Tuesday, March 4, 2014
Hints and help for federal guidelines sentencing of Rob Anon
With apologies for the delay, I will through this post provide some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines. I will begin with a few links to the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:
- USSG § 1B1.1: Application Instructions
- USSG § 2B3.1: Robbery
- USSG § 3B1.1: Aggravating Role
- USSG § 4A1.1: Criminal History Category
I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (and then use the comments to express frustration) before looking for any more sentencing help. That said, if (when?) you want/need some more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:
If (when?) you still want/need still more help, a bit of effective google sluething should help you track down a free U.S. Federal Sentencing Guidelines calculator that was developed by a lawyer eager to help lawyers do quick and dirty guideline calculations for their clients. Unfortunately, that calculator does not appear to be updated after 2011, so I cannot vouch for its accuracy circa 2014.
As you work through this assignment (especially as it carries into the Spring Break), please feel free and encourage to express your perspective on what it feels like to sentence in the federal system now that a whole lot of law has been brought into the process.
Monday, March 3, 2014
REMINDER: for high learning and low stress this week...
everyone should be doing the first part (i.e., the first page) of the sentencing exercises ASAP: after reading (or even while reading) the Frankel excerpt and the notes that follow at the start of Chapter 3, everyone should imagine herself as a federal judge at the time of Judge Frankel and come up individually with an exact pre-guideline sentence for Rob Anon (the federal back robber described at the start of Chapter 4).
Students are welcome to also try to figure out (both procedurally and substantively) how Rob Anon would be sentenced now in the modern structured sentencing era, but that will not be essential for our conversations during the first few classes this week. After class on Tuesday, I will post some materials here on the blog that should make it somewhat easier to do the guidelines part of the exercise before Wednesday's class.
Wednesday, February 26, 2014
Scheduling "tours" of Eastern State Penitentiary and related prison history
As mentioned in class, I am very eager to get as many folks as possible to watch the video about Eastern State Penitentiary and to learn more generally about the history of American prisons through that means. Ergo, I hope folks will use the comments below to identify afternoon times on Thursday and Friday afternoons (2/27 and 2/28) when they could give an hour to watch this video.
I am going to proposed a 4pm showing on Thursday and a 3pm showing on Friday (with me buying drinks after both showings). I hope folks will say if/when they can make one of the showing (which will be in our usual classroom unless otherwise reported in this space).
In addition, I realized I could facilitated learning more about Eastern State by encouraging folks to check out this terrific website (and especially the pages linked here). Moreover, as the ESP video highlights, there are lots of stories about lots of (in)famous prisons that tell lots of stories about not only American crime and punishment, but also about America. A number of notable Ohio-centric stories to be found within in this history, as documented by a relatively recent book entitled "Central Ohio's Historic Prisons." Here is a snippet from the book:
With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States." The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class." However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.
Excerpts from this book can be accessed at this link. The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site (and also where the great movie The Shawshank Redemption was shot). I urge everyone to take a virtual tour via this huge photo gallery.
And especially if you are looking for some weekend web-surfing fun, check out these additional links to some good sites about some of the United States' most famous or most interesting prisons and jails:
UPDATE: I was very pleased six fine students found time to take the ESP tour on Thursday afternoon (and even more pleased that two of us got free beers when we migrated over to Eddie George's thereafter). I hope a few more folks might be able to make it Friday at 3pm, and I will loan out the DVD thereafter to whomever might want to watch it on their own time.
Links to SCOTUS briefing in Hall v. Florida (and extra credit opportunity)
The issue presented to the Supreme Court in Hall v. Florida is "Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia."
Here are the top-side briefs:
- Brief of petitioner Freddie Lee Hall
- Motion for leave to file amici brief filed by Professors Adam Lamparello and Charles MacLean in support of neither party
- Brief amici curiae of American Psychological Association, et al.
- Brief amici curiae of Former Judges, and Law Enforcement Officials
- Brief amicus curiae of American Bar Association
- Brief amici curiae of The American Association on Intellectual and Developmental Disabilities, et al.
