Sentencing Class @ OSU Moritz College of Law

Ohio's current capital laws and the dynamic realities of Ohio and US death penalty history

As mentioned in class, one class activity for the coming week(s) will be to work through how modern post-Furman capital punishment laws might get applied to the (in)famous Unibomber, Ted Kaczynski.  (Ted is currently an LWOP resident at superman ADX Florence in Colorado and in the past was comically portrayed by Will Farrell).  I will not aggressively quiz anyone about doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Ted's case might be litigated in prominent death penalty states like Florida and Texas and Ohio. 

We could easily spend the rest of the semester discussing the history and modern specifics of the death penalty in specific jurisdictions like Florida and Texas and Ohio and US.  I will reference this history and modern practices in class over the next few weeks, and here are some links concerning the two jurisdictions in which we operate to provide a (low-stress, high-learning) chance to discover a lot more about these matters:

Links with background on Ohio's history and practices in the administration of the death penalty 

• Legal basics: Ohio Revised Code Section 2929.04: "Death penalty or imprisonment -- aggravating and mitigating factors"
• Some history from the Ohio Department of Rehabilitation and Corrections
• Some history from the Ohio section of website of Death Penalty Information Center

Links with background on US history and practices in the administration of the death penalty 

• Legal basics:Title 18 US Code Section 3592: "Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified"
• Some history from the federal section of website of Death Penalty Information Center
• Some history from a Congressional Research Service 2005 Overview Report on Federal Death Penalty

Based on my hope that your "who radar" is now fully operational, I would be eager to hear your views (in the comments or in class) as to which "whos" have had the most impact on the operation of Ohio's death penalty system throughout the state's history (based, perhaps, on the Ohio DRC's account of this history).

Deterrence research and the "life-saving" argument that the death penalty is morally required

As I mentioned in class, some years ago Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life. Here is a link to this article and its abstract:

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.

As explained in class, the suggested prompt for mini-papers to be submitted on Feb 9 is to write to a legislator who is a kind of "agnostic supporter" of the death penalty based on the research suggesting executions help to save at least a few innocent lives.

Alternatively, if you like digging into social science research, you can write about the modern empirical debate informed perhaps by a collection of some recent 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.

Quick reminder of class activities for last week of January

Just a quick note to remind everyone that...

1.  If you are submitting your first mini-paper this week (requirements outlined here), it is due by 12noon today (Monday, Jan 26).

2.  You should prepare for this week's classes by (re)reading Williams v. New York and by reading McGautha v. California.  (It is sufficient to read the shortened excerpts of these cases in the casebook, but I have here provided links to the full opinion for anyone interested in reading more.  Williams in not much longer in full text, but McGautha is a lot longer.)

3.  Our coming discussion of modern capital punishment administration in the United States is going to focus a lot on the "who sentences" question.  To that end, you should check out and reflect on the "who" aspects of these stories about high-profile on-going capital cases:

• High-profile capital trials put spotlight on dynamics of death-qualification of jurors

• The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

SCOTUS cert petition in Young v. United States asserting 15-year ACCA prison term violates the Eighth Amendment

As mention in class, I am working on an amicus brief in support of a petition for certiorari in Young v. United States. I just received a copy of the petition, which was filed today, and the petition's appendix includes a copy of the Sixth Circuit opinion which rejected the defendant's assertion that a 15-year mandatory minimum sentence for being a felon in possession of shotgun shells violated the Eighth Amendment's prohibition on cruel and unusual punishments. The full petition and appendix can be downloaded below, and here is how the petition styles the Question Presented:  

Whether the Eighth Amendment to the U.S. Constitution’s “evolving standards of decency” standard bars the application of a sentencing enhancement, the Armed Career Criminal Act, 18 U.S.C. section 924(e), to a conviction for being a felon in possession of ammunition in violation of 18 U.S.C. section 922(g)(1), when the defendant’s possession of the seven shotgun shells at issue was passive, innocent, and initially unwitting, when the defendant’s most recent prior felony conviction was twenty years old, and when the resulting mandatory minimum sentence is 18 times greater than the minimum sentence the defendant would have otherwise received and more than 11 times greater than the maximum sentence the defendant would have otherwise received.

Download Young v US -- Petition for Writ of Certiorari with Appendix

Background on discretion, disparity and discrimination in Presidential clemency

With apologies for (once again) lecturing too much and running late, I hope that I was able in Tuesday's class to effectively lay out some of the basics of what I call the "Three Ds" of modern sentencing debates: Discretion, Disparity and Discrimination.  I got a bit behind because I was not planning to talk about Presidential clemency powers; but given that Prez Obama is giving a State of the Union Address tonight (sentencing background/commentary here), perhaps now is a good time to use clemency as a good focal point for analyzing the "Three Ds."

