Sentencing Class @ OSU Moritz College of Law

Some deep thoughts about how diverse experiences with prison might impact justifications for prison punishments

As I mentioned briefly at the very end of class, I fear that prison punishment (and especially diverse prison experiences) can often be "under-theorized" in our discussions of criminal justice systems and proposals for reform.  One article that has long influenced my thinking on these matters was Adam J. Kolber, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009) (available here).  Here is this provocative article's abstract:

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility.  I argue that they have identical punishments in name only.  One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it.  Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.

I make two central claims: First, a successful justification of punishment must take account of offenders’ subjective experiences when assessing punishment severity.  Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner.  Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly.  In civil litigation, we often make assessments of emotional distress.  Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now.

I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness.  I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

Lots of folks have had lots of reactions to Kolber's arguments, and one notable response is Kenneth W. Simons, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 Colum. L. Rev. SIDEBAR 1 (2009) (available here).

Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

After a final review of what we should take away from the McClesky ruling and our discussion of a possible legislative response, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence placing categorical limits on what crimes cannot result in a capital sentence and what criminals cannot be executed for their crimes (this discussion will also serve as a bridge to starting discussions of non-capital sentencing).  Here are the major rulings in this jurisprudence:

Crime:

Rape: Coker v. Georgia, 433 U.S. 584 (1977)

Lesser Murders: Tison v. Arizona, 481 U.S. 137 (1987)

Rape of Children: Kennedy v. Louisiana 554 U.S. 407 (2008)

 

Criminal:

Insane: Ford v. Wainwright, 477 U.S. 399 (1986)

Juveniles: Thompson v. Oklahoma, 487 U. S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)

Intellectually Disabled: Atkins v. Virginia, 536 U.S. 304 (2002)

Can you identify any clear themes or philosophical underpinnings to these rulings, and are there any additional categorical limits that you think should be part of Eighth Amendment jurisprudence?  Arguments have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for new constitutional categorical restrictions on the death penalty. But it seems pretty unlikely that the current Supreme Court will take up these issues anytime soon.

Given that the Supreme Court's Eighth Amendment procedural jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender will have his or her individual circumstances considered by a sentencing jury, what justifies these kinds of categorical rulings that preclude legislatures from ever being permitted to allow a jury to even consider the death penalty for certain crimes or offenders?

Contextualizing these matters, consider the query in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker (pictured here decades later).  For a reminder, here is how the lead dissent in Coker v. Georgia described the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnapped and raped a second young woman.  After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead.  He was apprehended and pleaded guilty to offenses stemming from these incidents.  He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment.  Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently.   Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences.  He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.  It is this crime for which the sentence now under review was imposed.

The Court today holds that the State of Georgia may not impose the death penalty on Coker.  In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape.  The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist.  In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner — as well as others in his position — will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.

In the wake of the nomination of another woman to the Supreme Court, it bears recalling that the Court which handed down its 1977 ruling in Coker was comprised of nine men.  (Four years later, in 1981, Sandra Day O'Connor became the first woman nominated to the Supreme Court by President Ronald Reagan.)  In light of that reality, and especially given what more we now know about the impact of sexual violence, I often find this paragraph from the Coker ruling a bit disconcerting:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.  Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.  The murderer kills; the rapist, if no more than that, does not.  Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.  We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. at 187, is an excessive penalty for the rapist who, as such, does not take human life.

Would it be appropriate to reconsider Coker now that we have a more diverse set of Justices and especially since we now better understand that rape in fact does by definition involve "the serious injury to another person"?

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.

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.

Interesting arguments from federal prosecutors concerning why Felicity Huffman should get some jail time

Though I have not been able to find online all of the sentencing submissions in the college scandal case, the fine folks at Deadline have posted here the nine-page "Government’s Supplemental Sentencing Memorandum Concerning Defendant Felicity Huffman." The whole document makes for a fine read, and these paragraph at the very end struck me as especially effective:

Finally, other considerations also support the government’s proposed sentence of one month of incarceration.  In the context of this case, neither probation nor home confinement (in a large home in the Hollywood Hills with an infinity pool) would constitute meaningful punishment or deter others from committing similar crimes.  Nor is a fine alone sufficient to reflect the seriousness of the offense or to promote respect for the law.  Even a fine at the high end of the applicable Guidelines range would amount to little more than a rounding error for a defendant with a net worth measured in the tens of millions of dollars.  See, e.g., United States v. Zukerman, 897 F.3d 423, 431 (2d Cir. 2018) (“A fine can only be an effective deterrent if it is painful to pay, and whether a given dollar amount hurts to cough up depends upon the wealth of the person paying it.”), cert. denied 139 S. Ct. 1262 (2019).  Likewise, community service, especially for the famous, is hardly a punishment — which is why many non-felons gladly perform it in the absence of court orders.