Here are the bottom-side briefs:
- Brief of respondent Florida filed
- Brief amici curiae of States of Arizona, et al.
- Brief amicus curiae of Criminal Justice Legal Foundation
Tuesday, February 25, 2014
"Parolable Lifers in Michigan: Paying the price of unchecked discretion"
The title of this post is the title of this February 2014 report by the Citizens Alliance on Prisons and Public Spending concerning the sentencing policies and practices in a state that, as this article notes, "abolished the death penalty on March 1, 1847, making it the first U.S. state and possibly the first in a democratic country in the world to do so."
I thought it useful to spotlight this new report as we begin our transition from capital to non-capital sentencing as a reminder that (1) not all US states and localities are impacted by modern capital punishment debates and doctrines, that (2) all US states and localities are impacted by modern non-capital sentencing debates and doctrines, especially with respect to the impact and import of "unchecked discretion," and that (3) there might be a variety of dynamic and complicated relationships between how states with and without the death penalty approach modern non-capital sentencing debates and doctrines.
Review of mid-term paper basics
As you all should know, every student is required to submit a very short paper (around 2+ pages, single or double spaced) in the next few weeks concerning a law or policy or article or book or movie or big idea related in some way to sentencing law, policy or practice that you think it will be valuable for me and your classmates to know more about. I emphasize the "you" in this post because I want and expect this paper will reflect your personal perspective on an issue of sentencing law, policy or practice that you consider interesting and/or important and that you wish to share with others in the class.
I would be grateful to get as many of these papers as possible before Spring Break so that I can read them during the break. And I would be especially grateful to get BOTH a hard copy AND an electronic copy of the paper from you.
If folks have questions or concerns about this (low-stress, high-learning?) assignment, please feel free to use the comments to raise them.
Sunday, February 23, 2014
Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?
After a final review of what we should take away from the McClesky ruling, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence which places categorical limits on what crimes cannot result in capital sentence and what criminals can not be executed for their crimes. Here, in order, are the major rulings in this series:
Offense-based Eigth Amendment categorical prohibitions on the death penalty:
Coker v. Georgia, 433 U.S. 584 (1977) (precluding imposition of the death penalty for offense of adult rape)
Tison v. Arizona, 481 U.S. 137 (1987) (precluding imposition of the death penalty for homicide accomplice lacking reckless indifference to life)
Kennedy v. Louisiana, 554 U.S. 407 (2008) (precluding imposition of the death penalty for offense of child rape)
Offender-based categorical prohibitions on the death penalty:
Thompson v. Oklahoma, 487 U.S. 815 (1988) (precluding imposition of the death penalty on offenders under age 16 at time of crime)
Atkins v. Virginia, 536 U.S. 304 (2002) (precluding imposition of the death penalty on offenders who suffer from mental retardation (reversing 1989 ruling holding otherwise))
Roper v. Simmons, 543 U.S. 551 (2005) (precluding imposition of the death penalty on offenders under age 18 at time of crime (reversing 1989 ruling holding otherwise))
As I asked at the end of last week, given that the Supreme Court's Eighth Amendment jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender with have individual circumstances considered by the sentencing judge and/or jury, what justifies another set of Supreme Court rulings that preclude legislatures from ever being allowed to even consider the death penalty for certain crimes or offenders?
Contextualizing these matters, consider the qusry in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker. For a reminder, here is how the lead dissent in Coker v. Georgia describe the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:
On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently. Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.
The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner -- as well as others in his position -- will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.
Monday, February 17, 2014
Lots of interesting reflections on McClesky a quarter-century later
As I mentioned very briefly in class, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a lead symposium focused on "McClesky at 25." Here are links to all the articles in the symposium:
McClesky at 25 OSJCL Symposium Articles:
Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).
Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).
John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).
G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).
Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).
Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).
Anyone interested in the intersection of race and the death penalty should consider taking a quick peak at all of these article. But, especially for future class discussion purposes, the final two pieces linked above (the long Mosteller piece and the short Scheidegger piece) may be most worth your extra reading time and attention.
"Let's put the political correctness aside and debate this issue on the grounds that we really want to: is the death penalty moral or not?"
