Sentencing Class @ OSU Moritz College of Law

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.