in order to allow everyone to read/reflect on some of the beliefs we hold as we start the class. Ideally these beliefs will be related to sentencing and/or criminal justice topics, but other strongly-held beliefs are welcome. Comments can be signed or anonymous, as you deem fit and appropriate.
I will start with two of my strongly-held beliefs to get us started:
1. Very few people have completely thought through all the implications of their views about the death penalty.
2. Very few people are really, truly interested in sentencing equality if/when equal treatment would mean that most everyone is treated worse (but all are treated equally badly).
Sentencing Class @ OSU Moritz College of Law 
17 responses to “Express strongly-held beliefs in the comments here…”
Contrary to the assertions of lawyers and law professors, law (and criminal sentencing) does and should engage in ethical evaluation. Determinations of what is ‘just’ are of primary importance in law – the “efficient organization of interests” or “social utility” or other such claptrap is either secondary or consequent to the primary goal of law, which is to create a just system, whatever ‘just’ might mean. A concession that injustices may exist in the system does not undermine the goal of the system.
Ethical claims must be based on neutral principles; anything else is self-interest masquerading as ethics, which is typically more damaging than naked self-interest. Most supposed ethical judgments are heavily colored by self interest. Some amount of this is inevitable as a construct of our psychology, but this is nonetheless regrettable. For evidence thereof, witness how closely most people’s views about criminal justice hew to their own personal situations. It is incredibly difficult, but inordinately valuable, to set aside personal allegiances, whether based on class, race, gender, etc., as much as one feasibly can, while engaging in ethical reasoning (and by implication, while discussing criminal sentencing).
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I think one strong belief that I hold that will likely come into play in this class is that people should be held accountable for their actions. Although I may be willing to give individual circumstances a small degree of weight, in assessing a person’s ultimate culpability, and in turn punishment, I am much more likely to weigh what that person actually did.
Although not in a stereotypical way, I am against the death penalty. I do not believe it is necessarily wrong for the government to put a person who is guilty to death his/her crimes if the crime is of a certain severity (only forms of murder in my mind) nor do I think it is cruel or unusual punishmnet under the constitution. Nevertheless, I do not believe are process of evaluating guilt is accurate enough to feel comfortable using such an ultimate punishment.
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Pain can be an effective deterrent and should not be ruled out, in some form, as a modern punishment. For all of our due process in America(and, granted, I’m also all for the 8th Amendment and avoiding cruel and unusual punishment), I hear about eastern countries with harsher punishments having much better crime rates. I’m curious what lessons we could import from those countries–while taking the good and leaving the bad.
Vices should not be legalized–notably, gambling and marijuana. As a recent drug enforcement agent said, “every doper I’ve met says the same thing–that they started out with weed.” The war on drugs could/should be adjusted I’m sure–but just because the bad guys are winning doesn’t mean that the good guys should quit.
Miranda was a bad decision. That’s not sentencing, but I thought that I’d throw it in there.
There should be a more effective reentry program for inmates. I’m all for stiff penalties when deserved–but when that inmate emerges from prison, I want him to have a toolbox full of resources and support in order to reintegrate him into society and keep him from reoffending. I almost see prisoners reentering society as I do refugees arriving in the U.S.: they are both at huge disadvantages, basically starting from scratch, and need help. But the ex-cons have that crippling social stigma (at least in some circles) in addition.
I think that the fragmenting of the nuclear family unit is a major societal problem–with effects that reach clearly into the criminal law and sentencing arena–and that marriage and traditional values should be supported and encouraged. How to do this? You got me.
I think that crime, in many cases, can be boiled down to an economic component. I know this to be true abroad in the human trafficking realm–minor girls will be sold back into prostitution unless that family is given an legitimate economic activity to replace the illegitimate one. So in the U.S. does this lead us to providing better education to vulnerable demographics? Better public schools–better outreach–more affordable higher education? I don’t know. But this is such an enormous problem that it feels like it a long-term, ground-up type of fix.
