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  • Class readings on McCleskey, race and the death penalty

    Though I seriously doubt we will get to these materials before next week, I wanted to post now the materials and ideas that Benjamin and Katherine have sent my way to facilitate our examination of race and the death penalty:

    ———

    McCleskey v. Kemp has been called "the most far-reaching post-Gregg challenge to capital sentencing."  In covering the topic, we plan on briefly discussing the holding of McCleskey, looking at some of the statistics involved, looking at the arguments involved on both sides and talking about some current thoughts on racial disparity. Please re-familiarize yourself with the McCleskey decision (Professor Berman will hand out an excerpt on Wednesday) and read the following:

    1. Article by John C. McAdams on Racial Disparity and the Death Penalty
    2. Homicide Trends by Race
    3. Text of the Kentucky Racial Justice Act
    4. General link on DPIC concerning Race and the Death Penalty

    We also ask everyone to respond to the following questions in the comments section of the blog:

    1. What factors do you believe lead to the apparently overt disparate racial outcomes as reported by the Baldus Study?
    2. If race is a factor, how do you believe it is factored into the death penalty equation?  Is it a statutory bias, a legislative purpose bias, a legislative intent bias, a prosecutorial bias, a juror bias, a victim bias, a defendant bias, a reality of criminal demographics, some other racial manifestation, something else entirely?
    3. Assuming the validity of the Baldus Study and its statistical findings, what do you believe should be proper response to such disparate racial outcomes?
    4. Do you believe that a statute such as Kentucky’s Racial Justice Act can properly safeguard against the use of race as a factor in meting out the death penalty? If not, can there be any effective safeguards that can protect against this bias short of getting rid of the death penalty?

  • Federal death penalty readings for March 7 and 8

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

    ———

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

    Download comparison_of_jurisdictions.doc

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

    The following readings cover the issues we plan to address:

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

  • Lots of lethal injection doings

    As detailed at my main blog, there’s been lots of lethal injection developments since our last class meeting.  Here are links to some of my coverage at SL&P:

    I plan to recap some of these developments at the start of our Wednesday class, but then we will turn to the discussion of federal death penalty issues (materials on their way).

  • Does the Florida LI commission’s recs require greater doctor involvement?

    Providing a fitting capstone to our discussions of execution methods and the role of doctors, today the Florida’s Commission on Administration of Lethal Injection finalized its recommendations today on improving the state’s lethal injection process.   I cannot yet find the Commission’s report on line yet, but this article details that the report, which comes from a group created by out-going Governor Jeb Bush back in December after a botched execution, has more than a dozen recommendations. 

    By my lights, it would seem that some of the recommendations almost require the involvement of doctors in the execution process.  Consider these recommendations (as reported by the press):

    • Medically examine the inmate one week before the execution and determine the best method to achieve IV access.
    • Don’t move the inmate after IV access is achieved and take other steps to make sure IV access is maintained throughout the entire execution.
    • Improve training, including holding periodic training exercises for all execution team members in which they practice possible contingencies.

    Would the AMA’s policy against physician involvement in executions allow doctors to play any role in these activities?

  • Latest class topics and dates

    A student made the very sensible suggestion that I post our schedule of class blogging/coverage.  I have updated the schedule and it can be downloaded here:

    Download 2007_blog_schedulesyllabus.rtf

  • More on executions methods and the role of doctors

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

    ——

    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:

  • 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.

    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.

    —-

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

    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:

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

  • Pre-class questionnaire for completion

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

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

    Execution Questionnaire: Download execution_questionnaire.doc

  • An offer for (and encouragement of) “field research”

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

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

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

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

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

  • Report your (tentative) white-paper official here

    In this post, I provided some ideas as you consider options for which official your white paper will address.  Now it is time to set out your (tentative) choice in the comments (though Larysa here has already got us off to a thoughtful start). 

    As before, you are welcome to explain the reasons for your choice, but it is sufficient if you just state your chosen official.  Thanks.

    NOTE:  You are not forever committed to your indicated selection.  That’s why I keep saying "tentative" in all these posts.  As you begin your research and writing, you are free to change jurisdictions and/or officials.  Remember that, as detailed here, everyone will be expected to submit a white paper outline (of at least two pages) by March 14.  The development of this outline is when your tentative choices ought to become firm.

  • Wednesday class postponed

    All of OSU is closed today, so our schedule for student-led blogging and class discussion will have to be modified by moving everything back at least a day.  The execution method conversation (materials here and here) will thus begin with our class next Wednesday (2/21).  In that class, we will also talk about rescheduling the other planned weeks of blogging/presentations.

    Though campus may be closed, this blog is always open.  A post later today will allow you to report your tentative white-paper official selection, which supposed to be made by today.

  • Considering your white-paper official selection

    As indicated here, this week everyone is to (tentatively) select an official for their white paper.  In a subsequent post, I will ask for tentative choices to be reported in the comments.  This post provides some "food for thought" as you consider options.

