Course Instructor
Douglas A. Berman
Newton D. Baker-Baker & Hostetler Chair in Law
Moritz College of Law at The Ohio State University
• Email Me
• Web Profile & Disclosure
OSU Moritz College of Law logo

My Books & Journals

Find Law Professors

• Google Scholar
• SSRN
• Corrections & Sentencing Law & Policy
• Law Schools

Blog Syndication

Subscribe to this blog's feed

Recent Comments

Categories

Powered by TypePad

« Basic logistics concerning mini-paper assignments/requirements | Main | Background on discretion, disparity and discrimination in Presidential clemency »

January 15, 2015

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):

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):

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). 

January 15, 2015 in Class activities, Data on sentencing, Offense Conduct, Theories of punishment | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c8ccf53ef01b7c7375cb5970b

Listed below are links to weblogs that reference Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE?:

Comments

I think that one reason more people asked about sentences of similar defendants for the Rowland case, but not Tsarnaev, is because the question for Tsarnaev only gave us three options for sentencing. Also, many of us are probably more familiar with the types of sentences that terrorists receive, as opposed to white collar sentences. I don't mean to reduce this disparity down too much, but the way the question was worded may have influenced the type of information my classmates and I wanted to know when making sentencing decisions. Additionally, being opposed to both the death penalty and life without parole, that really left only one option.

Posted by: Sierra Cooper | Jan 16, 2015 8:26:22 AM

Sentencing consistency is a admirable goal, but there are many subjectivities that make near-consistency or complete consistency seem unattainable. The guidelines cannot account for every aggravating and mitigating factor from case to case. And even still, the degree to which judges, sentencing experts, and those who pen the guidelines value each aggravating or mitigating factor will vary greatly.

In class, we talked a little bit about why we care what defendants facing charges similar to Rowland received (in his federal fraud/corruption case), but we do not necessarily seem to need similar information re: Tsarnaev. I think the obvious answer is that normatively, the two crimes *feel* different. That is to say, Tsarnaev's crime feels different because it was a violent one. People were injured; lives were lost. Crimes that are white collar in nature hurt people too, of course, but not in the same way. They might hurt people's pocket books or standards of living, etc. This intangible sort of justification is equally difficult to pen in the words of sentencing guidelines, and judges may feel restricted that they cannot (per the guidelines) adequately sentence a criminal defendant consistent with the more normative "feeling" of the crime.

Posted by: Kelly Flanigan | Jan 18, 2015 5:02:23 PM

Sentencing consistency is a suitable goal to ensure fairness in the criminal justice system. However, applying and implementing that goal is nearly impossible given the myriad variations that are bound to be present in each unique case.

I think each unique offense should carry with it similar degrees of punishment, but each offender should be evaluated on his/her own. Trying to match up facts from past crimes to current crimes neglects the normative evolution of a changing society; how we punished certain actors for some crime twenty years ago is not necessarily how we would punish them now. Consequently, sentencing consistency is less about matching up offenders and their corresponding sentences, and more about creating a sentencing framework that is fair and consistent. Differences in applying that framework should not *necessarily* be seen as inconsistent.

Posted by: Ryan Semerad | Jan 19, 2015 10:33:59 AM

I would like to echo what Ryan said concerning how each offender should be evaluated on his or her own. This is especially true for Tsarnev in my opinion because I do not feel he is less like Tim McVeigh than the comparison's indicate. Tsarnev planted a bomb as part of an agenda and that bomb killed people. Admittedly, McVeigh killed many more people, but the targeted bombing elements are the same. In short, giving out like sentences for criminals and crimes is only possible if you chose which characteristics of the person and the crime to analyze. The world we live in is multi-dimensional, and the sentencing needs to reflect the totality of the criminal and the crime.
The same would apply for Rowland too. Maybe he does deserve a more stringent sentence according to the guidelines, but maybe for these types of cases the media forces the government to go for higher or lower sentences. See: Blagojavich.

