Criminal Law @ Moritz College of Law

Ohio version of the Berry case ... how do you think it comes out under Ohio law?

A case with facts reasonably similar to those in the Berry murder/manslaughter case in our text was litigated all the way up to the Ohio Supreme Court in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiance, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Ohio Supreme Court applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here are snippets from the Shane ruling: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction....

We hold that words alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations.  Rather, in each case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant a voluntary manslaughter instruction.  The trial judge is required to decide this issue as a matter of law, in view of the specific facts of the individual case....  Provocation, to be reasonably sufficient, must be serious. 

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

Does the text or spirit of the Eighth Amendment (or other parts of the US Constitution) embrace any particular theory of punishment?

I have asked the question in the title of this post to many students in many classes, and I am still not sure of the answer.  The Supreme Court has sometimes spoken to these matters in a number of Eighth Amendment cases (some of which are discussed in our text).  I plan to discuss briefly some of the Eighth Amendment cases that appear in our reading, but let me start the conversation by highlighting some key text from the Constitution and from the caselaw:

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

Graham v. Florida, 560 U.S. 48 (2010), majority opinion: "The concept of proportionality is central to the Eighth Amendment.... A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense."

Ewing v. California, 538 U.S. 11 (2003), majority opinion:  "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution does not mandate adoption of any one penological theory....  Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts."

Ewing v. California, 538 U.S. 11 (2003), Justice Scalia opinion: "Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution....  In the present case, the game is up once the plurality has acknowledged that 'the Constitution does not mandate adoption of any one penological theory,' and that a 'sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation'." 

Does the text or spirit of the Eighth Amendment embrace any particular theory of punishment?

I have asked the first question in the title of this post to many students in many classes, and I am still not sure of the answer and so will be eager to hear another set of views in our class.   The Supreme Court has, in a sense, spoken to this question in a number of Eighth Amendment cases (some of which are discussed in our text).  I plan to discuss briefly some of the Eighth Amendment cases that appear in our reading, but let me start the conversation by highlighting some key text from the Constitution and from the caselaw:

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

Graham v. Florida, 560 U.S. 48 (2010), majority opinion: "The concept of proportionality is central to the Eighth Amendment."

Ewing v. California, 538 U.S. 11 (2003), majority opinion:  "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution does not mandate adoption of any one penological theory....  Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts."

Ewing v. California, 538 U.S. 11 (2003), Justice Scalia opinion: "Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution....  In the present case, the game is up once the plurality has acknowledged that 'the Constitution does not mandate adoption of any one penological theory,' and that a 'sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation'."

Noticing how theories of punishment find expression in federal and Ohio law

In class today, toward the very end, I (too quickly) flagged passages from key portions of federal and Ohio law to highlight that actual criminal laws often reference both utilitarian and retributivist ideas.  I will be eager to return to this theme in class on Wednesday, and so I thought here I would link here to the two provisions of law I referenced during class.  Specifically, consider:

FEDERAL LAW: US Code, Title 18, Section 3553(a) -- Imposition of a Sentence

OHIO LAW: Ohio Revised Code Section 2929.11 -- Purposes of felony sentencing

I recommend that you click through to these laws and see if you can identify the varied ways in which various theories of punishment find expression in actual laws.  (And feel free to use the comments to get the discussion started on your time, if you wish.)

"The Dire Consequences of Pleading Not Guilty by Reason of Insanity in Colorado"

The title of this post is the headline of this interesting recent (and long) article about the realities of how the defense of insanity plays out in the Mile High state.  I recommend the full article, and here are excerpts:

Americans are familiar with — and often fascinated by — cases in which alleged perpetrators have pleaded not guilty by reason of insanity (NGRI).  People such as John Hinckley Jr., who attempted to assassinate President Ronald Reagan; Lorena Bobbitt, who cut off her husband’s penis after she says he sexually assaulted her; and the Aurora theater shooter, who unsuccessfully asserted insanity, have generated media frenzies.  They’ve also caused the public to question the fairness and necessity of laws that say not everyone is equally culpable for criminal acts.