The title of this post is the final senitment expressed by Gus L. in conjunction with the terrific comment discussion that is now energized in response to this post noting Washington Governor Jay Inslee's remarkable decision to take his state's death penalty into his own hands by declaring a moratorium on executions while he serves as Governor. Though I do not want to distract from discussion about Governor Inslee's decision, I wanted to "tee up" the fundamental question Gus identifies while also contextualizing it with my usual who and how concerns.
I am grateful to Gus for cutting to the heart of the issue in all capital punishment debates and discussions, namely whether one believe the death penalty is moral (or just or righteous or legitimate or approrpiate or whatever other word one wants to adopt for this ultimate normative question). I am grateful because I hope and assume that everyone in the class realizes and recognizes (1) that one's own views on this ultimate issue inevitably colors one's perspective on all other capital punishment questions/debates, and (2) that reasonable people with reasonable and diverse views on theories of punishment reach reasonable and diverse conclusions concerning whether the death penalty is moral/just.
With this critical background, the who and how questions we are discussing in class take on an extra dimension in modern American society committed to democratic rule structured by a Constitution designed to safeguard some individual rights against majoritarian preferences.
1. If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
2. If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
3. If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
4. If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
Arguably, if you have a very strong opinion on the morality of the death penalty and a very strong belief that "death is different" so that matters of life and death are to be treated different in kind than all other matters, then the answer to these four questions might be identical: you should use all your legal, political and social powers to further your moral vision no matter what your role in American society. But, if you think one's role in American society should influence the answer to the questions above, then arguably you think that there are moral considerations of even greater importance that the question Gus highlights as to whether the death penalty moral or not.
Tuesday, February 11, 2014
Should Washington Gov. Jay Inslee be praised or condemned for unilaterally suspending executions in his state?
I am intrigued to have learned right after class that Washington Governor Jay Inslee decided to take his state's death penalty into his own hands today by declaring a moratorium on executions while he serves as Governor. I have blogged about this notable decision here at my main blog; and these comments from Governor Inslee’s remarks announcing his execution moratorium (which can be accessed in full at this link) seemed especially notable in the wake of our conversations in class recently:
Over the course of the past year, my staff and I have been carefully reviewing the status of capital punishment in Washington State.
We’ve spoken to people in favor and strongly opposed to this complex and emotional issue, including law enforcement officers, prosecutors, former directors of the Department of Corrections, and the family members of the homicide victims.
We thoroughly studied the cases that condemned nine men to death. I recently visited the state penitentiary in Walla Walla and I spoke to the men and women who work there. I saw death row and toured the execution chamber, where lethal injections and hangings take place.
Following this review, and in accordance with state law, I have decided to impose a moratorium on executions while I’m Governor of the state of Washington.
Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred....
I have previously supported capital punishment. And I don’t question the hard work and judgment of the county prosecutors who bring these cases or the judges who rule on them.
But my review of the law in Washington State and my responsibilities as Governor have led me to reevaluate that position....
In 2006, state Supreme Court Justice Charles Johnson wrote that in our state, “the death penalty is like lightening, randomly striking some defendants and not others.”
I believe that’s too much uncertainty.
Therefore, for these reasons, pursuant to RCW 10.01.120, I will use the authority given to the Office of the Governor to halt any death warrant issued in my term.
Is this move further proof of the astuteness of the Marshall Hypothesis? And that "death is different"?
That Governor Inslee is (foolishly? rightfully?) much more concerned about equal justice than about individual justice?
That Governor Inslee lacks the stomach needed to faithfully execute his state's laws?
That Governor Inslee has the courage to be a statesman and not merely a politician?
UPDATE: This post over at Crime and Consequences by Kent Scheidegger takes apart the statement by Gov Inslee to express the view that concerns about equal justice should not preclude application of individual justice to carry out existing death sentences.
