Sentencing Class @ OSU Moritz College of Law

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  • Working draft for proposed “Ohio Racial and Gender Justice Act”

    As the casebook highlights, Kentucky in 1998 enacted the first statutory response to the McClesky ruling through its Kentucky Racial Justice Act.  There has not been much litigation over the Kentucky RJA because that legislation was expressly made not retroactive so that it could not be applied to any person sentenced to death in Kentucky before July 1998.  (In contrast, many defendants on North Carolina's death row were able to file claims based on its state's RJA enacted in 2009, which in turn contributed to its repeal by the NC legislature in 2013).

    Though there is much to discuss concerning McClesky and the Kentucky and North Carolina RJAs, I wanted here to set forth my working draft of a proposed "Ohio Racial and Gender Justice Act" for discussion in the comments and in class.  So here goes (with language based in partially on the KRJA and the NC-RJA):

    1.  No person shall be subject to or given a sentence of death or shall be executed or sentenced to life without parole (LWOP) pursuant to any judgment that was, in any part or in any way, sought or obtained on the basis of race or gender.

    2.  A finding that race or gender was in any way any part of the basis of the decision to seek or impose a death or LWOP sentence may be established if the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death or LWOP.  Evidence relevant to establish a finding that race or gender was in any way any part of the basis of the decision to seek or impose a death sentence or LWOP may include statistical evidence or other evidence that:

    (A) Death or LWOP sentences were sought or imposed any more frequently upon persons of one race or gender than upon persons of another race or gender.

    (B) Death or LWOP sentences were sought or imposed any more frequently as punishment for offenses against persons of one race or gender than as punishment of offenses against persons of another race or gender.

    (C) Race or gender was in any way any part of decisions to exercise peremptory challenges during jury selection.

    3. The state of Ohio has the burden of proving beyond a reasonable doubt that race or gender was not in any way any part of decisions to seek or impose the sentence of death or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP sentence was sought or imposed.

    4. If the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP sentence was sought or imposed, the court shall order that a death or LWOP sentence not be sought, or that the death or LWOP sentence imposed by the judgment shall be vacated and the defendant resentenced to a lesser sentence.

    5. This act is effective when it becomes law and applies retroactively.

    The language in bold and italics within my proposed Ohio statutory language highlights my tweaks to the Kentucky and NC RJAs, both of which concern only race and seem only concerned with race as a "significant" capital sentencing factor.  In addition, both acts place the burden on defendants to prove race was a significant factor in their cases.  As my draft reflects, I am very eager to ensure that neither race nor gender plays any role in the pursuit or imposition of the punishment of death or life without parole.  In service to that goal, my proposal puts the burden on the state of Ohio, once a claim is brought under this Act, to prove convincingly that neither race nor gender played any role in the death or LWOP sentencing process.

    Thoughts?  Who is willing to co-sign this bill as proposed?  I am open to friendly amendments and also eager to hear if any legislators oppose this effort to eradicate the problem identified in McClesky through a legislative response.

  • Upcoming events of note and possible interest

    As I have mentioned in class, in the coming weeks there are a number of online events that might be of interest to sentencing fans. Here is a quick run down of these events with links for more information:

    Thursday, Sept. 24  10am   Ohio Criminal Sentencing Commission Meeting

    Friday-Saturday, Sept. 25-26   Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform

    Friday, Sept. 25  12noon   Understanding Racial Bias in Algorithms

    Monday, Sept 28 12:10  Discussions from Drinko Hall – Supreme Court Year Preview

    Friday, Oct. 9  3pm   Apprendi at 20

    Monday-Thursday Oct. 19-22  Prison Brake: Rethinking the Sentencing Status Quo​ (attending the October 20 afternoon sessions will be in place of our class)

    Wednesday Oct. 21  12noon  Bodiker Lecture on Criminal Justice

    I welcome folks identifying other notable online events to include on this list.  And, as I have mentioned in class, I urge students to keep a "billing sheet" of time spent attending these or other sentencing-instructive events.

  • Working though modern death penalty statutes by imagining a capital defense of Theodore Kaczynski

    AP9604040684As mentioned briefly in class, this coming week we are going to work through Problem 3-3 (at pp. 46-53 here) in order to more closely examine the operation of modern death penalty statutes.  This problem asks you to imagine how you might help represent Ted Kaczynski if he were to be prosecuted under applicable death penalty statutes in Texas and Florida and Ohio. 

    Key provisions from the capital statutes in Texas and Florida appear in our online text, and here is a link to Ohio Revised Code Section 2929.04 with its own distinct specification of aggravating and mitigating circumstances.  (And if you are a glutton for capital punishment, you might also check out  18 United States Code Section 3592, the federal statute setting forth "Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified.")  I will not aggressively quiz anyone about and of these intricate doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Kaczynski's case might be litigated in prominent death penalty states. 

    For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, and you might find the discussion of his crimes and the "Unabomber manifesto" especially important when considering his possible defense.  If you have the time and interest, I also would encourage checking out this lengthy 1999 Time article by Stephen Dubner headlined "I Don't Want To Live Long. I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison."  