On this topic, we must start with a key provision of the U.S. Constitution: Article II, Section 2 provides that the President "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."   The US Supreme Court views this authority quite broadly and has repeatedly indicated that Congress cannot limit the President's discretionary use of this clemency power. 

In addition to vesting the President with broad discretion, this clause has resulted in considerable disparity in various ways in various eras as different Presidents have used (or not used) this authority in different ways.  Most notably for modern discussion, a recent investigation by ProPublica produced these notable headlines about modern clemency realities:

• Pardon Applicants Benefit From Friends in High Places
• Presidential Pardons Heavily Favor Whites
• Racial Disparity in Presidential Pardons: What Can Be Done?

In light of these headlines and the realities they reveal about the modern exercise of Presidential clemency and discretion, disparity and discrimination, should we find this additional report comforting?:

• Obama Has Granted Clemency More Rarely Than Any Modern President

Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE?

As the text reveals, federal sentencing doctrines and state sentencing laws express in various ways an interest in achieving consistency in sentencing outcomes across a range of cases:  e.g.,

• 18 US Code § 3553(a)(6) orders federal judges at sentencing to consider "the need to avoid unwarranted sentence disparities" among similar defendants;
• Ohio Revise Code § 2929.11(B) provides that sentences imposed for felonies shall be "consistent with sentences imposed for similar crimes committed by similar offenders." 

Arguably, the US Constitution might be thought (at least since the end of the Civil Law) to demand consistent sentencing outcomes over a range of cases: the Fourteenth Amendment, of course, precludes governments from "deny[ing] to any person within its jurisdiction the equal protection of the laws."

We will begin next week by discussing the normative and practical issues raised by these kinds of commitments to sentencing consistency.  Normatively, I hope students can explain why we should have a strong commitment to sentencing consistency, especially if there is reason to worry that such a commitment may complicate efforts to achieve justice in each individual case.   Practically, I hope students can explain how we can effectively determine who are, in the words of federal law, "defendants with similar records who have been found guilty of similar conduct"?  Helpfully, the on-going federal cases highlighted in the questionnaire provide a real-world lens to focus concretely on these abstract questions. 

Here is an alphabetical list of some defendants arguably similar to Dzhokhar Tsarnaev (links via Wikipedia and with carnage; federal sentences they received):

• Ted Kaczynski (killed 3, injured over 20; LWOP)
• Timothy McVeigh (killed 186, injured over 600; death sentence)
• Terry Nichols (conspired with McVeigh; LWOP)
• Eric Rudolph (killed 2, injured over 100; LWOP)

Especially given that Tsarnaev is surely most similar to all those on this list other than McVeigh, does a commitment to sentencing consistency entail that Dzhokhar Tsarnaev must get an LWOP sentence?  If a federal jury in the Tsarnaev case were to return a sentence recommendation of death, should the presiding federal judge ignore that recommendation and impose LWOP in order to "avoid unwarranted sentence disparities" among similar defendants?

Here is an alphabetical list of some defendants arguably similar to former Connecticut Gov John Rowland (links via Wikipedia when available and federal prison sentences received):

• Illinois Gov Rod Blagojevich (14 years)
• Massachusetts House Speaker Salvatore DiMasi (7 years)
• Louisiana Gov Edwin Edwards (10 years)
• Illinois Gov George Ryan (6.5 years)
• Bridgepost (CT) mayor Joseph Ganim (9 years)
• Alabama Gov Don Siegelman (6.5 years)
• Connecticut Treasurer Paul Sylvester (4.3 years)

Given that Rowland is facing sentencing for his second federal fraud/corruption charges, shouldn't concerns about sentencing consistency demand he now get a federal sentence of at least 6.5 years if not a lot more?

UPDATE as of 11am Monday: Kudos to those students who have already shared thoughtful comments below about the importance and challenges of achieving sentencing consistency.  

One important additional factor in this critical debate which we will discuss in class today (and throughout the semester) is WHICH ACTORS in the criminal justice system should be especially concerned with seeking sentencing consistency and HOW PROCEDURLLY shoud greater consistency be pursued:  e.g., should legislatures be especially concerned with sentence consistency and pursue it by enacting detailed sentencing guidelines and/or should sentencing judges be especially concerned with sentence consistency and pursue it by thoroughly researching "comparables" before imposing a sentence.