Tuesday, February 4, 2014
Some background and basics on capital punishment history and practices in Ohio and US
We could easily spend months discussing the history and modern specifics of the death penalty in specific jurisdictions like Ohio or the US. I will sometime reference this history and modern practices in class over the next few weeks, but here are some links of note concerning both jurisdictions to provide everyone with a (low-stress, high-learning) chance to discover a lot more on these topics:
Links with background on Ohio's history and practices in the administration of the death penalty
- From the Ohio Department of Rehabilitation and Corrections
- From the Ohio section of website of Death Penalty Information Center
- American Bar Association Ohio Death Penalty Assessment
- Ohio Attorney General's 2012 Capital Crimes Annual Report
- Ohio Revised Code Section 2929.04: Death penalty or imprisonment - aggravating and mitigating factors
Links with background on US history and practices in the administration of the death penalty
- Justice Department 2000 Survey/Review of Federal Death Penalty
- From the federal section of website of Death Penalty Information Center
- Congressional Research Service 2005 Overiew Report on Federal Death Penalty
- Title 18 United States Code Section 3592: Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified
Sunday, February 2, 2014
Yet another round of notable "who" developments concerning the death penalty and federal mandatory minimums
This coming week we are going to get much more focused on the particulars of capital punishment laws and doctrines and practices. But, as you may already realize, my obsession with "who" issues will persist in class and elsewhere. And these posts from my other blogs since our last meeting highlights this reality from various perspectives concerning both the death penalty and mandatory minimums:
Some death penalty stories:
- Unsurprisingly, AG Holder authorizes pursuit of death penalty against Boston bomber
- SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling
Some federal mandatory minimum stories:
Thursday, January 30, 2014
Other than the defendant, which "whos" would you say should be considered most responsible for the death sentences in...
The principal goal of our pre-sentencing conversation about the Williams case on Wednesday was to shake everyone away from the (incomplete) view that a trial judge imposing a sentence is the most responsible (or even most important) decision-maker in the sentencing process.
A sentencing judge (or, in some cases, a sentencing jury) is often the most visible decision-maker in the sentencing process, but all the formal and informal criminal justice players who act before the official moment of sentencing (as well as many that act later) can often be, both formally and practically, much more responsible for the sentence that is actually imposed and served than the sentencing judge.
So, with these thoughts in mind and our "who" insights and radar now heightened, I would love to start a discussion here about which "whos" you would be inclined to say should be considered most responsible for the death sentences in any or all of the high-profile cases referenced above.
Monday, January 27, 2014
A weekend full of interesting who news
As you may already be discovering, once one starts to focus on current-event stories with a "who sentences" lens, the context and complications of sentencing decision-making can take on a new view. With that reality in mind, consider these recent posts from my other blogs concerning some notable recent events:
Wednesday, January 22, 2014
Who should have the least sentencing power in American CJ systems?
In addition to closely reviewing the 1949 Williams v. New York case (which can be read in full here and is worth the time to read in full), we will discuss in class next week which particular institutional players tend to exercise the most formal and informal sentencing power, and whether and how you think these institutional players should have their powers limited and regulated. Long story short: legislatures, prosecutors, trial judges, and parole/prison officials have historically wielded the most sentencing power, but many modern reforms have given larger roles to sentencing commissions and appellate judges.
As suggested in class, I am eager to have everyone consider this issue from the other side of the equation: that is, I want to hear whether and why you might think certain institutional players should have little or no formal or informal sentencing power. Again, history is somewhat instructive: victims, police, juries (except in capital cases) and appellate judges have historically wielded little sentencing power, but many modern reforms have given larger roles to victims and appellate judges.
As we will discuss, every institutional player that actively seeks to be involved in the sentencing process usually can have some input or impact. But that practical reality should not prevent a sentencing system (or us) from exploring how to limit the authority of those players we believe should have the least power to impact sentencing outcomes. (There are lots of general reasons why we might want to limit and/or regulate a particular player's sentencing power: e.g., we fear that particular institutional player has a certain problematic/systematic bias, or will too often pursue a disfavored punishment purpose or form, or will be too subject to undue influences by other actors, or will tend to make less-than-thoughtful or even discriminatory decisions.)
So, who do you think should have the least sentencing power? Why?
