October 10, 2016
Follow-up after (too little) time with the Assistant Chief Counsel for Ohio Governor John Kasich
I am sorry we did not have more time to allow Kevin Stanek, the Assistant Chief Counsel for Ohio Governor John Kasich, to complete his tales about Ohio's fulsome history with lethal injection litigation. But I trust you all got a flavor of some of the major themes I consider most important for our broader class's purposes: a whole bunch of distinctive (unexpected?) "whos" can and often will have a huge impact on whether, when and how death sentences actually get carried out in Ohio and elsewhere.
For more on that front with a continued focus on lethal injection drug acquisition and litigation, it is worth checking out the WNYC's Radiolab: More Perfect program on state efforts to acquire lethal injection drugs, which is titled "Cruel and Unusual." The 40-minute radio program covers a lot of ground in ways both familiar and unfamiliar, including a notable discussion of the political impact of the Furman ruling and its aftermath starting around the 16-minute-mark (which in turn inspired the Oklahoma legislator who came up with the medicalized three-drug lethal injection protocol).
In addition, the constitutional litigation that has gummed up the works of death penalty in Ohio over the last decade has also gummed up the work in a lot of other states. Here is an a report from my main blog about a (very red) state to Ohio's south that has been dealing with similar issues: "Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade."
October 05, 2016
Game planning next week's final(?) capital punishment discussions (and requests for expressions of any continued DP interest)
As I surmise you could tell from the last few classes, I am not at all troubled that our discussions of how Teddy K.'s capital case might play out in states like Florida and Texas has gone on longer than I had initially planned. I am hopeful you were able to get a real feel from this week's two classes concerning the various important structural and practical realities of modern death penalty decision-making that have resulted from the Supreme Court's modern Eighth Amendment "guided discretion" jurisprudence.
With the Teddy K. hypo and some of its lessons now covered, I want to update/clarify our plans and my expectations for next week's classes and beyond:
Monday, Oct 10: Guest presentation/discussion with Kevin Stanek, Assistant Chief Counsel for Ohio Governor John Kasich (and OSU Moritz College of Law Class of 2013). There is no need to prepare anything formal this class, but this Dispatch article and this part of a Wikipedia entry provides a quick overview of the Ohio execution administration issues that ACC Stanek will likely be discussing. (And for a lighter (and not-so-tasteful) look at these issues, check out this satire video from The Onion, "Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine.")
Tuesday, Oct 11: We will finally get to discussing McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)
Wednesday, Oct 12: Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons ....
UNLESS YOU REPORT IN THE COMMENTS OR ELSEWHERE ABOUT ADDITIONAL CAPITAL PUNISHMENT ISSUES YOU WOULD LIKE TO HAVE US COVER IN CLASS. If nobody raises any addition death-penalty issues in the comments or in other ways with me, I will assume that everyone has already had more than their fill of death penalty discussions and thus will feel all that much more confident moving on to discussions of non-capital sentencing realities ASAP.
For those students hoping and eager for us to move on beyond our death penalty discussions, please feel free to get started on our first set of prison readings, in the form of:
- All of Chapter 7, paying particular attention to pp. 549-558, 570-581 and 595-623 (especially Graham v. Florida)
- A bit of Chapter 5, pp. 401-415 (especially Miller v. Alabama)
UPDATE: ACC Stanek suggested that everyone read this DC Circuit case, Cook v. FDA, to get a flavor of some of the challenges states face when trying to acquire the drugs needed to conduct a lethal injection.
September 12, 2016
Lots of interesting new buzz concerning the (sort of dormant) Ohio death penalty
Conveniently, my week away proved to be a period in which some interesting local death penalty news and commentary emerged, as evidence by these two recent posts from my main blog:
- Is Ohio again about to pioneer a new execution method?
These topics and lots of others will be a part of our coming extensive discussion of death penalty theory, policy and practice over the next few weeks.
