Sentencing Class @ OSU Moritz College of Law

Various posts on the subjective experiences of punishment from SL&P (and a timely article about prison rape)

Following up on today's class discussion (and tomorrow's video) concerning imprisonment and the subjective experiences offenders may face, here are various posts of note from the archives of Sentencing Law & Policy:

• "The Subjective Experience of Punishment"

• Sidebar discussion of "The Subjective Experience of Punishment"

• Judge unmoved by undefeated boxing champ's  [Floyd Mayweather] claim prison is defeating him

• "Retribution and the Experience of Punishment"

• Is it inhumane for a "giant" criminal to be incarcerated in a small cell?

These posts are a mix of links to serious academic articles and interesting real-world cases on some topics we covered in class.

Finally, I just noticed that The Atlantic has this lengthy new article about another part of the subjective experience of imprisonment for many.  The piece is headlined "Rape in the American Prison: In 2003, Congress passed legislation to eliminate sexual assaults against inmates.  One young man’s story shows how elusive that goal remains."

Some notable gubenatorial capital developments

Though I am eager to start migrating our class discussions away from capital sentencing and punishment to non-capital sentencing and punishments, the notable death penalty news keeps coming.  Specifically, check out these two recent posts from my main blog:

• Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"

•  New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor

As always, I am eager to hear student reactions to these developments and others in the comments or elsewhere.

Would you urge out-going Oregon Gov Kitzhaber to commute all death sentences?

The question in the title of this post is a (slightly modified) version of what I have asked here at my main blog, where I also link to commentaries urging mass commutation by two law professors and by a retired assistant director of institutions and superintendent of the Oregon State Penitentiary.

Notably, back in November 2011, Gov Kitzhaber placed a moratorium on all executions in his state and his statement in support of this decision can be accessed at this link.  I wonder if you find it more or less compelling and effective than the statement made by Pennsylvania Gov Wolf a few days ago. 

Speaking of "who" and the death penalty...

check out what new Pennsylvania Gov Tom Wolf did on Friday the 13th.  Turns out it was a lucky day for those on death row in the state.

Thoughts?  The Marshall Hypothesis as applied by a Governor?

Two fascinating new Ohio "who" sex offense sentencing stories

As mentioned in class, this week and next our class discussions will migrate from the basics of modern capital sentencing to the basics of modern non-capital sentencing.  And, as the Coker and Kennedy cases highlight, all modern capital cases now involve only the crime of murder even though any number of sex offenses often lead legislatures to make special (and severe) sentencing laws and rules.  On the topic of sex offenses, and with unique aspects of the "who" story in the mix, I recommend everyone check out these two new stories from my main blog concerns sentencing developments in our own state of Ohio:

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

Quick reminder of class activities for second week of February

Just a quick note to remind everyone that...

1.  The next deadline for submission of a mini-paper (requirements outlined here) is this coming Monday (Feb. 9) at 12noon.

2.  You should prepare for this week's classes by:

• (re)considering how differing state capital laws impact death sentencing discretion for the Unibomber (and others)

• (re)reading McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion rejecting the defendant's claims)

• thinking about whether and why the Supreme Court should categorically preclude states from allowing certain criminals ever to be sentenced to death --- especially once it has categorically precluded states from legislating that certain criminals must always be sentenced to death

3.  If you are especially interested in understanding McClesky and its aftermath, 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:

• 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.

Imaginging a (federal and mandatory?) death penalty only for mass shooters who kill more than five persons

A helpful student alerted me to this notable accounting of mass shooting in 2014 in the United States.  Though I will not vouch for all the data, I still think it is notable (and not all that surprising) that this internet accounting of mass shootings lists 283 mass shootings in the US (roughly 5 every week of the year), and yet only 11 of these mass shootings involve five or more deaths (less than one per month on average).

In addition to finding these data fascinating, I continue to encourage folks to cull through this list of the 53 men  who have been executed in Ohio in the modern era or this latest report from the Ohio Attorney General about the 140+ men on Ohio's death row to see how my proposed reform, if applied retroactively, would impact those past cases. 

Link to Ohio Supreme Court oral argument in Ohio v. Moore

This morning (Feb 4, 2015), the Ohio Supreme Court heard argument in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. The Justices asked many questions of both sides, and I believe only one of the seven Justices failed to ask at least one question.

The argument lasted for approximately an hour, and here is a link to the oral argument.  I highly recommend all students interested in Eighth Amendment issues take the time to watch these proceedings.

I suspect and fear we will not get a ruling from the Court before the end of the semester (but maybe that will be a kind of good news allowing me to ask a take-home exam question about the case).

Major developments on Eighth Amendment juve sentencing fronts

Students should recall the class-preview post in which I noted two notable on-going cases concerning the Supreme Court's modern Eighth Amendment jurisprudence limiting the imposition of life without parole sentences on juvenile offenders.  The end of last week and this coming week involve developments on this front:

• Late last week, as reported in this post from my main blog, the petitioner at the center of the case SCOTUS took up to resolve whether its 2012 Miller ruling should be applied retroactively was released from prison.  In addition to providing yet another interesting story about "who sentences," the release of George Toca means that SCOTUS will need to take up a new case to resolve whether its Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively.

• The Ohio Supreme Court will hear oral argument this week in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence.  Helpfully, this post at Legally Speaking Ohio provides an effective argument preview, starting with the basic fact that "Brandon Moore was sentenced to a 112-year prison term for convictions in 2002 on three counts of rape, three counts of complicity to rape, three counts of aggravated robbery, kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old."

I am planning to attend the oral argument, which starts at 9am on Wednesday February 4, at the Supreme Court of Ohio. Folks interested in this case can read all briefs submitted via this Ohio Supreme Court link, including this short amicus brief that I helped author for the National Association of Criminal Defense Lawyers.