Posted by: Chris Santoro | Jan 19, 2015 7:49:14 PM

There are a number of reasons we should have a strong commitment to sentencing consistency including notions of fairness and justice and giving criminals notice of what their punishment will be if they commit a crime. With regard to fairness, having consistency in sentencing can avoid racial, socioeconomic, gendered, ethnic, or religious disparities in sentencing. Since Ohio Rev. Code 2929.11(C) does not allow immutable characteristics to be used in sentencing, consistency can help avoid these disparities. In this way, the public can be somewhat confident that the law treats two criminals equally and the criminals are receiving their just deserts, divorced from outside factors such as race or socioeconomic status.

With regard to giving defendants notice, consistency is important so defendants are aware of what their punishment will be if they commit a crime. There is little deterrent value in a system where criminals are aware that their background or status can lessen their punishment compared to a defendant (not similarly situated) who committed the same crime.

From what I understand of the sentencing guidelines, they only rely on two factors in determining sentencing: criminal history and conduct associated with the offense. One of the issues with the guidelines is that judges have wide discretion in deviating from the guidelines. If it is even possible to determine who are defendants with similar records and punish them as such, it is necessary to take away judges’ discretion.

Posted by: Christopher | Jan 19, 2015 9:26:31 PM

In my view, a strong commitment to sentencing consistency is both desirable and attainable. It is desirable because it facilitates justice and equal protection under the law. Consistency demands that similarly situated defendants receive comparable sentences, which can alleviate some of the inherent inequality in the criminal justice system. Consistency also removes some of the subjectivity from the sentencing decision by giving the judge or jury an objective baseline. Moreover, sentencing consistency should be closer to attainable in this day and age. Given the vast number of offenders being sentenced each year, it is becoming more and more unlikely that there will be a scenario that hasn't already presented itself in a similar form. And technology has made record-keeping more accurate, efficient, and accessible, so those making the sentencing decision have access to data regarding offender characteristics and criminal conduct. To be sure, consistency does not--and should not--entirely remove the subjective element of sentencing. But it does provide an objective element that furthers the goals of justice and efficiency in sentencing.

Posted by: Collin Flake | Jan 20, 2015 10:28:02 AM

While I agree that consistency in sentencing should be a goal of the criminal justice system, I think that the somewhat recent (2007) shift in policy which resulted from U.S. v. Booker illustrates that certain actors in our system are in a better position to work towards achieving sentencing consistency than others. I think it also shows that consistency should not be sought out to the detriment of fairness. The Federal Sentencing Guidelines, which were mandatory from 1984-2007, represented a legislative attempt to achieve consistency in sentencing by removing judicial discretion. Booker changed the law and allowed judges to consider more factors in sentencing and to depart from the sentencing guidelines. Many people welcomed the Booker decision, hoping that it would allow judges to impose sentences which more accurately reflected the seriousness of certain crimes, i.e. by reducing the sentences of non-violent drug offenders below what the federal sentencing guidelines would have required. (see http://www.npr.org/templates/story/story.php?storyId=4669142). However, the the U.S. Sentencing Commission released a report in December 2012 which found that sentencing decisions since Booker had become overall less consistent, with regional and demographic sentencing disparities increasing, and the identity of a judge playing an "increasingly important role in sentencing outcomes..." (see page 3 of the report at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/booker-reports/2012-booker/Part_A.pdf#page=5). It appears that legislative efforts have been over-inclusive and have lead to harsh treatment of less-culpable defendants in the name of sentencing consistency. On the other hand judicial discretion can lead to inconsistent sentences, which are unfair if demographic and geographic considerations are causing the disparities. I do not presume to know how to fully remedy the situation, but I would suggest that electing legislators who are more in touch with what constitutes fair treatment of offenders (and who are unwilling to depart from the ideal of fairness for political gain), and electing judges who are more in tune with the decisions of their fellow judges and who remain cognizant of their own biases and keep them in check, would represent a step in the right direction.

Posted by: Tamas Tabor | Jan 20, 2015 12:41:22 PM

The comments to this entry are closed.