Sentencing Class @ OSU Moritz College of Law

Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

After a final review of what we should take away from the McClesky ruling and our discussion of a possible legislative response, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence placing categorical limits on what crimes cannot result in a capital sentence and what criminals cannot be executed for their crimes (this discussion will also serve as a bridge to starting discussions of non-capital sentencing).  Here are the major rulings in this jurisprudence:

Crime:

Rape: Coker v. Georgia, 433 U.S. 584 (1977)

Lesser Murders: Tison v. Arizona, 481 U.S. 137 (1987)

Rape of Children: Kennedy v. Louisiana 554 U.S. 407 (2008)

 

Criminal:

Insane: Ford v. Wainwright, 477 U.S. 399 (1986)

Juveniles: Thompson v. Oklahoma, 487 U. S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)

Intellectually Disabled: Atkins v. Virginia, 536 U.S. 304 (2002)

Can you identify any clear themes or philosophical underpinnings to these rulings, and are there any additional categorical limits that you think should be part of Eighth Amendment jurisprudence?  Arguments have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for new constitutional categorical restrictions on the death penalty. But it seems pretty unlikely that the current Supreme Court will take up these issues anytime soon.

Given that the Supreme Court's Eighth Amendment procedural jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender will have his or her individual circumstances considered by a sentencing jury, what justifies these kinds of categorical rulings that preclude legislatures from ever being permitted to allow a jury to even consider the death penalty for certain crimes or offenders?

Contextualizing these matters, consider the query in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker (pictured here decades later).  For a reminder, here is how the lead dissent in Coker v. Georgia described the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnapped and raped a second young woman.  After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead.  He was apprehended and pleaded guilty to offenses stemming from these incidents.  He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment.  Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently.   Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences.  He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.  It is this crime for which the sentence now under review was imposed.

The Court today holds that the State of Georgia may not impose the death penalty on Coker.  In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape.  The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist.  In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner — as well as others in his position — will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.

In the wake of the nomination of another woman to the Supreme Court, it bears recalling that the Court which handed down its 1977 ruling in Coker was comprised of nine men.  (Four years later, in 1981, Sandra Day O'Connor became the first woman nominated to the Supreme Court by President Ronald Reagan.)  In light of that reality, and especially given what more we now know about the impact of sexual violence, I often find this paragraph from the Coker ruling a bit disconcerting:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.  Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.  The murderer kills; the rapist, if no more than that, does not.  Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.  We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. at 187, is an excessive penalty for the rapist who, as such, does not take human life.

Would it be appropriate to reconsider Coker now that we have a more diverse set of Justices and especially since we now better understand that rape in fact does by definition involve "the serious injury to another person"?

Some timely data and discussion about race as we consider McClesky (and also about execution methods)

Though I provided in this post a working draft of a proposed "Ohio Racial and Gender Justice Act" (which I hope to discuss in class on Thursday), I now realize it makes sense to also provide here some recent data and discussion on how race seems to impact our capital justice systems.  

From the Death Penalty Information Center: "Executions by Race and Race of Victim" and a huge new report titled "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty."  An excerpt:

Throughout the modern era of capital punishment, people of color have been overrepresented on death row.  In 1980, 45.6% of death row prisoners were people of color, and this percentage has increased every decade. By 2019, this percentage had risen to 57.8%.  Currently, white and African-American prisoners each comprise 42% of those on death row and Latinx prisoners make up 13%, with 3% of death row comprised of other races/ethnicities.   These figures can be contrasted with the racial and ethnic makeup of the population as a whole. Approximately 60.4% of the population is white.

The opposite trend is apparent in the racial composition of the victims of those who have been executed in the modern era. Seventy-five percent of murder victims in cases resulting in an execution have been white, even though only half of murder victims are white.  In cases with victims of a single race, 295 African-American defendants have been executed for the murder of white victims, while only 21 white defendants have been executed for the murder of African-American victims.

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies).

From NPR here is a brand new piece, titled "How A Perpetrator's Race And Age Factor Into Who Is Executed," speaks to these issues in the federal system with the scheduled upcoming execution of Christopher Vialva, a black man who killed white victims.  An excerpt:

REPORTER: Vialva is not claiming he's innocent. Instead, his case resembles most of those that end in the death house in Indiana. Like Vialva, who was 19 when he killed the Bagleys, 1 in 4 of the men on federal death row committed their crimes before they reached the age of 21. And of the 57 people on the row, more than half are people of color. Sam Spital is director of litigation at the NAACP Legal Defense Fund.

SAM SPITAL: There have been over 500 cases between 1988 and now where the attorney general of the United States authorized federal prosecutors to seek death. And in over two-thirds of those cases, the defendant was either Black or Latinx. And in only about a quarter of the cases was the defendant white.

REPORTER: Spital says the race of the victim also matters a lot.  Defendants who kill white people are 17 times more likely to be executed.  He says those disparities exist in both the state system and the federal system.

And what about Ohio? Helpfully, we have this fairly recent study from Frank Baumgartner, "The Impact of Race, Gender, and Geography on Ohio Executions."  An excerpt:

Between 1976 and 2014, the state of Ohio executed 53 men.  Here are a few key findings of this research:

• Sixty-five percent of all executions carried out in Ohio between 1976 and 2014 were for crimes involving White victims despite the fact that 43% of all homicide victims are White.
• Only 27% of all homicide victims are female, but 52% of all executions carried out in Ohio were for homicides involving female victims.
• Homicides involving White female victims are six times more likely to result in an execution than homicides in involving Black male victims.

And speaking of NPR and Ohio, NPR has also recently had two big pieces about lethal injection execution methods that have important coverage of Ohio (and discusses the work of a notable former member of this class). I highly recommend these pieces if you are interested in the debate over execution methods or Ohio's history with executions:

"Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection"

"Autopsies Spark Legal Fight Over Meaning Of Cruel And Unusual Punishment"

Working draft for proposed "Ohio Racial and Gender Justice Act"

As the casebook highlights, Kentucky in 1998 enacted the first statutory response to the McClesky ruling through its Kentucky Racial Justice Act.  There has not been much litigation over the Kentucky RJA because that legislation was expressly made not retroactive so that it could not be applied to any person sentenced to death in Kentucky before July 1998.  (In contrast, many defendants on North Carolina's death row were able to file claims based on its state's RJA enacted in 2009, which in turn contributed to its repeal by the NC legislature in 2013).

Though there is much to discuss concerning McClesky and the Kentucky and North Carolina RJAs, I wanted here to set forth my working draft of a proposed "Ohio Racial and Gender Justice Act" for discussion in the comments and in class.  So here goes (with language based in partially on the KRJA and the NC-RJA):

1.  No person shall be subject to or given a sentence of death or shall be executed or sentenced to life without parole (LWOP) pursuant to any judgment that was, in any part or in any way, sought or obtained on the basis of race or gender.

