Sentencing Class @ OSU Moritz College of Law

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:

• Alcatraz
• Missouri State Penitentiary
• Rotary Jail Museum
• West Virginia Penitentiary 

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

"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.

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.

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.

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.

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

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

• "Citing Catholic faith, family of victim seeks to keep condemned Cleveland killer from lethal injection"

• Diverse perspectives on victims having diverse perspectives on sentencing

• SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling

Some federal mandatory minimum stories:

• Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote

• Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

• Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?