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I believe that prosecutors often have far too much power in the sentencing process. They have better access to the strength (or weakness) of the evidence (except in those jurisdictions that have open discovery). They often have closer relationships with the judges who actually decide the sentence. Finally, there seems to be an inherent “trust” in what prosecutors say in the sentencing process, while there seems to be an inherent distrust in what defense attorneys may say. Some of this may be deserved, but it creates a general bias (stronger in the public than in the judiciary) against the veracity of the defense attorney’s statements, which may be crucial in the sentencing process.
Frank Stallone is underrated.
There will never be a consensus as to what is the most important rationale behind sentencing. There will always be super-rationalists who swear by deterrence. There will always be eternal optimists who believe in rehabilitation. There will always be angry victims desperate for retribution. There will always be citizens who believe it’s incapacitation. There will alwawys be law professors, students, lawyers, and others who believ its some combination of all rationales, or some other unique rationale.
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In response to the above post, defense attorneys are paid to present (I prefer “distort” or “muddle”) the facts in any given case to best suit their client.
How does it make sense to give defense attorneys more say in sentencing, when there ultimate goal in every, single case is to achieve the lowest sentence for their clients?
On the contrary, prosecutors serve one client: the ravishing Lady Justice. They do not aim for the maximum sentence in each case, which would mirror the efforts of their counterparts.
Rather, it is precisely the prosecutor’s discretion in recommending a sentence that allows defense attorneys an opportunity to earn their keep and explain that their clients are warm, fuzzy people who just made a few missteps along the way.
I’m not really sure if we were allowed to comment on other people’s posts, but I think it’s clear that one of my beliefs is that defense attorneys distort the sentencing process and undermine the entire criminal justice system by working for dollar signs, rather than fairness and accuracy in sentencing.
My second belief is that more criminals should be executed, rather than letting them “live” in supermax prisons and wasting the taxpayer’s money. I like to think of humans as a computer program; certain programs never work as well as others, and some can even be quite dangerous. There comes a point when terminating the program is much more efficient and economical than storing away all the failed programs in a hard-drive (which is built and maintained by the hard-work of more successful, productive programs.)
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1) I do not agree with sex offender registration, notification, and residency restrictions. I think they are ineffective for several reasons. I also think they are politicians’ way of tugging at the emotions of voters. For example, I think this article is rediculous. http://www.cnn.com/2009/CRIME/01/13/mitchell.sex.crime/index.html
2) I think prisons should be more productive – in that there should be more programming for inmates and the inmates should be more productive members of society. For example, if inmates made school desks the inmates would learn a useful skill (carpentry) and the desks would be a contribution to society.
3) I hate politics. Probably not going to change.
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The death penalty should be banned, not because it is inherently wrong (I don’t know whether I believe it is), but because our society and criminal justice system are unjust. This has great influence on who commits murders and who eventually gets executed. I agree with the Steiker article beginning on p. 59 on these points: “[T]hose most likely to commit the worst crimes (capital murders) are, as a group, also most likely to have their volitional capacities affected or impaired by societal conditions for which we collectively bear some responsibility,” and these inequalities (racial inequalities in particular) also affect the decision-making of prosecutors and jurors, whether they know it or not.
Sentencing has relatively little impact on crime rates compared to other social factors such as economic and racial inequality, education, jobs, health care (including mental health and drug treatment), etc. If it is our goal to reduce crime, we should think about these other issues. Legal Buckeye mentioned that countries that use corporal punishment have lower crime rates. I would point out that countries that punish very little compared to the U.S., such as those in western Europe, also have very low crime rates.
Like Jeanna, I disagree with sex-offender registration and residency restrictions and hate politics.
