Sunday, December 4, 2016
Reviewing the final fulsome mini-paper opportunities
In a coming post, I will try to clarify any lingering questions students have about completing the final paper. But as classes technically are not yet done, I want to first clarify student mini-paper opportunities/expectations.
First, to complete the course is a satisfactory manner, a student has to have submitted at least two mini-papers. (If I have not received at least two mini-papers from a student by Dec 12, I will notify the student of the deficiency and its consequences.)
Second, every student is encouraged to earn extra credit by submitting more than the two-mini-paper minimum. But all mini-papers need to be submitted no later than Dec 12 to receive full credit/extra credit for your work.
Third, I put forth the following three final mini-paper possibilities:
- Reviewing Prez Obama's sentencing reform legacy
- Recommending activities/concerns for Attorney General designee Jeff Sessions
- Assessing the sentencing history/views of one (or more) of the 21 persons on Prez-Elect Donald Trump's SCOTUS short-list
Among the benefits/challenges of completing a mini-paper on this topics is the possibility that I may ask to publish your analysis on my main blog or maybe even in the Federal Sentencing Reporter.
Sunday, November 27, 2016
A formal agenda for our final THREE classes to ensure we stay on task and cover the federal guideline sentencing system
Despite this prior post intended to help ensure we stayed on task in class, the energies of the post-election period — and my own struggle with figuring out what should be a sentencing priority in a Trumpian world — led me to fail badly in this regard before Turkey Day. But a personal and temporal break, and especially the (sad) reality that we only have a final three classes together, should help me be a sentencing task master in our remaining minutes together.
To that end, I am here presenting a formal agenda for our final classes to ensure everyone knows where I want us to be headed and also to make sure you all can do the essential out-of-class work/reading:
Monday, Nov 28: Briefly review my "textbook" behavior; review option(s)/deadline(s) for final mini-paper(s); discuss the pre-modern reform sentencing of Rob Anon. Remember for the last item on this agenda, you must all come to class with an exact sentence you wish to impose on Rob Anon assuming you are a sentencing judge sentencing him under federal sentencing law in 1975. Remember that in 1975 federal prisoners were eligible for parole but only after serving at least 1/3 of the formal sentence announced at initial sentencing and when there were no federal mandatory minimum sentencing terms.
Tuesday, Nov 29: Answer questions regarding option(s)/deadline(s) for final mini-paper(s); review rules for final paper; review lessons from pre-modern reform sentencing of Rob Anon and start unpacking intricacies of pre-Booker federal guideline sentencing of Rob Anon (say circa 2000). Figuring out what Rob Anon's federal sentencing guideline range would be under applicable laws can be aided by some of the discussion and links in this prior blog posting which inspired(?) students in March 2015 to work through Rob Anon's guideline calculations.
Wednesday, Nov 30: Discuss insights and lessons from pre-modern reform and pre-Booker federal guideline sentencing of Rob Anon; unpacking the why and how of Booker's changes to the substance and style of federal sentencing, especially with respect to "Who-ville." If time permits, focus on the particulars of the BridgeGate defendants' upcoming federal sentencings (some background here).....
AND IF TIME PERMITS Wrap up all course themes; review final class requirements; map out a plan for effective sentencing analyses and reform in a Trumpian world; reflect on low-stress, high-learning environments.
UPDATE: I had the last entry pegged for Monday, Dec. 5, but Ashley in the comments clarified that next Monday is a constructive Thursday. Ergo, it seems we only have 150 minutes left together, and so I will need to be even more focused throughout the next three classes.
Tuesday, November 15, 2016
Staying on task and clarification of MP3 options
Remember, wonderful and patient and understanding students, that we are finally going to (try to) return to our usual programming by working on the sentencing or Rob Anon. Specifically, it is very important that you come to class today (Tuesday) with an exact sentence you wish to impose on Rob Anon assuming you are a sentencing judge sentencing him under federal sentencing law in 1975 when federal prisoners were eligible for parole but only after serving at least 1/3 of the formal sentence announced at initial sentencing and when there were no federal mandatory minimum sentencing terms.