2.  A finding that race or gender was in any way any part of the basis of the decision to seek or impose a death or LWOP sentence may be established if the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death or LWOP.  Evidence relevant to establish a finding that race or gender was in any way any part of the basis of the decision to seek or impose a death sentence or LWOP may include statistical evidence or other evidence that:

(A) Death or LWOP sentences were sought or imposed any more frequently upon persons of one race or gender than upon persons of another race or gender.

(B) Death or LWOP sentences were sought or imposed any more frequently as punishment for offenses against persons of one race or gender than as punishment of offenses against persons of another race or gender.

(C) Race or gender was in any way any part of decisions to exercise peremptory challenges during jury selection.

3. The state of Ohio has the burden of proving beyond a reasonable doubt that race or gender was not in any way any part of decisions to seek or impose the sentence of death or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP sentence was sought or imposed.

4. If the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP sentence was sought or imposed, the court shall order that a death or LWOP sentence not be sought, or that the death or LWOP sentence imposed by the judgment shall be vacated and the defendant resentenced to a lesser sentence.

5. This act is effective when it becomes law and applies retroactively.

The language in bold and italics within my proposed Ohio statutory language highlights my tweaks to the Kentucky and NC RJAs, both of which concern only race and seem only concerned with race as a "significant" capital sentencing factor.  In addition, both acts place the burden on defendants to prove race was a significant factor in their cases.  As my draft reflects, I am very eager to ensure that neither race nor gender plays any role in the pursuit or imposition of the punishment of death or life without parole.  In service to that goal, my proposal puts the burden on the state of Ohio, once a claim is brought under this Act, to prove convincingly that neither race nor gender played any role in the death or LWOP sentencing process.

Thoughts?  Who is willing to co-sign this bill as proposed?  I am open to friendly amendments and also eager to hear if any legislators oppose this effort to eradicate the problem identified in McClesky through a legislative response.

Some Buckeye death penalty whos and history

As I mentioned in class, we can only briefly touch on so many interesting big and little issues relating to the death penalty in class that I would eagerly give more time and attention in this forum.  Absent suggestions, I will share (and enhance) items from my inbox of interest.  Today, this involves this great new article from The Appeal: Political Report headlined "Cincinnati Is An Epicenter For The Death Penalty. Its Prosecutor Race Could End That In November." 

Though the piece covers lots of ground, the subheadline of the piece highlights its main focus: In Hamilton County, Joe Deters has sent more people to death row than any other prosecutor in Ohio. His challenger, Fanon Rucker, promises to stop that practice."  I highly recommend this lengthy article because it provides lots of background (and links) on the current state of the debate over capital punishment in the Buckeye State while also noting/quoting a wide array of interesting "whos" involved in this debate.  Here is just one of a number of notable passages:

“Things have shifted in the last two years, now we’re focused fully on repeal,” said Hannah Kubbins, the state director at Ohioans to Stop Executions.  Kubbins doesn’t expect much movement on the issue this fall because of the coronavirus pandemic, the lame duck session, and the presidential election.  But she says advocates are gearing up to push through a repeal bill in the next legislative session.

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association declined to comment for this story, but said in February that “we’re disturbed” by discussions of repealing the death penalty.  A month earlier Tobin said, “All of the challenges that we see to the death penalty right now will switch to life without parole.  And the next thing you know we won’t have life without parole either.”

Kubbins, who emphasized that her nonprofit organization does not endorse candidates, said prosecutors and prosecutor associations “oppose any reform that could reduce their power.”  She urged voters to pay attention to their county prosecutor races, and to consider how county resources spent on the death penalty could be redirected toward unsolved crimes.

Rucker told the Political Report he would be “very willing to offer my voice of advocacy” for statewide repeal of the death penalty.  “Justice demands consistency and it’s not consistent to have such overwhelmingly differing ends of punishment in a system that says it’s about treating all fairly regardless of their background,” he said.

I am not sure I entirely understand this last quote from Rucker, but earlier in this article he more directly explains his support its abolition: "'I would absolutely support repeal of it because our Supreme Court has identified, and folks across the country have realized, it’s ineffective, inefficient, and certainly there are arguments about the immorality as well,' Rucker told The Appeal: Political Report."  (I am not sure which Supreme Court Rucker is referencing here, but maybe he is thinking about this Ohio Supreme Court 2014 Task Force report to which I had the honor of contributing.)

Interestingly, I noticed on this Issues page of "Fanon Rucker for Prosecutor" that there is no mention of the death penalty.  There is this promise: "Our office will aggressively pursue and put a significant amount of financial resources to the prosecution of those who physically harm children, the elderly and loved ones."  But apparently Rucker will not (ever?) consider pursuing a capital prosecution to that end.

Meanwhile for a broader and more comprehensive look at the modern death penalty in the Buckeye state, I also highly recommend the latest version of the Ohio Attorney General's annual report on the death penalty, the 2019 Capital Crimes Annual Report.  This document (which is nearly 400 pages long) gets updated on April 1 each year, and it provides information and a procedural history on each and every case that has resulted in a death sentence in Ohio since 1981.  This webpage provides this statistical summary:

According to the report, from 1981 through 2019, a total of 143 death sentences remained active including those currently pending in state and federal courts.  In 2019, six individuals received a total of seven death sentences and were added to death row. 

Since 1981, Ohio has issued a total of 340 death sentences.  A total of 56 death row inmates have been executed under Ohio’s current law since 1981.  Over the same period, a total of 21 death row inmates have received a commutation of their death sentence to a sentence less than the death penalty.

Last but not least, the Fall 2019 issue of the Ohio State Journal of Criminal Law included a bunch of original article authored by notable folks about the death penalty in the Buckeye State and elsewhere.  Of particular note and interest is this short piece by former Ohio Supreme Court Justice Paul Pfeifer titled "Ohio's Modern Death Penalty — From Architect to Opponent."  Here is its first sentence, and a line from near the end of the piece that reminded me of some language in McGautha:

Ohio's death penalty statute has, in practice, resulted in a "death lottery" that should be abandoned....

It is unevenly applied by prosecutors, juries, judges, and the Supreme Court — not out of malice or malfeasance, but because measurement and calibration are impossible.

If castration seemed like a good idea to Thomas Jefferson, why not consider it for Richard Graves?