For more than two centuries, state legislatures across the United States have generally supported the idea that individuals with certain degrees of mental illness cannot be held criminally responsible for their actions and should be directed toward medical support, not incarceration. Although people are constitutionally entitled to be found competent to stand trial, the U.S. Supreme Court upheld in March 2020 the notion that there is no constitutional right to an insanity defense.  Four states — Kansas, Utah, Idaho, and Montana — have done away with the NGRI defense entirely.  Today, about one percent of all felony cases in the nation contain an insanity plea; of those, only around a quarter are successful.

Colorado continues to allow individuals to plead NGRI based on a very strict legal definition..... Local attorneys and legal experts explain that the defense should only be considered in the most serious situations, because of the attendant repercussions: In the Centennial State, NGRI acquittees are automatically committed to the state psychiatric hospital for treatment.  Unlike convicted criminals, who are sentenced for a set period of time, those who are deemed insane remain at the Colorado Mental Health Institute at Pueblo (CMHIP) until doctors and the courts agree they are stable and safe enough to reintegrate into the community.  Under Colorado law, their sentences aren’t supposed to be influenced by the specifics of their alleged crimes, as they are in some other states.  The amount of time to be served is the same for everyone: one day to life....

Research by Michael Perlin, professor emeritus at New York Law School and founding director of the International Mental Disability Law Reform Project, shows NGRI acquittees across the country generally remain confined in state hospitals longer than they would have been imprisoned had they pleaded guilty and entered the traditional carceral system. “The less serious the crime, the greater the disparity is,” he says.

Data acquired from the Colorado Judicial Branch show that, since 2010, less than 40 percent of all NGRI court filings in the state involved at least one murder or attempted murder charge.  Nearly a quarter of the cases in which insanity was presented included only class 5 felonies or below.  (Most felonies are labeled from class 1 — the most serious crimes, punishable by life in prison — down to class 6.)  According to hospital data received via a CORA request, as of late August, 31 percent of NGRI patients at CMHIP had a maximum offense level of felony classes 4 to 6.  “You need to supervise these folks, but there’s no reason to keep them in as long as they would have been in prison had they been convicted,” says Chris Slobogin, a professor of law at Vanderbilt University who helped update the mental health standards for the American Bar Association in 2016.  “Most of the time, they could be let out a lot earlier, and they should be.”...

There are far more people — roughly 10 times as many — with serious mental illnesses being held in jails and prisons than in state hospitals, according to the Treatment Advocacy Center, a national nonprofit that works to reduce barriers to mental health care.  But mentally ill or not, when prisoners’ penal sentences end, they are released into the community. Neither the courts, nor the jails, nor the departments of corrections first assess the potential impact on public safety or their likelihood to commit other crimes.

That’s not the case with those declared insane by the courts in Colorado.  To be released from CMHIP, NGRI acquittees like Ownby and Hoffschneider must be found to have “no abnormal mental condition which would be likely to cause him or her to be dangerous either to himself or herself or to others or to the community in the reasonably foreseeable future.”  It’s all about probability, Slobogin, the law professor, says: “What if there’s a 50 percent chance this guy will do something?  Does that give us grounds for keeping the person in or not?  Some people would say one percent is too high.  If that were true, we would have to keep everybody who’s in prison, in prison forever.”

Around 50 percent of people released from prison recidivate.  National recidivism rates for NGRI acquittees are not tracked, but limited research suggests they’re lower than those of incarcerated individuals.  “People who are found not guilty by reason of insanity face a larger uphill battle [to get released] than people who are not, even if their dangerousness or risk for violence is far lower than a person who might have committed the same offense and been put in prison,” says Neil Gowensmith, director of the Denver Forensic Institute for Research, Service and Training at the University of Denver.  “It’s a totally different standard, and one that may be, at times, not just stigmatizing, but flat-out discriminatory.”