In addition to talking about your sentencing decision(s), I also will try to clarify the mini-paper options (and the reasons you have options), which are based a bit on these two recent posts on my main blog:
Tuesday, November 8, 2016
Gearing up for figuing the (right?) sentence for the various convicted "Bridgegate" federal criminals
As I mentioned in class today, our coming exploration of the federal sentencing system will be based in part on using the real-world "Bridgegate" case into a real-world sentencing exercise. To get started in preparation to that end, I recommend some review of at least the following two links:
This Wikipedia page, titled "Fort Lee lane closure scandal" provides lots of background on the scandal, at it provides this very helpful initial summary of the crime and the three protagonists now facing federal sentencing:
The Fort Lee lane closure scandal, also known as the George Washington Bridge lane closure scandal, or Bridgegate, is a U.S. political scandal in which a staff member and political appointees of New Jersey Governor Chris Christie (R) colluded to create traffic jams in Fort Lee, New Jersey, by closing lanes at the main toll plaza for the upper level of the George Washington Bridge.
The problems began on Monday, September 9, 2013, when two of three toll lanes for a local street entrance were closed during morning rush hour. Local officials, emergency services, and the public were not notified of the lane closures, which Fort Lee declared a threat to public safety. The resulting back-ups and gridlock on local streets ended only when the two lanes were reopened on Friday, September 13, 2013, by an order from Port Authority Executive Director Patrick Foye. He said that the "hasty and ill-informed decision" could have endangered lives and violated federal and state laws.
The ensuing investigations centered on several of Christie's appointees and staff, including David Wildstein, who ordered the lanes closed, and Bill Baroni, who had told the New Jersey Assembly Transportation Committee that the closures were for a traffic study.
The United States Attorney for the District of New Jersey Paul J. Fishman launched a massive federal investigation, resulting in a sweeping nine-count indictment against Bridget Anne Kelly, the deputy chief of staff, Baroni and Wildstein. Wildstein entered a guilty plea, and testified against Baroni and Kelly, who were found guilty on all counts in November 2016.
The copy of the plea agreement in which Mr. Wildstein agreed to plead guilty and which also has a copy of his charging "information."
Friday, October 28, 2016
Two timely new commentaries in light of our Graham-based discussions of "legal" adulthood
I have been quite amused to see these two headlines on two notable commentaries published since our last class:
The first of these articles starts this way:
Consider three young people: An 18-year-old who can vote, but can’t legally buy a beer; a 21-year-old who can drink, but is charged extra to rent a car; and a 25-year-old who can rent a car at the typical rate, but remains eligible for his parents’ health insurance.
Which one is an adult? All of them? None of them? Some of them? Or does it depend on the individual?
These questions are newly salient in the criminal justice system.
Monday, October 24, 2016
The full opinions in Graham and Miller....
are worth checking out if you are eager to think deeply about the future of Eighth Amendment limitations on extreme prison sentences. And here are links to the original SCOTUS slip opinions:
Graham v. Florida (2010) (all 84-fun-loving-PDF-pages)
Miller v. Alabama (2012) (all 62-fun-loving-PDF-pages)
Saturday, October 22, 2016
Eastern State Penitentiary and other (in)famous US prisons past and present
This post is to facilitate discussion an reflection on prison history in the United States, building on the video about Eastern State Penitentiary and more generally about the reality that time in jail or prisons is now something of a modern default sentencing "output." If you are interested in learning more about Eastern State, check out this terrific website. Notably, in recent years Eastern State Penitentiary has been trying to incorporate more modern art and education into its tours; it recently has been working on an ambitious exhibit titled "Prisons in the Age of Mass Incarceration."
In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America. A number of notable Ohio-centric stories are to be found within in the history, as documented by this book entitled "Central Ohio's Historic Prisons." That book is summarized this way:
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.
The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site. I urge everyone to take a virtual tour via this huge photo gallery. And if you are ever looking for some web-surfing fun, check out these additional links to some good sites about some of the United States' most (in)famous prisons:
Notably, a few years ago, students had a lot to say in the wake of watching the ESP video, and you might be interested to read these 2011 student comments about prison history. This coming week, we will be shifting back into a discussion of sentencing law and the (non-capital) sentencing process, but everyone should keep thinking about both the theory and practices of imprisonment as a form of punishment as we get into the nitty-gritty of modern sentencing doctrines.