One idea worth consideration as we explore theories of punishment is whether prison, which is our modern default punishment for all serious offenses, is really any good at advancing any of the traditional theoretical goals.  When pressed on this front, advocates of prison and modern mass incarceration often claim that prison is at least good at incapacitation.  But this claim fails to reckon with the fact that (a) many persons in prison can and do commit all sorts of crimes while in prison, and (b) there may be non-prison means to incapacitating at least somewhat effectively.  At the end of class, I mentioned that, for a person convicted of rape perhaps castration (either physical or chemical) could and would be an effective incapacitative punishment. (As a preview of second week topics, I encourage considering whether your view on this punishment might be significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).)  

For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment.  In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.  Indeed, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson, "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital" suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  Here is a taste:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholly forfeit the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

I highly encourage everyone to read the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

As we wrap up death penalty unit, some recent reminders of all the "who" stories

On Friday, as discussed in this post over at my main blog, the Pennsylvania Supreme Court decided to decline to exercise a form of extraordinary jurisdiction in order to avoid considering on the merits a challenge to the state's death penalty system. Among the many notable aspects of this story is who was arguing for and against the state's death penalty system: among those arguing that the state's capital system is unconstitutional were (a) lawyers in the capital habeas unit at the Federal Community Defender Office in Philadelphia and (b) lawyers in the Philadelphia District Attorney’s Office, while among those arguing in support of the state's capital system were (y) lawyers for the Pennsylvania Attorney General’s Office and (z) lawyers for the Pennsylvania District Attorneys Association.  The article from my blog also recounts how PA legislators and the PA Governor have been engaging with capital punishment in recent time.

In addition to being a fascinating story about the administration of capital punishment in a neighboring state and challenges thereto, this Keystone state tale serves as a useful reminder of all the overlapping "whos" that the death penalty brings into focus.  Continuing that theme, consider taking a few moments to notice all the "whos" in play in these additional recent death penalty posts from my main blog on recent death penalty developments and commentary:

• Texas completes its seventh execution of 2019 with killing of triple killer 
• Kentucky Supreme Court hears arguments to preclude death penalty for defendants under age 21
• "Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper?" 
• Tennessee AG seeking to make his state even more like Texas with respect to capital punishment 
• Federal officials reportedly considered using fentanyl for executions when restating machinery of death 
• Another indication from Oklahoma of how jurors are keeping the death penalty mostly dormant 

Background on race and death sentencing for our discussion of McClesky and Racial Justice Act

Next week, we will start the final part of our death penalty discussions by exploring the issue of race in the application of the death penalty.  I (too briefly) mentioned in class some data on race and the death penalty, and I thought I would link to some resources related to this issue to get a running start to our discussion of why this kind of data has not prompted much of a constitutional or policy response:

From the ACLU: "Race and the Death Penalty" (somewhat dated)

From the Death Penalty Information Center: "Executions by Race and Race of Victim" (up-to-date)

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies)

Recent news article following announcement of federal execution dates: "Death Penalty Makes a Comeback in US as Racial Disparities Persist."  An excerpt:

The most telling statistic when talking about discrimination in capital punishment is the race of the victim and how the courts’ attitudes change when the victim is white versus when the victim is a person of color, said Robert Dunham, the executive director of the Death Penalty Information Center.

Race of the victim plays a significant role in whether the death penalty is pursued by jurors. In Alabama, fewer than five percent of murders involve a black defendant and a white victim, yet over half of black death row prisoners have been sentenced for killing someone who is white. In Louisiana, the odds that a defendant will receive a death sentence are 97 percent higher if the victim was white

Also, for anyone really engaged by these issues, consider checking out the Fall 2012 issue of the Ohio State Journal of Criminal Law which had a symposium focused on "McClesky at 25."

The full McGautha and Furman...

are worth reading in full if you find constitutional history and/or death penalty procedure really interesting (and these are great topics for final papers).

The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.

The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our handout seeks to provide strategic highlights from each of the nine(!) opinions.  As mentioned, I will ask you in class  which of the nine opinions you would be most likely to join, so you might want to consider skimming the full version of the one opinion you find most appealing from our casebook.

Just in time for our turn to discuss the modern death penalty...

we have lots of notable Ohio death penalty news.  For starters, yesterday a Ohio judge officially imposed a sentence of death here in Columbus as reported in this local article.  Here are some details (with a few "whos" highlighted):

Clifton Duckson doesn’t know if the man who murdered his daughter and granddaughter in the backyard of his Far East Side house will ever be executed.  It was enough for him to be in a Franklin County courtroom Wednesday when the judge imposed the death penalty.  “I just needed to hear the words,” he said after Common Pleas Judge Chris Brown followed a jury’s recommendation and sentenced Kristofer Garrett to death. “Whether he ever gets put to death, that’s not my concern.”

Duckson encouraged the judge to follow the recommendation on behalf of his 4-year-old granddaughter, Kristina Duckson, and her 34-year-old mother, Nicole Duckson, who were fatally stabbed on Jan. 5, 2018.  “I ask for justice, not revenge,” he said. “I’m asking for what those 12 jurors agreed was justice — the maximum penalty that the law will allow for these horrific murders.”

The jury convicted Garrett, 26, of aggravated murder charges on Aug. 6. Testimony showed that Garrett ambushed Nicole Duckson, his ex-girlfriend, and their daughter, stabbing them repeatedly in the snowy backyard of the Fleet Road home they shared with Nicole’s father.

Eight days later, after weighing the aggravating circumstances of the crimes against mitigating factors presented by Garrett’s defense team, the jurors agreed that two of the aggravating circumstances in Kristina’s death — that she was under the age of 13 and that Garrett killed her to cover up Nicole’s murder — outweighed any mitigating factors and recommended the death sentence.

The judge, who had the option of imposing a sentence of life in prison, said he reached the same conclusion as the jury, and thus was required by state law to impose the death penalty.

It was the first time since 2003 that a Franklin County jury had recommended a death sentence.  The last death sentence in the county was imposed in 2012 by a three-judge panel for Caron Montgomery, who waived his right to a jury in the stabbing deaths of his girlfriend and her two children.

“I think when children are victims of a terrible crime, I think juries are going to look at (the death penalty) and the court’s going to look at it,” Prosecutor Ron O’Brien said after the hearing when asked about the rarity of death sentences in Franklin County.

And just today, a panel of local federal judges got in the "who" act when they upheld the constitutionality of the (somewhat unique) lethal injection protocol that has been adopted by Ohio corrections official.  The ruling in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), unlike lots of other death penalty opinions, is pretty short and shows what appellate judges can do when so interested.  As I explain in a post on my main blog, the next big question in this setting is whether Ohio Gov DeWine will now be eager to move forward with executions that he stayed based on the (now rejected) findings by a lower federal court in this litigation:  After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

A county-specific look at the death penalty in Ohio ... and wondering if anyone is taking a country-specific look at LWOP

I just noticed this lengthy new article from the Cincinnati Enquirer headlined "Why is a murder trial here so much more likely to end with a death sentence?".  I recommend the piece in full, and here is some of the "who" coverage:  

Hamilton County has sent more people to death row and is responsible for more executions than any county in Ohio since capital punishment returned to the state in 1981. The county has a larger death row population per capita than the home counties of Los Angeles, Miami or San Diego. And it has more people on death row than all but 21 of the more than 3,000 counties in the United States....

