Sentencing Class @ OSU Moritz College of Law

Materials (and fun) for considering the representation of Ted Kaczynski

As I have mentioned in class, we will be exploring in coming classes how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber, Ted Kaczynski.  You should imagine yourself preparing for getting a jury to recommend a life sentence rather than a death sentence for Teddy K.  The essentials for preparation appear in our handout, although you also need to check out two Ohio statutory provisions via the web:

• 2929.03 Imposition of sentence for aggravated murder 
• 2929.04 Death penalty or imprisonment - aggravating and mitigating factors.

For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out at least some of the Unibomber's (in)famous Manifesto, "INDUSTRIAL SOCIETY AND ITS FUTURE" as well as  this lengthy Time article by Stephen J. Dubner from 1999 about Teddy K. headlined "I Don't Want To Live Long.  I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison."

And if you want to have some old-school SNL fun while preparing for this discussion, these are fun to check out:

• Ted Kaczynski Meets His Lawyers

• Ted Kaczynski's Class Reunion

• Ted Kaczynski Wants to Represent Himself

• Nightline: Deep Blue Has Cornered Mankind

Gearing up for figuing the (right?) sentence for the various convicted "Bridgegate" federal criminals

As I mentioned in class today, our coming exploration of the federal sentencing system will be based in part on using the real-world "Bridgegate" case into a real-world sentencing exercise.  To get started in preparation to that end, I recommend some review of at least the following two links:

This Wikipedia page, titled "Fort Lee lane closure scandal" provides lots of background on the scandal, at it provides this very helpful initial summary of the crime and the three protagonists now facing federal sentencing:

The Fort Lee lane closure scandal, also known as the George Washington Bridge lane closure scandal, or Bridgegate, is a U.S. political scandal in which a staff member and political appointees of New Jersey Governor Chris Christie (R) colluded to create traffic jams in Fort Lee, New Jersey, by closing lanes at the main toll plaza for the upper level of the George Washington Bridge.

The problems began on Monday, September 9, 2013, when two of three toll lanes for a local street entrance were closed during morning rush hour. Local officials, emergency services, and the public were not notified of the lane closures, which Fort Lee declared a threat to public safety. The resulting back-ups and gridlock on local streets ended only when the two lanes were reopened on Friday, September 13, 2013, by an order from Port Authority Executive Director Patrick Foye. He said that the "hasty and ill-informed decision" could have endangered lives and violated federal and state laws.

The ensuing investigations centered on several of Christie's appointees and staff, including David Wildstein, who ordered the lanes closed, and Bill Baroni, who had told the New Jersey Assembly Transportation Committee that the closures were for a traffic study.

The United States Attorney for the District of New Jersey Paul J. Fishman launched a massive federal investigation, resulting in a sweeping nine-count indictment against Bridget Anne Kelly, the deputy chief of staff, Baroni and Wildstein. Wildstein entered a guilty plea, and testified against Baroni and Kelly, who were found guilty on all counts in November 2016.

The copy of the plea agreement in which Mr. Wildstein agreed to plead guilty and which also has a copy of his charging "information."

Two timely new commentaries in light of our Graham-based discussions of "legal" adulthood

I have been quite amused to see these two headlines on two notable commentaries published since our last class:

• Should 25-Year-Olds Be Tried as Juveniles?: Science — and law enforcement — are rethinking what it means to be an adult.

• Let children vote. Even 13-year-olds: Kids deserve a say too.

The first of these articles starts this way:

Consider three young people: An 18-year-old who can vote, but can’t legally buy a beer; a 21-year-old who can drink, but is charged extra to rent a car; and a 25-year-old who can rent a car at the typical rate, but remains eligible for his parents’ health insurance.

Which one is an adult? All of them? None of them? Some of them? Or does it depend on the individual?

These questions are newly salient in the criminal justice system.