More on Ohio's unique history and application of "prior calculation and design"

In case anyone wishes to dig even deeper into the unique phrasing of Ohio Revised Code Section 2903.01(A), the provision was the subject of an Ohio Supreme Court ruling late last year. In State v. Walker, 2016-Ohio-8295 (Ohio Dec. 23, 2016) (available here), the Court split over whether the trial evidence was sufficient to sustain a jury finding of "prior calculation and design." In so doing, the Walker Court provides this bit of legal history:

When the Revised Code was adopted in 1953, the crime of murder in the first degree — the precursor to aggravated murder — prohibited purposeful killing with “deliberate and premeditated malice.” Former R.C. 2901.01.  Under this earlier standard, “a killing could be premeditated even though conceived and executed on the spur of the moment. The only requirement was that the malicious purpose be formed before the homicidal act, however short in time.” State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978).

When it amended the aggravated-murder statute, R.C. 2903.01(A), to provide that “[n]o person shall purposely, and with prior calculation and design, cause the death of another,” the General Assembly explicitly rejected the notion that brief premeditation prior to a murder could establish prior calculation and design:

[R.C. 2903.01(A) employs] the phrase, “prior calculation and design,” to indicate an act of studied care in planning or analyzing the means of the crime, as well as a scheme compassing the death of the victim.  Neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but they must be sufficient to meet the proposed test of “prior calculation and design.”  In this context, momentary deliberation is considered insufficient to constitute a studied scheme to kill.

(Emphasis added.) Ohio Legislative Service Commission, Proposed Ohio Criminal Code: Final Report of the Technical Committee to Study Ohio Criminal Laws and Procedures, at 71 (1971).

Two "extra credit" answers noting provisions of Ohio law similar to the law struck down in Proctor

I am pleased to be able to report that two students have already sent me answer to my in-class question about Ohio criminal statutes structured very similarly to the statute deemed unconstitutional in Proctor:

1. Ohio Revised Code Section 2923.241 Hidden compartments in vehicles, Sub-section (B): “No person shall knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance.”  (Added student note: This all works on the theory that modifying your car to have a “hidden compartment” and possessing a “hidden compartment” are the same thing. But with my neophyte knowledge of the law and common reasoning I would say they probably are.)

2. Ohio Revised Code Section 2923.24 Possessing criminal tools, Sub-section (A): “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“

I was thinking/referencing the Ohio possessing criminal tools statute in class, but I am pleased a student also flagged the Ohio hidden compartment crime (which, if you look at the code sections, is really numbered as a kind of subsection/extrapolation on possessing criminal tools).

A few years ago, the Ohio Supreme Court issued a lengthy split opinion in Ohio v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991 (December 15, 2010), on the meaning/reach of the term "criminally" in the Ohio possessing criminal tools statute.  (But, for lots of reasons, I think your time this week would likely be better spent re-reading Jones and Martin (or watching Dave Chappelle bits on YouTube) than reading Ohio v. Chappell.)

UPDATE: Another student just sent me another possible addition to the list of Proctor-like laws in Ohio:

Ohio Revised Code Section 2925.041 Sub-section (A):  "No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code."  (Added student note:  Thus, this statute is making it illegal to possess a chemical that otherwise would be legal to possess when the possession is coupled with the intent to use the chemical in the making of a controlled substance. This appears to be a nearly identical situation as was presented in Proctor. Then, right before prohibition when alcohol was viewed as extremely problematic, this coupling line of reason was used to aid the prevention of speakeasies. Today, ORC 2925.041 is using the coupling line of reason is being used to aid in the prevention of the manufacturing of what we consider problematic, drugs. Let me know if this was the answer you were looking for.)