“There’s no question Hamilton County is and definitely was a conservative county,” said Andrew Welsh-Huggins, the author of “No Winners Here Tonight,” a book about capital punishment in Ohio. “A conservative county is going to elect conservative prosecutors, and they’re going to take their cues from that,” he said....

No politician in town is more closely identified with the death penalty than Joe Deters, the latest in a long line of Hamilton County prosecutors who have regularly sought capital murder charges.

Deters said he tries to answer the same questions before every murder trial: Is the accused eligible for the death penalty under Ohio law? Does he have the evidence to remove all doubt of innocence? Was the offense so terrible the defendant deserves to die?

If the answer is yes on all counts, he seeks a death sentence. Not because he relishes the thought of an execution, Deters said, but because that’s what the law dictates. “People in really bad cases want the death penalty,” he said. “There are certain cases that are so hideous they are just evil.”...

Victims’ relatives often feel [killers deserve to die], but it’s up to the prosecutor to decide how aggressively to pursue the ultimate punishment. Deters said he has, in some cases, sought the death penalty even when relatives asked him not to, because the law and the facts of the case demanded it.

Robert Dunham, executive director of the Death Penalty Information Center, said the approach of local prosecutors is the single biggest factor in whether a convicted killer ends up on death row. In some places, he said, “the death penalty appears to be part of the culture.”

An Enquirer analysis of data from Dunham’s group found Hamilton County's death row population ranks 22nd out of the 647 counties nationwide that have at least one person on death row. Among U.S. counties with 20 or more inmates on death row, Hamilton County ranks seventh per capita.

What’s happened here over the years is part of a broader trend that has seen death penalty cases become highly concentrated. Less than 1 percent of U.S. counties now account for 40 percent of all death row inmates.

One reason for that disparity is the growing number of states, now 19, that have banned the death penalty. Another is the uneven application of death penalty laws by the prosecutors elected to enforce them. A county with a strong death penalty proponent, such as Deters, might send killers like Tibbetts or Van Hook to death row, while a prosecutor in another county might be content to seek life without parole, or less.

Franklin County, about 100 miles to the north, has a larger population and more homicides than Hamilton County, but less than half as many inmates on death row with 11. Cuyahoga County, also more populous and more violent than Hamilton County, has 21 death row inmates. “The law is prosecuted differently depending on who is the elected prosecutor,” said Welsh-Huggins. “Your chances of going to death row depend on where you committed the crime.”

Geography will continue to matter for years to come in death penalty cases, and not just close to home in Ohio. Death rows in Texas and the Deep South remain crowded places, while those in the Northeast are smaller or nonexistent....

Hamilton County has seen a decline in death sentences, too, as jurors increasingly recommend sentences of life without parole instead of death. The option, which eliminates the risk of a killer one day walking free, has fundamentally changed the calculus of capital trials. "That has impacted death sentences across the country," said Abe Bonowitz, spokesman for Ohioans to Stop Executions. "If you can guarantee the guy is never getting out, why do you have to kill him?"

Sometimes, though, juries and judges still find a reason. Ohio's life without parole law didn't exist when Van Hook was convicted in 1985, but it was on the books when Tibbetts went on trial in 1998. His Hamilton County jury recommended the death penalty anyway.

Deters said that’s fine with him. He said he can't worry about what other prosecutors do or whether Hamilton County is sending more people to death row than other counties. He said the solution for those who do worry about it is simple. “If people don’t want the death penalty, I don’t care,” Deters said. “Pass a law and get rid of it.”

For a lot more information about executions by county, here is a lot of information from the Death Penalty Information Center.  And for a big report on death sentences by counties, here are Part I and Part II of a big recent report titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties.  

As the title of this post highlights, in addition to encouraging you to think about all this county-by-county examination and analysis of the death penalty, I am interested in whether you can help me find any county-by-county analysis of LWOP sentences.   The "Too Broken to Fix" report notes than "in 2015, juries only returned 49 death sentences" and that only 33 counties of 3,143 counties in the US imposed the sentence. Can anyone help me find any estimate of how many total LWOP sentences were imposed in 2015 (or any other calendar year)?  Can anyone help me find any county-by-county accounting of LWOP sentence in Ohio or anywhere else?

Reviewing categorical limits on death penalty created by US Supreme Court

Here is a list of (and links to) rulings by the Supreme Court declaring (or suggesting in the case of Tison v. Arizona) that the Eighth Amendment places substantive categorical limits on the application of the death penalty.  Can you see a common thread or theme to these rulings?

 

Crime:

Rape: Coker v. Georgia, 433 U.S. 584 (1977)

Rape of Children: Kennedy v. Louisiana 554 U.S. 407 (2008)

Lesser Murders: Tison v. Arizona, 481 U.S. 137 (1987)

 

Criminal:

Insane: Ford v. Wainwright, 477 U.S. 399 (1986)

Juveniles: Thompson v. Oklahoma, 487 U. S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)

Intellectually Disabled: Atkins v. Virginia, 536 U.S. 304 (2002)

 

If you can identify a theme to these rulings, and there additional categorical limits that should be set forth by the Supreme Court?  Suggestions have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for categorical restrictions on the death penalty.

Also, as we will discuss when wrapping up the death penalty, if the Eighth Amendment places categorical limits on death sentences, should it also place some categorical limits on other extreme sentences like life without parole?  How about life with parole? 

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And if you want to spend a lot more time reflecting on race and the death penalty, McClesky and its aftermath, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a symposium focused on "McClesky at 25."  Here are links to all the articles in the symposium:

• Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).

• Scott E. Sundby,  The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).

• John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).

• G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).

• Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).

• Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).