One especially notable actor in an especially notable setting that must confront these concerns a lot is a prosecutor in a jurisdiction with the death penalty.  For example, is it virtuous for an Ohio prosecutor, in the name of consistency, always pursue a capital charge for any statutory eligible murder and refuse to plea the case down to a lesser punishment (which is the stated policy of long-time Hamilton County prosecutor Joe Deters)?  Alternatively, as this new post on my main blog hints, should we be critical of the Colorado prosecutors in the Aurora killer James Holmes case for not being willing to take an LWOP plea given that prosecutors have often cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter). 

Basic logistics concerning mini-paper assignments/requirements

As discussed in our first class, one course requirement is for students to author and submit at least three mini-papers throughout the semester.  Each of these mini-papers must be no more than two pages long, and the papers can be (1) thoughtful reflections on the prior two week's classes and readings, or (2) engaging discussions of an original topic/question/idea/challenge that I pose in class.

As set forth below, the submission dates and time for these mini-papers is generally every other Monday by 12noon:

• January 26
• February 9
• February 23
• March 9
• March 30 (extra week because of Spring Break)
• April 13

As also explained 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.

I will generally provide the original question/idea/challenge for certain mini-papers in class on the Tuesday right after the dates listed above and then provide links in this space to any supportive materials.  

The first question/idea/challenge, as you may recall, is to make recommendations concerning what the new Executive Director of the Ohio Criminal Sentencing Commission (OCSC) ought to have the OCSC working on these days.  Here are links to some OCSC materials that can provide helpful background for this topic:

• Ohio Criminal Sentencing Commission FAQs

• Ohio Criminal Sentencing Commission Publications (most of which are dated)

Our class's (unrepresentative) initial perspectives on the death penalty

I am grateful for the 23 students who completed and submitted the class questionnaire, and I am eager to get completed surveys placed in my faculty from anyone who has not yet submitted the form before 2pm on Thursday.  We will be sure to discuss some of the collective "results" in class, and I really appreciate all the thought that was evident in many answers.

I was moved to do this first post about the questionnaire because I was struck (and a bit surprised) by how titled the class seems to be against the death penalty this year.  In previous years, students have come into the class fairly evenly divided on the issue, with roughly half of students saying they were categorically against the death penalty and half saying they were not.  This year, however, 19 students (of 23 submitted questionnaires ) indicted they were against the death penalty (although a few back-tracked a little bit when asked about a sentence for the Boston Marathon Bomber).

In other words, it seems that more than 80% of our class generally oppose the death penalty, whereas Gallup polling reveals that more than 60% of people in the US generally favor the death penalty.  Especially as we engage in death penalty discussions, we should be ever minderful of this notable contrast in student viewpoints and broader US viewpoints.

In addition to simply noting these notable facts about views on the death penalty, I am eager to hear what folks imagine to be the general views of all Moritz students and/or all lawyers as a group.  Notably, some past Gallup poll data has highlighted that persons under 30 and "nonwhite" persons comprise the groups most opposed to the death penalty, and the Moritz student population as a whole is certainy younger and more diverse than the general population.  But all lawyers as a group tend generally to reflect, demographically, the general population.  (Consequently, I would guess that our class is not extremely unrepresentative of all Moritz students but likely is quite out of line with all lawyers generally on this issue.)

Also, on the topic of the death penalty, the first US execution in 2015 took place Tuesday night, see "Georgia executes Vietnam veteran who killed a sheriff's deputy", and Oklahoma is scheduled to carry out another execution on Thursday. 

Pre-Class Questionnaire for pre-class completion

As mentioned in my e-mail to the class, your only formal responsibility before the first week of classes is to completed the short questionnaire that I have now uploaded here are a word document: 

Download 2015 1st Class Survey

As you will see from this document, you may want to (but need not) read pp. 1-17 in the text for some background on some of the terms used in the first question.  And the second question seeks feedback the topics listed in this class introduction post. 

In addition, the last question asks what sentence you would impose on former Connecticut Governor John Rowland at his upcoming federal sentencing. Background on this white-collar defendant and his crime can be found in these recent articles from the Hartford Courant:

• "Sides Clash Again Over Rowland Sentence"
• "Rowland Sentencing Postponed While He Presses Claim of Withheld Evidence"

Very excited (and a bit overwhelmed) for another blog reboot for another semester of Sentencing Law

Welcome to the FIFTH(!) re-launch of this blogging adventure. This blog started eight years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) to facilitate student engagement in the Spring 2007 course on the death penalty that I taught at OSU's Moritz College of Law.