"Duty to retreat is a safeguard"

The title of this post is the headline given to this letter to the editor in our own Columbus Dispatch authored by John Gilchrist, the legislative counsel to the Ohio Association of Chiefs of Police.  The whole letter is worth a read, and it starts and ends this way:

The Ohio Association of Chiefs of Police is opposed to the “stand your ground” provision of House Bill 203, which repeals a person's duty to attempt to retreat from danger, if possible, before resorting to deadly force against an attacker.  There is no problem with the current law.  Current law balances societal interests.  There are strong public policies for preserving the sanctity of life on one hand and, on the other hand, for allowing one to protect himself from harm....

[R]epealing the duty to retreat is a recipe for more violence, whereby killings currently considered to be criminal will become justifiable homicides.

Remove the duty to retreat and you remove a legal restraint that will allow pride, passion and ego to prevail over common sense.

Comments seem to be working again, so let's start felony murder (repeal?) discussion

I am pleased to report that, at least on my laptop, the comment function appears to be operational for this blog again.  Inspired by that great reality, I thought it would be useful to begin here a discussion of the always controversial topic of felony murder (and its JV version, misdemeanor manslaugher). 

Specifically, drawing on an amusing little editorial complaining about an Illinois decision about the doctrine from a few years ago, I wonder if I could build support among students to seek to abolish both felony murder and misdemeanor manslaugher doctrines in Ohio.  To begin, I urge everyone to read this commentary, headlined "It's a Bird, it's a Plane, it's Felony Murder." Then, based on the points made therein, I wonder if anyone would support a proposal to repeal Ohio Revised Code Subsection 2903.02(B) and all of Ohio Revised Code Section 2903.04.

Legal highlights (via Wikipedia) after The Station nightclub fire, a variation on the Cocoanut Grove fire

Wikipedia has this decent entry on the fire that led to Welasky's trial and conviction, although real historians can and should take the time to do more research on the story if so interested.  And I mention the most recent modern variation on these sad facts, which happened in Rhode Island in 2003 at The Station nightclub.  Here are the basic facts of that case and the legal aftermath (drawn from this Wikipedia entry):

The Station Nightclub fire was the fourth-deadliest nightclub fire in U.S. history, killing 100 people. The fire began at 11:07 PM EST, on Thursday, February 20, 2003, at The Station, a glam metal and rock and roll themed nightclub located at 211 Cowesett Avenue in West Warwick, Rhode Island.

The fire was caused by pyrotechnics set off by the tour manager of the evening's headlining band, Jack Russell's Great White, which ignited flammable sound insulation foam in the walls and ceilings surrounding the stage. A fast-moving fire engulfed the club in 5½ minutes. In addition to the 100 fatalities, some 230 people were injured and another 132 escaped uninjured....

In the days after the fire, there were considerable efforts to assign and avoid blame on the part of the band, the nightclub owners, the manufacturers and distributors of the foam material and pyrotechnics, and the concert promoters. Through attorneys, club owners said they did not give permission to the band to use pyrotechnics. Band members claimed they had permission....

On December 9, 2003, brothers Jeffrey A. and Michael A. Derderian, the two owners of The Station nightclub, and Daniel M. Biechele, Great White's former road manager, were charged with 200 counts of involuntary manslaughter — two per death, because they were indicted under two separate theories of the crime: criminal-negligence manslaughter (resulting from a legal act in which the accused ignores the risks to others and someone is killed) and misdemeanor manslaughter (resulting from a petty crime that causes a death)....

The first criminal trial was against Great White's tour manager at the time, Daniel Michel Biechele, 29, from Orlando, Florida. This trial was scheduled to start May 1, 2006, but Biechele, against his lawyers' advice, pled guilty to 100 counts of involuntary manslaughter on February 7, 2006, in what he said was an effort to "bring peace, I want this to be over with."... Superior Court Judge Francis J. Darigan sentenced Biechele to 15 years in prison, with four to serve and 11 years suspended, plus three years' probation, for his role in the fire....