Wrapping up review of capital sentencing realities with some "who" review

As mentioned in class, there are many lessons to draw from our Unibomber capital sentencing exercise, so the start of our next class will be continuing our discussion of capital sentencing laws and their application in Florida, Texas and Ohio.   One lesson we have already discussed in various ways in various settings is how many different "whos" can have an impact on the administration of sentencing systems, and I thought it might be useful to link to just a small slice of a huge body of research/commentary on various "whos" impacting capital sentences.  So:

Victims:

• "A Heavy Thumb On The Scale: The Effect Of Victim Impact Evidence On Capital Decision Making"
• "#BlackLivesDon’tMatter: Race-of-Victim Effects in US Executions, 1976-2013"

Prosecutors:

• "America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive The Death Penalty"
• "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri"

Defense attorneys:

• "Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer"
• "Capital Defense Lawyers: The Good, the Bad, and the Ugly"

Trial judges:

• "The Death Penalty: Should the Judge or the Jury Decide Who Dies?"
• "The Death Penaltyin Alabama: Judge Override"

Jurors:

• "Blind Justice: Juries Deciding Life And Death With Only Half the Truth; How Death Penalty Jurors are Unfairly Selected, Manipulated, and Kept in the Dark"
• "Capital Jurors in an Era of Death Penalty Decline"

Appellate judges:

• "A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States"
• "In states with elected high court judges, a harder line on capital punishment"

Governors:

• "The Death of Death Row Clemency and the Evolving Politics of Unequal Grace"
• "Rethinking the Timing of Capital Clemency"

Coincidentally, Ohio's own Gov. John Kasich provided today an interesting twist on capital sentencing "whos":

     "Ohio Gov Kasich issues reprieve days before scheduled execution so clemency process can consider new juror letter"

UPDATE:  And now another sad story of another serious crime provides another "who" example:

    "Prosecutor will seek the death penalty if Westerville shooting suspect survives"

Gearing up to represent (or prosecute) the Unibomber

As I have repeatedly mentioned in class, we will be exploring in our next few classes how Florida, Texas and Ohio capital sentencing laws help guide jury death sentencing discretion for the Unibomber (and others).  The essentials for preparation appear at pp. 252 to 257 of our text, though you also need to check out two Ohio statutory provisions via the web: 2929.03 Imposition of sentence for aggravated murder and 2929.04 Death penalty or imprisonment - aggravating and mitigating factors.

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 at least some of the Unibomber's (in)famous Manifesto, "INDUSTRIAL SOCIETY AND ITS FUTURE" as well as  this lengthy Time article by Stephen J. Dubner from 1999 about Teddy K. headlined "I Don't Want To Live Long.  I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison."

And if you want to have some old-school SNL fun while preparing for this discussion, these are fun to check out:

• Ted Kaczynski Meets His Lawyers

• Ted Kaczynski's Class Reunion

• Ted Kaczynski Wants to Represent Himself

• Nightline: Deep Blue Has Cornered Mankind

The full McGautha and Furman...

are worth reading in full if you final constitutional history and/or death penalty procedure really interesting.

The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.

The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our casebook aspires to provide strategic highlights from each of the nine(!) opinions.  I will ask you in class to think about which of the nine opinions you would be most likely to join, so you might want to read the full version of the one opinion you find most appealing from our casebook.

UPDATE:  In addition to continuing our discussion of capital constitutional history in this coming week, we will migrate to a discussion of how capital punishment is now administered.  That will, of course, take us back to a discussion of "who sentences," and it also will perhaps have us focused on our own state of Ohio which now is scheduled to have the next US execution.  With Ohio and who in mind, folks might be interested in this recent post from my other blog:

How would Thomas Jefferson sentence Richard Graves (or John Thompson)?

One of my favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and a few provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [MY EDITORIAL COMMENTS ARE IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging....

[PUNISHMENT FOR SEX CRIMES:] Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

What theory or theories of punishment do you think was foremost in the mind of Thomas Jefferson when writing this document?

Would his proposed punishment for male rapists like Richard Graves — "castration" — properly serve his likely punishment goals? Would it reasonably serve the punishment goals you wish to prioritize?

Where would a modern drug offender like John Thompson fit into the schema here for "Proportioning Crimes and Punishment"?

How some Framers thought about "gradation of punishments" (and proposed sentencing guidelines) in a world before "modern" prisons

One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging.

And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth....

[PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder....

[PUNISHMENT FOR SEX CRIMES:] Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

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."

The full McGautha...

can be found here.  Reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.  I also think everyone should at least get started reading Furman and Gregg and subsequent SCOTUS cases in chapter 3 of our text ASAP.

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:

• Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"

• 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.

More evidence that the death penalty will keep pulling us back in...

To paraphrase the most memorable line from the least memorable Godfather movie, just when I thought we could be done with our discussions of the death penalty and who sentences, the media and the US Supreme Court keep pulling us back in.  Specifically, check out these recent notable posts from my main blog:

• SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring

• "Questions raised about the death penalty in Ohio"

• Examining some statistical realities behind federal death penalty administration

• Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania 

Some notable gubenatorial capital developments

Though I am eager to start migrating our class discussions away from capital sentencing and punishment to non-capital sentencing and punishments, the notable death penalty news keeps coming.  Specifically, check out these two recent posts from my main blog:

• Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"

•  New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor

As always, I am eager to hear student reactions to these developments and others in the comments or elsewhere.

Imaginging a (federal and mandatory?) death penalty only for mass shooters who kill more than five persons

A helpful student alerted me to this notable accounting of mass shooting in 2014 in the United States.  Though I will not vouch for all the data, I still think it is notable (and not all that surprising) that this internet accounting of mass shootings lists 283 mass shootings in the US (roughly 5 every week of the year), and yet only 11 of these mass shootings involve five or more deaths (less than one per month on average).

In addition to finding these data fascinating, I continue to encourage folks to cull through this list of the 53 men  who have been executed in Ohio in the modern era or this latest report from the Ohio Attorney General about the 140+ men on Ohio's death row to see how my proposed reform, if applied retroactively, would impact those past cases. 

Ohio's current capital laws and the dynamic realities of Ohio and US death penalty history

As mentioned in class, one class activity for the coming week(s) will be to work through how modern post-Furman capital punishment laws might get applied to the (in)famous Unibomber, Ted Kaczynski.  (Ted is currently an LWOP resident at superman ADX Florence in Colorado and in the past was comically portrayed by Will Farrell).  I will not aggressively quiz anyone about doctrinal specifics, but the rest of our death penalty discussions will be enriched if you take time to analyze how Ted's case might be litigated in prominent death penalty states like Florida and Texas and Ohio. 

We could easily spend the rest of the semester discussing the history and modern specifics of the death penalty in specific jurisdictions like Florida and Texas and Ohio and US.  I will reference this history and modern practices in class over the next few weeks, and here are some links concerning the two jurisdictions in which we operate to provide a (low-stress, high-learning) chance to discover a lot more about these matters:

Links with background on Ohio's history and practices in the administration of the death penalty 

• Legal basics: Ohio Revised Code Section 2929.04: "Death penalty or imprisonment -- aggravating and mitigating factors"
• Some history from the Ohio Department of Rehabilitation and Corrections
• Some history from the Ohio section of website of Death Penalty Information Center

Links with background on US history and practices in the administration of the death penalty 

• Legal basics:Title 18 US Code Section 3592: "Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified"
• Some history from the federal section of website of Death Penalty Information Center
• Some history from a Congressional Research Service 2005 Overview Report on Federal Death Penalty

Based on my hope that your "who radar" is now fully operational, I would be eager to hear your views (in the comments or in class) as to which "whos" have had the most impact on the operation of Ohio's death penalty system throughout the state's history (based, perhaps, on the Ohio DRC's account of this history).