    Kaczynski is currently an LWOP resident at superman ADX Florence in Colorado after he accepted a plea to avoid the application of the death penalty.  This interesting 2016 Yahoo News article, headlined "The Unabomber takes on the Internet," highlights that Kaczynski can and does still write and corresponded from prison. 

    Though his infamy has faded, Kaczynski was a particularly notorious celebrity in the mid 1990s.  And he was comically portrayed by Will Farrell on Saturday Night Live in the period.  For some diversionary (and somewhat tasteless) amusement, here are links to SNL skits about Teddy K.:

  • Some Buckeye death penalty whos and history

    SealOHAs I mentioned in class, we can only briefly touch on so many interesting big and little issues relating to the death penalty in class that I would eagerly give more time and attention in this forum.  Absent suggestions, I will share (and enhance) items from my inbox of interest.  Today, this involves this great new article from The Appeal: Political Report headlined "Cincinnati Is An Epicenter For The Death Penalty. Its Prosecutor Race Could End That In November." 

    Though the piece covers lots of ground, the subheadline of the piece highlights its main focus: In Hamilton County, Joe Deters has sent more people to death row than any other prosecutor in Ohio. His challenger, Fanon Rucker, promises to stop that practice."  I highly recommend this lengthy article because it provides lots of background (and links) on the current state of the debate over capital punishment in the Buckeye State while also noting/quoting a wide array of interesting "whos" involved in this debate.  Here is just one of a number of notable passages:

    “Things have shifted in the last two years, now we’re focused fully on repeal,” said Hannah Kubbins, the state director at Ohioans to Stop Executions.  Kubbins doesn’t expect much movement on the issue this fall because of the coronavirus pandemic, the lame duck session, and the presidential election.  But she says advocates are gearing up to push through a repeal bill in the next legislative session.

    Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association declined to comment for this story, but said in February that “we’re disturbed” by discussions of repealing the death penalty.  A month earlier Tobin said, “All of the challenges that we see to the death penalty right now will switch to life without parole.  And the next thing you know we won’t have life without parole either.”

    Kubbins, who emphasized that her nonprofit organization does not endorse candidates, said prosecutors and prosecutor associations “oppose any reform that could reduce their power.”  She urged voters to pay attention to their county prosecutor races, and to consider how county resources spent on the death penalty could be redirected toward unsolved crimes.

    Rucker told the Political Report he would be “very willing to offer my voice of advocacy” for statewide repeal of the death penalty.  “Justice demands consistency and it’s not consistent to have such overwhelmingly differing ends of punishment in a system that says it’s about treating all fairly regardless of their background,” he said.

    I am not sure I entirely understand this last quote from Rucker, but earlier in this article he more directly explains his support its abolition: "'I would absolutely support repeal of it because our Supreme Court has identified, and folks across the country have realized, it’s ineffective, inefficient, and certainly there are arguments about the immorality as well,' Rucker told The Appeal: Political Report."  (I am not sure which Supreme Court Rucker is referencing here, but maybe he is thinking about this Ohio Supreme Court 2014 Task Force report to which I had the honor of contributing.)

    Interestingly, I noticed on this Issues page of "Fanon Rucker for Prosecutor" that there is no mention of the death penalty.  There is this promise: "Our office will aggressively pursue and put a significant amount of financial resources to the prosecution of those who physically harm children, the elderly and loved ones."  But apparently Rucker will not (ever?) consider pursuing a capital prosecution to that end.

    Meanwhile for a broader and more comprehensive look at the modern death penalty in the Buckeye state, I also highly recommend the latest version of the Ohio Attorney General's annual report on the death penalty, the 2019 Capital Crimes Annual Report.  This document (which is nearly 400 pages long) gets updated on April 1 each year, and it provides information and a procedural history on each and every case that has resulted in a death sentence in Ohio since 1981.  This webpage provides this statistical summary:

    According to the report, from 1981 through 2019, a total of 143 death sentences remained active including those currently pending in state and federal courts.  In 2019, six individuals received a total of seven death sentences and were added to death row. 

    Since 1981, Ohio has issued a total of 340 death sentences.  A total of 56 death row inmates have been executed under Ohio’s current law since 1981.  Over the same period, a total of 21 death row inmates have received a commutation of their death sentence to a sentence less than the death penalty.

    Last but not least, the Fall 2019 issue of the Ohio State Journal of Criminal Law included a bunch of original article authored by notable folks about the death penalty in the Buckeye State and elsewhere.  Of particular note and interest is this short piece by former Ohio Supreme Court Justice Paul Pfeifer titled "Ohio's Modern Death Penalty — From Architect to Opponent."  Here is its first sentence, and a line from near the end of the piece that reminded me of some language in McGautha:

    Ohio's death penalty statute has, in practice, resulted in a "death lottery" that should be abandoned….

    It is unevenly applied by prosecutors, juries, judges, and the Supreme Court — not out of malice or malfeasance, but because measurement and calibration are impossible.

