporated, the Court has almost (but not always) held that it is incorporated “jot for jot” or “bag and baggage.” For example, a provision such as the Sixth Amendment right to counsel not only applies to the states, but has the same meaning when applied to the states as it does when applied to the federal government.

In this brief, Doug, aided by two Moritz students, argues that incorporation of the Second Amendment should not be “jot for jot.” Indeed, Doug and his students argue that the Second Amendment should apply less rigorously to localities (such as Chicago) than to states. In support of this view, the brief marshals historical evidence from the time of the framing forward regarding the role of localities in regulating firearms and cites § 1983 liability as a precedent for its unusual suggestion that localities be treated distinctly from states for such purposes—drawing a parallel in the risks to localities of constitutional litigation in both contexts. The brief also offers modern public safety concerns in support of its viewpoint.

Douglas A. Berman (w/Samuel L. Feder (counsel of record) et al.), Brief of Amicus Curiae Center on the Administration of Criminal Law in support of Respondents, United States v. O’Brien, No. 08-1569 (U.S. Supreme Court 2009).

In Apprendi v. New Jersey and its progeny, the Supreme Court upset large portions of then-existing sentencing rules by holding that a fact that raises the maximum sentence a defendant can receive must be found by a jury beyond a reasonable doubt or admitted by the defendant. A sentencing finding by the judge is not sufficient. At the same time, the Court has maintained its pre-Apprendi view that a fact that raises the minimum sentence a defendant can receive may be found by a judge at sentencing. The Court has maintained this distinct treatment of mandatory minimum sentences by the slimmest of margins and more as a result of hostility on the Court to Apprendi and its progeny than as a result of a true distinction. O’Brien gives the Court the opportunity to visit the issues again, and this amicus brief urges extending the Apprendi line to mandatory minimums.

The brief emphasizes not only the theoretical inconsistency of the mandatory-minimum “loophole,” but also that, by allowing judicial fact-finding for mandatory minimums only, negative effects in terms of fairness, proportionality and efforts to reduce racial disparity in sentencing are exacerbated. On this last point, the brief documents that 83% of federal mandatory minimum sentences are for drug cases and that mandatory minimum sentences are imposed on Black offenders disproportionately to “their already high percentage . . . of the overall offender population.”

Douglas A. Berman (w/his students), Brief Amicus curiae in Support of Petitioners, Miller v. Alabama and Jackson v. Hobbs, Nos. 10-9646 & 10-9647 (2012).

In each of these two Supreme Court cases, the petitioners were convicted of homicide and sentenced to life without the possibility of parole under mandatory sentencing statutes for crimes committed when they were fourteen years old. The Supreme Court has found the death penalty unconstitutional for minors and, with these cases, considered whether the Eighth Amendment also forbids sentences of life without parole for juveniles. This brief, prepared by Doug and students in his sentencing class, argues that it does.

The brief argues that the Court’s precedents have established that the Constitution requires that sentencing schemes “give some effect” to the fact that juveniles are different and, in the context of the most severe punishments, make distinctions among different types of murder offenses, neither of which occurred under the mandatory statutes at issue here. They also draw on earlier decisions restricting the most severe punishments to “the worst of the worst” to argue that life without parole cannot be imposed on these juveniles. The Supreme Court, in a 5-4 decision, ultimately overturned the sentences, based on a combination of the first two of these points.

Douglas A. Berman, Brief of Law Professor as Amicus Curiae in Support of Petitioners, Jones v. United States, No. 13-10026 (U.S. filed June 26, 2014).

The traditional rule in criminal sentencing, at least as a constitutional matter, is that, following an adequate procedure, judges at sentencing may rely on their own factual findings. A controversial sidelight of this is that a jury may convict a defendant of Crime A (say, drug possession) but acquit of a more serious Crime B (say, possession with intent to distribute), and then the judge, in sentencing for Crime A, can give a longer sentence based on the judge’s finding that the defendant also acted as charged in Crime B (i.e., that he possessed the drugs with intent to distribute). In 1997, the Supreme Court rejected a constitutional challenge to this practice even under the Federal Sentencing Guidelines, where the facts at issue and their sentencing consequences are clearly delineated.

The defendants in this case suffered just such a finding, at least tripling the range of their sentence. Doug urges the Supreme Court to hear the appeal on the grounds that, at least in this context, the Court’s more recent precedents indicate that this practice violate the Sixth Amendment right to trial by jury and its accompanying protections. Doug’s argument relies on the Court’s Apprendi line of decisions, which began by holding that the statutory maximum punishment for a defendant’s conduct could not be raised merely on a finding by the judge at sentencing. Doug argues that, although the Court has interpreted the Federal Sentencing Guidelines to be not so binding on sentencing judges as to run afoul of this rule, the Guidelines still have enough “controlling influence” to raise constitutional concerns when the injury to the Sixth Amendment interest is sufficiently great. The brief sets out the argument why judicial finding of facts surrounding the offense that were expressly rejected by the jury create just such an injury (a conclusion some district courts have reached, but the Courts of Appeals have generally rejected).