Sentencing Class @ OSU Moritz College of Law

The power of the personal

I was certainly moved by the stories of Ohio exonerees Gary Beeman and Dale Johnston, and I trust everyone else was, too.  If folks want to express reactions or other thoughts, feel free to use the comments.  (My own first thought was that I should have had the good sense to formally invite Governor Strickland and Attorney General Dann to attend.)

Both Dale and Gary gave me their contact information, which they encouraged me to share with students.  In addition, Julie Przybysz gave me a binder with lots of information from Ohioians to Stop Executions (OTSE) that I am happy to copy for anyone interested.

Recent articles on prosecutorial tunnel vision

I mentioned in class that some of the latest scholarship on wrongful convictions and false confessions is focused on the idea of prosecutorial tunnel vision.  Here are two articles discussing this idea:

• The Multiple Dimensions of Tunnel Vision in Criminal Cases

Abstract:  The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent.  The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision.

Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system.  This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review.  The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal.  Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule.  This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

• Loyalty to One's Convictions: The Prosecutor and Tunnel Vision

Abstract:  This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision.  Specifically, it asks why prosecutors become loyal to a particular version of events - the guilt of a particular suspect - even when that version of events has been discredited.  The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor's office. It then considers the prosecutor's divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system.  Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one's beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.

Initial reactions to white-paper outlines

I have reviewed all the submitted white-paper outlines, and I am in the midst of preparing class-wide substantive feedback and suggestions.  In this post, let me just detail some of my initial reactions and thoughts:

1.  Thanks for providing such interesting Spring Break reading.  I really enjoyed seeing how everyone approached this novel assignment, and I learned a lot from your outlines.  Though a lot of you (understandably) expressed concerns about the scope and coverage of your outlines, my review of all your efforts confirmed my instinct that this assignment is proving to be much more valuable than any exam or even a traditional research paper I could have assigned.

2.  The thoughtfulness and diversity of your efforts was quite impressive.  Even the shortest outline — which ran just over a page double-spaced — revealed thoughtful reflection on this project.  The longest outline — which ran just under seven pages single-spaced — revealed how dangerously easy it will be for this project to consume you.

3.  I will mark-up submitted outlines only upon request.  As noted above, I am preparing a long memo with general feedback for everyone.  I am happy to provide individual feedback through conferences or by marking up an outline upon request.  A number of you stressed that the outline was a work in progress; I would rather spend time helping you move forward than marking up an effort you have already revised.

4.  I am excited about the importance and possible impact of this project; I am thinking dynamically about how we can and should disseminate the class's efforts.  Of course, I hope to post (with permission) the completed white papers on this blog.  But I am also thinking about (1) whether and how we might foster (and fund) sending the white papers directly to the official intended audience, and also (2) whether and how we might publish all the papers in some kind of compiled book form.

UPDATE:  I have now completed a detailed memo with class-wide substantive feedback and suggestions, which can be downloaded here: Download recommendations_for_dp_white_papers.rtf

Special class session Thursday, March 29

As mentioned before Spring Break, we will have a set of very special guest speakers in our Thursday class next week: two Ohio death row exonerees and the public defender primarily responsible for Ohio's lethal injection litigation.  More details about the speakers scheduled to appear can be found in the flier available for downloading here: Download exoneree_announcement.doc

Class readings on "False and Coerced Confessions and the Death Penalty" (for just before after Spring Break)

Though I doubt we will get to these materials before Spring Break, I wanted to post now the materials and ideas that Caitlin, Mags and Kelly have for us to explore after we examine race and the death penalty (which should be prompting more blog buzz here).

---------

False and Coerced Confessions and the Death Penalty

False and coerced confessions present a two-fold problem: the wrong person is convicted of a crime and the true perpetrator remains free.  Thus, justice is not served. 

We want our topic to open the class up to the idea that confessions can be derived because of other reasons. Perhaps it has been suggested to the Defendant that if he confesses, he will be spared the death penalty.  Perhaps the Defendant is undereducated or has a low IQ, and confesses just to appease the police.

The following article provides insight into false confessions. It is co-written by a professor of sociology at Berkley that is an expert in the field of false/coerced confessions.  Please use the citation to pull the article on-line: 88 J. Crim. L. & Criminology 429 (Winter 1998) Journal of Criminal Law and Criminology "THE CONSEQUENCES OF FALSE CONFESSIONS: DEPRIVATIONS OF LIBERTY AND MISCARRIAGES OF JUSTICE IN THE AGE OF PSYCHOLOGICAL INTERROGATION" by Richard J. Ofshe & Richard A. Leo.

In addition, this link provides a brief description of a case where a man falsely confessed to avoid the death penalty, in exchange for a life sentence.

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:

---------

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?

Federal death penalty readings for March 7 and 8

Here are the materials and ideas that Caitlin and Kacey have sent my way to facilitate our examination of the federal death penalty:

---------

Here is a chart comparing the federal death penalty statute to the Ohio death penalty statute:

Download comparison_of_jurisdictions.doc

We plan on focusing on two main aspects of the federal death penalty, the admissibility of victim impact evidence, such as in the case of Zacarias Moussaoui, and potential Eighth Amendment challenges, both when the death penalty is applied in jurisdictions that do not otherwise permit its use, and when it is applied to charges that do not have a death element.

The following readings cover the issues we plan to address:

• Wayne A. Logan, Victim Impact Evidence in Federal Capital Trials, 19 Fed. Sent. R. 5 (2006).
• The Death Penalty Information Center has this page of articles and links relating to the case of Zacarias Moussaoui and various statements from victims who testified at his trial.
• Michael J. Zydney Mannheimer, When the Federal Death Penalty is "Cruel and Unusual", 74 U. Cin. L. Rev. 819 (2006).
• Rory Little, Good Enough for Government Work?  The Tension Between Uniformity and Differing Regional Values in Administering the Federal Death Penalty, 14 Fed. Sent. R. 7 (2002).

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:

• Florida LI commission report
• Florida gov seeks national LI review

• Ohio lethal injection litigation going forward
• Now what for Ohio's death penalty?

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).

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?