Thursday, October 20, 2016
Some more "who sentences" stories from my main blog, now focused on non-capital sentencing
In this post earlier this month, I flagged a number of "who sentences" stories relating to the death penalty on my Sentencing Law & Policy blog. Here is now a similar round up of some recent non-capital sentencing stories and commentaries that provide some more "who" perspectives:
Monday, October 17, 2016
Lies, damn lies and federal prison and commutations statistics
As I mentioned in class, as we turn our attention more to the history and modern realities of non-capital sentencing and especially to the history and modern realities of incarceration, having a basic understanding of a lot of number becomes important. The title of this post is designed to make sure, before you dive too much into these data, that you keep in mind perhaps the most famous quote about statistics. Once you have that quote in mind, consider some of the data and their sources.
The latest detailed breakdown of the federal prison population comes from this terrific "Quick Facts" document released this month by the US Sentencing Commission titled "Federal Offenders in Prison – March 2016." Here are just some of the data therein that caught my eye:
• A large majority of offenders in the federal prison population are male (93.3%).
• Hispanic offenders make up the largest group of the federal prison population(35.2%), followed by Black offenders (34.4%), White offenders (27.0%), and Other Races (3.5%).
• More than three-quarters (77.9%) of these offenders are United States citizens.
• The majority of offenders pleaded guilty (88.5%).
• Nearly one-quarter (23.9%) of all offenders serving a sentence for a federal conviction possessed a firearm or other weapon in connection with their offenses.
• Half of all offenders (50.2%) in the federal prison population were sentenced to more than ten years in prison, while 5.2% were sentenced to 30 years or longer, and 2.7% were sentenced to life in prison.
• Approximately 17,000 offenders (9.9% of all incarcerated offenders) have served more than 10 years in prison.
• More than half (56.8%) of offenders in the federal prison population were convicted of an offense carrying a mandatory minimum penalty.
The data in the USSC report is already significantly dated because it analyzed a federal prison population of 195,676 "offenders in the custody of the Federal Bureau of Prisons on March 27, 2016." But, just a little more than six months later according to the Federal Bureau of Prisons latest inmate population report, it is now only in charge of 191,322 total federal inmates. In other words, in just the last 6 months alone, there has been more than a 2% decline in the overall federal prison population!
Speaking of changes over time in the population levels in the Federal Bureau of Prison, check out this BOP year-by-year report of the past federal prison population in modern times, which includes these numbers:
Fiscal Year BOP Population
In other words, in just the last 20 years up to 2013 (12 of which had a Democrat in charge in the Oval Office and his appointees running the US Department of justice), there was 250% increase in the overall federal prison population!
As you may now realize, the number of federal prisoners for fiscal year 2013 was the year with the highest ever federal prison population (it was also, of course, the first year of Prez Obama's second term in office and the fifth year of the US Department of Justice being run by former US Attorney General Eric Holder).
Also, as of the end of Fiscal Year 2013, this webpage from the Office of the Pardon Attorney reports that Prez Obama had received well over 8,000 federal commutation petitions and had granted a grand total of 1 commutation. (If you are running the numbers, this means that as of the end of 2013, Prez Obama had granted only about .01% of commutation petitions received from federal prisoners.)
Of course, Prez Obama has picked up the pace on commutation grants: as this White House website highlights, by having now granted a total of 774 commutations, Prez Obama "has granted commutations to more prisoners than the past 11 presidents combined." But his actions here ought to be put in some other statistical context, as does this webpage from the Office of Pardon Attorney, which reports that Prez Obama has received 29,078 commutation petitions during his time an office. So, by having now granted 774 commutations from among the 29,078 commutation petitions received, Prez Obama has now upped his granted rate to about 2.5% of all commutation petitions received from federal prisoners.
As always, a great way for students to earn extra credit for the class would be to mine these numbers for further insights and data points worthy of highlighting in the comments to the blog (or in class). And any student who can find good data on the race/gender of the 774 persons to have received commutations from Prez Obama and compares them to the general federal prison population will be sure to receive extra, extra, extra credit.
Wednesday, October 12, 2016
How some Framers thought about "gradation of punishments" (and proposed sentencing guidelines) in a world before "modern" prisons
One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital." I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote). Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:
[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] 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.