  • A claim that deterrence impact might make the death penalty morally required

    I mentioned in class that I think conclusive evidence that executions saved (or cost) innocent lives would be a game-changer in capital punishment debates.  Some years ago, Professors Cass Sunstein and Adrian Vermeule authored a provocative article suggesting that deterrence evidence might make the death penalty morally required for state actors seriously concerned with the sanctity of human life.   Here is a link to this article and its abstract:

    Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703 (2005):

    Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect.  But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.  The familiar problems with capital punishment — potential error, irreversibility, arbitrariness, and racial skew — do not require abolition because the realm of homicide suffers from those same problems in even more acute form.  Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.   The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.  The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

    If you like digging into social science research, the modern empirical debate over the death penalty should be informed by a collection of some data-crunching on the deterrent effect of capital punishment available via this page assembled by the Criminal Justice Legal Foundation.  Notably, CJLF is supportive of the death penalty; the Death Penalty Information Center is opposed to the death penalty, and it has this webpage criticizing the studies appearing on the CJLF's page concerning deterrence.

  • Readings for heading into the capital sentencing world

    Next week, we will turn to an (all-too-quick) review of capital sentencing law, procedures and practices.  As the syllabus reveals, the readings for this unit (which will keep us busy through most of the rest of September) are to be provided mostly here online.  If requested, I can provided hard copies in class, and here are the electronic versions:

    Chapter 3, Topic A: Regulation of Discretion in Capital Sentencing

    Electronic Chapter 9: Race, Gender, and Class in Sentencing

    I plan to cover the first 69 manuscript pages in the Chapter 3 materials linked here and the first 21 pages manuscript pages in the Chapter 9 materials linked here.  (Of course, you are always welcome to read more.) 

    For the first week(s) of discussion, we will be giving the sleeper case of McGautha and the historic case of Furman a lot of attention.   Though only small portions appear in the Chapter 3 excerpt, I think the full McGautha and Furman are worth reading (or at least skimming) if you find constitutional history and/or death penalty procedure really interesting. 

    The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.  The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our edited excerpt aspires to provide strategic highlights from each of the nine(!) opinions.  I will ask you in class to discuss which of the nine opinions you would be most likely to join, so you might want to read the full version of the one opinion you find most appealing from the Chapter 3 excerpt.

  • Some data on mandatory minimums in the federal sentencing system … UPDATED with new report with disconcerting (new and old) data

    D8f32aaba57c053f80dfe5eb237fd96fI reviewed a lot of SCOTUS jurisprudence (too) quickly in class today, and I will be eager to talk about all the who, why and how in cases like Blakely and Booker and others as folks see fit.  But, especially because of their enduring importance in modern debates about sentencing policy and practice, I also want to make sure we get to talk about mandatory minimums.  To get the conversation started, here are some general data about mandatory minimum penalties in the federal sentence from this Quick Facts document by the US Sentencing Commission (USSC):

    26.1% of all cases carried a mandatory minimum penalty. 

    Of all cases carrying a mandatory minimum penalty:
    — 72.7% were drug trafficking;
    — 5.4% were firearms;
    — 4.8% were child pornography;
    — 4.6% were fraud;
    — 4.4% were sexual abuse.

    44.3% of offenders convicted of an offense carrying a mandatory minimum were relieved of the penalty because:
    — 21.8% received relief through the safety valve provision;
    — 15.9% provided the government with substantial assistance;
    — 6.6% received relief through both.

    The average sentence length was:
    — 141 months for those subject to the mandatory minimum;
    — 61 months for those receiving relief;
    — 24 months for offenders who were not convicted of an offense carrying a mandatory minimum.

    I mentioned in class how federal prosecutors can impact the application of mandatory minimums through their charging authority, and the child pornography statutes provide an especially interesting example of how this can work. In this 2012 Report to Congress, the USSC noted:

    The Commission’s review of over 2,000 non-production cases has demonstrated that the underlying offense conduct in the typical case in which an offender was prosecuted for possession [with no mandatory minimum] was indistinguishable from the offense conduct in the typical case in which an offender was prosecuted for receipt [with a five-year mandatory minimum].  Yet the Commission’s analysis of §2G2.2 cases from fiscal year 2010 revealed significant unwarranted sentencing disparities among similarly situated offenders based in large part on whether they were charged with possession or receipt.  For these reasons, the Commission recommends that Congress align the statutory penalties for receipt and possession.  There is a spectrum of views on the Commission, however, as to whether these offenses should be subject to a statutory mandatory minimum penalty and, if so, what any mandatory minimum penalty should be.  Nevertheless, the Commission unanimously believes that, if Congress chooses to align the penalties for possession with the penalties for receipt and maintain a statutory mandatory minimum penalty, that statutory minimum should be less than five years.

    And here are the latest USSC data in this arena from this Quick Facts document:

    The average sentence for offenders convicted of receiving child pornography was 96 months:
    — 90.5% of offenders sentenced for receiving child pornography were convicted of an offense carrying a five-year mandatory minimum penalty; their average sentence was 87 months.
    — 9.5% had a prior sexual abuse or child pornography conviction and were subject to a 15-year mandatory minimum penalty; their average sentence was 185 months.

