Because I got so into our collective introductions and overview dialogue, I forgot to leave time for students to ask any questions or express any concerns about the class requirements and my expectations. Most of the basics should be covered in the course description, but I will be sure to start our next class next Wednesday by providing an opportunity for course questions/concerns.
In the meantime, any and everyone is welcome to post questions or concerns in the comments to this post. And if the questions or concerns center on the assignments for next week, let me just reiterate that everyone needs (1) to finish and then submit the pre-class questionaire, (2) consider posting comments to the newer posts on this blog, and (3) read (and re-read) as much of Chapters 1 and 2 in the text as possible before our class on January 21.
Sentencing Class @ OSU Moritz College of Law 
2 responses to “Any early concerns, questions, curiosities about class requirements or expectations?”
I have a comment about class today, Friday January 23rd.
I think that using criminal history in sentencing/Williams can be defended on two planes: (1) under a deterrence theory going to likelihood of recidivism (some people, like computer programs [yeah, Lady Liberty–ha], might need to be permanently and totally deterred); AND NOTABLY (2) under a retributivism theory going to the moral culpability of the offender.
As Professor Dressler pointed out last semester in Crim Pro Adjudication after the Williams case (see, I knew that I had read it–just not from our casebook yet): “This rationale also works under a retributivist theory—basing the punishment on what the individual offender “deserves”—this could be aggravated or mitigated by surrounding circumstances” (that was from my notes so it’s Dressler paraphrased). So for a retributivist, using background information like criminal history cuts both ways–mitigating as well as aggravating circumstances are relevant to determine an offender’s moral culpability–figuring out the “just” part of just deserts.
Additionally, at least in the federal system, the PSI would be made available to the defendant 35 days beforehand, and the defense attorney would have an opportunity to contest things found in the PSI. (R. 32(e)(f)). http://www.law.cornell.edu/rules/frcrmp/Rule32.htm So the defendant would have a chance to disagree with things that appear in a PSI. It’s not just set in stone, taken as 100% fact (although our poor Williams was in a 1949 state system that probably didn’t have that safeguard.)
Also, though, I think it’s important that just as a defendant can bring out people at his sentencing hearing on his behalf–who aren’t bound by the rules of hearsay to defend him–to balance the scales it is only fair to hear from the other side–and allow the judge to see the out-of-court bad PSI information as well as the good.
Or as the Williams Court said, “We cannot say that the due process clause renders a sentence void merely because a judge gets additional out-of-court information to assist him in the exercise of this awesome power of imposing the death sentence.” 337 U.S. at 252.
But I also agree with Joel (in class comment today) that it doesn’t seem fair to punish someone incrementally for the rest of their lives for already paid-for crimes–and that is really how it works when each old offense will jack up your current offense punishment level.
In sum, as I think will be my standard feeling leaving our class discussions: ?
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Of course, to tighten up my argument–Joel’s comment doesn’t apply to the Williams case in particular since Williams hadn’t been punished for the alleged robberies and proclivities–but it applies to your typical offender with a history. And, as Prof Berman mentioned, the culpability does go up after someone has been “told the first time” not to do something–and yet it does seem unfair to have a pyramid scheme of punishment so that you can never really have a clean slate after you commit a crime.
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