[STATEMENT ABOUT THEORY OF PUNISHMENT:] 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....
[PUNISHMENT FOR MOST SERIOUS CRIMES:] If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.
Whosoever shall commit murder in any other way shall suffer death by hanging.
And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth....
[PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder....
[PUNISHMENT FOR SEX CRIMES:] 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....
[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.
[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.
Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.
If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.
Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured....
[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.
Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....
[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] 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....
[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.
Monday, October 10, 2016
Follow-up after (too little) time with the Assistant Chief Counsel for Ohio Governor John Kasich
I am sorry we did not have more time to allow Kevin Stanek, the Assistant Chief Counsel for Ohio Governor John Kasich, to complete his tales about Ohio's fulsome history with lethal injection litigation. But I trust you all got a flavor of some of the major themes I consider most important for our broader class's purposes: a whole bunch of distinctive (unexpected?) "whos" can and often will have a huge impact on whether, when and how death sentences actually get carried out in Ohio and elsewhere.
For more on that front with a continued focus on lethal injection drug acquisition and litigation, it is worth checking out the WNYC's Radiolab: More Perfect program on state efforts to acquire lethal injection drugs, which is titled "Cruel and Unusual." The 40-minute radio program covers a lot of ground in ways both familiar and unfamiliar, including a notable discussion of the political impact of the Furman ruling and its aftermath starting around the 16-minute-mark (which in turn inspired the Oklahoma legislator who came up with the medicalized three-drug lethal injection protocol).
In addition, the constitutional litigation that has gummed up the works of death penalty in Ohio over the last decade has also gummed up the work in a lot of other states. Here is an a report from my main blog about a (very red) state to Ohio's south that has been dealing with similar issues: "Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade."
Wednesday, October 5, 2016
Game planning next week's final(?) capital punishment discussions (and requests for expressions of any continued DP interest)
As I surmise you could tell from the last few classes, I am not at all troubled that our discussions of how Teddy K.'s capital case might play out in states like Florida and Texas has gone on longer than I had initially planned. I am hopeful you were able to get a real feel from this week's two classes concerning the various important structural and practical realities of modern death penalty decision-making that have resulted from the Supreme Court's modern Eighth Amendment "guided discretion" jurisprudence.
With the Teddy K. hypo and some of its lessons now covered, I want to update/clarify our plans and my expectations for next week's classes and beyond:
Monday, Oct 10: Guest presentation/discussion with Kevin Stanek, Assistant Chief Counsel for Ohio Governor John Kasich (and OSU Moritz College of Law Class of 2013). There is no need to prepare anything formal this class, but this Dispatch article and this part of a Wikipedia entry provides a quick overview of the Ohio execution administration issues that ACC Stanek will likely be discussing. (And for a lighter (and not-so-tasteful) look at these issues, check out this satire video from The Onion, "Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine.")
Tuesday, Oct 11: We will finally get to discussing McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)
Wednesday, Oct 12: Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons ....
UNLESS YOU REPORT IN THE COMMENTS OR ELSEWHERE ABOUT ADDITIONAL CAPITAL PUNISHMENT ISSUES YOU WOULD LIKE TO HAVE US COVER IN CLASS. If nobody raises any addition death-penalty issues in the comments or in other ways with me, I will assume that everyone has already had more than their fill of death penalty discussions and thus will feel all that much more confident moving on to discussions of non-capital sentencing realities ASAP.
For those students hoping and eager for us to move on beyond our death penalty discussions, please feel free to get started on our first set of prison readings, in the form of:
- All of Chapter 7, paying particular attention to pp. 549-558, 570-581 and 595-623 (especially Graham v. Florida)
- A bit of Chapter 5, pp. 401-415 (especially Miller v. Alabama)
UPDATE: ACC Stanek suggested that everyone read this DC Circuit case, Cook v. FDA, to get a flavor of some of the challenges states face when trying to acquire the drugs needed to conduct a lethal injection.
Tuesday, October 4, 2016
Lots of significant new "who sentences" stories surrounding the death penalty
Especially when we go a long time between classes, I trust students realize that following developments at my main blog is a good way to maintain the "low stress, high learning" experience. And especially in the last few days, we have had a lot of (educational?) "who sentences" stories relating to the death penalty. Here are links to just some of these stories:
Tuesday, September 27, 2016
Some links to SNL skits about Teddy K.
