August 24, 2017
Applicable law for Monday's sentencing role-play
A few folks have wisely inquired about the applicable sentencing law that the lawyers and judges ought to be considering as they approach the sentencing of Rachel Foster and Dan Schayes. If these hypothetical cases were moving forward in the hypothetical world of Oliwood, which is a Model Penal Code jurisdiction, then MPC § 1.02(2) could be used as the guiding sentencing law. (MPC § 1.02(2) appears at p. 1129 of our text.)
But given that Ms. Foster and Mr. Schayes have both committed crimes that could be federally prosecuted, and especially because Attorney General Jeff Sessions has talked about having the federal government prosecute more gun and drug cases, I like imagining these cases being subject to federal sentencing laws this year. US Code, Title 18, Section 3553(a) sets forth a detailed list of "Factors To Be Considered in Imposing a Sentence," and the first two major subsections can and should serve as a guide for sentencing advocacy and decision-making by the lawyers and judges in our role-play. (In other words, lawyers and judges should focus on the substantive provisions of 3553(a)(1) and 3553(a)(2), but should not worry about all the subsequent sections of 3553(a).)
Last but not least, Ohio law has its own unique statute expressly setting forth the purposes of felony sentencing in the Buckeye State. Students can earn Berman brownie points by (1) citing in the comments the Ohio Revised Code section setting forth these purposes, and (2) discussing whether they think Ohio is more concerned with utilitarian or retributivist goals at sentencing.
R.C. 2929.11 Purposes of felony sentencing
The Revised Code § 2929.11 is more concerned with utilitarian goals. It states plainly that the purpose of felony sentencing is “to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes” Id.
When I first read the Revised Code I sensed hints of retributivism when it is compared to the more obvious utilitarian guidelines found in MPC § 1.02(2):
(a) to prevent the commission of offenses;
(b) to promote the correction and rehabilitation of offenders;
(c) to safeguard offenders against excessive, disproportionate, or arbitrary punishment; […] MPC §1.02(2).
However, when reading R.C. § 2929.11 a few more times it seems that Ohio is more concerned with utilitarian goals. The main goal of sentencing as stated is to “protect the public from future crime” Id., not to “…be imposed only because the individual on whom it is inflicted has committed a crime” Immanuel Kant, The Philosophy of Law (Part I of the Metaphysic of Morals) 195 (W. Hastie trans., 1887).
Furthermore, under R.C. § 2929.11, the punishment should be the minimum necessary in order to accomplish the prevention of future crime by the offender and others. While that portion of § 2929.11 sounds a lot like retributivism’s limiting principle, it is actually only in service to the primary purpose of preventing future crime, which by nature is utilitarian.
It is clear then that the State of Ohio is more concerned with adopting utilitarian sentencing principles.
Posted by: Travis Hudson | Aug 24, 2017 9:19:08 PM
Ohio Rev. Code Ann. § 2929.11 (West 2017)
In reading R.C. § 2929.11 I agree with the first comment that the overriding goals of the statute are utilitarian. That being said, I think the limiting retributive principles described in R.C. § 2929.11(B) stand alone as goals in and of themselves, rather than being purposed to serve the utilitarian goals.
In breaking down Section (B) of the statute we see three key points
1. achieve the (utilitarian) principles of Section (A)
2. commensurate to seriousness of conduct...
3. consistent with similar situations
I concede that the first principle is to service the utilitarian goals. It is the second and third principles of section (B) that to me appear as retributive, and I do not think they serve the purpose of limiting utilitarianism. This is because they do not need to, the utilitarian goals in this statute limit themselves.
Bentham speaks to the limiting nature of utilitarianism in "The Theory of Legislation" where he cites "Punishments too expensive" as a core limiting tenet. Like Bentham, The Ohio legislature limited the utilitarian goals in R.C. § 2929.11 by premising them on the condition that they are achieved "...without imposing an unnecessary burden on state or local government resources." Therefore, at least in theory, utilitarianism in this case should limit itself through the aforementioned mechanism and does not require the services of retributivism to do so.
In conclusion, if the retributive principles of section (B) are not there to serve the purposes of limiting utilitarianism - because the statute has already included self limiting goals of utilitarianism - the key reason to include the retributivist principles is because they are goals in and of themselves. It then follows that Ohio is interested in separate utilitarian and retributive goals.
Posted by: Patrick Cleary | Aug 27, 2017 11:29:25 AM
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