Our class's (unrepresentative) initial perspectives on the death penalty

I am grateful for the 23 students who completed and submitted the class questionnaire, and I am eager to get completed surveys placed in my faculty from anyone who has not yet submitted the form before 2pm on Thursday.  We will be sure to discuss some of the collective "results" in class, and I really appreciate all the thought that was evident in many answers.

I was moved to do this first post about the questionnaire because I was struck (and a bit surprised) by how titled the class seems to be against the death penalty this year.  In previous years, students have come into the class fairly evenly divided on the issue, with roughly half of students saying they were categorically against the death penalty and half saying they were not.  This year, however, 19 students (of 23 submitted questionnaires ) indicted they were against the death penalty (although a few back-tracked a little bit when asked about a sentence for the Boston Marathon Bomber).

In other words, it seems that more than 80% of our class generally oppose the death penalty, whereas Gallup polling reveals that more than 60% of people in the US generally favor the death penalty.  Especially as we engage in death penalty discussions, we should be ever minderful of this notable contrast in student viewpoints and broader US viewpoints.

In addition to simply noting these notable facts about views on the death penalty, I am eager to hear what folks imagine to be the general views of all Moritz students and/or all lawyers as a group.  Notably, some past Gallup poll data has highlighted that persons under 30 and "nonwhite" persons comprise the groups most opposed to the death penalty, and the Moritz student population as a whole is certainy younger and more diverse than the general population.  But all lawyers as a group tend generally to reflect, demographically, the general population.  (Consequently, I would guess that our class is not extremely unrepresentative of all Moritz students but likely is quite out of line with all lawyers generally on this issue.)

Also, on the topic of the death penalty, the first US execution in 2015 took place Tuesday night, see "Georgia executes Vietnam veteran who killed a sheriff's deputy", and Oklahoma is scheduled to carry out another execution on Thursday. 

Some background and sentencing readings related to Ninth Circuit CJ Alex Kozinski

As I have mentioned, on Wednesday April 2, we will have the honor and pleasure of having Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, visit our class. For basic background on this renown jurist, check out his Wikipedia entry and/or this (dated) Unofficial Judge Alex Kozinski Site and/or this 2005 Legal Affairs profile.  That profile has this headline and subheading: "THE BIG KOZINSKI; If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster."

Because he has written opinions and commentaries on every subject under the legal sun, it would be almost impossible to read even a small sample of all his views.  Fortunately, though, he has written a few especially high-profile (though now somewhat dated) pieces about death penalty jurisprudence and federal sentencing jurisprudence.  Here are links to a few highlights from this part of CJ Kozinski's corpus:

Concerning the death penalty, check out this lengthy co-authored 1995 op-ed in the New York Times given the headline "For an Honest Death Penalty." It starts this way:

It is a staple of American politics that there is very strong support for the death penalty; in opinion polls, roughly 70 percent consistently favor it. Yet the popular will on this issue has been thwarted.

To be sure, we have many capital trials, convictions and death sentences; we have endless and massively costly appeals; and a few people do get put to death every year. But compared to the number of death sentences, the number of executions is minuscule, and the gap is widening fast.

Note that, back in the early 1990s when this op-ed was authored, thoughtout the US there were often 300 death sentences imposed and only about 30 executions each year. Lately, in contrast, we have had in the US only about 75 death sentences and 40 executions each year.

On the topic of federal sentencing, I succeeded way back in 1999 to get CJ Kozinski to author this article for the Federal Sentencing Reporter a full five years before Booker made the Guidelines advisory.  It starts this way:

Once or twice a year I sit as a trial judge, usually in a criminal case. I've been doing it for many years and never cease to learn something new. I started before the Sentencing Guidelines, so I have sentenced defendants both with and without the Commission's guidance. I've had my doubts about the Guidelines; I even wrote an opinion saying they were unconstitutional. Doubts sometimes resurface when I sit as an appellate judge, but I have no doubts when I sit as a trial judge: I like the Guidelines and hope they're here to stay.

I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison. Some judges may have the wisdom of Solomon in figuring out where in that range to select just the right sentence, but I certainly don't. Would too heavy a sentence destroy a young life and snuff out any chance of rehabilitation? Would too light a sentence embolden the defendant, endangering the lives of innocents? What deterrent effect will the sentence I impose have on others?

Deciding whether someone spent the next twenty years in prison or got straight probation was a burden almost too heavy to bear. Somehow I felt it was wrong for one human being to have that much power over another. Imposing sentence was, for me, almost an act of sacrilege.

Nor did it help that there was no appeal from the sentence. On the contrary, the very finality of the decision made it all the more difficult. If the sentence had been subject to appeal, someone else could have told me if I was way off the mark. But with no sentencing appeals, the burden lay entirely on my shoulders, and I didn't like it a bit.

Enter the Sentencing Guidelines and all this changed for the better. Gone are the wide open spaces for sentencing discretion. Sentencing ranges are narrow and presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition--they're all engineered into the machine; all I have to do is wind the key. The Probation Officers in the Central District of California, where I mostly sit, do an excellent job and there are seldom disputes over the accuracy of the PSR. When there are, I do what I am competent to do--make factual findings.

Once I have figured out the range, I always sentence at the very bottom; I never depart up or down, unless it's a guided departure like substantial assistance or acceptance of responsibility. This is true whether a defendant has pleaded guilty or proceeded to trial; generally, I have found that the bottom end of a given Guideline range sufficiently captures a defendant's criminal culpability, and I very seldom run across a case so unusual as to warrant departure. If the sentence seems too harsh or too light, I no longer feel responsible.

Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

After a final review of what we should take away from the McClesky ruling, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence which places categorical limits on what crimes cannot result in capital sentence and what criminals can not be executed for their crimes.  Here, in order, are the major rulings in this series:

Offense-based Eigth Amendment categorical prohibitions on the death penalty:

Coker v. Georgia, 433 U.S. 584 (1977) (precluding imposition of the death penalty for offense of adult rape)

Tison v. Arizona, 481 U.S. 137 (1987) (precluding imposition of the death penalty for homicide accomplice lacking reckless indifference to life)

Kennedy v. Louisiana, 554 U.S. 407 (2008) (precluding imposition of the death penalty for offense of child rape)

Offender-based categorical prohibitions on the death penalty:

Thompson v. Oklahoma, 487 U.S. 815 (1988) (precluding imposition of the death penalty on offenders under age 16 at time of crime)

Atkins v. Virginia, 536 U.S. 304 (2002) (precluding imposition of the death penalty on offenders who suffer from mental retardation (reversing 1989 ruling holding otherwise))

Roper v. Simmons, 543 U.S. 551 (2005) (precluding imposition of the death penalty on offenders under age 18 at time of crime (reversing 1989 ruling holding otherwise))

As I asked at the end of last week, given that the Supreme Court's Eighth Amendment jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender with have individual circumstances considered by the sentencing judge and/or jury, what justifies another set of Supreme Court rulings that preclude legislatures from ever being allowed to even consider the death penalty for certain crimes or offenders?

Contextualizing these matters, consider the qusry in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker. For a reminder, here is how the lead dissent in Coker v. Georgia describe the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently.  Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.

The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner -- as well as others in his position -- will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.

Lots of interesting reflections on McClesky a quarter-century later

As I mentioned very briefly in class, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a lead symposium focused on "McClesky at 25."  Here are links to all the articles in the symposium:

McClesky at 25 OSJCL Symposium Articles:

• Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).

• Scott E. Sundby,  The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).

• John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).

• G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).

• Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).

• Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).

Anyone interested in the intersection of race and the death penalty should consider taking a quick peak at all of these article.  But, especially for future class discussion purposes, the final two pieces linked above (the long Mosteller piece and the short Scheidegger piece) may be most worth your extra reading time and attention.

Some background and basics on capital punishment history and practices in Ohio and US

We could easily spend months discussing the history and modern specifics of the death penalty in specific jurisdictions like Ohio or the US.  I will sometime reference this history and modern practices in class over the next few weeks, but here are some links of note concerning both jurisdictions to provide everyone with a (low-stress, high-learning) chance to discover a lot more on these topics:

Links with background on Ohio's history and practices in the administration of the death penalty 

• From the Ohio Department of Rehabilitation and Corrections
• From the Ohio section of website of Death Penalty Information Center
• American Bar Association Ohio Death Penalty Assessment
• Ohio Attorney General's 2012 Capital Crimes Annual Report
• Ohio Revised Code Section 2929.04: Death penalty or imprisonment - aggravating and mitigating factors

Links with background on US history and practices in the administration of the death penalty 

• Justice Department 2000 Survey/Review of Federal Death Penalty 
• From the federal section of website of Death Penalty Information Center
• Congressional Research Service 2005 Overiew Report on Federal Death Penalty
• Title 18 United States Code Section 3592: Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified

Yet another round of notable "who" developments concerning the death penalty and federal mandatory minimums

This coming week we are going to get much more focused on the particulars of capital punishment laws and doctrines and practices.  But, as you may already realize, my obsession with "who" issues will persist in class and elsewhere.  And these posts from my other blogs since our last meeting highlights this reality from various perspectives concerning both the death penalty and mandatory minimums:

Some death penalty stories:

• Unsurprisingly, AG Holder authorizes pursuit of death penalty against Boston bomber

• "Citing Catholic faith, family of victim seeks to keep condemned Cleveland killer from lethal injection"

• Diverse perspectives on victims having diverse perspectives on sentencing

• SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling

Some federal mandatory minimum stories:

• Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote

• Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

• Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?

Terry Nichols and a few other modern mass murderers who escaped death sentences

Sorry to have played an (evil?) game of guess the murderer at the end of class yesterday, but I think the story of Terry Nichols encounters with both the federal and Oklahoma capital punishment system provides a useful reminder that some (many?) high-profile US mass murderers can escape a death sentence in various ways.  Via his Wikipedia entry, here are the basics of Terry Nichols' crime and how he managed avoid a death sentence:

In 1994 and 1995, [Terry Nichols] conspired with [Tim] McVeigh in the planning and preparation of the Oklahoma City bombing -- the truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma on April 19, 1995 which claimed the lives of 168 people including 19 children.

After a federal trial in 1997, Nichols was convicted of conspiracy to use a weapon of mass destruction and eight counts of involuntary manslaughter for killing federal law enforcement personnel.  He was sentenced to life imprisonment without the possibility of parole because the jury deadlocked on the death penalty.  He was also tried in Oklahoma on state charges of murder in connection with the bombing, and was convicted in 2004 of 161 counts of first degree murder, which included one count of fetal homicide, first degree arson, and conspiracy.  As in the federal trial, the state jury deadlocked on imposing the death penalty.  He was sentenced to 161 consecutive life terms without the possibility of parole, and is incarcerated in ADX Florence, a super maximum security prison in Florence, Colorado. He shares a cellblock that is commonly referred to as "Bombers Row" with Ramzi Yousef and Ted Kaczynski.

As I mentioned in class, Jeffrey Dahmer (who killed at least 17 people in Wisconsin) and Dennis Raeder(the BTK Killer, who killed at least 10 people in Kansas) and Joel Rifkin (who kiled at least 17 people in New York) and David Berkowitz (the Son of Sam, who killed at least 6 people in New York) are just some examples of some infamous modern serial killers who escaped a death sentence because they committed mass murder in states without the death penalty at the time of their crimes.

In addition, some other modern mass murderers like Gary Ridgway (the Green River Killer who killed at least 49 people in Washington) and Charles Cullen (who killed at least 29 people in New Jersey and Pennsylvania) and Ronald Dominique (who killed at least 23 people in Louisiana) are just some examples of some infamous modern serial killers who escaped a death sentence because, after committig mass murder, they were able to cut plea deals with state prosecutors in order to take the death penalty off the table.

Does this kind of information make you more sympathetic (or less sympathetic) to claims of unconstitutional or just unfair sentencing disparity often made on behalf of folks who are sentenced to death in many states for only one murder (like Warren McClesky and Troy Davis)?

In light of this information, might you support a new federal death penalty law that defined the murder of,say, five or more people over an extended period of time to be a form of terrorism and thereby readily subjecting all of these sorts of serial killers to possible federal capital prosecution if/when state authorities are unable or unwilling to seek a death sentence for a mass murderer? 

On the current state (and possible future) of Ohio's modern capital punishment experiences

One (of many) interesting and valuable components of Ohio's modern death penalty system is the fact that the Ohio General Assembly has, by statute, required the Ohio Attorney General to produce an annual report on capital punishment regarding individuals who have been sentenced to death since Oct. 19, 1981.  The last four such annual reports are all available on-line via this webpage, and I highly encourage students to at least review quickly the most recent of these reports report (which is the 2010 Capital Crimes Report released in April 2011 available at this link).

