Sentencing Class @ OSU Moritz College of Law

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

An offer for (and encouragement of) "field research"

I am getting very excited about the white papers upon seeing the diverse and interesting selections of officials to whom you all (tentatively) plan to write.  I hope you are as excited about this part of the class as I am.  Though I will discuss the particulars of the papers more next week, it is never to early to start your research.

Wonderfully, some more friends in the field are providing offers of assistance.  Specifically, while digging out from snow yesterday, I got this kind e-mail from Ward Campbell, the Supervising Deputy Attorney General in the California Department of Justice:

One of your students may be interested in contacting Dane Gillette, who was recently promoted to chief assistant of the criminal division of the Calif AG's office.  He was our statewide coordinator and lead attorney in Morales [the case concerning California's lethal injection protocol being litigated in federal district court].  Here is a recent news article about him.

Please post this offer -- dane's e mail address is dane.gillette @ doj.ca.gov if someone contacts him, they may they say they were referred by Ward Campbell.

This kind California offer (along with the similar offer we've gotten from a friend in Arizona) reminds me that I want to actively encourage real "field-research" in conjunction with both the blog and white paper parts of this class.  As these offers spotlight, people working in the death penalty field are very eager to speak with bright, motivated and open-minded research and policy advocates.  And people in the field often have a lot more insights about the day-to-day realities of the death penalty than do most politicians, appellate judges or academics.

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.

Improvement versus abolition

As stressed at the end of Wednesday's class, I want to conclude the Berman-driven unit of this course by having a collective discussion about how the modern administration of the death penalty might be improved.  As I suggested in class, I am often troubled that many who lament administrative problems with the modern death penalty — ranging from wrongful convictions, to racial disparities and other inequities, to the poor quality of defense representation — typically urge abolition of the death penalty as the solution.  When I hear these arguments, I wonder why suggestions for administrative improvements, rather than abolition, isn't a more appropriate response to these administrative problems.

Over at my home blog, a few months ago I had this post asking "How can the death penalty be sensibly improved?", which produced numerous interesting comments.  I am eager for this question to flower again in this space, as well as in our class discussions.   

As I mentioned at the end of class, the issue of improvement versus abolition is of particular interest in Ohio.  As noted in posts linked below, Ohio's new Governor and Attorney General seem concerned about the operation of the Buckeye death penalty, but neither seems to be an advocate for abolition.

Ohio-related DP posts from my home blog:

• Could Ohio and Wisconsin chart a path to a better death penalty?
• A new look at the death penalty in Ohio
• The lethal mess in Ohio
• Ohio's Gov-elect produces capital wondering
• Ohio's new governor signs three reprieves
• Watch Ohio for death debates

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

Background on jury overrides in capital cases

Class ended on Thursday when we were getting to the interesting issue of judicial override of jury recommendations in capital cases.  Though many capital statutes (including Ohio's) allow a judge to override a jury's recommendation of death, only four states permit a judge to to override a jury's recommendation of life.  These states are Alabama, Delaware, Florida and Indiana.

Discussing these dynamics, this 1996 article from the Death Penalty Information Center has this (now dated) statistical account of jury overrides:

In Florida, Alabama and Indiana, where judges are subject to re-election, they have imposed death sentences in 189 cases in which the juries had first recommended life.  Judges reversed death recommendations in only 60 cases.  In Alabama alone, elected judges overturned recommendations of life sentences and imposed death sentences more than ten times as often as they rejected recommendations of death.  The only exception to this trend has been in Delaware, where the judges are not subject to election.  All seven of their jury overrides have been in favor of life sentences.

For a more up-to-date discussion of the jury override issue, check out this post by Professor Dan Filler at Concurring Opinions: The Problem Of Jury Override In Capital Cases.

Coker and the death penalty for sex crimes

As I discussed in Thursday's class, in Coker v. Georgia, 433 U.S. 584 (1977), the Supreme Court held that the Eighth Amendment categorically prohibits the death penalty for the crime of rape of an adult woman.  Coker is an amazing read, in part because the defendant, Ehrlich Anthony Coker, would seem to be a poster boy for the death penalty.  Consider the syllabus from the Coker ruling:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman.  He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery.  The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded.

You can find the full opinion in Coker at this link.  Also, Wikipedia has this useful summary of the Coker ruling, which include a link to this interesting article.  That article has this useful pre-Furman data on capital prosecutions and executions:

[In the years before Furman, as] a practical matter, the death penalty had nearly withered away for crimes other than murder and rape.   From 1930 to 1967, over 3,300 persons were executed for homicide, 455 for rape, and only 70 (or less than 2% of the total) for all other non-homicidal offenses, including robbery, burglary, attempted murder, kidnaping, assault by a life-term prisoner, carnal knowledge, espionage, assault with intent to rape and accessory to murder.

In this era, executions for rape were carried out exclusively in the Southern states (including the border states of Oklahoma, Missouri and Delaware), and they were carried out predominately on black men convicted of raping white women.  Of the 455 rapists executed, 405 (89%) were black. Professor Marvin Wolfgang's research on the death penalty for rape, reported as "Racial Discrimination in the Death Sentence for Rape" in William Bowers's Executions in America (1974), showed that over one-third of black defendants convicted of raping white victims received death sentences; in all other racial combinations of victim and defendant, only 2% received death sentences.

Of course, the meaning of Coker and the realities of capital punishment for sex offenses is not just of historical interest now.  As detailed here, a number of states (mostly southern states) have enacted or are actively debating making some child rape offenses death-eligible.  And, as discussed in this FindLaw column, in August 2003, Patrick O. Kennedy was sentenced to Louisiana's death-row for the rape of an eight-year-old child.  As I mentioned in class, significant constitutional litigation over the death penalty for child rape seems like a certainty over the next decade.

For anyone interested in broader sex crime punishment developments, be sure to make regular visits to the blog Sex Crimes.