April 23, 2014
Lots of extra credit for writing about lethal injection for JURIST
Late last night, I received this invitation/inquiry via e-mail:
Dear Professor Berman:
My name is Elizabeth Hand, and I am writing on behalf of the University of Pittsburgh JURIST's Dateline service. JURIST is an ABA and Webby award-winning legal news service that reaches hundreds of thousands of readers weekly. JURIST has been cited 700 times in law reviews and briefs to the US Supreme Court, state supreme courts, and federal appellate courts. It has also been cited in nearly 500 published books, and several hundred times by the Library of Congress Website. Dateline is JURIST's student commentary service, and we seek original opinion-based articles from law students regarding their personal and work experiences in a field of law.
JURIST is looking for student commentary pieces covering the recent lawsuit over the state of Oklahoma's lethal injection drugs. You can see our brief coverage of the case here: http://jurist.org/paperchase/2014/04/oklahoma-high-court-stays-executions-over-lethal-injection-drug-challenge.php.
We are looking for student op-eds exploring the legal issues surrounding the legality of the drugs and the overarching issues of capital punishment. If you could please extend this invitation to write to the any law students that you think would be interested in contributing it would be greatly appreciated.
Our authors, including our academic and professional authors, generally list their JURIST articles on their resumes along with journal, law review, and other publications.
Articles are approximately 1200 words in length and do not require Bluebook citations. For examples of recent articles please see: http://jurist.org/dateline/
I will give extra credit to any and every student who submits and op-ed, and double extra credit if you get your op-ed published!
February 16, 2009
Execution methods and theories of punishment
This week we will turn this week from broad discussion of capital punishment theories and practices to a focused discussion of constitutional doctrine. (And here is a reminder that everyone should be prepared to discuss the McGautha case.) But this great newspaper article, headlined "Firing squads are more humane, experts say," provides a great overview of how different death penalty theories and practices intersect when we consider execution methods. Here are some notable snippets from the article:
Rep. Delmar Burridge knows his death penalty bill isn’t going anywhere this legislative session. His bill to bring back the firing squad as punishment for gun-related murders didn’t have a single sympathizer during a recent House committee hearing, and Burridge said he brought the proposal forward to make a point, not new law.
But some execution experts say that the Keene Democrat’s proposal should get a fair hearing. Firing squads, they say, may look old-fashioned and barbaric, but they may be more humane than other methods.
A 1993 study that examined the pain associated with different execution methods had firing squad ranked close to lethal injection. But that research came before more recent reports about problems with lethal injections — incompetent executioners, medically complicated inmates and otherwise botched executions — that have led five states to put executions on hold as they consider ways to improve the status quo.
“That’s definitely something worth investigating,” said Deborah Denno, a professor at Fordham Law School in New York who has studied execution methods for 18 years and testified in state and federal courts about lethal injection. “There’s evidence that (a firing squad) could be the most humane method that’s currently available.”...
Burridge said he chose the method primarily for its public-relations value. He said he thought a death by shooting might be more likely to stick in the minds of would-be criminals and deter them from committing crimes using guns. “I call it the enhanced death penalty,” he said. “You’ve got to love the marketing.”...
Worldwide, firing squad is the most common method of execution. But it’s generally associated with “repressive governments,” including Libya, Cuba, Afghanistan and Uzbekistan, said David Fathi, the U.S. program director at Human Rights Watch. His organization, which opposes the death penalty, authored an influential report in 2006 outlining failings in the states’ lethal injection protocols. But despite those problems, Fathi did not agree that New Hampshire should choose the firing squad. “These are not countries that we generally strive to emulate,” he said....
One strong argument in favor of lethal injection and against the firing squad is the appearance of the execution. Lethal injection looks dignified and painless to watchers, said Richard Dieter of the Death Penalty Information Center. “The guards, the wardens, the witnesses probably do not want five rifles going off and a bloody person bleeding to death in front of them,” Dieter said. “I think these methods are partially chosen for their appearance.”...
On this very blog, back when it was used as a resource for the death penalty course taught at Moritz in Spring 2007, students can find lots and lots of posts on execution methods:
- More on executions methods and the role of doctors
- Readings for Feb. 21 on execution methods
- Follow-up execution method readings
March 04, 2007
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:
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).
March 01, 2007
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?