Sentencing Class @ OSU Moritz College of Law

Commenting on each others' mid-term papers...

can and should get started in the comments to this post.  And, upon request (or based on my own assessment of which comments merit added attention), specific comments can and will be transposed into a new post (which in turn can and should enable continued and more focused commentary).

Most essentially, everyone is urged to recommend at least one of the mid-term paper (and as many as appropriate) that you think would merit publication and/or wider circulation either as is ASAP or in some modified form at some future date.

Power(Point) to the people

Here are the PowerPoint files I have received to date from students/presenters.  Thanks again to Caitlin Chamberlin for the suggestion to share.

False Confessions: Download false_confessions_powerpoint2.ppt

Actual Innocence: Download actual_innocence.ppt

McClesky: Download mccleskey_presentation_314.ppt

UPDATE:  Here are some more of the powerpoints:

Capital Child Rape: Download child_rape_death_penalty_presentation.ppt

Victim Considerations: Download victim_presentation.ppt

MORE:  And here is a straggler powerpoint:

Women and DP: Download women_and_dp_presentation.ppt

Readings for April 18 on women and the death penalty

Andrea Esselstein, Stephanie Fortener and Janean Weber have created a terrific little "reading packet" for their coverage of the topic of women and the death penalty. This packet can be downloaded here:

Download selected_readings_for_women_and_the_death_penalty.doc

Enjoy and feel free to start the conversation with comments to this post (especially if you are worrying at all about the class participation part of your grade as we approach our last week of class).

Reading on capital child rape for April 11 and 12

Jordan and Brett are in command this week, addressing the very interesting and very timely topic of whether child rape can and should be a capital offense.  Here is their reading list (with links I found):

• Coker v Georgia, 433 U.S. 584 (1977) (available here)
• State v Wilson, 685 So. 2d 1063 (La. 1996) (exceprts here)
• A note by Joanna D'Avella at 92 Cornell L. Rev. 129 (2006) (available here)
• An article by Corey Rayburn at 78 St. John's L. Rev. 1119 (2004) (available here)

I have lots of thoughts about categorical rules concerning the application of the death penalty that I will try to (briefly?) set out to begin our discussion.

Readings for April 5 on Herrera and innocence

Here is the note from Kurt Copper from his team explaining their reading choices and plans:

I have attached two files which are edited copies of Herrera v. Collins, 506 U.S. 390 (1993), and House v. Bell, 126 S.Ct. 2064(2006). I tried to do textbook style edits on the cases so people would be more apt to read them and get the point. I would suggest to the class that they might like to read the entire cases to more fully understand the Justices' arguments, but these edited versions give a decent synopsis in about 15 pages total.

Also, we suggest a law review article, "SIMPLE MURDER: A COMMENT ON THE LEGALITY OF EXECUTING THE INNOCENT", 44 BFLR 501 (1996).  We will show a short video clip in class and try to spur the discussion on innocence claims, the role of the federal courts, and the effectiveness of clemency. 

Also, could you post on the blog a short explanation that the difference between a "Herrera" claim and a "Schlup" or "gateway" claim is that the herrera claim is a purely constitutional one (i .e. "it is unconstitutional for you to hold and execute me because I am innocent") and the gateway claim is a procedural one ("though my claims of constitutional violations in my state trial have been procedurally defaulted and thus normally wouldn't be heard, the federal courts should excuse this and hear them because i am actually innocent"). I think just getting that basic concept before reading the cases will help frame them better for the reader.

It should be interesting.

Download edited_version_of_herrera_v. Collins.doc

Download edited_version_of_house_v. Bell.doc

Readings for April 4 on habeas review

Alexander Smith has sent along this note along with the readings that are available for downloading below:

Because there are two groups going in the same week, I have limited readings to two journal articles that give a solid overview of the complex procedures relating to Federal habeas review. My presentation will attempt to navigate the many rules and requirements surrounding such review in order to create a better understanding of how this process fits into the larger appeal system for death penalty cases.

Students may also want to glance at 28 USC 2241-2266, where the right of habeas review is codified.

