Sentencing Class @ OSU Moritz College of Law

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  • On mental condition as a mitigating issue

    During next week’s classes any beyond, we will talk a lot about mental conditions of various sorts impacting the application of the death penalty.  I see our quick discussion of MR this week has already spurred some comments in a prior post, and Kristin Harlow sent me this thoughtful note concerning my comments about the potential for faking mental illness:

    I had a comment that doesn’t really fit into the comments currently on the board, so you can post this or not, as you see fit. I have an objection to your comments about advising your hypothetical clients on death row act "crazy" in order to avoid being executed.  [BERMAN NOTE: I was half joking with my in-class comment, but I suppose therefore also half serious.]

    Although I am not sure exactly what the policy is regarding the death penalty (I guess no one will know until the Supreme Court rules), I do know that psychiatrists can reliably determine whether or not someone is faking a severe mental illness. See Michael L. Perlin, “The Borderline Which Separated You from Me”: The Insanity Defense, The Authoritarian Spirit, The Fear of Faking, and The Culture of Punishment, 82 Iowa L. Rev. 1375 (1997).

    In addition to the literature, I interned at a state psych hospital for a school year, and after only nine months of experience, I could recognize cases of malingering.  Although I would not rely on my limited expertise, my point is that even with limited expertise, it is possible to know when someone is “faking.”  I imagine professionals with years of experience could feel very comfortable determining who on death row suffered from psychosis.

    The reason for this comment is mostly because the myth that defendants can “get away with murder” by faking mental illness is creating a society where severely mentally ill people are in prisons rather than in hospitals, where they could be effectively treated, because of the fear that truly guilty people will not be punished. It will be interesting to see how the Supreme Court responds to the issue in the context of the death penalty.

  • 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."

  • Do aesthetics and anniversaries matter in DP debates?

    Over at my home blog, I ask here whether execution headaches impact where capital debates are headed.  I would be interested in student input on this question.

    I also note here that today marks a notable death penalty anniversary: the first "modern" US execution took place exactly 30 years ago today.  This factoid, in turn, prompts a similat query from me: does the marking of a notable anniversary have any real impact on capital punishments debates or developments?

  • Keeping up with all the news bewteen classes

    Death penalty news and developments continue apace even between our class meetings.  For example, as detailed here, on Friday the Supreme Court granted review in a case presenting "a test of federal courts’ authority to overturn a state trial judge’s decision to remove a juror from a capital trial because of that juror’s views about capital punishment."  Also, as detailed here, the Washington Post has this provocative death penalty article in Sunday’s paper.

    As a general matter, I encourage members of the class to regularly stop by three great death penalty blogs — Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project — to keep up with current capital happenings.

  • Assembling recent DP deterrence literature

    As I mentioned in class, last year Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life.  Below I have provided links to this paper and various responses it has generated:

  • More on death penalty aesthetics and Ohio death developments

    Two quick follow-up after class today (where I felt I talked far too much and most students talked far too little):

    1.  Kurt Copper wins the first Berman brownie points by shipping me this link to the pictures of Lee "Tiny" Davis, who was executed by the State of Florida on July 8, 1999.  Personally, I find these pictures of an apparently botched electrocution more disturbing than the Saddam execution video, but maybe that’s just because I do not like the sight of blood.

    2.  The Columbus Dispatch now has this article discussing the first death penalty case to reach the desk of  Ohio’s new Governor, Ted Strickland.  Anyone especially interested in the death penalty in Ohio should be sure to become a regular reader of the Ohio Death Penalty Information blog, which already has lots of stuff here on the Biros case.

  • Showing the uncut Saddam execution video

    I am about to leave to teach the first class that this blog is about.  At some point during my first class, I am planning on showing the entire uncut video of Saddam Hussein’s hanging (which can be found here as one of many links).  Among other benefits, this class activity will give my students some knowledge about the operation of Iraq’s legal system that President Bush lacks (since he purportedly has not watched the video).

    Showing this video should encourage the class to think immediately about the death penalty aesthetics discussed in this post and in comments here and here at my home blog.  But I cannot help but wonder if it is bad form to show someone getting killed on the first day of class.  I hope there is no ABA rule against it.

  • The final “white paper” requirement

    As I mention in the course description, I have decided to try a novel approach to the "final" in this class. Because the law, policy and politics of the death penalty is quite fluid (especially right now), I do not want to develop a final exam that forces students to focus narrowly n current (and ever-evolving) death penalty doctrines.  Instead, I am planning to require student to prepare a "white paper" discussing the history, law and politics of the death penalty in a particular jurisdiction.

    I am still thinking about exact due dates and length requirements, and I an not even sure the term "white paper" precisely fits what I have in mind.  (Here is a wikipedia entry on the concept of a "white paper," and it has me thinking that I am really looking for students to do something more akin to a "green paper".)  Whatever we call this final assignment, my hope is that students will produce documents that not only justify posting on this blog, but also could be sent directly to officials in the jurisdiction being examined.

  • Welcome and let’s get ready to innovate

    Welcome to the launch of a new blogging adventure: Death Penalty Course @ Moritz College of Law.  This uninspiring title (which we can shorten to DP @ M) is meant to make clear the focus of this blog is the Death Penalty Course that I am teaching this semester at OSU’s Moritz College of Law. 

    Though the title is uninspired, I hope that both the contents and very construct of this blog will inspire a new type of engagement with the death penalty and with on-line media for students.  Even after nearly three years of focused blogging at my main blog, I continue to be amazed by what I learn from others and by the substantive insights I gain through the process of blogging.  Consequently, I have decided to try making this blog a focal point for my Death Penalty Course this semester.

    As I gear up for my initial class today, my tentative plan is to be the main instructor and main blogger for the first few weeks of class.  During this period, I hope to be able to give the students an effective and enticing overview of the modern law, policy, practice and practicalities of the death penalty in the United States.  I will thereafter assign groups of students to select topics of interest for future classes, and they will be expected to post readings and class discussion ideas on this blog.

    I am making this blog "open to the public" in order to encourage persons other than my students to engage with the blog and to use the comments to provide views on whether this new blog adventure seems like a good idea.  If there is encouraging feedback from my students and others, I’ll probably invest (too much) energy in this new project; if the feedback is less encouraging, this blog may wither away as the weather starts warming up and other interests draw my attention.

    Posted by Professor Douglas Berman

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