The latest annual report will not only help you figure out how Ted Kaczynski might fare under Ohio's laws (see pp. 4-7 in the 2010 report), but also highlights the many fora for review of Ohio death sentences (see pp. 8-12 in the 2010 report, where the chart reprinted here appears at the end).  The 2010 report also has an extended discussion of DNA testing procedures and results for those sentenced to death at pp. 15-22.  The report also provides this (now slightly dated) statistics about the application of the modern Ohio death penalty:

Since 1981, Ohio has issued a total of 310 death sentences....

As of [the end of 2010], a total of 41 inmates have been executed under Ohio’s current law....

[And] a total of 14 inmates received a commutation of his death sentence to a sentence less than the death penalty....

[And] a total of 20 inmates died prior to imposition of the death penalty. This includes inmates who died of natural death and suicide....

[And] a total of 8 inmates were found ineligible for the death penalty dueto mental retardation (aka “Atkins” claims)....

[And] a total of 7 death sentences were vacated and remanded to trial courts for re-sentencing, which could result in imposition of the death penalty again ... [and] there was 1 case pending retrial....

[And] 64 death sentences were removed as a result of some form of judicial action beyond the cases already mentioned....

[And] a total of 155 death sentences remained active, including those currently pending in state and federal court [including] seven individuals [who] received a death sentence and were added to death row [in 2010].

As was true following my prior national data dump on executions in this post, I welcome and encourage comments on what lessons we might take away from this Ohio modern death penalty data and history.  Also, I encourage early thoughts about whether these data should suggest a particular agenda for the Ohio Chief Justice's newly form Joint Task Force to Review the Administration of Ohio’s Death Penalty (discussed in this press release and constuting a partnership between the Supreme Court of Ohio and the Ohio State Bar Association “to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.”)

Statistical highlights (and queries) concerning US death penalty history

Though I spent probably too much class time Thursday referencing parts of the history of the death penalty in the United States, I do not think it is possible for students of modern sentencing law and policy to spend too much time reflecting on this history.  I encourage all students to read up on the United States' history with the death penalty from various sources, such as the full opinions in Furman or the abolitionist-oriented account provided here by the Death Penalty Information Center or this reader-friendly review of DP history in the US .

One key historical point I sought to stress in class is that, though the US Supreme Court has been very involved in death penalty regulation through interpretations of constitutional law over the past forty years, during the prior 180 years the  Supreme Court had relatively little to say on the topic.  But this reality of Supreme Court relative lac of involvement in this historical story certainly was not a result of a relative lack of use of the punishment, because according to the ESPY File of all US executions, in the United States there were:

• 13 executions in 1790, the year after the US Constitution was ratified
• 8 executions in 1804, the year after Marbury v. Madison was decided
• 39 executions in 1869 the year after the 14th Amendment was adopted
• more than 100 executions in 1906, the year after the famous "activist" Lochner decision
• more than 1500 executions during the 1930s (roughly 3 each and every week)

Notably, when the US Supreme Court during the Warren Court years started getting much more actively involved in regulating state police and prosecution practices, lower state and federal courts did start more actively reviewing state death sentences.  As a result, from 1967 to 1976, the period leading up to and around the McGautha and Furman and Gregg rulings, there were zero executions in the United States.

The Gregg ruling in 1976 is often used to mark and define the start of the "modern" death penalty era in the United States, and the chart from the DPIC reprinted above (and easier to read at this link) details that the US has been averaging more than 50 executions per year over the last two decades, with a recent one-year high of 98 executions in 1999 and a recent one-year low of 37 in 2008.  

Lots of legal and non-legal factors have had an impact on these historical data, and one would struggle to come up with any simple explanation for precisely why our nation has had a roller-coaster, up-and-down experience with executions.  Nevertheless, in addition to being factually interesting, I think there are various sentencing law and policy lessons to be taken away from this history.  I am interested to hear student insights as to these possible historical lessons: do folks think this history suggests it is inevitable that the US will always be a death penalty nation, or that this history shows that the US has and could get along without many or even any executions?

Comments on what lessons we should take away from this history, and on what else is worthy of historical note and discussion here, are highly encouraged.  Also, I encourage thoughts about whether the total number of death sentences or capital prosecutions (rather than just actual executions) would be important data in this historical story.

Is there a strong constitutional basis for saying "death is different"?

We ended class with a question/issue/talking-point that may well haunt us throughout the semester and that has arguably haunted all modern legal debates over modern issues of crime and punishment: is "death" really different as a matter of constitutional law?

Couple of preliminaries as we unpack this question/issue/talking-point going forward:

1.  As a basic normative and empirical and factual matter concerning state punishment generally, the (too) simple assertion that "death is different" cannot be readily gainsaid.  John Stuart Mill in his renown “Speech in Favor of Capital Punishment” (worth reading and available here), observed punishment of death makes a unique "impression on the imagination" and "is more shocking than any other to the imagination."  The undeniable reality that death as a punishment "feels" different in kind than any other form of punishment necessarily means humans will react and respond to this punishment differently even if we try to treat it like any other form of punishment.

2.  As a basic historical and descriptive matter concerning state punishment generally, the observation that "death is (and always has been) different in criminal law's doctrines and practices" also cannot be readily gainsaid.  Much of both the common law history of criminal law's development, as well as much of modern statutory and related criminal punishment doctrines, reflect the reality that the people who make the law and shape its application "feel" differently about the death penalty than about any other form of punishment.

3.  As a basic matter of constitutional text, the doctrinal basis for asserting that special substantive and/or procedural constitutional rules should control the death penalty is a pretty hard argument to make. The Fifth, Sixth and Eighth and Fourteenth Amendments contain nearly all the constitutional provisions and prohibitions that get the most attention in litigation over the death penalty (and other punishments), but the text of these provisions do not appear to call for many (or any) unique doctrines just for the death penalty.

With this background, I am eager to hear via comments or in class whether and how one can develop a strong argument for the claim that the Constitutionjustifies or demands or even allows special substantive and/or procedural constitutional rules for the operation and application of the death penalty.   Putting this point a little differently, I think the easiest way to understand (and justify?) the pro-prosecution outcomes in cases like Williams and McGautha and McClesky comes from understanding that the justices in those cases were (justifiably?) concerned that any pro-defendant constitutional rulings would subsequently have to get extended to all non-capital cases and defendants.

Some SCOTUS death penalty news and notes

This week has already brought some notable death penalty action in the Supreme Court, and these blog posts over at my main blog about all the action has generated some interesting debates in the comments:

• Early report on Bies oral argument
• A SCOTUS win for the capital defendant in Cone v. Bell

A bit of death penalty history from DPIC

For those interested in a little more information about the history of the death penalty in the United States, the Death Penalty Information Center has an effective summary at this link. 

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."