Tuesday, January 21, 2014
Low-stress, high-learning opportunities via TV, radio and blogs
I made reference to a lot of current events stories to follow at the start of class, in part because the development of these stories highlight how many distinct and distinctive "who"s play a role in criminal justice reforms and ultimately in the operation of modern sentencing systems.
For example, the NFL can have a huge impact on social and political views and developments throughout the United States, especially this time of year. Thus, I think folks ought to check out tonight's episode of HBO's Real Sports examining pot use in the NFL.
Similarly, doctors and medical groups have come to play a large role in modern discussions of execution methods, and this fact should be on display during the 10am Wednesday morning segment of All Sides with Ann Fisher on WOSU.
And the role of victims in the criminal justice system generally, and especially at sentencing, will be front-and-center before the U.S. Supreme Court tomorrow morning during the oral argument in the Paroline case. This SCOTUSblog post provides a lengthy preview of the issues before SCOTUS in the case.
As the title of this post is meant to highlight, I see watching TV and listening to the radio and reading blogs to be great low-stress, high-learning opportunities. I hope you all agree.
Monday, January 20, 2014
Some past (and present) MLK-inspired perspectives on sentencing
As perhaps is already clear from our first full week of discussion, issues of race and class are necessarily important concerns when we consider the law, policy and practices of modern sentencing systems. In part because of that reality, I have often through the years emphasized a number of MLK-inspired themes on my main sentencing blog, and here are some links to some of my favorite past MLK Day posts (as well as the one I did today):
From MLK Day 2006: Should criminal justice reform be the new civil rights movement?
From MLK Day 2008: Reflecting on race and criminal justice realities to honor MLK's legacy
From MLK Day 2012: NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
Thursday, January 16, 2014
Sincere marijuana reform question: exactly what are DEA officials "scared" of?
The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:
The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.
“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”
Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....
Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”
Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...
Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”
Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.
That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."
This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.
It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:
roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;
roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.
I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.
But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.
I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.
Tuesday, January 14, 2014
How Thomas Jefferson would have sentenced Richard Graves
I suggested in Tuesday's class that, if incapacitation was a key goal/purpose when sentencing convicted rapist Richard Graves, that castration would seem likely much more effective than any term in prison. (Indeed, given ugly statistics concerning prison rape, a trip to prison might be the worst way to prevent Graves from raping again.) But I surmised that some (many? most?) members of the class have a visceral negative reaction to castration as a form of punishment. But why?
If you had a visceral negative reaction to castration, I urge you to read and reflect on Michel Foucault's astute insight (reprinted in Chapter 1 of the text) 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.
Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes. This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages (with my emphasis added):
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 wholy forfiet 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....
All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....
I highly encourage everyone to read (and then comment upon) 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.
Monday, January 13, 2014
Early Class Questionnaire for completion -- and discussion along with pop-culture references
My sincere apologies for failing to bring enough hard copies to today's class of the Class Questionnaire I would like completed (and submitted to me) by everyone ASAP. I have now uploaded a pdf of this document below for anyone who needs or wants this form electronically:
As suggested in class and in the title of this post, I welcome discussion in the comments to this post about the questions/issue in the survey. I also welcome discussion about what pop-culture references I can reasonably make without confusing too many folks about the reference. (Absent good pop-culture reference material, I will probably end up making too many sports references instead.)
Wednesday, January 8, 2014
Welcome yet again to another reboot of this blog for another semester of Sentencing Law
Welcome to the FOURTH re-launch of this blogging adventure. This blog started over seven years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) to facilitate student engagement in the Spring 2007 course on the death penalty that I taught at OSU's Moritz College of Law.
Though I closed this blog down not long after that course ended, I was pleased to see all the students' hard work as reflected in the archives still generating significant traffic and much of the posts remain timely. Consequently, as when I geared up for teaching Criminal Punishment & Sentencing in Spring 2009 at The Ohio State University Moritz College of Law and again when visiting in Spring 2010 at Fordham School of Law and again back at the Moritz College of Law in Fall 2011, I decided to reboot this blog to allow the new course to build indirectly in this space on some of the materials covered before. In all of these classes, I was generally pleased with how this blog helped promote a new type of student engagement with on-line media and materials. (For the record, OSU students engaged with the blog much more and better with Fordham students.)