    The average sentence for offenders convicted of possessing child pornography was 68 months:
    — 80.1% of offenders were convicted of an offense not carrying a mandatory minimum penalty; their average sentence was 53 months.
    — 19.9% had a prior sexual abuse or child pornography conviction and were subject to a 10-year mandatory minimum penalty; their average sentence was 129 months

    Other areas of particular import and interest in the application of mandatory minimums in the federal system arise in the drug and firearm settings.  Here are USSC Quick Facts on firearm and on drugs and some notable data points:

    The average sentence for all felon in possession of a firearm offenders was 64 months.
    — The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 188 months.
    — The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 58 months.

    The average sentence for drug trafficking offenders was 77 months, but varied by drug type.
    — 96.4% were sentenced to prison.
    — 65.6% were convicted of an offense carrying a mandatory minimum penalty; 57.6% of those offenders were relieved of that penalty.

    The prestigious Council on Criminal Justice released this big report last month on the federal criminal justice system with 15 recommendations, and its second recommendation reads as follows: "Congress should eliminate mandatory minimum sentencing laws for all drug crimes and consider eliminating non-drug mandatory minimums while refraining from enacting any new mandatory minimums pending study."

    UPDATE on September 9:  I just got an email spotlighting this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  It is a very long report covering lots of ground and data, but it includes this helpful summary of one key finding and other research quite relevant to our discussions (I have left in footnote numbers, but you will need to click through to see sources):

    Taken together, the analysis above indicates that cases involving offenses that carry mandatory and statutory minimum sentences contribute to the disparities we see in incarceration length for people of color.  Defendants of color are more likely to face charges that carry mandatory incarceration time, and these more serious and high-risk sentencing possibilities translate into plea deals that are more likely to involve incarceration and longer sentences.  Further, existing mandatory minimums are rarely applied in cases involving charges commonly faced by White defendants, such a subsequent OUI offenses.

    Our findings are consistent with other studies that find that Black and Latinx people are disproportionately impacted by more severe charging decisions.80  A study of the federal system found that racial disparities in how prosecutors charge people with offenses carrying mandatory minimum sentences were a major driver of sentencing length disparities.81  Similarly, a study of racial disparities in the Delaware criminal system attributed the significant racial disparities in incarceration sentence lengths primarily to differences in charge types and the seriousness of charges.82  In addition, numerous studies have found racial and ethnic disparities in prosecutor decisions to seek sentencing enhancements, such as decisions to designate people as “habitual offenders”83 and decisions to pursue charges that require mandatory minimum sentences.84  For example, a study of the exercise of prosecutorial discretion to bring charges carrying mandatory minimum sentences in Pennsylvania found that Latinx people in the criminal system were nearly twice as likely to receive a mandatory sentence as White people in the criminal system.85  Another study found that federal prosecutors charged cocaine weight amounts that “bunched” just above the threshold to trigger a mandatory minimum sentence more often for Black and Latinx defendants than for White defendants.86   After the Supreme Court required prosecutors to meet a stronger evidentiary threshold for drug amounts, the practice of bunching declined, indicating that prosecutors were previously claiming drug amounts that could not withstand scrutiny.87

  • Thoughts about a sentencing system that gives crime victims the chance to set forth a “presumptive” sentence?

    As briefly mentioned in class, there have been waves of "victims' rights" movements that have sought to ensure crime victims have a more prominent role in the criminal justice process.  The latest wave has come in the form of a ballot initiative known as Marsy's Law, which has been approved by voters in 14 states.  In November 2017, Ohio voters passed Marsy's Law which enshines in our state constitution that victims have, inter alia, the right "to speak in public proceedings involving the accused’s release, plea, sentencing, disposition or parole."   Moreover, the modern restorative justice movement has often be motivated by and grounded in a view that victims are often poorly served by traditional adjudicatory and sentencing processes.  See, e.g., Lara Bazelon & Bruce A. Green, Victims’ Rights from a Restorative Perspective, 17 Ohio State Journal of Criminal Law 293 (2020)  And lots of restorative justice models are very "victim-centric."

    So, with an eye to giving victims not just a voice but also a vote in the sentencing process, what would you think of a proposal that victims get a chance to set forth a "presumptive" sentence for consideration by a judge at sentencing?  Procedurally, this might be operationalized by giving a victim (perhaps with the help of a probation officer) a chance to prepare for the sentencing judge a "victim sentencing report" (VSR) — which would be submitted to the judge before sentencing and be in addition to a traditional presentencing sentencing report — and then instructing a judge that they can and should sentence in accord with that report's recommendation unless they can provide a reasonable basis based in punishment theory for giving a different sentence. 

  • Does the text or spirit of the US Constitution favor or prioritize any particular theory of punishment? Any special “who”?

    6a00d8341c8ccf53ef0133f349d009970b-800wiAs I mentioned briefly in class, and as will be useful as we turn to some famous and consequential Supreme Court rulings, I am eager for you to start giving thought to whether the text or spirit of the US Constitution favors or prioritizes any particular theory of punishment or any particular "whos" in a sentencing system.

    Of course, there are lots of provisions of the US Constitution that might be considered in this discussion.  But this abridged set of provisions can usefully get this conversation started:

    The Preamble:  "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

    Part of Article II:  "The President … shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

    Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

    Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…."

    Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

    Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

  • What punishment theories and “whos” explain Alice Marie Johnson being sentenced to LWOP and then having the sentence commuted and then pardoned?