Superior Court Judge Francis J. Darigan sentenced Biechele to 15 years in prison, with four to serve and 11 years suspended, plus three years' probation, for his role in the fire....

Following Biechele's trial, the Station's owners, Michael and Jeffrey Derderian, were scheduled to receive separate trials. However, on September 21, 2006, Superior Court Judge Francis J. Darigan announced that the brothers had changed their pleas from "not guilty" to "no contest," thereby avoiding a trial. Michael Derderian received 15 years in prison, with four to serve and 11 years suspended, plus three years' probation — the same sentence as Biechele. Jeffrey Derderian received a 10-year suspended sentence, three years' probation, and 500 hours of community service.

In a letter to the victims' families, Judge Darigan said that a trial "would only serve to further traumatize and victimize not only the loved ones of the deceased and the survivors of this fire, but the general public as well." He added that the difference in the brothers' sentences reflected their respective involvement with the purchase and installation of the flammable foam.

Rhode Island Attorney General Patrick C. Lynch objected strenuously to the plea bargain, saying that both brothers should have received jail time and that Michael Derderian should have received more time than Biechele.

"Hamilton County witness intimidation is increasing: Justice in jeopardy as prosecutors struggle for testimony from eye witnesses"

Especially because our conversation in class today focused on some of the proof and procedure realities that necessarily attend real-world efforts to prove up the key facts in real-world cases, I thought it useful to highlight this recent Cincinnati Enquirer article with the same headline as the title of this post. Here are excerpts:

Dante Williams shot and killed Adrian Battle in 2006, a crime that went unsolved for seven years because witnesses were terrified of being shot themselves.

In 2011, Joe Harris was convicted of murder – but only after Hamilton County prosecutors jailed a star witness to ensure the frightened man would testify.

In another case, a witness was so scared of being perceived as cooperative that he told prosecutors he would testify only if he was handcuffed and brought to the courthouse in a police cruiser so it would look like he wasn’t cooperating.

These cases are symptomatic of a problem Hamilton County prosecutors say is growing: the number of witnesses too frightened to testify. That, they say, makes it harder for prosecutors to win convictions and easier for some violent crimes to go unpunished – and possibly jeopardizes justice....

The killing of Battle and resulting murder case against Williams ended in June. Instead of a murder conviction and sentence of life in prison, Williams pleaded guilty to a lesser charge and received the minimum sentence possible – three years in prison for killing Battle and one for using a gun. The four-year prison sentence was a victory for Prem because Williams was ultimately punished in a case in which an uncooperative witness meant a very weak case for prosecutors. “Had more people been available as witnesses, we may have been able to convict him of more serious crimes,” Prem said. “If we don’t have witnesses, we can’t prove cases.”...

The issue in prosecuting Williams was the star witness, a pregnant woman who saw the shooting, who was too afraid to testify. She and other witnesses in that case were so scared, Prem said, that he believed the best he could do was offer a plea bargain with the minimum prison sentence or face losing the case. “If you read in the paper that someone charged with murder gets (four) years, there’s a good reason for it,” Prem said. Prem, a veteran prosecutor who has tried scores of murder cases, often warns jurors of the common adage of the street: “Snitches get stitches and wind up in ditches.”

Effective discussion of strict liability issue in play in Shelton v. Sec’y, Dep’t of Corrections

We will wrap up our focused discussion of strict criminal liability issues on Wednesday, and the (still on-going) litigation over Florida's drug possession laws at issue in Shelton v. Sec’y, Dep’t of Corrections will provide a good setting for developing a few final thoughts on this front.  Fortunately, though the textbook provides an already dated (and somewhat confusing) account of the Shelton case, there is a terrific (and brief) primer on the case available at this link from The Heritage Foundation.