Now, circa January 2014, I am Sentencing Law again at the Moritz College of Law. Because we have a new revised version of the casebook for the 2014 class, I am not yet sure how much of a role this blog will play in course activities. But, especially because a lot of new exciting sentencing developments seem likely in the weeks and months ahead, I suspect this space will stay active just by trying to keep up with current events (as well as as a place to post information about class activities and plans and assignments).
Thursday, January 12, 2012
Latest (greatest?) working amicus draft
After having read the Miller and Jackson merits briefs, I did not find too many places where I thought tweaks of our working draft was needed. Nevertheless, I have now created a revised draft with all the latest suggested additions appearing, and that can be downloaded below. I am out of pocket most of today, but late tonight and tomorrow AM I can keep working on revisions if/when folks send me ideas/suggestions for more to add.
Wednesday, January 11, 2012
Merits brief for Jackson and Miller...
finally arrived in my in-box this morning. Here they are:
UPDATE: The Jackson brief appears to have the most "action" of these two, though both are worth a close read as we think about how we might further refine our amicus. I hope tonight to be able to work in some cites/ideas and post a new draft by 10am on Thursday. Then, perhaps, any/all who might like to meet to discuss final plan can come by my office Friday afternoon.
Tuesday, January 3, 2012
Outline/draft of SCOTUS-focused amicus draft for Jackson and Miller
My efforts at making a mega-draft by stitching together pieces of the submitted amicus drafts created something of a Frankenstein monster: by seeking to preserve different parts of different texts, I produced an ugly creature that seemed unlikely to be able to do much good. Consequently, I turned to developing a detailed outline/draft that was "inspired by" the class efforts rather than working too hard trying to preserve language used in submitted drafts.
I am now posting below the outline/draft that I produced for collective discussion and reflection. This outline/draft is now only a little over 3000 words, so we could (and likely should) add a lot more stuff. In addition, this outline/draft is for now focused only on SCOTUS Eighth Amendment doctrines/cases: materials concerning brain science, international law and state cases have not (yet) been incorporated, but they all might readily find (various) places in this outline/draft.
Starting later today, I should be around most weekday afternoon this week and next. I would be eager to work with any and all students (1) interested in moving forward with the outline/draft I have posted here OR (2) interested in revising their initial draft to produce their own distinctive amicus brief for potential filing. But because the briefs need to be close to finalized over the next 8-10 days in order to enable actual filing in the Supreme Court by January 17, I need to hear from folks ASAP about any serious interest in moving ahead on any of these SCOTUS fronts.
Friday, December 30, 2011
Update on amicus draft (and draft text of the summary of argument)
I am making slow and steady progress on our collective amicus efforts (more slow than steady, but still progress is being made). I hope that no later than Tuesday to be able to post a full working draft of the document I am putting together. For now, I can start with this (too?) brief passage that is now serving as the "summary of argument" section:
Interpreting the Eighth Amendment’s prohibition on cruel and unusual punishments, this Court has repeatedly stressed that juveniles, especially young juveniles, are a special and unique class of criminal offenders with a distinct level of maturity, mental capacity, and vulnerability to negative influences. In addition, this Court’s Eighth Amendment jurisprudence has repeatedly recognized that not all homicide offenses are constitutionally equivalent; because murders can and will differ in their severity, a constitutional scheme of punishment must sometimes differentiate between and among murder offenses of differing severity. And, last but not least, this Court’s Eighth Amendment jurisprudence has identified constitutional problems with certain aspects of certain mandatory sentencing schemes. Collectively, these established principles of this Court’s Eighth Amendment jurisprudence connote that any and all statutory schemes which mandate that a juvenile offender convicted of a certain class of homicide must be sentenced to life without the possibility of parole, without any consideration of the offender’s age or any other potential mitigating offense circumstances, violate the Eighth Amendment’s prohibition on cruel and unusual punishments.