Sentencing Class @ OSU Moritz College of Law

Be ready to discuss Woodard as well as "ideal" clemency process

Though I hope you have had a chance to review the cases distributed last week -- Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) and Ohio v. Boykin, 138 Ohio St. 3d 97 (2013) -- I expect that we will spend the bulk of out time in class discussing Woodard's rulings about what the Constitution demands (and does not demand) in the form of required process for those seeking clemency.  So be sure to take extra time to review the various opinion in Woodard, and think about whether a person alleging some extreme behavior by clemency authorities (e.g., a state official receiving a large campaign donation in order to vote against clemency) would make out a viable due process claim in light of Woodard.

In addition to considering the minimal clemency process that may be constitutionally required, in class I will also want to explore your views of an ideal clemency process.  In criminal trials, defendants have well-established rights to the assistance of legal counsel and to call witnesses (and contest the government's witnesses).  Even if these constitutional rights do not extend fully to the clemency process, should states provide for these processes in their clemency laws and procedures?  Should at least some persons seeking clemency (e.g., death row defendants) not only have a right to help from counsel, but also be able to get help from a lawyer paid for by the state?  Should the clemency process and any procedural rights afforded to an applicant vary based on his basis for seeking clemency (e.g., asserting innocence) or based on the underlying crime and relief being sought (e.g., a juvenile offender seeking just a commutation of a prison term)?

In addition to contemplating these sort of matters, please also remember to send me your top two presentation dates from these options.

Figuring out dates for clemency class presentations

As mentioned in class and in this post, this week everyone should be prepared to share their (tentative) plans for their class presentation.  In turn, it is now time to start figuring out a (tentative) schedule for these presentations.  If we want to schedule 3 or 4 presentations per week, we will need four class sessions to fit all 14 class presentation in during the normal class time.  In order to be able to cancel at least the last scheduled class (April 14) AND because we have a guest speaker scheduled on March 31, we have the following viable Tuesday presentation dates during the second part of the semester:

• Feb 25
• March 3
• March 17
• March 24
• April 7 (alternative if needed)

Because March 3 is the week before Spring Break and some of you might have assignments due in other classes around that time, I would be open to cancelling the March 3 class to provide for April 7 class as an alternative presentation date.  (We can make other class time adjustments if it is especially convenient for more than 4 people to present on a particular date, or we could even consider adding a "presentation lunch date" on a Friday if that might work better for some presenters.)

So, at your relative convenience, please send me via email at least two dates that you think would be best for you to do your class presentation.

Great podcast on clemency after wars (in Vietnam and on drugs)

In last week's class we briefly discussed some of the federal clemency efforts for those who dodged the draft during the Vietnam war.  Excitingly, right after our class, the folks at Vox posted an on-point article/podcast under the headline, "A plan to reverse the war on drugs, from the Vietnam War era: What Democrats running for president have learned from President Ford on criminal justice."  I recommend finding 30 minutes to listed to the podcast at this link, and here is the text providing a preview:

In 1974, Gerald Ford became president after some of the most difficult years in our country’s history.

In addition to Watergate and President Nixon’s resignation, the Vietnam War had divided the country for more than a decade.  While millions of Americans served in Southeast Asia, many others protested the war at home — some of them by evading the draft.  Ford wanted to find a way to bring the country back together. Just a few weeks after he took office, he announced a plan “to bind up the nation’s wounds.”

For the young men convicted of draft evasion — a felony — during the Vietnam War, Ford promised, “I’m throwing the weight of my presidency into the scales of justice on the side of leniency.”

Ford gave those young men an opportunity to apply to a Clemency Board, a small group appointed by the president who would decide whether to erase that felony from the men’s records.  Now, many of the Democratic candidates for president want to follow Ford’s model for a new group of people in federal prison: those convicted of nonviolent drug crimes.

In this episode, The Impact looks back on President Ford’s clemency plan through the lives of two men: one who fought in Vietnam and served on the Clemency Board, and one who evaded the draft.  We explore how the Board transformed their lives and what it might mean for a new generation of young people behind bars.

UPDATE: The Vox podcast includes discussion with LawProf Mark Osler, with whom I have had the honor to work with on various projects. Perhaps Mark and I get along well in part because he also likes to blog, and does so regularly here at Osler's Razor.  His latest post there, "Sunday Reflection: Into the high desert prison," discusses his "tour of sorts, going to prisons to talk about clemency in the federal system."

