Sentencing Class @ OSU Moritz College of Law

What punishment theories and "whos" explain Alice Marie Johnson being sentenced to LWOP and then having the sentence commuted and then pardoned?

One main goal of our first few weeks of classes is to enable you to be able to analyze and assess in a sophisticated way the theories of punishment and institutional players that formally and functionally have key roles in the operation of our sentencing systems.  As I have already started to emphasize and will continue to highlight, it is persistently challenging to decide precisely which theories and players normatively should be predominate in an ideal sentencing system.  But, for practicing lawyers and effective advocates, it is particularly important and valuable just to be able to notice which theories and players descriptively are shaping our actual sentencing systems.

This coming week, we will spend time unpacking which punishment theories and which "whos" are playing key roles in the historic Williams case and in the enactment and application of mandatory minimum sentencing statutes.  But, because Alice Marie Johnson is in the news and makes for a great case study, I will likely start our class on Tuesday by asking the question in the title of this post, namely "What punishment theories and 'whos' explain Alice Marie Johnson being sentenced to LWOP, and then having the sentence commuted and then pardoned?".

This wikipedia page on Ms. Johnson provides an effective short accounting of her life history and the crimes that led her to being sentenced to life without parole.  As I mentioned in class, she spoke at the last night of the Republican National Convention and PBS has her short speech available via YouTube at this link.  For a lot more context, you might even check out this 2013 report from the ALCU titled "A Living Death: Life Without Parole for Nonviolent Offenses." Ms. Johnson's case is profiled at pages 56-58 of this 240-page(!) report.

I do not expect you to do a lot of reading about this case, but I am eager for you to think a lot about what theories may have driven her initial sentence and also her commutation and pardon.  I also want you to thinking broadly about all the different "whos" who played an important role in her initial sentence and also her commutation and pardon.

"Fighting for a Second Look: Efforts in Ohio and Across the Nation"

The title of this post is the title of this webinar that I would highly urge you to attend if you are available. It will take place online Wednesday, September 2, 2020, from 2-3:00 p.m. ET. You can register here, where you will see this description:

Draconian sentencing laws and practices stretch back decades and have yielded countless excessive prison terms nationwide.  As public awareness of this problem mounts, legal advocates and scholars have urged new legal mechanisms to allow courts to revisit unnecessarily long sentences.  In that spirit, the Ohio Justice & Policy Center and DEPC teamed up to create a writing competition for law students and recent graduates to propose such a "second-look statute" for Ohio.

Join us for a webinar that brings together leading advocates to discuss efforts across the country to create second-look provisions.  We will also announce the winner of our recent writing competition.

SPEAKERS

• Shakyra Diaz, managing director of partnerships/Ohio state director, Alliance for Safety and Justice
• William Johnston, senior program officer, Open Society Foundations
• Michael Serota, associate deputy director, Academy for Justice, Arizona State University Sandra Day O’Connor College of Law
• David Singleton, executive director, Ohio Justice & Policy Center

MODERATOR

• Douglas A. Berman, executive director, Drug Enforcement and Policy Center

Class recordings and office hours

I have now posted the Zoom recording of our first class to CarmenCanvas under the "Modules" heading.  I hope to make a consistent practice of posting the recording the evening of our afternoon classes.

As I mentioned in an email, I plan to have "virtual" office hours from 2 to 4pm on Wednesdays.  I do not plan to sit in the Zoom room this whole period, so anyone interested in meeting during that window of time should let me know of interest in chatting during that period. I will be happy to arrange appointments at other times, but I will try to keep the Wednesday afternoon window free on my calendar so you can know that you can always book a chat in that time frame (and using our class Zoom link).

If castration seemed like a good idea to Thomas Jefferson, why not consider it for Richard Graves?

One idea worth consideration as we explore theories of punishment is whether prison, which is our modern default punishment for all serious offenses, is really any good at advancing any of the traditional theoretical goals.  When pressed on this front, advocates of prison and modern mass incarceration often claim that prison is at least good at incapacitation.  But this claim fails to reckon with the fact that (a) many persons in prison can and do commit all sorts of crimes while in prison, and (b) there may be non-prison means to incapacitating at least somewhat effectively.  At the end of class, I mentioned that, for a person convicted of rape perhaps castration (either physical or chemical) could and would be an effective incapacitative punishment. (As a preview of second week topics, I encourage considering whether your view on this punishment might be significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).)  

For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment.  In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.  Indeed, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson, "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital" suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  Here is a taste:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholly forfeit the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

I highly encourage everyone to read the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

Welcome to the class blog of Sentencing Law and Policy @ Moritz College of Law (with first week details)

This blog got started over a dozen years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) 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 these archives still should be of interest to current students (e.g., PPT decks here), I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course. (A journey through the archives documents past courses that include a sentencing seminar during a visit to Fordham in 2010, and an LP3 focused on clemency in 2020, and many "traditional" sentencing classes in between.)

It is now summer 2020, the strangest summer I have experienced in my half-century on this planet, and I am very excited to be gearing up again to teach Sentencing Law and Policy at the Moritz College of Law.  I again expect to use this blog to flag current events and cases to supplement our in-class readings and discussions, as well as a convenient place to post information about class activities and plans and assignments. (I will also be posting essential materials on our CarmenCanvas site, but I expect this blog to be used more actively than that resource.)

To begin, here is a repeating of what is posted on the Moritz official website for our first assignments (along with electronic copies of the basic course documents):

In preparation for our first week of classes starting the week of August 24, 2020 you should:

1. Get a copy of the FOURTH edition of the casebook for the course, along with the course description/syllabus.
2. Fill out the questionnaire before our first class. (In addition to being posted below, the pre-class questionnaire and course description/syllabus are available in hard-copy in front of my office, Room 313, and will also be on our Carmen class webpage.)
3. Find/research on your own a real sentencing issue, case or story that is of significant interest to you, and come to our first week of classes prepared to explain this issue, case or story and why it is of significant interest to you.

Download 2020 Sentencing Law course description and syllabus

Download 2020 Sentencing Law preclass survey

You will discover that some items in the pre-class questionnaire reference real-world sentencing cases, and here are just a few links (of many you can find) with some background on these defendants and their cases:

Dzhokhar Tsarnaev

• "First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev" 
• "Boston Marathon bombing survivor Rebekah Gregory: ‘If this is justice, then I have the wrong definition'"

Amy Locane

• "Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard" 
• "Melrose Place Actress Amy Locane to Be Sentenced for the Fourth Time in Fatal DWI Crash Case"

Brett Jones

• "SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case"
• SCOTUSblog page on Jones v. Mississippi (with links to all the filed briefs)

 

 

 

 

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