I highly recommend that everyone at all interested by these debates read this discussion of the Shelton case and its importance.  To whet your appetite, here is how document linked above is titled and its abstract:

Guilty Until Proven Innocent: Undermining the Criminal Intent Requirement

Abstract: Developed over the course of hundreds of years, the Anglo–American legal system contains several key provisions that, when used properly, guard against wrongful criminal convictions.  These provisions, however, are under attack by America’s legislators and their desire to eliminate mens rea (“guilty mind”) requirements from U.S. criminal law.  The loss of this guilty mind requirement would destroy Americans’ primary defense against false accusations and Kafka-esque legal proceedings.  How the Supreme Court of the United States rules (if the Court does choose to rule) on Shelton v. Sec’y, Dep’t of Corrections will have a tremendous impact on one of America’s primary core liberties.

Getting a running start on our discussion of punishment theory, pot prohibition and Parker consumption

Though I was grateful to hear everyone in our class speak (and report their favorite law-related movies), I was disappointed my own excessive blathering meant we did not start talking about how theories of punishment can and should inform debate over (1) whether and why the criminal law should condemn and harm persons who grow marijuana, and (2) whether and why the criminal law should condemn and harm the persons who murdered Richard Parker.   Though we will take these issues up at lengthy in our class on Wednesday, I would love to get a running start on these topics via comments to this post.

In order to connect this debate with key punishment theory concepts and terms, I would be especially excited is student comments focused at least somewhat on which theories of punishment seem to provide the best (or perhaps the worst) justifications for condemning/harmimg persons who grow marijuana and/or the for persons who murdered Richard Parker.

And, to provide a little Ohio criminal law context for your extra engagement, let me quote the first part (and link to the full text) of Ohio's basic criminal statutes covering these offenses:

Ohio Revised Code Section 2903.01: Aggravated murder.

(A) No person shall purposely, and with prior calculation and design, cause the death of another...

Ohio Revised Code Section 2925.04: Illegal manufacture of drugs - illegal cultivation of marihuana - methamphetamine offenses.

(A) No person shall knowingly cultivate marihuana....

In addition, if you are looking for some more "current events" which can allow you to think about theories of punishment, check out this notable New York Times op-ed from today's paper headlined "Graying Prisoners."  See if you can identify how theories of punishment are (indirectly?) used by the author of this commentary in the main argument of the commentary.

Should there be special trial rules for the death penalty? Why?

As we continue to discuss and debate how criminal trial procedures might be structured if and when a society decides that accuracy should be the primary goal and principal value, consider whether and why the availability for a certain type of punishment (e.g., the death penalty or LWOP) should impact the way procedures are structured.  The US reality, as I explain in detail in my upper-level sentencing course, is that trial procedures are a lot different in most states when a case involves a possible death sentence. 

Helpfully, we can draw insight on ths issue with reference to two notable jurisdictions based on the mid-term papers of Grady and Natalie, who discussed the operation of the death penalty China and Saudi Arabia, respectively.

Below I have uploaded the mid-term papers of Grady and Natalie, and I highly encourage everyone to read these papers closely and then share comments concerning the question in the title of this post.

Download Owen on DP in China

Download Hoover on DP in Saudi Arabia

Do you think Germany or Japan could have more accurate trials than the US?

Our last few classes will be focused on a discussion and debate about whether and how criminal trial procedures can and should be structured if/when a society decides that accuracy in the guilt/innocence determination can and should be the primary goal and principal value for criminal trials.  And, helpfully, we can draw insight on this issue with reference to two notable jurisdictions based on the mid-term papers of Kyle and Joshua, who discussed trial procedures in Germany and Japan, respectively.

Below I have uploaded the mid-term papers of Kyle and Joshua, and I highly encourage everyone to read these papers closely and then share comments concerning the question in the title of this post.

Download Schrodi_GermanCrimPro

Download Maygar Japan CJS

Why should a legislator focused on public safety worry much about mental states?