The government’s recommended sentence of incarceration for a term of one month is sufficient but not more than necessary to achieve the goals of sentencing.  It would provide just punishment for the offense, make clear that this was a real crime, causing real harm, and reinforce the vital principle that all are equally subject to the law regardless of wealth or position.

Does the text or spirit of the US Constitution (or the federal criminal code) favor or prioritize any particular theory of punishment?

I am grateful for the 30 students who completed and submitted the class questionnaire, and I am eager to get completed surveys ASAP (in my faculty mailbox on the third floor or by email) from anyone who has not yet submitted the form. I will be eager to discuss the collective "results" in class, and I really appreciate all the thought that was evident in many answers.

Our discussion Wednesday will focus particularly on how students ranked the various theories of punishment.  But I want to make sure that our theory discussion is informed by some doctrine. Specifically, as the question in the title of this post reveals, I would be eager to discuss with some particularity whether you think the text or spirit of the US Constitution (or the federal criminal code) favors or prioritizes any particular theory of punishment.

Of course, there are lots of provisions of the federal criminal code, but 18 US Code § 3553(a) (which is reprinted in our casebook) seems most central to this discussion give its instructions to  federal judges about what they must consider at sentencing.  Some parts of 3553(a) speak to specific classic theories of punishment, but do any seem particularly favored or prioritized (or disfavored)?  What theory is served by instructions like the requirement to consider "the need to avoid unwarranted sentence disparities" among similar defendants?

And, of course, there are lots of provisions of the US Constitution.  But I think these two can usefully get a conversation started:

The Preamble:  "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Examining the "why" and "who" of modern mass incarceration and its potential alternatives

As we finish up the semester with a final few classes examining the particulars of modern mass incarceration and possible alternatives, I realize it would be useful and fitting to return to some of the early themes of the class concerning the "why" and "who" of sentencing.  Specifically (and building off themes stressed by Fordham Law Professor John Pfaff at the Reckless-Dinitz Lecture), I will likely start Monday's class by exploring:

(1) "why" incarceration has become such a popular punishment in modern American history, and

(2) "who" has been most responsible for the particular emphasis on incarceration in modern American history.

I think some reasonable answers to these questions are important for anyone eager to move the nation away from modern mass incarceration: without having some sense of just why incarceration has proved so popular and just who has had a leading role in inflating incarceration levels, it will be hard to engineer a successful change of course.

Especially because there have recently been a whole lot of notable new court opinions about Eighth Amendment limits on extreme juvenile prison sentences — see examples here and here and here and here and here from the Third Circuit, the District of Connecticut, the Iowa Supreme Court, the Georgia Supreme Court and the Wyoming Supreme Court — I am especially eager to discuss what role we think courts have played in creating modern mass incarceration and what role courts could play in moving us away from modern mass incarceration.

In this context (and again to serve as a kind of semester review), I think it important to recognize that courts have played a major role in the modern decline of the death penalty in the United States over the last two decades.  All sort of litigation has played all sorts of roles in "gumming up" the modern machinery of death, and many abolitionists have come to expect that the US Supreme Court will play a starring role in a final push to have the death penalty fully abolished throughout the United States. 

Is there any basis to hope or expect courts to play a major role in a decline in the use of incarceration in the United States over the next two decades?

If you really want to get into Eastern State Penitentiary and other (in)famous US prisons past and present....

then this post can help facilitate discussion and reflection on prison history in the United States, building on the video about Eastern State Penitentiary and the modern reality that time in jail or prisons is now our default punishment for crimes both major and minor.  If you are interested in learning more about Eastern State, check out this terrific website.   Notably, the Eastern State Penitentiary has this new exhibit on "Prisons Today: Questions in the Age of Mass Incarceration."  And that includes this little survey: "What are Prisons For? Take the quiz."

In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America.  Some Ohio-centric stories are to be found within in this history, as documented via this book entitled "Central Ohio's Historic Prisons."  That book is summarized this way:

With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States."  The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class."  However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.

The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site.   I urge everyone to take a virtual tour via this huge photo gallery.  And if you are ever looking for some web-surfing fun, check out these additional links to some good sites about some of the United States' most (in)famous prisons:

• Alcatraz
• Missouri State Penitentiary
• West Virginia Penitentiary 

Notably, a few years ago, students had a lot to say in the wake of watching the ESP video, and you might be interested to read these 2011 student comments about prison history. This coming week, we will be shifting back into a discussion of sentencing law and the (non-capital) sentencing process, but everyone should keep thinking about both the theory and practices of imprisonment as a form of punishment as we get into the nitty-gritty of modern sentencing doctrines.