    Alice_Johnson_-_2019_State_of_the_Union_Guests_(40035011983)_(cropped)One main goal of our first few weeks of classes is to enable you to be able to analyze and assess in a sophisticated way the theories of punishment and institutional players that formally and functionally have key roles in the operation of our sentencing systems.  As I have already started to emphasize and will continue to highlight, it is persistently challenging to decide precisely which theories and players normatively should be predominate in an ideal sentencing system.  But, for practicing lawyers and effective advocates, it is particularly important and valuable just to be able to notice which theories and players descriptively are shaping our actual sentencing systems.

    This coming week, we will spend time unpacking which punishment theories and which "whos" are playing key roles in the historic Williams case and in the enactment and application of mandatory minimum sentencing statutes.  But, because Alice Marie Johnson is in the news and makes for a great case study, I will likely start our class on Tuesday by asking the question in the title of this post, namely "What punishment theories and 'whos' explain Alice Marie Johnson being sentenced to LWOP, and then having the sentence commuted and then pardoned?".

    This wikipedia page on Ms. Johnson provides an effective short accounting of her life history and the crimes that led her to being sentenced to life without parole.  As I mentioned in class, she spoke at the last night of the Republican National Convention and PBS has her short speech available via YouTube at this link.  For a lot more context, you might even check out this 2013 report from the ALCU titled "A Living Death: Life Without Parole for Nonviolent Offenses." Ms. Johnson's case is profiled at pages 56-58 of this 240-page(!) report.

    I do not expect you to do a lot of reading about this case, but I am eager for you to think a lot about what theories may have driven her initial sentence and also her commutation and pardon.  I also want you to thinking broadly about all the different "whos" who played an important role in her initial sentence and also her commutation and pardon.

  • “Fighting for a Second Look: Efforts in Ohio and Across the Nation”

    Second lookThe title of this post is the title of this webinar that I would highly urge you to attend if you are available. It will take place online Wednesday, September 2, 2020, from 2-3:00 p.m. ET. You can register here, where you will see this description:

    Draconian sentencing laws and practices stretch back decades and have yielded countless excessive prison terms nationwide.  As public awareness of this problem mounts, legal advocates and scholars have urged new legal mechanisms to allow courts to revisit unnecessarily long sentences.  In that spirit, the Ohio Justice & Policy Center and DEPC teamed up to create a writing competition for law students and recent graduates to propose such a "second-look statute" for Ohio.

    Join us for a webinar that brings together leading advocates to discuss efforts across the country to create second-look provisions.  We will also announce the winner of our recent writing competition.

    SPEAKERS

    • Shakyra Diaz, managing director of partnerships/Ohio state director, Alliance for Safety and Justice
    • William Johnston, senior program officer, Open Society Foundations
    • Michael Serota, associate deputy director, Academy for Justice, Arizona State University Sandra Day O’Connor College of Law
    • David Singleton, executive director, Ohio Justice & Policy Center

    MODERATOR

    • Douglas A. Berman, executive director, Drug Enforcement and Policy Center

  • Class recordings and office hours

    I have now posted the Zoom recording of our first class to CarmenCanvas under the "Modules" heading.  I hope to make a consistent practice of posting the recording the evening of our afternoon classes.

    As I mentioned in an email, I plan to have "virtual" office hours from 2 to 4pm on Wednesdays.  I do not plan to sit in the Zoom room this whole period, so anyone interested in meeting during that window of time should let me know of interest in chatting during that period. I will be happy to arrange appointments at other times, but I will try to keep the Wednesday afternoon window free on my calendar so you can know that you can always book a chat in that time frame (and using our class Zoom link).

  • If castration seemed like a good idea to Thomas Jefferson, why not consider it for Richard Graves?

    JeffersonOne idea worth consideration as we explore theories of punishment is whether prison, which is our modern default punishment for all serious offenses, is really any good at advancing any of the traditional theoretical goals.  When pressed on this front, advocates of prison and modern mass incarceration often claim that prison is at least good at incapacitation.  But this claim fails to reckon with the fact that (a) many persons in prison can and do commit all sorts of crimes while in prison, and (b) there may be non-prison means to incapacitating at least somewhat effectively.  At the end of class, I mentioned that, for a person convicted of rape perhaps castration (either physical or chemical) could and would be an effective incapacitative punishment. (As a preview of second week topics, I encourage considering whether your view on this punishment might be significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).)  

    For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment.  In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.  Indeed, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson, "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital" suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  Here is a taste:

    Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholly forfeit the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

    And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

    And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

    For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished….

    Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least….

    I highly encourage everyone to read the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

  • Welcome to the class blog of Sentencing Law and Policy @ Moritz College of Law (with first week details)

    This blog got started over a dozen years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) to facilitate student engagement in a Spring 2007 course on the death penalty.  Because the blog proved successful during that semester, and because the students' hard work as reflected in these archives still should be of interest to current students (e.g., PPT decks here), I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course. (A journey through the archives documents past courses that include a sentencing seminar during a visit to Fordham in 2010, and an LP3 focused on clemency in 2020, and many "traditional" sentencing classes in between.)