Working text of Amended RID bill for reducing drunk driving crimes and harms

As you should recall, we ended class on Thursday with a working draft proposal for new drunk-driving legislation.  Here is what has made it through our drafting committee so far:

First Offense DUI: imprisonment from minimum term of zero to five years max

Second Offense DUI: imprisonment from minimum term of six month to seven years max

Third (or Greater) Offense DUI: imprisonment from minimum term of two years to ten years max

In addition, a sentencing judge should (must?) give the minimum term for any DUI offense if and only when the defendant's BAC was .10% or lower and no tangible harm result from the offense.  A sentencing judge should (must?) impose a sentence above the minimum if the defendant's BAC was above .10% or tangible harm resulted from the offense.

We could (and perhaps should) continue to discuss and debate other offense-related provisions to incorporate into this sentenceing --- e.g., we might provide more specific guidance/mandates concerning what other BAC levels or types of harms should/must result in a certain amount of jail time.  But, in order to reduce the risk of potential unwarranted disparity, I think it may be even more important that we consider whether and how to provide some offender-related instructions to judges for the exercise of their sentencing discretion in this setting.  And to get the discussion started, here are some proposals for consideration:

Proposal 1.  A judge generally should (must?) sentence an offender at or near the applicable minimum term if and when the defendant has no criminal history, has pleaded guilty and accepted responsibility and shown remorse, and has demonstrated a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

Proposal 2.  A judge generally should (must?) sentence an offender at or near the applicable maximum term if and when the defendant has a significant criminal history, has refused to accept responsibility and shown remorse, and has failed to demonstrate a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

(Contrary) Proposal 3.  A judge generally should (must?) not in exercising his sentencing discretion consider in any way a defendant's criminal history, whether he has shown any remorse, or whether any substance abuse or personal problems may have contributed to the offense. 

As these proposals are written, it is possible (but not essential) to favor both Proposal 1 and Proposal 2.  But Proposal 3 is intended to be directly contrary to the Proposal 1 and my goal here is to explore whether and how you favor (or oppose) the consideration of some common offender-related sentencing factors.

I would encourage students to use the comments to discuss any part of this on-going debate over our new sentencing bill, and folks should feel especially free to propose any additional amendments and modifications to the bill.  We will build on what we have done to date in our class discussion on Tuesday and Wednesday.

Ohio's current capital laws and the dynamic realities of Ohio and US death penalty history

As mentioned in class, one class activity for the coming week(s) will be to work through how modern post-Furman capital punishment laws might get applied to the (in)famous Unibomber, Ted Kaczynski.  (Ted is currently an LWOP resident at superman ADX Florence in Colorado and in the past was comically portrayed by Will Farrell).  I will not aggressively quiz anyone about doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Ted's case might be litigated in prominent death penalty states like Florida and Texas and Ohio. 

We could easily spend the rest of the semester discussing the history and modern specifics of the death penalty in specific jurisdictions like Florida and Texas and Ohio and US.  I will reference this history and modern practices in class over the next few weeks, and here are some links concerning the two jurisdictions in which we operate to provide a (low-stress, high-learning) chance to discover a lot more about these matters:

Links with background on Ohio's history and practices in the administration of the death penalty 

• Legal basics: Ohio Revised Code Section 2929.04: "Death penalty or imprisonment -- aggravating and mitigating factors"
• Some history from the Ohio Department of Rehabilitation and Corrections
• Some history from the Ohio section of website of Death Penalty Information Center

Links with background on US history and practices in the administration of the death penalty 

• Legal basics:Title 18 US Code Section 3592: "Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified"
• Some history from the federal section of website of Death Penalty Information Center
• Some history from a Congressional Research Service 2005 Overview Report on Federal Death Penalty

Based on my hope that your "who radar" is now fully operational, I would be eager to hear your views (in the comments or in class) as to which "whos" have had the most impact on the operation of Ohio's death penalty system throughout the state's history (based, perhaps, on the Ohio DRC's account of this history).