Download the_theories_of_federal_habeas_corpus.doc

Download the_writ_of_habeas_corpus_a_complex_procedure_for_a_simple_process.doc

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

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

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False and Coerced Confessions and the Death Penalty

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

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

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

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

Federal death penalty readings for March 7 and 8

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

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

Download comparison_of_jurisdictions.doc

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

The following readings cover the issues we plan to address:

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

More on executions methods and the role of doctors

Jeff Mead and Larysa Simms are taking over Wednesday's class to discuss "The Role of Physicians." Here is the text and readings they sent for everyone's pre-class consideration:

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Before you enrolled in this death penalty class, your mind likely jumped to a single inference when you heard mention of an interface between the legal and medical professions: malpractice suits. However, after class on Wednesday, February 28, you should also gain insight into another important interface between the two professions: the death penalty (executions). In fact, the topic is enjoying the spotlight as the focal point of several current events. In preparation for our discussion on Wednesday, please read the brief articles linked below that will orient you to the issues underlying these current events associated with the medical profession's role in the death penalty. These articles will give you a taste of what we will explore further through class discussion, including the moral, philosophical, medical, political, legal and practical implications of the role of physicians in the death penalty.

Please also answer the following questions in the Comment Section of the blog before class on Wednesday:

1. Why do you think this issue regarding the role of physicians in the death penalty has erupted at this particular time as opposed to any other time?
2. Why has the American Medical Association (AMA) seen fit to act as the moral compass for its members? What are the implications of this AMA decree?
3. What political machinations do you think are at play?
4. Given our recently expanded understanding of the assorted methods of execution, what role, if any, do you think physicians should play in the death penalty?

Required readings:

• AMA opposes physician involvement in executions (Feb. 17, 2006)
• Council of State Approves Death Penalty Protocol (Feb. 6, 2007)
• Doctors' refusal might ring knell for death penalty (Aug. 7, 2006)
• CMA Reaffirms Stance Opposing Physician-Assisted Suicide (Feb. 15, 2007)

Follow-up execution method readings

As promised, here are follow-up (optional) readings to foster our continued discussion of execution methods:

• This past summer I wrote an article about litgation over lethal injection's constitutionality entitled, Finding Bickel Gold in a Hill of Beans, which appeared in the 2005-2006 CATO SUPREME COURT REVIEW (Cato Institute 2006).  Here is how the abstract begins:

The Supreme Court's decision to consider in Hill v. McDonough a death row defendant's challenge to Florida's lethal injection protocol resulted in widespread legal confusion and the disruption of executions nationwide. The Court's subsequent ruling in Hill raised more legal questions than it answered and ensured that death row defendants would continue to disrupt scheduled executions by pursuing litigation over lethal injections protocols.

• Here, from this Amnesty International link, is a list of worldwide execution methods:

Executions have been carried out by the following methods since 2000:

- Beheading (in Saudi Arabia, Iraq)
- Electrocution (in USA)
- Hanging (in Egypt, Iran, Japan, Jordan, Pakistan, Singapore and other countries)
- Lethal injection (in China, Guatemala, Philippines, Thailand, USA)
- Shooting (in Belarus, China, Somalia, Taiwan, Uzbekistan, Viet Nam and other countries)
- Stoning (in Afghanistan, Iran)

Readings for Feb. 21 on execution methods

BUMP & UPDATE:  Please consider starting our discussion of these readings (which will kick into gear Wednesday 2/21) with some comments here.

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Shoshana and Kate have provided two law review articles for posting/review in preparation for our class session on Wednesday Feb. 14 21:

• Roberta M. Harding, The Gallows to the Gurney: Analyzing the (Un)constitutionality of the Methods of Execution, 6 Boston University Public Interest Law Journal 153 (Fall 1996): Download constitutionality_of_methods_of_execution.rtf

• Brian P. Hill, Judicial Response to Changing Societal Values on the Death Penalty: must the Method Chosen Be the Most Humane?, 7 St. Thomas Law Review 409 (1995): Download societal_values_on_the_death_penalty.rtf

Accompanying these reading they asked to pose the following questions: 

1.  What do you think about the Court's view that instantaneous death equates to painless death? 

2.  How do you feel about the theory that society's current values shape the acceptance/rejection of capital punishment and how this relates to current and past Constitutional methods of execution?

They also have provided this document regarding the Constitutional methods in each state:

Download authorized_methods_of_execution_by_state.doc

As they explained to me, "we plan to go over the information contained in the law journal articles and also plan to discuss past methods of execution and current Constitutional methods.  We also plan to discuss the current debate surrounding the Constitutionality of lethal injection."

Pre-class questionnaire for completion

BUMP & UPDATE:  Please complete this questionnaire to aid our class session for 2/21.

Nichelle Pate, who is also involved in next week's class on execution methods (readings here), has prepared a simple survey of questions for the class to answer before class (available below).  Nichelle requests that everyone "answer the questions and put the form in my school mailbox by next Tuesday, so I can tally the results before class on Wednesday." 

Execution Questionnaire: Download execution_questionnaire.doc