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August 12, 2020

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

Amy Locane

Brett Jones







August 12, 2020 in Class activities, Course requirements | Permalink



Since I am unable to tune in live to the first class, I wanted to post ahead of time an article on sentencing that I find very interesting. I think the most "un-buckeye-esque" email I have ever received from the administration have been the messages from the Vice President for Student Life, blatantly threatening dire consequences against students who violate the student code of conduct. This is really curious to be because I have questioned just how far the code of conduct can be stretched ever since OSU was sued by students who sought to carry off-campus. OSU eventually settled that suit, but here I doubt that will happen. Regardless, from my perspective, it seems like a stretch that the university may police a student's conduct off campus.

Posted by: Christopher Wald | Aug 24, 2020 3:34:50 PM

Thanks, Chris. Your comment provides another example to support my claim that everything is about sentencing (or sentencing is about everything). Because I do not think I should be tasked with "sentencing" my students, I left off our syllabus some suggested language about "disciplinary action" for non-compliant students.

Your comment also speaks to all sorts of "non-state" sentencing systems --- e.g., when pro or college athletes break various league rules, there is often much talk about who and how sanctions will be imposed; some might suggest "cancel culture" is a widely-debated form of societal sentencing --- that we often witness and sometimes are subject to. And, when famous people get formally sentenced, often they argue that the punishment they receive from "non-state" systems out to impact how the state punishes. E.g., Michael Vick argued that his millions in lost income from being suspended by the NFL for dog fighting ought to impact his formal federal sentence; many likely think the short sentences given to Lori Laughlin and Felicity Huffman were sufficient because they received so much "punishment" in the court of public opinion.

Posted by: Doug B. | Aug 25, 2020 5:34:59 PM

Professor Berman,

I hate to afflict you with my long emails. I might post this on the blog, but after sending my last email to you, I could not focus on my reading and wanted to add a few more Swiftian morsels. I mean, if you can't have some fun about murder and executions, what can you have fun with?

The Hunger Games" idea has got it right to make executions public entertainment, since part of the problem is the distance the public has from justice issues that make them seem unreal like any fictional story in the television/internet world. The public would get involved by being able to vote on who gets picked with a few clicks. First, we start with the larger pool of candidates until we narrow down the field to the to the semi-finalists. Instead of fifty hangings each year, one for each state, the better example is ten chosen nationally, this gets executions down to ten a year, but with the excitement of making a choice on who gets their neck stretched.

How to make this more political is that members of Congress could be polled and interviewed about their choices and give them veto power since they are at their best when they are saying NO at the same time as showing how tough they are. Further, in the spirit of American compromise, the abolitionists could shake hands with the advocates since executions could happen, but so many fewer.

Of course, this is imagination and impossible, but American History did just that in ratifying the Constitution to include slavery where abolitionists could keep it out of their own neighborhoods. This on the heal of Shay's rebellion when the propertied were fearful that that without establishing rights to representation and change, those small farmers might start wantonly trying to kill governors. This solution was proven to work when the French Revolution blew up a couple of years later and the resistance to change and hereditary power proved deadly. In our days of do-nothing government and billionaire decision makers, nothing like that could happen. (I am thinking about my next stimulus and the danger it teaches is that people might see that government is a necessary tool to change and improve my life.)

Sorry to afflict you with my thoughts, however my writing helps me to ignore my isolation due to Corona Virus. Final thoughts? Preventing people from voting encourages riots and murder and the root cause of most murders are powerless people who have little ability to improve their lives and then jail becomes of no consequence or even an improvement.

Want peace? then one part of the solution is to require everyone to vote, then government becomes jointly held property and at least on paper the oligarchy can be made more responsive. Citizen involvement is what Jefferson had in mind in promoting education and a more perfect union. Voting is only a part of the picture.

Good day,
Gary Josephson

Posted by: Gary Josephsonjosephson | Sep 17, 2020 10:23:53 AM

[I decided to post this email to Professor Berman after reading my last post to better explain my reference.]

Good morning Professor Berman,

I recall that the previous Governor Cuomo when asked "what would you do if it was your daughter who was murdered? He answered that what he would want done as a victim is a different question as to whether to permit the state to perform executions. I think he answered that permitting the state to perform the act would be tantamount to endorsing murder. Which comes down to "if the state can kill people and get away with it (sometimes) then why can't I kill people?

That brought to mind the retributive argument that part of the reason the state performs the murder is because it discourages victims from taking the law into their own hands, hence executions may decrease the number of murders because the state does it lawfully and victims don't have to risk my life and prison in order to "do justice."

Thinking more on the subject the state should be allowed to perform one execution per year by a public hanging. The pool of death row inmates would have their names chosen by lottery with "the winner" having an opportunity to have his 15 minutes of fame. This would work best if murder had a max of 20 years, so "this is your life" would have two "winners each year.

This like The Hunger Games where the media and state promote fanfare for the annual event. Also, the executioner who pulls the lever could be chosen by lottery from a list of death advocates and have his or her 15 minutes of fame as well.

A televised hanging with the face hidden, please, because the winner might be smiling about the attention he or she received. In the spirit of fairness there should be one woman and one man who could be killed on alternate years.

I did not post on the blog because I am not sure I want my name associated with these ideas, but you are free to use the ideas without citation in class or on the blog.

Gary Josephson

Posted by: Gary Josephson | Sep 17, 2020 10:28:50 AM

Update on the Amy Locane case: https://www.yahoo.com/entertainment/melrose-place-actress-headed-back-151447827.html

She was re-sentenced to 8 years.

Posted by: Christopher Wadl | Sep 17, 2020 1:36:28 PM

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