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I believe if we were to rationally reconsider this country’s policy regarding alcohol and marijuana, we would probably put more restrictions on alcohol and less restrictions on marijuana. Think about it, how often do you hear of marijuana-related injuries and deaths? If marijuana is the great gateway drug, how come so many people never move on to harder drugs? I agree with Legal Buckeye that the war on drugs must be reconsidered, fiscally if not policy-wise. Also, government regulated sales of marijuana could take billions of dollars out of the illicit economy and move it into the legitimate economy. Just some things to consider.
I agree with Caitlin that we must look at the relationship between punishment and crime rates. I took the comparative sentencing class in Oxford and our textbook described how the UK is far more punitive than the rest of Europe, yet the US is far more punitive than the UK. One thing I particularly remember is how Finland and I believe Germany had decarceration movements and found their crime rates did not increase, as expected.
I think restorative justice processes, particularly victim-offender mediation, is a promising alternative to prosecution and incarceration in many instances. I believe it can even be used in combination with punishment in cases of violent crime.
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I believe that the socioeconomic and race effects of a policy should be considered when evaluating the effectiveness and overall value of that policy. Unfortunately, i can’t go the next step and decide what should happen if disparate effects exist in fact. Still, the historical pattern of powerful (and usually wealthy) classes subverting minority or poor classes justifies these considerations. I’m afraid it’s probably due in part to my rebellious personality that i often am suspicious of the rule-maker, but because the stakes in criminal sentencing are so high and because social science research shows links between race, class, and sentencing (a simple but obvious example of this is V.P. Cheney shooting a man in the face, while the same action in a poor urban neighborhood would no doubt show a different result), socioeconomic factors should weigh in.
Many so-called vice crimes between consenting adults should be decriminalized. Prostitution is a tricky case, since consent can be hard to pin down in some circumstances and because sex is a different type of commodity. Clearer lines are needed between public good/safety and private conduct. I think a respectable group would acknowledge the value of making one’s own decision in life and accord that privacy more that its current weight. In addition, the logic behind drug policy simply needs updating.
At stake in criminal sentencing are a person’s liberty, property, and life. These stakes are enormous in the effect the criminal justice system has on the public and are why moralistic tones cheat reasonable people out of better discussions regarding policy. In a diverse and complicated society, consensus on these issues (and i do believe consensus is a worthy goal) requires rational conversations which weigh many factors, including disparate effects on race and class but also the total effect of a criminal justice system which sends a message that citizens should fear their government. That vision, i would argue, is not American.
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A person’s background certainly is an important factor in sentencing, but I think a lot of people want to give too much weight to this factor.
I view pardons as legitimate. I think they are often granted too freely and limiting them wouldn’t be a bad thing.
I don’t have a problem with the concept of mandatory minimum sentences.
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I tend to be cynical towards people who preach broad notions of tolerance regarding the beliefs/views of others. My reason for this is that I have found that while people may preach tolerance, in practice people tend to only be tolerant of views/beliefs they can in some way sympathize with or that generally support their own belief system.
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No matter how much money and time we put into changing and/or bettering the criminal justice system, real change will not occur until we focus attention on providing offenders with a meaningful re-entry into mainstream society. Recidivism rates will not decrease until substantive thought is put into programs that assist these men and women with their re-entry. And for those who believe that society should not have to pay for programs that help felons, they should realize that programs dedicated to preparing and assisting offenders with their re-entry positively affect our entire society in numerous ways. Not only do such programs increase the chance that ex-offenders will be productive citizens, but they also make them less likely to recidivate, therefore easing some of the burden on the judicial system.
Race and socioeconomic status definitely affect our sentencing system, and are especially damaging in those cases where capital punishment can be handed down. Until we can find a way to eradicate these prejudicial factors, our capital punishment system should be suspended.
