Sentencing Class @ OSU Moritz College of Law

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.

Should former Illinois Governor George Ryan get the Nobel Peace Prize?

Soon we will discuss the role of executive clemency, focused in part on the speech (which is at the end of our reading packet) delivered by former Illinois Governor George Ryan to support the "mass clemency" at the end of his term of given to everyone then on Illinois' death row.  In light of that reading and our coming discussion, I thought everyone might find this press release interesting:

University of Illinois College of Law Professor Francis A. Boyle has nominated former Illinois Governor George Ryan for the 2007 Nobel Peace Prize because of his courageous and heroic opposition to the death penalty system in America. 

Despite tremendous opposition and criticism, Ryan single-handedly started what he calls a "rational discussion" on capital punishment in 2000 when he declared the Illinois death penalty moratorium. To this day, despite paying a heavy personal price for his courage, integrity, and principles, Ryan remains committed to the principle of seeking justice for the poor and oppressed. Ryan now takes his message globally, recently speaking before the United Nations Commission on Human Rights in Switzerland, continuing to initiate dialogue against the barbaric use of capital punishment around the world....

As Governor Ryan exposed to the country in 2000, the burden of capital punishment consistently falls upon the poor, the ignorant and the forgotten underpriviledged members of society, and is often used as a racist institution against people of color.  The United States' attitude towards capital punishment is undeniably changing, and as a direct result of Ryan’s historical acts as former Governor of Illinois. 

Ryan exposed capital punishment to be a distorted means of justice rife with flaws and defects, and he began the dialogue that will one day abolish capital punishment in America. Professor Francis A. Boyle has stated that, "George Ryan is the beginning of the end of the death penalty in America," and it is for this reason that he richly deserves to win the 2007 Nobel Peace Prize.

This press release seems notable not only for what it says, but also for what it does not say.  There is no discussion of wrongful convictions or innocence issues, even though it was innocence concerns that first drew Ryan's attention to the death penalty.  Also, the press release also does not mention that Ryan is now a convicted felon recently sentenced to more than six years in federal prison.

Information on Ted Kaczynski and Ohio DP law

To give you a focus for examining modern death penalty statutes, the reading packet encourages thinking about how Ted Kaczynski might be prosecuted under the death penalty statutes in Texas and Florida.  Though not in the text, you should also consider how Ted might fare under Ohio's death penalty statute.  (Ignore for 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 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.

UPDATE:  Life is all about timing, and apparently ours is good.  As we look back at the Unabomber's crimes and punishment in class, Ted Kaczynski writings are making new headlines.  From this article in the Yale Daily News:

Fourteen years after opening a package bomb sent by the Unabomber, Yale computer science professor David Gelernter ’76 still feels pain every day, and more may soon be coming. 

After nine years in prison, Ted Kaczynski has returned to both the headlines and the courtroom as he challenges a government plan to auction off his expansive writings to raise restitution for his victims. But as Kaczynski fights the auction on First Amendment grounds, some of his victims, including Gelernter, have raised concerns about the possibility that Kaczynski's musings about bombmaking could wind up the focus of a morbid bidding frenzy — and open up old wounds at the same time.

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.

More on McGautha, Furman and Gregg

As hinted in Wednesday's class, I think the constitutional and social history surrounding the rulings in McGautha, Furman and Gregg are fascinating.  Here are some links and thoughts for anyone interested in digging deeper in this little piece of important constitutional history:

McGautha (1971)

Here is a link to all the full opinons in McGautha.  As a follow-up to our class discussions, check out Justice Brennan's dissent, which includes this potent paragraph at the outset:

It is of critical importance in the present cases to emphasize that we are not called upon to determine the adequacy or inadequacy of any particular legislative procedure designed to give rationality to the capital sentencing process.  For the plain fact is that the legislatures of California and Ohio, whence come these cases, have sought no solution at all. We are not presented with a State's attempt to provide standards, attacked as impermissible or inadequate.  We are not presented with a legislative attempt to draw wisdom from experience through a process looking toward growth in understanding through the accumulation of a variety of experiences.  We are not presented with the slightest attempt to bring the power of reason to bear on the considerations relevant to capital sentencing. We are faced with nothing more than stark legislative abdication. Not once in the history of this Court, until today, have we sustained against a due process challenge such an unguided, unbridled, unreviewable exercise of naked power.  Almost a century ago, we found an almost identical California procedure constitutionally inadequate to license a laundry. Yick Wo v. Hopkins, 118 U.S. 356, 366 -367, 369-370 (1886). Today we hold it adequate to license a life.