As promised, these are fun to check out:
Monday, September 26, 2016
Gameplans for finishng up our capital punishment discussions: making sure we are all on the same page(s)
Because I have not been a model of consistency and clarity concerning what students should be reading for class and concerning what I expect to cover, let me here try to make amends with a brief outline/overview of my class plans/expectations:
Tuesday, Sept 27: We will finish up a discussion of Furman/Gregg/Woodson/Roberts/Coker, which help explain/define modern DP relaties
Wednesday, Sept 28: We will consider how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber (and others)
For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski. That entry has (too) many great links, though I would especially encourage checking out at least some of the Unibomber's (in)famous Manifesto, "INDUSTRIAL SOCIETY AND ITS FUTURE" as well as this lengthy Time article by Stephen J. Dubner from 1999 about Teddy K. headlined "I Don't Want To Live Long. I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison")
Monday, Oct 3: No class (extra time to work on mini- or maxi-papers)
Tuesday, Oct 4: We will discuss McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)
Wednesday, Oct 5: Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons
Wednesday, September 14, 2016
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. I also think everyone should at least get started reading Furman and Gregg and subsequent SCOTUS cases in chapter 3 of our text ASAP.
Tuesday, September 13, 2016
Death penalty deterrence research and arguments that the death penalty is morally required
As I mentioned in class, some years ago Professors Cass Sunstein and Adrian Vermeule produced a provocative article suggesting that new deterrence evidence might make the death penalty morally required for state actors seriously concerned with value of life. Here is a link to this article and its abstract, with one line stressed to pick up the theme developed in class that government killing is different-in-kind from other kinds of killing:
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.
Alternatively, 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.
Monday, September 12, 2016
Lots of interesting new buzz concerning the (sort of dormant) Ohio death penalty
Conveniently, my week away proved to be a period in which some interesting local death penalty news and commentary emerged, as evidence by these two recent posts from my main blog:
- Is Ohio again about to pioneer a new execution method?
These topics and lots of others will be a part of our coming extensive discussion of death penalty theory, policy and practice over the next few weeks.
Wednesday, September 7, 2016
A glimpse into the hows (and whos) of federal death sentencing in a high-profile case
This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case. Especially because we will be jumping into the history, law and practice of capital punishment next week, I recommend everyone consider checking out the motion.
Monday, August 29, 2016
Basic information on the methods and madness of mini-paper assignment(s)
As the Course Description noted, part of your formal work in this class is to author (at least) two “mini-papers” which will comprise up to 20% of your final grade. (You can look through this blog's archives to see examples of the kinds of in-semester writings I have urged students to produce in previous years, though please know each year I tweak the topics and format of this class requirement.)
Absent further instructions/modifications, here is my planned approach to the mini-paper assignment this time around: Each submitted mini-papers must be no more than four pages long (and can be MUCH shorter), and should respond to my in-class prompts that I plan to provide every few weeks. The first prompt, for example, was (formally?) delivered today in class when I encouraged all to write up your personal "sentencing topic of interest" with a particular focus/reflection on the meta-topics we have discussed our first few weeks in class (namely theories of punishment and who sentences).
I expect to provide a new prompt for a new mini-paper every few weeks, usually right after these (Monday AM) tentative submission due dates for these mini-papers:
• September 19 (for "topic of interest" mini-paper)
• October 10 (for what will likely be a death penalty prompt)
• November 7 (for what will likely be a federal sentencing prompt)
• December 5 (for what will likely be a "SCOTUS-as-who" sentencing prompt)
As also hinted in class, one goal for this assignment is to engender additional inter-student substantive discourse; that is why, subject to any stated objections/concerns for certain submissions, I expect to distribute everyone's submitted mini-papers back to the class for all to read and consider.
Because the comments to this blog are now working, I encourage students to use the comments to ask any basic follow-up questions or to express any concerns about these assignments. And, to be perfectly clear, though I will be providing (at least) four formal prompts for mini-paper writing, students are requires only to complete two mini-papers throughout the semester. (But because you get this option, I will be expecting the papers to be really good, and you can earn extra credit by submitting more than the mandatory minimum number of papers.)