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No! simply stated, we, that is African Americans, have not fulfilled the dream of MLK. Perhaps we’ve fulfilled one dream of MLK’s, but certainly not his primary dream. The truth of this statement is evident in the all the excitement the world has exhibited concerning the US’s first African American President. For all of the wonderful things President Obama brings to the table, all we seem to focus on is his race. I continue to hear the words “the dream is fulfilled”, yet African Americans still represent almost half the penal population even though they only total 12 percent of the country’s population. The reality is President Obama is considered an exception, an anomaly, a miracle. In fact, he is an example of what motivation, persistence, and a good education can accomplish: not in a African American man, but in any man given a fair opportunity. When that notion permeates into the world and President Obama is recognized for the “content of his character” vs. the hue of his skin, then MLK’s dream will be realized. Until then we still have work to do!
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Ok, some follow up to strongly held beliefs. Shawn, I’m with you on so much, but I’ve got to point out that I really disagree with your implied assertion that marijuana is actually not a gateway drug. Or to quote from your comment: “If marijuana is the great gateway drug, how come so many people never move on to harder drugs?”
Here is a DEA report that was informative (albeit positional) and had some useful links. Scroll down to the section entitled “Marijuana as a Precursor to Abuse of Other Drugs.” http://www.usdoj.gov/dea/marijuana_position.html#28 I find the twin studies and the study regarding evidence of adolescent marijuana usage as a strong indicator of adult cocaine (8x more likely) and heroin (15x more likely) dependence to be particularly interesting.
To use Prof Berman’s suggested parent/child analogy–if John (my now 3-year-old) decides to use marijuana as a teenager, and I catch him (and I fully expect to do this since there are no 4th Amendment protections in my house, and I love being a super-sleuth)–anyways, I think that my response would be multi-faceted.
Education would be first. I’ve always said that I’m going to make my kids write reports and conduct interviews as large parts of their “punishments” (i.e. visit the county coroner to talk about teen drunk drivers, visit a person who has had his larynx removed to talk about the effects of smoking).
Punishment for the sake of a deserved consequence alone (the retributivist in me kicking in here) would be next.
Then deterrence. And rehabilitation would be right up there if there were a dependency issue.
This is a perfect example of why the rationales cannot be divided or pieced apart–they can work nicely in conjunction–and the leading theory may need to vary by offender and by offense. I think that there needs to be more flexibility. But count me out on coming up with the guidelines for this new, flexible plan. đ
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I really feel bad for Rachel’s kids. If my parents ever made me write a report I would have plagarized something from the Internet.
I am all about educating people in the error of their ways, but for example, how do you educate someone who rapes and kills a little girl? Since my computer program analogy got a little play in class today, the rapist/serial killer should just be terminated. End of story. Binary answer at its finest.
Too often it seems like people focus on the 1 error out of 100 sentences, thinking there is a “perfect” system just beyond our grasp. However, I personally think any perfect system will inherently fail. As the great Ian Malcom said in Jurassic Park, “Life will find a way.” Not sure how applicable that quote is to sentencing, but regardless of how you want to punish, deter, rehab or educate people, I always think there will be some aspect of a strategy that critics will find ineffective.
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I disagree with Rachelâs conclusion that marijuana is a gateway drug.
I suppose that the important question to ask at the outset is what exactly the term âgateway drugâ means. If all the term implies is that cocaine users are likely to have previously used marijuana, then I find the conclusion unobjectionable. But this conclusion is also unremarkable. The same conclusion would doubtless be true of alcohol (see FN 33 under the section of the DEA report to which Rachel links), cigarettes, or perhaps âgateway activitiesâ such as skateboarding. Itâs no surprise that people who take big risks or committed heavily disapproved-of activities have previously taken smaller risks and engaged in more mildly-disapproved-of activities.