Furman (1972)

Here is a link to all the full opinons in Furman.  This on-line encyclopedia entry about Furman includes these two notable factiods about the prelude to and particulars of the case:

Ironically, the use of the death penalty declined in the 1960s.  Only two persons were executed in the United States between 1967 and the date of the Furman decision in 1972.  Public opinion polls showed that a majority of U.S. citizens were opposed to capital punishment.

Furman arose out of the convictions and death sentences of three African American men. William Henry Furman was convicted in Georgia for murder, Lucious Jackson was convicted in Georgia for rape, and Elmer Branch was convicted in Texas for rape.

Gregg (1976)

Here is a link to all the full opinons in Gregg.  Professor Michael Radelet has this recent article discussing Furman, Gregg and post-Gregg developments.  This passage explains what transpired in the four years between Furman and Gregg:

[After Furman, Florida] Governor Rubin Askew called the legislature into a special session, held in Tallahassee just after Thanksgiving, 1972.  Soon Florida had the nation's first "post-Furman" death penalty statute. Since it required that guilt and punishment decisions be held in separate proceedings, and specified factors that jurors must consider in deciding between a death and a prison sentence (e.g., the defendant's prior record; whether the murder is especially cruel), the Florida legislation is an example of what is called a "guided discretion" statute.  Within two years after Furman, fourteen other states had reacted in a different way by enacting statutes that required mandatory death sentences upon conviction for assorted types of criminal homicide.

By 1976, 35 states had passed new death penalty laws and more than 500 inmates were confined on America's death rows.  Public support for the death penalty had also grown markedly since Furman; by then some two-thirds of Americans supported it.  Clearly the Supreme Court's silence on the issue had to end.  It was time to decide whether these new, post-Furman death penalty laws were constitutional.

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).

Important series on capital representation

Any lawyer or law student interested in the death penalty should be attentive to the realities of representation issues in capital cases.  And that means every lawyer or law student interested in the death penalty must read Stephen Henderson's fantastic series of related articles about the poor quality of capital defense assembled here under the heading "No Defense: Shortcut to Death Row."  The lead piece is available here and is entitled "Indefensible? Lawyers in key death penalty states often fall short."   

More information can be found at this post on my home blog and also from at CDW and ODPI.

Interesting Ohio developments

I predicted in class yesterday that this weekend might bring some interesting Ohio capital action, but our new Governor did not even waited for the weekend.  As discussed here, Gov. Strickland late Friday signed warrants that delay the executions of three Death Row inmates who were scheduled to receive lethal injections in January or February. 

The Governor's official statement and the full text of the warrants can be found here.  Here's the money paragraph:

During my tenure as Governor, before I allow an execution to proceed, my staff and I will have conducted a comprehensive, thorough and searching review of the case to determine if any exercise of executive clemency is appropriate. The brief time I have been Governor has not allowed me sufficient time to conduct that type of review and there is not sufficient time before these scheduled executions to complete that type of review.

Of course, the place to go to get all the details (and the likely storm of new coverage) is the Ohio Death Penalty Information blog.  I will be very interested to see whether this decision is applauded or criticized by other state politicians and the media throughout the state.

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.

American DP history before McGutha

As I mentioned in class, one of my questions to begin our discussion of modern death penalty constitutional law is why it took nearly 200 years for the Supreme Court to seriously examine the constitutionality of the death penalty.  Of course, that question could (and perhaps should) lead to a broader examination of America's history with the death penalty since the nation's founding.

For general historical background on the death penalty, the Death Penalty Information Center has this reader-friendly overview of the history of the death penalty.  In addition, I wrote this introduction to an OSLJ symposium on capital punishment that highlights that "America's history with the death penalty has been a story primarily about, and directed by, legislative developments."

Do aesthetics and anniversaries matter in DP debates?