Though I closed this blog down not long after that course ended, I was pleased to see all the students' hard work as reflected in the archives still generating significant traffic and much of the posts remain timely. Consequently, when I geared up for teaching 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 yet again in Spring 2014, I decided to reboot this blog to allow the new course to build (indirectly) in this space on materials covered before. In all of these classes, I was generally pleased with how this blog helped promote a new type of student engagement with on-line media and materials. (For the record, OSU students engaged with the blog much more and better with Fordham students. Go bucks!)

Now, circa January 2015, we all now get to work together again on Sentencing Law at the Moritz College of Law. T his time around, I am especially excited (and more than a bit overwhelmed) by all the interesting, high-profile and on-going sentencing cases, developments and projects that we will discuss and perhaps get directly involved with in  the months ahead. To highlight why I am so excited (and overwhelmed), I am going to list here just an abridged set of on-going stories we will be following on this blog and in the classroom:

Concerning the modern death penalty:

1. The federal capital trial of the Boston Marathon Bomber, Dzhokhar Tsarnaev, has just begun. This case will provide a great focal point for theoretical and practical discussions of death penalty decision-making (and plea bargaining).

2. A federal court-ordered moratorium on executions in Ohio is due to expire next week and the Ohio General Assembly recently enacted a controversial new law to allow the state to acquire execution drugs in secret for future executions. These matters will provide a basis for discussing state laws and policies (and federal litigation) over administration of the death penalty.

3. I have been asked by federal and UK lawyers to help with efforts to review cases of Pakistan defendants scheduled to be executed. This project will provide an opportunity for students interesting in international/comparative death penalty work.

Concerning Eighth Amendment jurisprudence:

4. The US Supreme Court (SCOTUS) recently took up the issue of whether its 2012 Miller v. Alabama Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively. I am working on an amicus brief to be filed with the Court and welcome students to help with this effort.

5. The Ohio Supreme Court will hear oral argument next month concern whether the SCOTUS 2010 Graham v. Florida Eighth Amendment ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should applied to a lengthy term-of-year sentence. I worked on an amicus brief filed in this case and hope to attend the oral argument (with students, if interested).

6. The Sixth Circuit recently rejected the claim that a 15-year mandatory federal sentence for an ex-felon's possession of shotgun shells was unconstitutional. I am working on an amicus brief to support a SCOTUS cert petition and welcome students to help with this effort.

Concerning the federal sentencing law and developments:

7. Many bipartisan bills for federal statutory sentencing reform stalled in the last Congress, and there is reason to suspect that some of these bills may get renewed attention in the new Congress. These matters will provide a basis for discussing the legislative role in sentencing law and policy.

8. Hearings for new Attorney General nominee Loretta Lynch are likely to take place in the next few weeks, and she is sure to be asked about various criminal justice policies and practices of the Obama Administration. These matters will provide a basis for discussing the executive role sentencing law and policy (as well as some federalism issues).

9. The US Sentencing Commission is proposing new revisions to the federal sentencing guideline and continues to monitor federal sentencing patterns a decade after the US Supreme Court made these guidelines only advisory rather than mandatory. These matters will provide a basis for discussing the judiciary's role in sentencing policy and practice.

Concerning Ohio sentencing law and developments:

10. Despite statutory reforms a few years ago, Ohio's prison chief is warning about severe overcrowding in our prisons and is suggesting emergency release of prisoners might soon be required. These matters will provide a basis for discussing the costs and consequences of heavy reliance on incarceration in states.

11. The Ohio Criminal Sentencing Commission (OCSC) has a new director who is eager to give this body a refreshed agenda. I will be asking you, quite soon, to write a short memo to the OCSC director giving advice about what this Commission should be doing.

12. There are already three distinct groups talking seriously about bringing major marijuana reform proposals to the ballot in the coming years. These realities will provide a basis for discussing the drug prohibitions and its sentencing impact as well as the virtues and vices of direct democracy as a means of criminal justice reform.

Believe it or not, I could readily list a few dozen more topics that we likely will be discussing in the days ahead on substantive topics ranging from white-collar fraud sentencing to sex offender registration laws to  victim's rights to receive restitution at sentencing and on procedural topics ranging from mandatory minimum sentencing provisions to plea bargaining to jury sentencing procedures.  But I trust the dozen issues noted above provides you a sense of why I am so execited (and more than a bit overwhelmed) by all the stuff we can be working on in this class.

At this stage, I am most interested in getting your input ASAP about which of these various topics (or other topics) interest you the most going forward.  Consequently, I would be eager to hear in the comments to this post which of the issues mentioned above are of greater interest (or of least interest) to you as students in this class.  If there is some rough consensus among students about the topics of greatest interest, we will be sure to spend more time on these topics.

 

WELCOME!

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