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February 2, 2014

Yet another round of notable "who" developments concerning the death penalty and federal mandatory minimums

This coming week we are going to get much more focused on the particulars of capital punishment laws and doctrines and practices.  But, as you may already realize, my obsession with "who" issues will persist in class and elsewhere.  And these posts from my other blogs since our last meeting highlights this reality from various perspectives concerning both the death penalty and mandatory minimums:

Some death penalty stories:

Some federal mandatory minimum stories:

February 2, 2014 in Death penalty history, Who decides | Permalink


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A couple of these posts have me interested in the role of victims at sentencing. Coming into this class, as a result of 2 years of law school conditioning, the mere mention of victim impact statements triggered an almost instinctual response of: "bad." Punishment must be justified, be it retributive or utilitarian. I came into class believing that judge and jury were the only people capable of making a fair judgment as to a convicted criminal's sentence. Victim's could only serve to bias the fact-finder and cause the imposition of an unfairly retributive sentence (their statements would be wholly irrelevant to further utilitarian goals). Before this class, it was simple: jurors in sentencing = bad.

What I found really interesting about this set of posts was that they showed that victims might advocate AGAINST harsher sentences. A deeply religious family doesn't want the man who murdered their daughter to be executed. A victim's family might want a convicted criminal to be able to make restitution payments. This is especially interesting to me right now because I've seen something close to it in practice. Leaving names out of this anecdote: I heard about a rape victim, a young girl, who recently recanted testimony that alleged that her father had raped her. The general consensus of the attorneys stunned by this was that the girl's mother had coached her and made her recant, so that she-the mother-could collect child support from the father.

Before this class, I had a visceral, uneducated "no" reflex to victim impact statements. I think that is slowly evolving into a visceral, marginally educated "no" response. Whether a civil plaintiff is able to pay or not, may be allowed to affect damages, but it seems unfair to let a victim's feelings (however justified and true) to affect sentencing. Any statements made don't seem to further utilitarian reasons for punishment and any retributive function served (ie. a jury feeling especially bad and increasing a sentence) is punitive.

Victim's voices should certainly be heard. But maybe after sentencing? Maybe not to a jury (just the judge)?

I welcome any scathing responses because I really want to come out on the victim's side of this issue, but just can't seem to navigate myself there.

Posted by: Hari S. | Feb 3, 2014 7:40:46 PM

I see your point, Hari, and I would agree with your assessment of how we are conditioned to think about this issue in the course of our legal education.

Consider this scene from some Law and Order episode I saw when I was a teenager but that stuck with me all these years:

An elite, rich young man killed someone in the course of driving under the influence. The rich kid had his entire family testify at his hearing/trial (I was not paying attention to procedure at 15) and saying how generally well behaved the rick kid was, got good grades, never had any convictions or got in trouble before, etc. They wanted the judge to show leniency.

Then the victim's attorney made a statement. The victim was some random unemployed guy with no loving family that came to testify on his behalf, no one even to mourn his loss, probably had a few convictions himself, etc. The attorney basically admitted all of those facts but pleaded that the judge not allow the identity of the victim to influence his decision (whether to dismiss case or convict the kid... like I said, I'm not sure).

What I took away from this episode at the tender age of 15 was that it did not seem fair to compare the relative identities of the criminal and the victim to come up with a sentence for the crime. If that happens, then people who just happen to kill people in society that themselves may be criminals would get lesser sentences, and sentencing would become a contest of who is more valuable to society (which sounds oddly utilitarian itself). I definitely think that identities matter when sentencing decisions are made (see my Tsarnaev post), but I think when identity assessments dominate (or the victim's identity and the criminal's identities are compared), the subsequent sentencing decisions become disparate in a way that is definitely discriminatory (which is V. BAD).

Posted by: Hannah M. | Feb 4, 2014 2:29:04 PM

This post is in reference to the two stories regarding the Smarter Sentencing Act. I am interested in discussing the changing feelings of legislators toward mandatory sentencing minimums. Legislators, from both parties, championed the introduction of mandatory minimums in the 1980s as "being tough on crime" and good for the country. The bipartisan support for these mandatory minimums can especially be seen in legislation like the 1986 Anti Drug Abuse Act that flew through Congress on its way to becoming law.

Legislators are such an important "who" in the entire sentencing process and their changing views on mandatory minimums are interesting. The focus for legislators has changed from being "tough on crime" to reducing America's prison populations and saving money. Democrats often push the civil rights benefits of incarcerating fewer people and Republicans can emphasize the cost savings of reducing the number of people in prison This change in perspective has affected members of both parties and I for one cheer on this development.

Posted by: Max Reisinger | Feb 5, 2014 12:53:09 PM

The link discussing Catholic faith as a basis for the Governor to grant clemency I found to be very interesting. I respect the family for advocating for their faith and am inclined to agree with them in some respects. However, I can't help but wonder, if clemency is granted, what type of results this may bring in the future. If their faith-based argument succeeds, is this opening a door for all subsequent victims to make the same argument. I am supportive of victims having a role in the sentencing process however I hesitant in granting them such a powerful position. If victim's are able to successfully argue for clemency based on their religious beliefs, then Defendants who commit crimes against non-religious victims would, in theory, still be subject to death. Giving victims this power in sentencing seems to significantly limit the role of the jury. I am interested to see how this unfolds and how this effects future clemency arguments.

Posted by: Carrie Thiem | Feb 11, 2014 8:45:11 AM

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