As I will try to explain in class, the abstract question in the title of this post is lurking deep within many of the issues and debates we will be having in the next few weeks as we turn to an exploration of the critical and complicated concept of mens rea in the interpretation and application of criminal law. In addition to thinking about this question in public policy terms, you should also seek to connect this question with the punishment theory topics that occupied us during the first few weeks of class.

To provide some specificity as you begin reflecting on these issues, consider how legislators in Ohio and elsewhere ought to respond to this notable article from Monday's Columbus Dispatch, which is headlined "CDC: Beef up traffic laws," and starts this way:

Traffic deaths and injuries are a preventable scourge that cost the nation about $99 billion a year in medical bills and lost productivity, according to the U.S. Centers for Disease Control and Prevention.

That's about $500 for each licensed driver in America, according to a study by the CDC's National Center for Injury Prevention and Control.  Researchers tallied the costs nationally using hospital, insurance and other data from 2005, when there were 3.7 million deaths and injuries from crashes.

They hope the cost information will persuade states and communities to take action to prevent traffic crashes, said Rebecca Naumann, a CDC epidemiologist and lead researcher on the study.

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a research (or advocacy) assignment/question for the long weekend:

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a related question to consider: If you were to be tasked with drafting such a statute for a state's legislature to consider, what provisions of the Wisconsin approach would you preserve and what provisions might you want to tweak?

For anyone eager to do some more (totally optional) reading on this interesting topic, consider checking out an article in the Spring 2010 issue of the Georgia Law Review by Ken Levy, which is titled "Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism."

UPDATE:  Here is a sad story via CNN about what sounds like a case like a New York version of the Jones case in 2010.  The piece is headlined "Girl, 4, weighed 15 pounds at death," and starts this way:

The mother of a 4-year-old girl found dead in her Brooklyn home Thursday morning was charged Friday with second-degree assault, reckless endangerment and endangering the welfare of a child, according to police.

Marchella Pierce weighed just 15 pounds and had marks on her hands and ankles when police found her unconscious in her family's apartment, according to CNN affiliate WABC-TV.

Real criminal law "purposes" statutes and theories of punishment

As I highlighted at the end of our first class, most views on theories of punishment and most criminal laws incorporate a mix of utilitarian and retributivist commitments and concerns.  To test your own understanding of these basic concepts, take a gander at the real criminal law statutes linked below and see if you can identify which theories of punishment are getting the most attention and love:

• US Code, Title 18, Section 3553(a)

• Ohio Revised Code, Section 2929.11

• New Jersey Statutes, Section 2C:1-2

Some pictures to help understand Dillard and Wulff

Thanks to the web, I was able to find this picture of the weapon that Moses Dillard Jr. was carrying when stopped by the police.  As you reflect on this case, think about whether and why the type of firearm that Dillard was carrying matters (and note that the court spends a good deal of time talking about the type of weapon toward the end of its opinion).

I was also able to find this picture of a talon necklace that is likely similar to what got Robert Wulff in trouble, though I doubt this picture shows talons from the red-talked hawk and the great-horned owl.

Any pre-class thoughts on Dudley and Stephens?

I typically won't solicit pre-class discussion of our reading assignments in this space.  But because Dudley and Stephens is such a renown case and because we really will not have time to cover it completely during our first class, I cannot resist providing a forum here for any student who wants to express outrage or sympathy or anything else after reading one of the most famous cases in the history of criminal law. 

Also, I am often going to try to use this forum to provide some visuals to accompany all the text in our casebook. In this post, for example, I have provided above a drawing of the English yacht Mignonette, the small ship on which a crew of four set sail on May 19, 1884.  And I have provided below a photograph of the 13-foot lifeboat onto which the entire crew of the Mignonette escaped when their ship seemed doomed.

I am not sure if each of these pictures are worth 1000 words of a judicial ruling, but they do provide some useful imagery as you consider and contemplate the ruling in the case.  In addition, go to this link and search for Dudley if you would like a somewhat lighter perspective on the case.