Over at my home blog, I ask here whether execution headaches impact where capital debates are headed.  I would be interested in student input on this question.

I also note here that today marks a notable death penalty anniversary: the first "modern" US execution took place exactly 30 years ago today.  This factoid, in turn, prompts a similat query from me: does the marking of a notable anniversary have any real impact on capital punishments debates or developments?

Keeping up with all the news bewteen classes

Death penalty news and developments continue apace even between our class meetings.  For example, as detailed here, on Friday the Supreme Court granted review in a case presenting "a test of federal courts' authority to overturn a state trial judge's decision to remove a juror from a capital trial because of that juror's views about capital punishment."  Also, as detailed here, the Washington Post has this provocative death penalty article in Sunday's paper.

As a general matter, I encourage members of the class to regularly stop by three great death penalty blogs — Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project — to keep up with current capital happenings.

Assembling recent DP deterrence literature

As I mentioned in class, last year Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life.  Below I have provided links to this paper and various responses it has generated:

• Cass Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs

• Carol Steiker, No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty

• John Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate

• Cass Sunstein & Adrian Vermeule, Deterring Murder: A Reply

• Jeffrey Fagan, Death and Deterrence Redux: Science, Law, and Causal Reasoning on Capital Punishment

• Eric D. Blumenson, Killing in Good Conscience: What's Wrong with Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?

• Thomas Kleven, Is Capital Punishment Immoral Even if it does Deter Murder?

More on death penalty aesthetics and Ohio death developments

Two quick follow-up after class today (where I felt I talked far too much and most students talked far too little):

1.  Kurt Copper wins the first Berman brownie points by shipping me this link to the pictures of Lee "Tiny" Davis, who was executed by the State of Florida on July 8, 1999.  Personally, I find these pictures of an apparently botched electrocution more disturbing than the Saddam execution video, but maybe that's just because I do not like the sight of blood.

2.  The Columbus Dispatch now has this article discussing the first death penalty case to reach the desk of  Ohio's new Governor, Ted Strickland.  Anyone especially interested in the death penalty in Ohio should be sure to become a regular reader of the Ohio Death Penalty Information blog, which already has lots of stuff here on the Biros case.

Showing the uncut Saddam execution video

I am about to leave to teach the first class that this blog is about.  At some point during my first class, I am planning on showing the entire uncut video of Saddam Hussein's hanging (which can be found here as one of many links).  Among other benefits, this class activity will give my students some knowledge about the operation of Iraq's legal system that President Bush lacks (since he purportedly has not watched the video).

Showing this video should encourage the class to think immediately about the death penalty aesthetics discussed in this post and in comments here and here at my home blog.  But I cannot help but wonder if it is bad form to show someone getting killed on the first day of class.  I hope there is no ABA rule against it.

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.

Welcome and let's get ready to innovate

Welcome to the launch of a new blogging adventure: Death Penalty Course @ Moritz College of Law.  This uninspiring title (which we can shorten to DP @ M) is meant to make clear the focus of this blog is the Death Penalty Course that I am teaching this semester at OSU's Moritz College of Law. 

Though the title is uninspired, I hope that both the contents and very construct of this blog will inspire a new type of engagement with the death penalty and with on-line media for students.  Even after nearly three years of focused blogging at my main blog, I continue to be amazed by what I learn from others and by the substantive insights I gain through the process of blogging.  Consequently, I have decided to try making this blog a focal point for my Death Penalty Course this semester.

As I gear up for my initial class today, my tentative plan is to be the main instructor and main blogger for the first few weeks of class.  During this period, I hope to be able to give the students an effective and enticing overview of the modern law, policy, practice and practicalities of the death penalty in the United States.  I will thereafter assign groups of students to select topics of interest for future classes, and they will be expected to post readings and class discussion ideas on this blog.

I am making this blog "open to the public" in order to encourage persons other than my students to engage with the blog and to use the comments to provide views on whether this new blog adventure seems like a good idea.  If there is encouraging feedback from my students and others, I'll probably invest (too much) energy in this new project; if the feedback is less encouraging, this blog may wither away as the weather starts warming up and other interests draw my attention.

Posted by Professor Douglas Berman