Continuing with clemency history ... adding a bit of modern law

As mentioned in class, your primary assignment for this week is to work on figuring out what topic will be the focal point for your class presentation and concluding paper.  In class next week, we will start our discussions by having everyone share (tentative) plans.  Thereafter, we will return to our discussions of clemency history, based in part on the articles previously circulated and based in part on continued discussions of real-world examples of (state or federal) clemency which took place BEFORE the 21st Century that may be of interest to you.  

As we wind down what might be call the "early history" portion of our class discussion, we will then transition into a brief overview of leading federal and Ohio legal precedents on the clemency power.  In next week's class, I will be handing out a hard-copy packet with these leading US Supreme Court and Ohio Supreme Court decisions, and here are links to these cases if you are extra eager to check out this area of law ASAP:

Herrera v. Collins, 506 U.S. 390 (1993) (the main clemency discussion is at pp. 411 to 417 of majority opinion)

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)

Ohio v. Boykin, 138 Ohio St. 3d 97 (2013)

Some clemency news and notes from the week that was

I may try to make a habit, perhaps consistently on the weekends, to provide a brief round-up of some of the week's clemency news and commentary.  My Google news feed might not justify this round-up every week, but this morning these pieces very much seemed worth spotlighting, and I have below provided the jurisdiction, headline and link:

• Federal: "Army won't reinstate elite status of soldier given clemency by Trump"

• Florida: "Court says clemency fight ‘moot’ after Amendment 4"

• Kentucky: "'I made a monumental mistake': Prosecutor sorry for asking Bevin for pardon in sodomy case"

• Missouri: "Marijuana Legalization and The Crisis of Clemency in Missouri"

• New York: "Cuomo's Clemency and Cruelty of False Hope"

• Ohio: "How does Ohio’s new expedited pardon program work?: Q&A"

• Pennsylvania: "Delco DA drops old shoplifting charge that held up clemency for man serving life"

Follow up information and links after our first class

As promised, here are links to the full articles that were passed around in partial hard-copy form in class today:

• William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 WM. & MARY L. REV. 475 (1977)
• Daniel T. Kobil, Do the Paperwork or Die: Clemency, Ohio Style?, 52 OHIO ST. L.J. 655 (1991)

If you were interested in the full documentary "College Behind Bars" that I previewed in class, here is a link to the PBS site where it can be streamed. And speaking of things to watch, here ate the IMDB pages for new criminal justice movies Just Mercy and Clemency.  I would be eager to organize a trip for class members if interested.

Last but not least, we will be sure in next week's class to discuss the real-world example of (state or federal) clemency which took place BEFORE the 21st Century that is of interest to you.  Sorry we did not get to that today, but we will for sure next week.

UPDATE:  It dawned on me that you all might like an electronic version of the course description and syllabus.  You will find that document (updated with our new room number) below:

Download Revised LP3 Berman for 2020

Welcome the the class blog of the Moritz College of Law's LP3: Clemency (with first week plans)

This blog got started over a dozen years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) in order to facilitate student engagement in a Spring 2007 course on the death penalty.  Because the blog proved successful during that semester, and because the students' hard work as reflected in the archives still generates web traffic and might still be of interest to current students, I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course.  

We are now approaching the start of a new decade, and I am very excited to be starting 2020 by gearing up teach a brand we course at the Moritz College of Law, an LP3 course on Clemency.  Ever the web-savvy dinosaur, I figured I could and would use this blog to provide electronic access to materials, to flag current events and to supplement our readings and discussions.  Because I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, students can and should be on the look out for class materials and announcements posted here.

So, for example, here is a repeating of what is posted on the Moritz official website for our first assignment as we gear up for the first class:

In preparation for our first class on Tuesday, January 7, 2020 you should:

1.  Do some research on what you think is a good, clear and complete definition of "clemency."  Please bring that definition (and its source) to our first class.

2. Find/research on your own a real-world example of (state or federal) clemency which took place BEFORE the 21st Century that is of interest to you, and come to our first class prepared to describe this clemency example and why it is of interest to you.   (We will discuss a lot of 21st Century clemency examples throughout the semester.)

3.  Get excited about our first class, where you will get the class syllabus and the first set of readings.

 

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