    It is now summer 2020, the strangest summer I have experienced in my half-century on this planet, and I am very excited to be gearing up again to teach Sentencing Law and Policy at the Moritz College of Law.  I again expect to use this blog to flag current events and cases to supplement our in-class readings and discussions, as well as a convenient place to post information about class activities and plans and assignments. (I will also be posting essential materials on our CarmenCanvas site, but I expect this blog to be used more actively than that resource.)

    To begin, here is a repeating of what is posted on the Moritz official website for our first assignments (along with electronic copies of the basic course documents):

    In preparation for our first week of classes starting the week of August 24, 2020 you should:

    1. Get a copy of the FOURTH edition of the casebook for the course, along with the course description/syllabus.
    2. Fill out the questionnaire before our first class. (In addition to being posted below, the pre-class questionnaire and course description/syllabus are available in hard-copy in front of my office, Room 313, and will also be on our Carmen class webpage.)
    3. Find/research on your own a real sentencing issue, case or story that is of significant interest to you, and come to our first week of classes prepared to explain this issue, case or story and why it is of significant interest to you.

    Download 2020 Sentencing Law course description and syllabus

    Download 2020 Sentencing Law preclass survey

    You will discover that some items in the pre-class questionnaire reference real-world sentencing cases, and here are just a few links (of many you can find) with some background on these defendants and their cases:

    Dzhokhar Tsarnaev

    Amy Locane

    Brett Jones

     

     

     

     

    —–

    —-

  • One last thanks and one last class presentation

    So even though it has only been a few weeks since our last class, I miss seeing you all and I continue to hope you are enduring the pandemic (and finals) with good health and good cheer.  In addition to doing one last post to say thanks again for a great semester, I wanted to also post Hart's presentation on Clemency in North Carolina:

    Download NC Clemency

    I hope you all can find time for a study break to review this presentations.  I also hope you all continue to fell comfortable reaching out to me with any question about the final paper or about any other matters of concern as this very strange semester draws to an official close.

     

  • Many thanks for the terrific in-class presentations, and apologies for only being able to post this additional one… AND ONE MORE

    I keep wanting to believe that I have a handle on technology, but it seems I only can figure out blogging (sometimes). 

    To that end, here is Andrea's terrific presentation (in two parts because of the size of the file):

    Download Part 1 — Clemency for Victims of Sex Trafficking Who Commit

    Download Part 2 — Clemency for Victims of Sex Trafficking Who Commit

    I am a bit fearful that the embedded audio may still not be working, but I will keep trying to make this work. 

     

    Also, the recording of our Zoom class on March 31 is available at this link (which I have also posted in Carmen):

    https://osu.zoom.us/rec/share/z-hYIovOqXhIabfLwmPyc7cqQdvnX6a8h3AfqKUMmUvteUR_EYW7YQuOc8hcfBXU 

     

    UPDATE:  Carly has submitted a recorded version of her presentation on "Clemency in the UK" and here is the link:

    Download Carly Sinclair Clemency LP3

     

  • Eager to be flexible with remaining class presentations (and final papers)

    With the news that Ohio State has now suspended face-to-face instruction and is moving to virtual instruction through at least Monday, March 30, I am eager to hear from those students who still need to make their clemency presentations about how best to move forward (recalling my mantra of low stress/high learning).  Here are some thoughts as we move forward:

    1.  Because of travel restrictions, we have had to cancel the guest speaker who was supposed to speak at our class session on March 31.  As a result, we have five "open" scheduled class periods for the eight remaining presentations (March 17, 24, 31 and April 7, 14).

    2.  With the hope that we will be back to regular classes by March 31 or April 7, we could just cancel our classes during the face-to-face suspension period and plan to have the final eight presentations during our regular scheduled Tuesday class times upon return.

    3.  Using this blog or other technology (e.g., Carmen), we could "post" online student presentations in the form of just a PowerPoint deck or a video presentation.  Students could create/record whatever form of online presentation they would like to develop at their own pace, and then send them to me for posting for all of us to watch/review at our own pace.  (We can even arrange to record a presentation at Drinko if that would be helpful or more convenient for any interested students.)

    4.  We can plan to "meet" online via Carmen Zoom at our regularly scheduled Tuesday times and students could plan/seek to present at their regularly scheduled times.  (UPDATE: I have been playing with Carmen Zoom, and it seems pretty easy to use if we would all like to try to conduct our "normal" class in this less-than-normal way.)

    As of right now, I am inclined to (A) cancel our March 17 class so that students can spend the first week "back" figuring out just what "virtual instruction" looks and feels like in all your other classes, (B) encourage anyone interested in creating any online presentation to go ahead and do so in order to satisfy this part of the course requirements, and (C) welcome/encourage any and all feedback so we can do our best to keep achieving low stress/high learning in the weeks ahead.

    Feedback is welcome in the comments here or via email.  Also, the lack of face-to-face instruction ought not create any major barriers to completing your final papers (which are not due until May 7), and I welcome any questions or concerns on that front (or any others) during these uncertain times.   And remember, as I have said repeatedly, you are all going to pass.

    If I can help any of you with any challenges you may be facing, please do not hesitate to reach out.

