Death Penalty Course @ Moritz College of Law

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?

Report your (tentative) white-paper official here

In this post, I provided some ideas as you consider options for which official your white paper will address.  Now it is time to set out your (tentative) choice in the comments (though Larysa here has already got us off to a thoughtful start). 

As before, you are welcome to explain the reasons for your choice, but it is sufficient if you just state your chosen official.  Thanks.

NOTE:  You are not forever committed to your indicated selection.  That's why I keep saying "tentative" in all these posts.  As you begin your research and writing, you are free to change jurisdictions and/or officials.  Remember that, as detailed here, everyone will be expected to submit a white paper outline (of at least two pages) by March 14.  The development of this outline is when your tentative choices ought to become firm.

Wednesday class postponed

All of OSU is closed today, so our schedule for student-led blogging and class discussion will have to be modified by moving everything back at least a day.  The execution method conversation (materials here and here) will thus begin with our class next Wednesday (2/21).  In that class, we will also talk about rescheduling the other planned weeks of blogging/presentations.

Though campus may be closed, this blog is always open.  A post later today will allow you to report your tentative white-paper official selection, which supposed to be made by today.

Considering your white-paper official selection

As indicated here, this week everyone is to (tentatively) select an official for their white paper.  In a subsequent post, I will ask for tentative choices to be reported in the comments.  This post provides some "food for thought" as you consider options.

1.  The kind of advice you want to give should impact your choice of official.  If you are eager to advocate strongly against the death penalty, consider selecting an official in your jurisdiction favoring or fostering the application of the death penalty; if you are eager to advocate strongly for the death penalty, consider selecting an official disfavoring or blocking the application of the death penalty.

2.  Consider the separation-of-powers realities of your choice.  Executive branch officials, legislative officials, and judicial officials all have different kinds of authority and limitations, and your white paper will need to be attentive to these realities.

3.  Feel free to be thoughtfully creative in your choice.  You can select non-government officials (e.g., the head of a local bar task-force); you can select "behind-the-scene" folks (e.g., Karl Rove or a governor's chief legal counsel); you can think very local (e.g., an assistant to the Harris County prosecutor); you can think very global (e.g., the head of the UN).

4.  As I suggested before, have fun and follow your interests: pick an official that truly interests you (or that you may aspire to be) so that the experience feels real and meaningful.

A great offer from Arizona

One student has indicated that her white paper will focus on Arizona, and perhaps others are still ruminating about their jurisdiction.  Consequently, I was very pleased to get this kind e-mail from a new friend in Arizona (who authorized this posting):

Professor:  My name is Jim Belanger.  I am a partner and the Director of the White Collar Criminal Defense Group at Lewis and Roca in Phoenix, Arizona. I have been doing death penalty work since 1991.  Your blog is excellent, among other things because it is useful.

In your class on the DP you are having students write white papers on the DP in certain states.  Arizona would be an extremely interesting jurisdiction to study, particularly with what is going on right now in Maricopa County.  For what appears to be gross but thinly thought-out political purpose, the recently elected Maricopa County Attorney has increased the noticing of capital cases quantumfold, to the point that he has personally fomented a crisis in the ability to defend these cases. 

Arizona has a long history with capital punishment, including its abolition in 1912.  It also recently became the first state to adopt mandatory adherence to the ABA Guidelines for defense counsel performance in Capital cases.  These isues are all coming to a head right now, and certainly will do so during the course of your semester.  If one of your students wants to do his or her paper on Arizona, I am available to help.

Thanks. jjb

Jim Belanger, Lewis and Roca LLP

Report your (tentative) white-paper jurisdiction here

In this post, I provided some ideas as you consider options for what jurisdiction will be the focal point for your white paper.  Now it is time to set out your (tentative) choice in the comments.  You are welcome to explain the reasons for your choice, but it is sufficient if you just state your chosen jurisdiction.  Thanks.

Considering your white-paper jurisdiction selection

As indicated here, this week everyone is to (tentatively) select a jurisdiction for the white paper.  In a subsequent post, I will ask for tentative choices to be reported in the comments.  This post provides some "food for thought" as you consider options.

1.  The kind of advice you want to give should impact your choice of jurisdiction.  If you are eager to advocate strongly against the death penalty, consider selecting a state or country in which the death penalty is still in place; if you are eager to advocate strongly for the death penalty, consider selecting a state or country in which the death penalty is inactive or in decline.

2.  If you like current events, consider selecting a jurisdiction in the midst of a robust legal and/or policy debate.  California, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota, Texas and Wisconsin are just some of the states that are sure to continue making death penalty headlines in 2007. 

3.  Feel free to be thoughtfully creative in your choice.  You can go international (e.g., China, Iran, Japan and the European Union all have lots of capital issues); you can go local (e.g., Harris County, Texas and Hamilton County, Ohio have together sent more people to death row than about 40 US states combined).

4.  Have fun and follow your interests.  Because this assignment should be more engaging than a traditional final (or even a standard research paper), you may spend lots of time on this project.  Pick a jurisdiction that truly interests you so that the experience feels like a labor of love.

Basic information about blog and "white paper" requirements

I have prepared a document with the basic parameters of the blog and "white paper" requirements in this class.  The document can be downloaded here:

Download dp_blog_and_white_paper_basics.rtf

As the document notes, all of these ground rules are tentative.  I welcome feedback and suggested improvements here in the comments or in class (where I will go over these basics).

The final "white paper" requirement

As I mention in the course description, I have decided to try a novel approach to the "final" in this class. Because the law, policy and politics of the death penalty is quite fluid (especially right now), I do not want to develop a final exam that forces students to focus narrowly n current (and ever-evolving) death penalty doctrines.  Instead, I am planning to require student to prepare a "white paper" discussing the history, law and politics of the death penalty in a particular jurisdiction.

I am still thinking about exact due dates and length requirements, and I an not even sure the term "white paper" precisely fits what I have in mind.  (Here is a wikipedia entry on the concept of a "white paper," and it has me thinking that I am really looking for students to do something more akin to a "green paper".)  Whatever we call this final assignment, my hope is that students will produce documents that not only justify posting on this blog, but also could be sent directly to officials in the jurisdiction being examined.