How would Thomas Jefferson sentence Richard Graves (or John Thompson)?

One of my favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and a few provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [MY EDITORIAL COMMENTS ARE IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] 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 wholy forfiet 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.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] 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....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging....

[PUNISHMENT FOR SEX CRIMES:] 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....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

What theory or theories of punishment do you think was foremost in the mind of Thomas Jefferson when writing this document?

Would his proposed punishment for male rapists like Richard Graves — "castration" — properly serve his likely punishment goals? Would it reasonably serve the punishment goals you wish to prioritize?

Where would a modern drug offender like John Thompson fit into the schema here for "Proportioning Crimes and Punishment"?

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.

How some Framers thought about "gradation of punishments" (and proposed sentencing guidelines) in a world before "modern" prisons

One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] 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 wholy forfiet 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.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] 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....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging.

And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth....

[PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder....

[PUNISHMENT FOR SEX CRIMES:] 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....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

Some background reading on (various forms of) castration as a punishment for sex offenders

Since I keep managing to end class with lingering questions about castration as a punishment for sex offenses, I figured I would use this blog space to highlight some existing literature on this topic.  Perhaps my main goal here is to be sure I do not leave the impression that I am the only one who thinks (too much?) about the potential pros and cons of castration as a punishment for sex offenders:

• A 2005 peer-reviewed journal article, titled  "The Impact of Surgical Castration on Sexual Recidivism Risk Among Sexually Violent Predatory Offenders"

• A 2006 press article, headlined "Some Sex Offenders Opt for Castration"

• A 2009 student note making the case for chemical castration, titled "Chemical Castration for Child Predators: Practical, Effective, and Constitutional"

• A 2010 press article, titled "California law mandates chemical castration of certain offenders"

• A 2013 student note arguing against chemical castration, titled "'Off with His __': Analyzing the Sex Disparity in Chemical Castration Sentences"

• A 2014 press article from the UK, titled "Should We Be Castrating Sex Offenders?", interviewing an expert involved in UK "voluntary" program "to chemically castrate rapists, paedophiles and other sex offenders."

I do not expect anyone to read all these materials (or even any of them if this topic creeps you out), but perhaps one or more of you might find this topic interesting for a future mini-paper or final paper. And, speaking of topics of interest for mini/final papers, I promise on Monday to start the class by going around the room and having folks describe a sentencing/punishment topic of personal interest.  Once we have that discussion, we will then jump hard into the Williams case.

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."

Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE?

As the text reveals, federal sentencing doctrines and state sentencing laws express in various ways an interest in achieving consistency in sentencing outcomes across a range of cases:  e.g.,

• 18 US Code § 3553(a)(6) orders federal judges at sentencing to consider "the need to avoid unwarranted sentence disparities" among similar defendants;
• Ohio Revise Code § 2929.11(B) provides that sentences imposed for felonies shall be "consistent with sentences imposed for similar crimes committed by similar offenders." 

Arguably, the US Constitution might be thought (at least since the end of the Civil Law) to demand consistent sentencing outcomes over a range of cases: the Fourteenth Amendment, of course, precludes governments from "deny[ing] to any person within its jurisdiction the equal protection of the laws."

We will begin next week by discussing the normative and practical issues raised by these kinds of commitments to sentencing consistency.  Normatively, I hope students can explain why we should have a strong commitment to sentencing consistency, especially if there is reason to worry that such a commitment may complicate efforts to achieve justice in each individual case.   Practically, I hope students can explain how we can effectively determine who are, in the words of federal law, "defendants with similar records who have been found guilty of similar conduct"?  Helpfully, the on-going federal cases highlighted in the questionnaire provide a real-world lens to focus concretely on these abstract questions. 

Here is an alphabetical list of some defendants arguably similar to Dzhokhar Tsarnaev (links via Wikipedia and with carnage; federal sentences they received):

• Ted Kaczynski (killed 3, injured over 20; LWOP)
• Timothy McVeigh (killed 186, injured over 600; death sentence)
• Terry Nichols (conspired with McVeigh; LWOP)
• Eric Rudolph (killed 2, injured over 100; LWOP)

Especially given that Tsarnaev is surely most similar to all those on this list other than McVeigh, does a commitment to sentencing consistency entail that Dzhokhar Tsarnaev must get an LWOP sentence?  If a federal jury in the Tsarnaev case were to return a sentence recommendation of death, should the presiding federal judge ignore that recommendation and impose LWOP in order to "avoid unwarranted sentence disparities" among similar defendants?

Here is an alphabetical list of some defendants arguably similar to former Connecticut Gov John Rowland (links via Wikipedia when available and federal prison sentences received):

• Illinois Gov Rod Blagojevich (14 years)
• Massachusetts House Speaker Salvatore DiMasi (7 years)
• Louisiana Gov Edwin Edwards (10 years)
• Illinois Gov George Ryan (6.5 years)
• Bridgepost (CT) mayor Joseph Ganim (9 years)
• Alabama Gov Don Siegelman (6.5 years)
• Connecticut Treasurer Paul Sylvester (4.3 years)

Given that Rowland is facing sentencing for his second federal fraud/corruption charges, shouldn't concerns about sentencing consistency demand he now get a federal sentence of at least 6.5 years if not a lot more?

UPDATE as of 11am Monday: Kudos to those students who have already shared thoughtful comments below about the importance and challenges of achieving sentencing consistency.  

One important additional factor in this critical debate which we will discuss in class today (and throughout the semester) is WHICH ACTORS in the criminal justice system should be especially concerned with seeking sentencing consistency and HOW PROCEDURLLY shoud greater consistency be pursued:  e.g., should legislatures be especially concerned with sentence consistency and pursue it by enacting detailed sentencing guidelines and/or should sentencing judges be especially concerned with sentence consistency and pursue it by thoroughly researching "comparables" before imposing a sentence.

One especially notable actor in an especially notable setting that must confront these concerns a lot is a prosecutor in a jurisdiction with the death penalty.  For example, is it virtuous for an Ohio prosecutor, in the name of consistency, always pursue a capital charge for any statutory eligible murder and refuse to plea the case down to a lesser punishment (which is the stated policy of long-time Hamilton County prosecutor Joe Deters)?  Alternatively, as this new post on my main blog hints, should we be critical of the Colorado prosecutors in the Aurora killer James Holmes case for not being willing to take an LWOP plea given that prosecutors have often cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter). 

Other than criminal history, is there any specific "offender characteristic" that you think must be considered at sentencing? If so, how?

As we start digging into the  challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing.  As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).

Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing.  Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.

Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statment that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Relatedly, as discussed in this recent post on my main blog, a number of states have enacted laws or considered bills to require consideration of military service and/or PTSD at sentencing.

Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of military service?  If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing.

How Thomas Jefferson would have sentenced Richard Graves

I suggested in Tuesday's class that, if incapacitation was a key goal/purpose when sentencing convicted rapist Richard Graves, that castration would seem likely much more effective than any term in prison. (Indeed, given ugly statistics concerning prison rape, a trip to prison might be the worst way to prevent Graves from raping again.) But I surmised that some (many? most?) members of the class have a visceral negative reaction to castration as a form of punishment. But why?

If you had a visceral negative reaction to castration, I urge you to read and reflect on Michel Foucault's astute insight (reprinted in Chapter 1 of the text) 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.

Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes. This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages (with my emphasis added):

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 wholy forfiet 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....

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....

I highly encourage everyone to read (and then comment upon) 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.

Snow day readings on revising the MPC sentencing provisions

I briefly mentioned at the end of class this past week that the American Law Institute is in the midst of revising the Model Penal Code's sentencing provisions, and that I have been critical of some of the structural changes that the MPC revision is advocating.  If you want to do some snow day reading of my writings on these matters, check out this piece from the September 2009 issue of the Florida Law Review, which is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions."

In addition, you can find other terrific (and relatively short) readings on the Model Penal Code's new sentencing proposals in this issue of the Florida Law Review.  As always, comments are welcome and encouraged on these topics.

Did you notice what theory of punishment is being pursued by USA Swimming...

in its punishment of Michael Phelps?  Here is the organization's official statement:

USA Swimming has reprimanded Michael Phelps under its Code of Conduct by withdrawing financial support and the eligibility to compete for a period of three months effective today, Feb. 5, 2009.

This is not a situation where any anti-doping rule was violated, but we decided to send a strong message to Michael because he disappointed so many people, particularly the hundreds of thousands of USA Swimming member kids who look up to him as a role model and a hero.

Michael has voluntarily accepted this reprimand and has committed to earn back our trust.

Some related posts from my other blog:

• Is golden boy Michael Phelps going to be charged with a state drug crime?
• "Michael Phelps, Hypocrisy, and American Drug Policy"
• Should those seeking drug policy reform hope that Micahel Phelps get prosecuted?
• Michael Phelps punished by USA Swimming with suspension