  • Excited for student presentations after a week of clemency commentary

    Just a reminder to everyone that, as we start the first week of student presentations, we will be going back to meeting in Room 348.  I look forward to seeing everyone there no later than 4pm so we have adequate time for the scheduled presentations.

    Meanwhile, I assume all clemency fans have been seeing some of the commentary that Prez Trump's grants last week have engendered.  Just a very small sample of the buzz his clemency work engendered is covered in these posts at my other blog:

  • What went wrong (or right) with the Obama Administration’s clemency initiative? What are its substantive and procedural lessons?

    Us_presidential_pardons_obamaOur last class of general discussion (before we turn to student presentations) will focus on the ground-breaking and controversial clemency activity during the final years of the Obama Administration.  I handed out in class last week this basic web review of the initiative as described by the US Department of Justice.  Among many topics I am eager to discuss in class, I would like to get your reaction to the substantive criteria that the were set out as part of the initiative.  Specifically, as explained by DOJ:

    Under the initiative, the Department prioritized clemency applications from inmates who met most, if not all of the following factors:

    • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
    • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
    • They have served at least 10 years of their prison sentence;
    • They do not have a significant criminal history;
    • They have demonstrated good conduct in prison; and
    • They have no history of violence prior to or during their current term of imprisonment.

    I have linked in this prior post, and will link here again for convenience, two reports on the Obama Administration's clemency initiative that were prepared after President Obama left office: (1) U.S. Sentencing Commission, An Analysis of the 2014 Clemency Initiative (2017); (2) NYU Law School Center on the Administration of Criminal Law, The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative (2017).  Another important report reviewing the Obama Administration's clemency initiative came from the Department of Justice's own (3) Office of the Inspector General, Review of the Department’s Clemency Initiative (2018).  The executive summary of this OIG report provides important background as to some reasons why the clemency initiative was problematic and subject to considerable criticisms:

    We found that the Department did not effectively plan, implement, or manage the Initiative at the outset.  However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline.  In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

    Our review identified several shortcomings in the Department’s planning and implementation of the Initiative.  Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning.  Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

    The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate.  As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions….

    Further, the Department experienced challenges in working with external stakeholders to implement the Initiative.  For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations.  We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative.  In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition.  As a result, the Department believes CP 14 took longer to complete its work.

    Our review also identified several weaknesses in the management of the Initiative in its early stages.  For example, there were differing views on how to interpret the Initiative’s six criteria.  The Initiative’s announcement stated that the criteria would be used to prioritize consideration of clemency petitions.  However, we were told by then Deputy Attorney General James Cole that petitions from inmates who did not meet all six criteria would not be considered.  Yet, then Pardon Attorney Deborah Leff directed OPA staff to review and provide recommendations to ODAG on every clemency petition, regardless of whether the inmates met all six criteria.  We found that OPA continued to view the criteria as subjective even after being advised by ODAG that it was applying the criteria strictly.  Lastly, although not one of the six criteria, the Administration decided that non-citizens would not be considered for clemency.  This was a significant criterion given that, at the time, approximately 25 percent of all federal inmates were non-citizen; yet the Administration did not publicly announce this decision and, as a result, non-citizen inmates filed clemency petitions and OPA spent time reviewing and processing them.  While under Deputy Attorney General Sally Yates, the Department did recommend clemency for some non-citizens, President Obama ultimately did not grant clemency to any non-citizens under the Initiative.

    Additionally, we found that U.S. Attorneys did not always provide their views on clemency petitions to OPA within 30 days, as required by Department policy.  For example, as of December 1, 2016, nearly 600 OPA requests to U.S. Attorneys had been awaiting a response for more than 30 days.

    There has been some writing in various law reviews about the Obama Administration clemency initiative, and here are examples:

    I do not expect students to read all that much of all these materials, but I will like to talk about how you think future Presidents will react and should react to all that transpired with President Obama's clemency work.

  • The rest of our class readings (“save the trees” edition)

    Though you are soon to turn to conducting research and preparing your presentation/papers, I am here going to be recommending additional reading for background information to advance our on-going class discussions.  Specifically, there are two sets of readings that were on the syllabus that I want to provide here (and I may print out and distribute some of these pieces, but for now I am going to spare the trees and just enable/encourage your review on-line).

    For some more history and ideas about the federal clemency power: (1) Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Fed. Sent’g Rept. 13 (2000); (2) Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010)

    For lots of details on Prez Obama's use of the federal clemency power: (1) U.S. Sentencing Commission, An Analysis of the 2014 Clemency Initiative (2017); (2) NYU Law School Center on the Administration of Criminal Law, The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative (2017)

  • Continuing discussion of “ideal” clemency process

    In class this week, we will finish up discussing Woodard's account of what the Constitution demands (and does not demand) in the form of required process for those seeking clemency.  And then, as mentioned at the end of last class, I want us to explore various visions of what we might view as an ideal clemency process.