Some background and basics on capital punishment history and practices in Ohio and US

We could easily spend months discussing the history and modern specifics of the death penalty in specific jurisdictions like Ohio or the US.  I will sometime reference this history and modern practices in class over the next few weeks, but here are some links of note concerning both jurisdictions to provide everyone with a (low-stress, high-learning) chance to discover a lot more on these topics:

Links with background on Ohio's history and practices in the administration of the death penalty 

• From the Ohio Department of Rehabilitation and Corrections
• From the Ohio section of website of Death Penalty Information Center
• American Bar Association Ohio Death Penalty Assessment
• Ohio Attorney General's 2012 Capital Crimes Annual Report
• Ohio Revised Code Section 2929.04: Death penalty or imprisonment - aggravating and mitigating factors

Links with background on US history and practices in the administration of the death penalty 

• Justice Department 2000 Survey/Review of Federal Death Penalty 
• From the federal section of website of Death Penalty Information Center
• Congressional Research Service 2005 Overiew Report on Federal Death Penalty
• Title 18 United States Code Section 3592: Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified

Information on (your hypothetical client) Ted Kaczynski and Ohio DP law

To give you a focus for examining modern death penalty statutes, the casebook encourages thinking about how you might help represent Ted Kaczynski if he were to be prosecuted under the applicable death penalty statutes in Texas and Florida.  Though not in the text, you should also consider how you think Ted might fare under Ohio's death penalty statute and its distinct specification of aggravating and mitigating circumstances.  (Ignore for purposes of this exercise that these states would not likely have jurisdiction.)

For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out this short article toward the end of this link entitled "The Death Penalty Up Close and Personal" by David Kaczynski (Ted's brother).  Also worth a read is this 1999 article from Time magazine by Stephen Dubner.

Though I have given this sort of assignment to prior classes, I must note that this "case" has a disturbing new element.  As detailed in this press report from July 2011, "Anders Behring Breivik, the suspect in Norway's twin attacks that killed at least 93 people, appeared to plagiarise large chunks of his manifesto from the writings of Theodore Kaczynski."  Here is more:

The 32 year-old appears to have quoted verbatim large sections from the preaching of Theodore Kaczynski in his 1500 page online rant.  Breivik had “copied and pasted” almost a dozen key passages from the 69 year-old’s 35,000 manifesto, only changing particular words such as “leftist” with “cultural Marxist”.

It remains unclear what his motivations were, but experts said it appeared he had taken “inspiration” from Kaczynski whose two decade parcel-bomb terror campaign killed three people and 29 injured others. 

Despite meticulous university thesis-style referencing through the manifesto, Norwegian bloggers discovered that passages quoting Kaczynski were not credited....  It was published on the internet just hours before he killed at least 93 people and wounded nearly 100 more in twin attacks in Norway.

Ragnhild Bjørnebek, a researcher on violence for the Norwegian Police Academy, described the disclosures as “very interesting” and showed startling similarities between the two terrorists.  “The Unabomber was very intelligent and who was also a person that was very difficult to detect,” she told Norwegian media.

On mental condition as a mitigating issue

During next week's classes any beyond, we will talk a lot about mental conditions of various sorts impacting the application of the death penalty.  I see our quick discussion of MR this week has already spurred some comments in a prior post, and Kristin Harlow sent me this thoughtful note concerning my comments about the potential for faking mental illness:

I had a comment that doesn't really fit into the comments currently on the board, so you can post this or not, as you see fit. I have an objection to your comments about advising your hypothetical clients on death row act "crazy" in order to avoid being executed.  [BERMAN NOTE: I was half joking with my in-class comment, but I suppose therefore also half serious.]

Although I am not sure exactly what the policy is regarding the death penalty (I guess no one will know until the Supreme Court rules), I do know that psychiatrists can reliably determine whether or not someone is faking a severe mental illness. See Michael L. Perlin, “The Borderline Which Separated You from Me”: The Insanity Defense, The Authoritarian Spirit, The Fear of Faking, and The Culture of Punishment, 82 Iowa L. Rev. 1375 (1997).

In addition to the literature, I interned at a state psych hospital for a school year, and after only nine months of experience, I could recognize cases of malingering.  Although I would not rely on my limited expertise, my point is that even with limited expertise, it is possible to know when someone is “faking.”  I imagine professionals with years of experience could feel very comfortable determining who on death row suffered from psychosis.

The reason for this comment is mostly because the myth that defendants can “get away with murder” by faking mental illness is creating a society where severely mentally ill people are in prisons rather than in hospitals, where they could be effectively treated, because of the fear that truly guilty people will not be punished. It will be interesting to see how the Supreme Court responds to the issue in the context of the death penalty.