Wednesday, August 24, 2016
Some background reading on (various forms of) castration as a punishment for sex offenders
Since I keep managing to end class with lingering questions about castration as a punishment for sex offenses, I figured I would use this blog space to highlight some existing literature on this topic. Perhaps my main goal here is to be sure I do not leave the impression that I am the only one who thinks (too much?) about the potential pros and cons of castration as a punishment for sex offenders:
A 2005 peer-reviewed journal article, titled "The Impact of Surgical Castration on Sexual Recidivism Risk Among Sexually Violent Predatory Offenders"
A 2006 press article, headlined "Some Sex Offenders Opt for Castration"
A 2009 student note making the case for chemical castration, titled "Chemical Castration for Child Predators: Practical, Effective, and Constitutional"
A 2010 press article, titled "California law mandates chemical castration of certain offenders"
- A 2013 student note arguing against chemical castration, titled "'Off with His __': Analyzing the Sex Disparity in Chemical Castration Sentences"
A 2014 press article from the UK, titled "Should We Be Castrating Sex Offenders?", interviewing an expert involved in UK "voluntary" program "to chemically castrate rapists, paedophiles and other sex offenders."
I do not expect anyone to read all these materials (or even any of them if this topic creeps you out), but perhaps one or more of you might find this topic interesting for a future mini-paper or final paper. And, speaking of topics of interest for mini/final papers, I promise on Monday to start the class by going around the room and having folks describe a sentencing/punishment topic of personal interest. Once we have that discussion, we will then jump hard into the Williams case.
Thursday, August 18, 2016
First week assignments, electronic copies of course documents, and links for completing questionnaire
I have posted on the Moritz official website our first assignments, but I figured it would be useful to repost the details here, while also providing electronic copies of the basic course documents. So....
In preparation for our first week of classes starting Monday, August 22, 2016 you should:
1. Get a copy of the THIRD edition of the casebook for the course.
2. Download the questionnaire and fill it out before our first class. (In addition to being posted here, the questionnaire and course description will be available in hard-copy in front of my office, Room 313.)
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.
You will discover that a few of the questions in the questionnaire call for a bit of on-line research, and here are some links to help in this arena:
- The Bureau of Justice Statistics (BJS) (which is a component of the Office of Justice Programs in the U.S. Department of Justice).
- United States Sentencing Commission
- Death Penalty Information Center
- The Sentencing Project
- Quick Facts from Families Against Mandatory Minimums
- Wikipedia entry on California v. Brock Turner
- Collection of court documents from California v. Brock Turner
Wednesday, August 10, 2016
Welcome yet again to another reboot of this blog for another semester of Sentencing Law at the Moritz College of Law
This is now the FIFTH re-launch of this blogging adventure!!
This blog started nearly 10 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. This first post in this space explained, way back then, that "I hope[d] that both the contents and very construct of this blog will inspire a new type of engagement with the death penalty and with on-line media for students." Sure enough, the blog proved successful during that semester (which was when this guy was still US Prez and when this TV show was still the most popular).
I closed this blog down not long after that first death penalty course ended, but thereafter discovered the students' hard work as reflected in the archives still was generating some web traffic and that many posts remained timely (though a whole bunch of old web links are now very dead). So, as 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 and Spring 2014, I decided to reboot this blog to allow the new course to build in this space on some materials covered before. In all of these classes, I have been pleased with how this blog helped promote student engagement with on-line media and materials. (For the record, OSU students always engaged with the blog much more and better than Fordham students.)
Now, circa August 2016, I am gearing up to teach Sentencing Law again at the Moritz College of Law. And because a lot of new exciting sentencing developments seem likely in the weeks and months ahead, I am hopeful that this space will stay active as I flag current events for class discussion. In addition, I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, and so you can/should be on the look out for class materials posting in this space soon.
Tuesday, May 5, 2015
Final sets of mini-papers for review and reactions
Well timed for the middle of the first week of final is the last set of student mini-papers for student review:
Remember that if you are looking for a great way to earn some final extra credit, say smart things about one or more of these mini-papers in the comments.
Tuesday, April 28, 2015
Still more sets of mini-papers for review and reactions
As promised (and threatened), I am now continuing to post collections of mini-papers produced by students throughout the semester. Here are three more of the collections: