Death Penalty Course @ Moritz College of Law

This course is closed, but call DPIC for teaching this topic

As the absence of recent posts reveals, the course that was the focal point of this blog ended during the first part of 2007 and I have not had occassion to post anything new in this space for many months (even though I have lots and lots of capital coverage on my home blog).  Still, in part because this website keeps generating a bit of traffic, I am going to keep it active (and may still link here from my Sentencing Law and Policy blog because of the great resources my students helped me asemble in this space).

On the topic of great resources, folks at the Death Penalty Information Center sensibly suggested that I link over to its teaching project, known as Capital Punishment in Context, as I close up shop here.  Through links and other terrific resources, this DPIC project incorporates detailed teaching notes, sample syllabi, and a variety of supplementary materials to support instructors from multiple disciplines such as sociology, criminology, legal studies, literature, writing, statistics, and religion.  Anyone seriously interesting in any number of capital punishment topics should be sure to check out Capital Punishment in Context.

Posting and/or sending out white papers to named audience

After a long few weeks to finish grading and to deal with other commitments that stacked up in the Spring, I am now ready to get serious about polishing, publishing and propagating all of the great white papers that were produced for this course.  I hope at least a few of you are interested, and have a little time, to turn your white paper into more than just a required assignment for our class.

If you are still interested in having your white paper posted on the blog and/or polished for sending to your chosen audience, please let me know via a comment here or e-mail.  Though a little work may be involved to update and formalize the presentation, I doubt more than a few hours of effort would be required to make anyone's white paper post-worthy.  (Consider the cool double meaning: post-worthy means worthy of posting on this blog and worthy of putting in the post (mail).)

Power(Point) to the people

Here are the PowerPoint files I have received to date from students/presenters.  Thanks again to Caitlin Chamberlin for the suggestion to share.

False Confessions: Download false_confessions_powerpoint2.ppt

Actual Innocence: Download actual_innocence.ppt

McClesky: Download mccleskey_presentation_314.ppt

UPDATE:  Here are some more of the powerpoints:

Capital Child Rape: Download child_rape_death_penalty_presentation.ppt

Victim Considerations: Download victim_presentation.ppt

MORE:  And here is a straggler powerpoint:

Women and DP: Download women_and_dp_presentation.ppt

Readings and questions for April 19 on impact on victim's family

Jim Rogowski and Brandon Crunkilton have provided these readings, along with a few questions for Blog discussion, in conjuction with their coverage of victim impact issues:

• U.S. News and World Report, 1997, "The Place for Vengeance"
• Journal of Family Law (excerpt), 1997, "An Argument Against Allowing the Families of Murder Victims to View Executions"

Questions for Blog Discussion:

1. Do you personally believe in the death penalty?
2. If a member of your family were murdered, would you want their attacker executed?
3. Would you want to witness the execution?
4. Even if you would not personally want to witness the execution, do you think other victims' family members should be allowed to witness the execution?

Readings for April 18 on women and the death penalty

Andrea Esselstein, Stephanie Fortener and Janean Weber have created a terrific little "reading packet" for their coverage of the topic of women and the death penalty. This packet can be downloaded here:

Download selected_readings_for_women_and_the_death_penalty.doc

Enjoy and feel free to start the conversation with comments to this post (especially if you are worrying at all about the class participation part of your grade as we approach our last week of class).

Reading on capital child rape for April 11 and 12

Jordan and Brett are in command this week, addressing the very interesting and very timely topic of whether child rape can and should be a capital offense.  Here is their reading list (with links I found):

• Coker v Georgia, 433 U.S. 584 (1977) (available here)
• State v Wilson, 685 So. 2d 1063 (La. 1996) (exceprts here)
• A note by Joanna D'Avella at 92 Cornell L. Rev. 129 (2006) (available here)
• An article by Corey Rayburn at 78 St. John's L. Rev. 1119 (2004) (available here)

I have lots of thoughts about categorical rules concerning the application of the death penalty that I will try to (briefly?) set out to begin our discussion.

Notable local capital sentencing analysis

Sunday's Columbus Dispatch has this intriguing article entitled "Death sentences rare for local juries: Murderers convicted in Franklin County more likely to get life in prison."  In addition to the article, the Dispatch has this fascinating review "of the last 100 aggravated murder indictments [in Franklin County which] shows that juries are becoming more reluctant to impose the death penalty."

Webcast of the Sixth Circuit argument in Reynolds habeas case

In addition to the parties' briefs, you can now access here the webcast of the Sixth Circuit argument today in the complicated federal habeas case in which an Ohio death row prisoner is challenging the Ohio state court proceedings that resulted in his death sentence for a murder committed in Summit County, Ohio in the mid-1990s.

Both the briefs and the webcast provide a great set of materials for further gearing up for our discussions of habeas review in capital cases in this week's classes (readings here and here).

A week for reviews

I hope everyone is as excited as I am for the week of capital review we will be having to kick of April:

• On Tuesday, the Reynolds habeas case will be heard by the Sixth Circuit at Moritz.
• On Wednesday, we will discuss habeas procedures in general (readings here).
• On Thursday, we will discuss how habeas procedures deal with innocence claims (readings here)

Everyone should feel free to express pre- or post-event comments here.

Readings for April 5 on Herrera and innocence

Here is the note from Kurt Copper from his team explaining their reading choices and plans:

I have attached two files which are edited copies of Herrera v. Collins, 506 U.S. 390 (1993), and House v. Bell, 126 S.Ct. 2064(2006). I tried to do textbook style edits on the cases so people would be more apt to read them and get the point. I would suggest to the class that they might like to read the entire cases to more fully understand the Justices' arguments, but these edited versions give a decent synopsis in about 15 pages total.

Also, we suggest a law review article, "SIMPLE MURDER: A COMMENT ON THE LEGALITY OF EXECUTING THE INNOCENT", 44 BFLR 501 (1996).  We will show a short video clip in class and try to spur the discussion on innocence claims, the role of the federal courts, and the effectiveness of clemency. 

Also, could you post on the blog a short explanation that the difference between a "Herrera" claim and a "Schlup" or "gateway" claim is that the herrera claim is a purely constitutional one (i .e. "it is unconstitutional for you to hold and execute me because I am innocent") and the gateway claim is a procedural one ("though my claims of constitutional violations in my state trial have been procedurally defaulted and thus normally wouldn't be heard, the federal courts should excuse this and hear them because i am actually innocent"). I think just getting that basic concept before reading the cases will help frame them better for the reader.

It should be interesting.

Download edited_version_of_herrera_v. Collins.doc

Download edited_version_of_house_v. Bell.doc

Readings for April 4 on habeas review

Alexander Smith has sent along this note along with the readings that are available for downloading below:

Because there are two groups going in the same week, I have limited readings to two journal articles that give a solid overview of the complex procedures relating to Federal habeas review. My presentation will attempt to navigate the many rules and requirements surrounding such review in order to create a better understanding of how this process fits into the larger appeal system for death penalty cases.

Students may also want to glance at 28 USC 2241-2266, where the right of habeas review is codified.

Download the_theories_of_federal_habeas_corpus.doc

Download the_writ_of_habeas_corpus_a_complex_procedure_for_a_simple_process.doc

The power of the personal

I was certainly moved by the stories of Ohio exonerees Gary Beeman and Dale Johnston, and I trust everyone else was, too.  If folks want to express reactions or other thoughts, feel free to use the comments.  (My own first thought was that I should have had the good sense to formally invite Governor Strickland and Attorney General Dann to attend.)

Both Dale and Gary gave me their contact information, which they encouraged me to share with students.  In addition, Julie Przybysz gave me a binder with lots of information from Ohioians to Stop Executions (OTSE) that I am happy to copy for anyone interested.

Recent articles on prosecutorial tunnel vision

I mentioned in class that some of the latest scholarship on wrongful convictions and false confessions is focused on the idea of prosecutorial tunnel vision.  Here are two articles discussing this idea:

• The Multiple Dimensions of Tunnel Vision in Criminal Cases

Abstract:  The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent.  The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision.

Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system.  This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review.  The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal.  Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule.  This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

• Loyalty to One's Convictions: The Prosecutor and Tunnel Vision

Abstract:  This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision.  Specifically, it asks why prosecutors become loyal to a particular version of events - the guilt of a particular suspect - even when that version of events has been discredited.  The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor's office. It then considers the prosecutor's divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system.  Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one's beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.

Initial reactions to white-paper outlines

I have reviewed all the submitted white-paper outlines, and I am in the midst of preparing class-wide substantive feedback and suggestions.  In this post, let me just detail some of my initial reactions and thoughts:

1.  Thanks for providing such interesting Spring Break reading.  I really enjoyed seeing how everyone approached this novel assignment, and I learned a lot from your outlines.  Though a lot of you (understandably) expressed concerns about the scope and coverage of your outlines, my review of all your efforts confirmed my instinct that this assignment is proving to be much more valuable than any exam or even a traditional research paper I could have assigned.

2.  The thoughtfulness and diversity of your efforts was quite impressive.  Even the shortest outline — which ran just over a page double-spaced — revealed thoughtful reflection on this project.  The longest outline — which ran just under seven pages single-spaced — revealed how dangerously easy it will be for this project to consume you.

3.  I will mark-up submitted outlines only upon request.  As noted above, I am preparing a long memo with general feedback for everyone.  I am happy to provide individual feedback through conferences or by marking up an outline upon request.  A number of you stressed that the outline was a work in progress; I would rather spend time helping you move forward than marking up an effort you have already revised.

4.  I am excited about the importance and possible impact of this project; I am thinking dynamically about how we can and should disseminate the class's efforts.  Of course, I hope to post (with permission) the completed white papers on this blog.  But I am also thinking about (1) whether and how we might foster (and fund) sending the white papers directly to the official intended audience, and also (2) whether and how we might publish all the papers in some kind of compiled book form.

UPDATE:  I have now completed a detailed memo with class-wide substantive feedback and suggestions, which can be downloaded here: Download recommendations_for_dp_white_papers.rtf

Special class session Thursday, March 29

As mentioned before Spring Break, we will have a set of very special guest speakers in our Thursday class next week: two Ohio death row exonerees and the public defender primarily responsible for Ohio's lethal injection litigation.  More details about the speakers scheduled to appear can be found in the flier available for downloading here: Download exoneree_announcement.doc

Class readings on "False and Coerced Confessions and the Death Penalty" (for just before after Spring Break)

Though I doubt we will get to these materials before Spring Break, I wanted to post now the materials and ideas that Caitlin, Mags and Kelly have for us to explore after we examine race and the death penalty (which should be prompting more blog buzz here).

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False and Coerced Confessions and the Death Penalty

False and coerced confessions present a two-fold problem: the wrong person is convicted of a crime and the true perpetrator remains free.  Thus, justice is not served. 

We want our topic to open the class up to the idea that confessions can be derived because of other reasons. Perhaps it has been suggested to the Defendant that if he confesses, he will be spared the death penalty.  Perhaps the Defendant is undereducated or has a low IQ, and confesses just to appease the police.

The following article provides insight into false confessions. It is co-written by a professor of sociology at Berkley that is an expert in the field of false/coerced confessions.  Please use the citation to pull the article on-line: 88 J. Crim. L. & Criminology 429 (Winter 1998) Journal of Criminal Law and Criminology "THE CONSEQUENCES OF FALSE CONFESSIONS: DEPRIVATIONS OF LIBERTY AND MISCARRIAGES OF JUSTICE IN THE AGE OF PSYCHOLOGICAL INTERROGATION" by Richard J. Ofshe & Richard A. Leo.

In addition, this link provides a brief description of a case where a man falsely confessed to avoid the death penalty, in exchange for a life sentence.

Class readings on McCleskey, race and the death penalty

Though I seriously doubt we will get to these materials before next week, I wanted to post now the materials and ideas that Benjamin and Katherine have sent my way to facilitate our examination of race and the death penalty:

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McCleskey v. Kemp has been called "the most far-reaching post-Gregg challenge to capital sentencing."  In covering the topic, we plan on briefly discussing the holding of McCleskey, looking at some of the statistics involved, looking at the arguments involved on both sides and talking about some current thoughts on racial disparity. Please re-familiarize yourself with the McCleskey decision (Professor Berman will hand out an excerpt on Wednesday) and read the following:

1. Article by John C. McAdams on Racial Disparity and the Death Penalty
2. Homicide Trends by Race
3. Text of the Kentucky Racial Justice Act
4. General link on DPIC concerning Race and the Death Penalty

We also ask everyone to respond to the following questions in the comments section of the blog:

1. What factors do you believe lead to the apparently overt disparate racial outcomes as reported by the Baldus Study?
2. If race is a factor, how do you believe it is factored into the death penalty equation?  Is it a statutory bias, a legislative purpose bias, a legislative intent bias, a prosecutorial bias, a juror bias, a victim bias, a defendant bias, a reality of criminal demographics, some other racial manifestation, something else entirely?
3. Assuming the validity of the Baldus Study and its statistical findings, what do you believe should be proper response to such disparate racial outcomes?
4. Do you believe that a statute such as Kentucky’s Racial Justice Act can properly safeguard against the use of race as a factor in meting out the death penalty? If not, can there be any effective safeguards that can protect against this bias short of getting rid of the death penalty?

Federal death penalty readings for March 7 and 8

Here are the materials and ideas that Caitlin and Kacey have sent my way to facilitate our examination of the federal death penalty:

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Here is a chart comparing the federal death penalty statute to the Ohio death penalty statute:

Download comparison_of_jurisdictions.doc

We plan on focusing on two main aspects of the federal death penalty, the admissibility of victim impact evidence, such as in the case of Zacarias Moussaoui, and potential Eighth Amendment challenges, both when the death penalty is applied in jurisdictions that do not otherwise permit its use, and when it is applied to charges that do not have a death element.

The following readings cover the issues we plan to address:

• Wayne A. Logan, Victim Impact Evidence in Federal Capital Trials, 19 Fed. Sent. R. 5 (2006).
• The Death Penalty Information Center has this page of articles and links relating to the case of Zacarias Moussaoui and various statements from victims who testified at his trial.
• Michael J. Zydney Mannheimer, When the Federal Death Penalty is "Cruel and Unusual", 74 U. Cin. L. Rev. 819 (2006).
• Rory Little, Good Enough for Government Work?  The Tension Between Uniformity and Differing Regional Values in Administering the Federal Death Penalty, 14 Fed. Sent. R. 7 (2002).

Lots of lethal injection doings

As detailed at my main blog, there's been lots of lethal injection developments since our last class meeting.  Here are links to some of my coverage at SL&P:

• Florida LI commission report
• Florida gov seeks national LI review

• Ohio lethal injection litigation going forward
• Now what for Ohio's death penalty?

I plan to recap some of these developments at the start of our Wednesday class, but then we will turn to the discussion of federal death penalty issues (materials on their way).

Does the Florida LI commission's recs require greater doctor involvement?

Providing a fitting capstone to our discussions of execution methods and the role of doctors, today the Florida's Commission on Administration of Lethal Injection finalized its recommendations today on improving the state's lethal injection process.   I cannot yet find the Commission's report on line yet, but this article details that the report, which comes from a group created by out-going Governor Jeb Bush back in December after a botched execution, has more than a dozen recommendations. 

By my lights, it would seem that some of the recommendations almost require the involvement of doctors in the execution process.  Consider these recommendations (as reported by the press):

• Medically examine the inmate one week before the execution and determine the best method to achieve IV access.
• Don't move the inmate after IV access is achieved and take other steps to make sure IV access is maintained throughout the entire execution.
• Improve training, including holding periodic training exercises for all execution team members in which they practice possible contingencies.

Would the AMA's policy against physician involvement in executions allow doctors to play any role in these activities?

Latest class topics and dates

A student made the very sensible suggestion that I post our schedule of class blogging/coverage.  I have updated the schedule and it can be downloaded here:

Download 2007_blog_schedulesyllabus.rtf

More on executions methods and the role of doctors

Jeff Mead and Larysa Simms are taking over Wednesday's class to discuss "The Role of Physicians." Here is the text and readings they sent for everyone's pre-class consideration:

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Before you enrolled in this death penalty class, your mind likely jumped to a single inference when you heard mention of an interface between the legal and medical professions: malpractice suits. However, after class on Wednesday, February 28, you should also gain insight into another important interface between the two professions: the death penalty (executions). In fact, the topic is enjoying the spotlight as the focal point of several current events. In preparation for our discussion on Wednesday, please read the brief articles linked below that will orient you to the issues underlying these current events associated with the medical profession's role in the death penalty. These articles will give you a taste of what we will explore further through class discussion, including the moral, philosophical, medical, political, legal and practical implications of the role of physicians in the death penalty.

Please also answer the following questions in the Comment Section of the blog before class on Wednesday:

1. Why do you think this issue regarding the role of physicians in the death penalty has erupted at this particular time as opposed to any other time?
2. Why has the American Medical Association (AMA) seen fit to act as the moral compass for its members? What are the implications of this AMA decree?
3. What political machinations do you think are at play?
4. Given our recently expanded understanding of the assorted methods of execution, what role, if any, do you think physicians should play in the death penalty?

Required readings:

• AMA opposes physician involvement in executions (Feb. 17, 2006)
• Council of State Approves Death Penalty Protocol (Feb. 6, 2007)
• Doctors' refusal might ring knell for death penalty (Aug. 7, 2006)
• CMA Reaffirms Stance Opposing Physician-Assisted Suicide (Feb. 15, 2007)

Follow-up execution method readings

As promised, here are follow-up (optional) readings to foster our continued discussion of execution methods:

• This past summer I wrote an article about litgation over lethal injection's constitutionality entitled, Finding Bickel Gold in a Hill of Beans, which appeared in the 2005-2006 CATO SUPREME COURT REVIEW (Cato Institute 2006).  Here is how the abstract begins:

The Supreme Court's decision to consider in Hill v. McDonough a death row defendant's challenge to Florida's lethal injection protocol resulted in widespread legal confusion and the disruption of executions nationwide. The Court's subsequent ruling in Hill raised more legal questions than it answered and ensured that death row defendants would continue to disrupt scheduled executions by pursuing litigation over lethal injections protocols.

• Here, from this Amnesty International link, is a list of worldwide execution methods:

Executions have been carried out by the following methods since 2000:

- Beheading (in Saudi Arabia, Iraq)
- Electrocution (in USA)
- Hanging (in Egypt, Iran, Japan, Jordan, Pakistan, Singapore and other countries)
- Lethal injection (in China, Guatemala, Philippines, Thailand, USA)
- Shooting (in Belarus, China, Somalia, Taiwan, Uzbekistan, Viet Nam and other countries)
- Stoning (in Afghanistan, Iran)

Readings for Feb. 21 on execution methods

BUMP & UPDATE:  Please consider starting our discussion of these readings (which will kick into gear Wednesday 2/21) with some comments here.

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Shoshana and Kate have provided two law review articles for posting/review in preparation for our class session on Wednesday Feb. 14 21:

• Roberta M. Harding, The Gallows to the Gurney: Analyzing the (Un)constitutionality of the Methods of Execution, 6 Boston University Public Interest Law Journal 153 (Fall 1996): Download constitutionality_of_methods_of_execution.rtf

• Brian P. Hill, Judicial Response to Changing Societal Values on the Death Penalty: must the Method Chosen Be the Most Humane?, 7 St. Thomas Law Review 409 (1995): Download societal_values_on_the_death_penalty.rtf

Accompanying these reading they asked to pose the following questions: 

1.  What do you think about the Court's view that instantaneous death equates to painless death? 

2.  How do you feel about the theory that society's current values shape the acceptance/rejection of capital punishment and how this relates to current and past Constitutional methods of execution?

They also have provided this document regarding the Constitutional methods in each state:

Download authorized_methods_of_execution_by_state.doc

As they explained to me, "we plan to go over the information contained in the law journal articles and also plan to discuss past methods of execution and current Constitutional methods.  We also plan to discuss the current debate surrounding the Constitutionality of lethal injection."

Pre-class questionnaire for completion

BUMP & UPDATE:  Please complete this questionnaire to aid our class session for 2/21.

Nichelle Pate, who is also involved in next week's class on execution methods (readings here), has prepared a simple survey of questions for the class to answer before class (available below).  Nichelle requests that everyone "answer the questions and put the form in my school mailbox by next Tuesday, so I can tally the results before class on Wednesday." 

Execution Questionnaire: Download execution_questionnaire.doc