    As we think about the clemency process, we might find it useful to discuss both (A) the broad "system structure" for clemency decision-making, and (B) the individual "case specific" process.  As for structure, questions arise concerning, e.g., whether to prefer decisions to be entirely in the hands of Governors/Presidents or to involve some kind of reviewing board; whether to want a legislature to create some standards or limits for clemency work. As for the case-specific, questions arise concerning, e.g., whether and how defendants can have legal counsel and present evidence; whether clemency decision-makers should provide some formal explanation for its rulings.

    In addition to contemplating these sort of matters, please also remember to send me your top two presentation dates from these options.

  • Another round-up of clemency news and notes

    I will here continue rounding up of some clemency news and commentary from a little Google news searching.  Once again, here I will provided the jurisdiction, headline and link:

    UPDATE:  The Washington Post has this long new article about the federal clemency power headlined "Most Trump clemency grants bypass DOJ and go to well-connected offenders."  It gets into the nitty-gritty of the federal clemency process.

  • Be ready to discuss Woodard as well as “ideal” clemency process

    Though I hope you have had a chance to review the cases distributed last week — Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) and Ohio v. Boykin, 138 Ohio St. 3d 97 (2013) — I expect that we will spend the bulk of out time in class discussing Woodard's rulings about what the Constitution demands (and does not demand) in the form of required process for those seeking clemency.  So be sure to take extra time to review the various opinion in Woodard, and think about whether a person alleging some extreme behavior by clemency authorities (e.g., a state official receiving a large campaign donation in order to vote against clemency) would make out a viable due process claim in light of Woodard.

    In addition to considering the minimal clemency process that may be constitutionally required, in class I will also want to explore your views of an ideal clemency process.  In criminal trials, defendants have well-established rights to the assistance of legal counsel and to call witnesses (and contest the government's witnesses).  Even if these constitutional rights do not extend fully to the clemency process, should states provide for these processes in their clemency laws and procedures?  Should at least some persons seeking clemency (e.g., death row defendants) not only have a right to help from counsel, but also be able to get help from a lawyer paid for by the state?  Should the clemency process and any procedural rights afforded to an applicant vary based on his basis for seeking clemency (e.g., asserting innocence) or based on the underlying crime and relief being sought (e.g., a juvenile offender seeking just a commutation of a prison term)?

    In addition to contemplating these sort of matters, please also remember to send me your top two presentation dates from these options.

  • Figuring out dates for clemency class presentations

    As mentioned in class and in this post, this week everyone should be prepared to share their (tentative) plans for their class presentation.  In turn, it is now time to start figuring out a (tentative) schedule for these presentations.  If we want to schedule 3 or 4 presentations per week, we will need four class sessions to fit all 14 class presentation in during the normal class time.  In order to be able to cancel at least the last scheduled class (April 14) AND because we have a guest speaker scheduled on March 31, we have the following viable Tuesday presentation dates during the second part of the semester:

    • Feb 25
    • March 3
    • March 17
    • March 24
    • April 7 (alternative if needed)

    Because March 3 is the week before Spring Break and some of you might have assignments due in other classes around that time, I would be open to cancelling the March 3 class to provide for April 7 class as an alternative presentation date.  (We can make other class time adjustments if it is especially convenient for more than 4 people to present on a particular date, or we could even consider adding a "presentation lunch date" on a Friday if that might work better for some presenters.)

    So, at your relative convenience, please send me via email at least two dates that you think would be best for you to do your class presentation.

  • Great podcast on clemency after wars (in Vietnam and on drugs)

    In last week's class we briefly discussed some of the federal clemency efforts for those who dodged the draft during the Vietnam war.  Excitingly, right after our class, the folks at Vox posted an on-point article/podcast under the headline, "A plan to reverse the war on drugs, from the Vietnam War era: What Democrats running for president have learned from President Ford on criminal justice."  I recommend finding 30 minutes to listed to the podcast at this link, and here is the text providing a preview:

    In 1974, Gerald Ford became president after some of the most difficult years in our country’s history.

    In addition to Watergate and President Nixon’s resignation, the Vietnam War had divided the country for more than a decade.  While millions of Americans served in Southeast Asia, many others protested the war at home — some of them by evading the draft.  Ford wanted to find a way to bring the country back together. Just a few weeks after he took office, he announced a plan “to bind up the nation’s wounds.”

    For the young men convicted of draft evasion — a felony — during the Vietnam War, Ford promised, “I’m throwing the weight of my presidency into the scales of justice on the side of leniency.”

    Ford gave those young men an opportunity to apply to a Clemency Board, a small group appointed by the president who would decide whether to erase that felony from the men’s records.  Now, many of the Democratic candidates for president want to follow Ford’s model for a new group of people in federal prison: those convicted of nonviolent drug crimes.

    In this episode, The Impact looks back on President Ford’s clemency plan through the lives of two men: one who fought in Vietnam and served on the Clemency Board, and one who evaded the draft.  We explore how the Board transformed their lives and what it might mean for a new generation of young people behind bars.

    UPDATE: The Vox podcast includes discussion with LawProf Mark Osler, with whom I have had the honor to work with on various projects. Perhaps Mark and I get along well in part because he also likes to blog, and does so regularly here at Osler's Razor.  His latest post there, "Sunday Reflection: Into the high desert prison," discusses his "tour of sorts, going to prisons to talk about clemency in the federal system."

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