    1.  The kind of advice you want to give should impact your choice of official.  If you are eager to advocate strongly against the death penalty, consider selecting an official in your jurisdiction favoring or fostering the application of the death penalty; if you are eager to advocate strongly for the death penalty, consider selecting an official disfavoring or blocking the application of the death penalty.

    2.  Consider the separation-of-powers realities of your choice.  Executive branch officials, legislative officials, and judicial officials all have different kinds of authority and limitations, and your white paper will need to be attentive to these realities.

    3.  Feel free to be thoughtfully creative in your choice.  You can select non-government officials (e.g., the head of a local bar task-force); you can select "behind-the-scene" folks (e.g., Karl Rove or a governor’s chief legal counsel); you can think very local (e.g., an assistant to the Harris County prosecutor); you can think very global (e.g., the head of the UN).

    4.  As I suggested before, have fun and follow your interests: pick an official that truly interests you (or that you may aspire to be) so that the experience feels real and meaningful.

  • Improvement versus abolition

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

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

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

    Ohio-related DP posts from my home blog:

  • A great offer from Arizona

    One student has indicated that her white paper will focus on Arizona, and perhaps others are still ruminating about their jurisdiction.  Consequently, I was very pleased to get this kind e-mail from a new friend in Arizona (who authorized this posting):

    Professor:  My name is Jim Belanger.  I am a partner and the Director of the White Collar Criminal Defense Group at Lewis and Roca in Phoenix, Arizona. I have been doing death penalty work since 1991.  Your blog is excellent, among other things because it is useful.

    In your class on the DP you are having students write white papers on the DP in certain states.  Arizona would be an extremely interesting jurisdiction to study, particularly with what is going on right now in Maricopa County.  For what appears to be gross but thinly thought-out political purpose, the recently elected Maricopa County Attorney has increased the noticing of capital cases quantumfold, to the point that he has personally fomented a crisis in the ability to defend these cases. 

    Arizona has a long history with capital punishment, including its abolition in 1912.  It also recently became the first state to adopt mandatory adherence to the ABA Guidelines for defense counsel performance in Capital cases.  These isues are all coming to a head right now, and certainly will do so during the course of your semester.  If one of your students wants to do his or her paper on Arizona, I am available to help.

    Thanks. jjb

    Jim Belanger, Lewis and Roca LLP

  • Background on jury overrides in capital cases

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

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

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

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

  • Coker and the death penalty for sex crimes

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

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

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

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

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

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

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

  • Report your (tentative) white-paper jurisdiction here

    In this post, I provided some ideas as you consider options for what jurisdiction will be the focal point for your white paper.  Now it is time to set out your (tentative) choice in the comments.  You are welcome to explain the reasons for your choice, but it is sufficient if you just state your chosen jurisdiction.  Thanks.

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

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

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

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

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

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

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

  • Information on Ted Kaczynski and Ohio DP law

    To give you a focus for examining modern death penalty statutes, the reading packet encourages thinking about how Ted Kaczynski might be prosecuted under the death penalty statutes in Texas and Florida.  Though not in the text, you should also consider how Ted might fare under Ohio’s death penalty statute.  (Ignore for this exercise that these states would not likely have jurisdiction.)

    For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out this short article entitled "The Death Penalty Up Close and Personal" by David Kaczynski (Ted’s brother).  Also worth a read is this 1999 article from Time magazine by Stephen Dubner.

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

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

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

  • Considering your white-paper jurisdiction selection

    As indicated here, this week everyone is to (tentatively) select a jurisdiction for the white paper.  In a subsequent post, I will ask for tentative choices to be reported in the comments.  This post provides some "food for thought" as you consider options.

    1.  The kind of advice you want to give should impact your choice of jurisdiction.  If you are eager to advocate strongly against the death penalty, consider selecting a state or country in which the death penalty is still in place; if you are eager to advocate strongly for the death penalty, consider selecting a state or country in which the death penalty is inactive or in decline.

    2.  If you like current events, consider selecting a jurisdiction in the midst of a robust legal and/or policy debate.  California, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota, Texas and Wisconsin are just some of the states that are sure to continue making death penalty headlines in 2007. 

    3.  Feel free to be thoughtfully creative in your choice.  You can go international (e.g., China, Iran, Japan and the European Union all have lots of capital issues); you can go local (e.g., Harris County, Texas and Hamilton County, Ohio have together sent more people to death row than about 40 US states combined).

    4.  Have fun and follow your interests.  Because this assignment should be more engaging than a traditional final (or even a standard research paper), you may spend lots of time on this project.  Pick a jurisdiction that truly interests you so that the experience feels like a labor of love.

  • More on McGautha, Furman and Gregg

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

    McGautha (1971)

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

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

    Furman (1972)

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

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

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

    Gregg (1976)

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

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

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

  • Basic information about blog and “white paper” requirements

    I have prepared a document with the basic parameters of the blog and "white paper" requirements in this class.  The document can be downloaded here:

    Download dp_blog_and_white_paper_basics.rtf

    As the document notes, all of these ground rules are tentative.  I welcome feedback and suggested improvements here in the comments or in class (where I will go over these basics).

  • Important series on capital representation

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

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

  • Interesting Ohio developments

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

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

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

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

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