So, the conclusion that people who have once used marijuana are significantly more likely to use cocaine than those who have never used cocaine is merely an observation of correlation, not a causation. One intuitive third-factor explanation for the correlation is that risk-seeking personalities who are drawn to marijuana are likely to be drawn to cocaine as well. In fact: âa recent study by the RAND Corporation’s Drug Policy Research Center, for example, found that a general predisposition to use drugs, combined with a four-year lag between access to marijuana and access to other illegal intoxicants, was enough to account for the patterns observed in the government’s surveys.â http://www.reason.com/news/show/33365.html. Jacob Sullum article also concludes that the twin study cited in Rachelâs DOJ link shows that âthe results of the twin study suggest that almost all of this difference is due to environmental and personality factorsâ.
To me, the term âgateway drugâ is only useful if thereâs some particular property of the drug (marijuana) that makes use of a future drug (such as cocaine) particularly likely. Fundamentally, this seems to me the only way that the âgateway drugâ argument should impact our thoughts about marijuana criminalization â itâs only a powerful argument if something about using marijuana causes people to use other drugs.
However this does not seem to be borne out. To quote Sullumâs article again: âAs a National Academy of Sciences panel observed in a 1999 report, “There is no evidence that marijuana serves as a stepping stone on the basis of its particular drug effect.” Last year the Canadian Senate’s Special Committee on Illegal Drugs likewise concluded that “cannabis itself is not a cause of other drug use. In this sense, we reject the gateway theory.ââ
Since marijuana isnât a gateway drug, the argument for marijuanaâs criminalization, if it is to be made, must be made on the basis of marijuanaâs harms in and of themselves.
And in answering that question, one statistic stood out to me: 112 million Americans age 12 or older (45% of the population) reported illicit drug use at least once in their lifetime. http://www.ojp.usdoj.gov/bjs/dcf/du.htm#general.
Should all these people be placed within the criminal justice system? If the answer to this question is ânoâ, isnât this answer inconsistent with our current law? The fact that we donât have 112 million offenders is only a result of imperfect policing. Were near-perfect policing available (spy cameras, increased police spending, etc.), would we be compelled to change our policy rather than create criminals out of 112 million Americans? Or, if we are content to just engage in scattershot enforcement, shouldnât we be unsurprised when scattershot enforcement leads to discrimination by class and race in enforcement?
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Hey, Leon! I’m going to focus on your statistic in the second to last paragraph (“112 Americans 12 and older . . . reported illicit drug use at least once in their lifetime”) and accompanying question. I am not going to address the “gateway” distinction, and I am not going to look up your sources to try to crush them in some way. Although I’d like to! đ At least at this juncture. đ I’m a 3L, and it’s Friday so this is going to be off the cuff. But I do appreciate your earnestness and the sources, which at first glance (without acc checking them) seem to support your thesis. đ
Anyways, back to your question from the last paragraph: “Should [every person who has reported illicit drug use] be placed within the criminal justice system?” My answer to this is: maybe. To be “placed within the criminal justice system” is a rather imprecise term. One could be on probation–or have their case held open–or be doing community service–and still be “within the criminal justice system.” Should probation, community service, etc. be viable options for those picked up for drug offense? Yes. Is it still “within the criminal justice system?” I’m not sure–what is the scope of your term?
I would be very curious to learn of the number of small-time marijuana users who are actually “within the system” in the imprisonment sense. No, from what I’ve seen–users who get picked up with a little bit of weed on them get charged with possesssion (maybe), they get the misdemeanor on their record, and they go on their way.
Do I have a problem with that set-up? No. Do I think that marijuana use should be decriminalized to keep the 112 million people you mentioned from having a run-in with the police? No. (Side note: my sister got picked up for a MM possession when she was in college, and it scared the heck out of her. That is a benefit.)
Additionally, it is the people running your grow operations and your dealers who are the weed players who get picked up and stay “within” the system and get jail time. Admittedly, that is anecdotal evidence from my two internships with prosecutor’s offices. And I think that the people on the grow and deal ends deserve to be “within” the system. And the others can pay their debt to society for smoking weed by sorting clothes for 40 hours at the local Good Will!
I promise that my next post will be more scholarly.
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