THE POLITICS OF CAPITAL PUNISHMENT IN AMERICA

Po 420 4 Credits
TTr 10:00-11:40

The subject of this course is admittedly an unpleasant one—the regime of legally sanctioned executions through which we administer the ultimate punishment for the most heinous of crimes. The United States remains one of the last democratic nations to retain the death penalty as part of its criminal justice system. In the face of condemnations from many of our closest allied nations, as well as by religious leaders, ethicists, scholars and human rights activists here and abroad, 38 states and the federal government continue to authorize execution for aggravated homicides and a few other crimes. Although public support for capital punishment in the abstract remains high, and politicians continue to seize upon it as an inexpensive way to demonstrate toughness on crime, America’s embrace of capital punishment is an ambivalent one. The penalty is actually meted out to only a tiny minority of convicts for whom it is authorized. This selectivity raises questions of fairness and possible discrimination, as well as casting doubt on our conviction that it is an effective deterrent to criminal activity or is consistent with even the most basic moral theories of justice. Two years ago, Governor George Ryan declared a moratorium on executions in Illinois when it was revealed that a high number of capital convictions in that state, nearly half, were erroneous. Following Ryan’s lead, death penalty regimes are now under legislative review in 25 states. At the federal level, the Department of Justice undertook its own study of capital sentencing, responding to growing evidence of racial and class disparities. However, the Bush Administration has chosen to discount it rather disturbing conclusions. Political leaders from Pat Robertson to Pat Leahy have questioned the application of capital punishment, and Senator Russell Feingold has introduced legislation calling for a national moratorium on the death penalty. To be sure, such voices remain a minority. Until 2000, our rate of executions seemed only to accelerate, and the first federal executions since 1962 were carried out in the summer of 2001, with the lethal injections of Timothy McVeigh and Juan Garza. Developments such as these have again focused attention on the death penalty, and may signal that the time is propitious for a reassessment of our national experiment with capital punishment.

This course will offer an examination of capital punishment from historical, legal, philosophical, economic and social perspectives. Students will be asked to consider, in light of their best moral judgment, the empirical realities of the American death penalty regime. We may not—probably will not—come to identical conclusions, but we will surely agree that the questions raised are complex and important ones. There are no pre-requisites for this course. All that is required is an open mind and a willingness to ask hard questions.

Assigned Texts:

Hugo Adam Bedau, THE DEATH PENALTY IN AMERICA: CURRENT CASES AND CONTROVERSIES (herein as HB)

Barry Latzer, DEATH PENALTY CASES: LEADING U.S. SUPREME COURT CASES ON CAPITAL PUNISHMENT (herein as BL)

Robert Johnson, DEATH WORK: A STUDY IN THE MODERN EXECUTION PROCESS (herein as RJ)

Death Penalty Information Center 

Press reports, delivered via e-mail, for class discussion.

Films:

PBS FRONTLINE: THE EXECUTION
PBS FRONTLINE: A CASE FOR INNOCENCE
THE THIN BLUE LINE
DEAD MAN WALKING
A VIEW TO KILL: WITNESSING AN EXECUTION

Midterm and final exams 35% each
Review of Dead Man Walking 10%
Two Queries (student’s pick) 10% each
Participation (in class, press discussions, debates) 10%

Examinations will be of the essay variety. The required film review should run (roughly) four to five pages. Students may pick any two of the queries—do more at your discretion (assuming you did not wait for the last two) and the top two grades will be counted. However, you may not write a query on the same subject you will be debating. These should be about three pages and will not be accepted after the announced due date.

An unexpectedly high enrollment requires some adjustment in participation requirements. However, I still want to encourage active discussion. In addition to daily class discussion, participation will consist of discussion of press reports and debates. Press clippings from around the nation will be delivered in your e-mail (and will be considered assigned reading for all). One or two students will be asked to lead class discussion of the item, identifying the problematic issues involved in light of what has been learned in class. The arrival of topics may not track our syllabus very well, but we’ll do the best we can to make sense of cases as they arise, including at least two death penalty appeals currently before the U. S. Supreme Court.

The class will be divided into six debate teams, to participate in a total of three debates. These will be structured affairs—details will follow—but should involve a bit of independent thinking and research (with guidance from the instructor). All students will be required to speak and to otherwise carry their weight on the team. Unless I have evidence of serious individual slacking, the "grade" will be a collective one.

Class attendance is mandatory (except for section VII). Students will be permitted a maximum of four (4) unexcused absences. Once this quota has been exceeded, a penalty of one letter grade for each additional unexcused absence will be exacted. All SMC policies concerning plagiarism and academic integrity will be enforced.

Should you need to reach me for any reason this semester, my office is in SE 346, or call at 654-2245. My e-mail address is jhughes (or, from off campus: jhughes@smcvt.edu). I usually check my e-mail in the evening, so if you have a problem or a question about the readings, this is a good way to get in touch with me. I will normally have an answer later that evening or by the next morning. Since I frequently use e-mail to communicate with a class, you should check your account daily.

1. The Civilization of Punishment

1. Punishment in Western & American History

RJ: Chapter 1, 2, pp. 3-55
HB: Background & Development, pp. 3-25
DPIC: History of Capital Punishment 

2. Homicide as a Social Phenomenon

FBI, "Uniform Crime Reports" (distributed excerpts)
BJS, "Homicide Trends in the United States"
BJS "Capital Punishment Trends"  
A critical viewing of any TV cop show—your pick

QUERY I: The cop show you should watch must contain a murder. This is hardly a severe caveat, as they nearly always do. In light of our readings and discussion, analyze how that murder was portrayed. Consider the victim, the offender, the weapon, the circumstances, etc. Was this a typical homicide? What sorts of social values may lie beneath the script? (Note: "ratings," "entertainment" etc. are mere question-begging.)

1. Rationalizing Punishment

1. Retribution

HB: 411-413
"The New Testament and Moral Arguments for Capital Punishment" HB pp. 415-428
"Noah’s Covenant, the New Testament and Christian Social Order" HB pp. 429-443
U.S. Catholic Bishops’ Statement on Capital Punishment 
Evangelium Vitae
"God's Justice and Ours" 

1. Deterrence & Incapacitation

HB pp. 127-134
"Murder, Capital Punishment and Deterrence: a Review of the Literature" HB pp. 135-161
"A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society" HB pp. 162-175
"Prison Homicides, Prison Murder and Life Imprisonment" HB pp. 176-182

1. Capital Punishment and the Constitution

1. Jurisprudence

HB pp. 183-187
"Constitutional Interpretation, History and the Death Penalty" HB pp. 214-231
"Why the Death Penalty is Cruel and Unusual Punishment" HB pp. 232-237

2. Cruel and Unusual Punishment?

Furman v. Georgia, in BL pp. 19-44
Gregg v. Georgia, in BL pp. 45-59
Woodson v. North Carolina, in BL 69-80
Lockett v. Ohio, BL pp. 95-99
Callins v. Collins (opinions of Blackmun and Scalia)

DEBATE I: What, if any, limitations does the American Constitution impose on the practice of capital punishment?

QUERY II: How should the "cruel and unusual punishment" clause be interpreted? Resolve the debate between Justices Blackmun and Scalia.

3. Due Process & Equal Protection of the Laws?

1. Race

McClesky v. Kemp, in BL pp.231-250
GAO Report: "Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities," in HB pp. 268-274
DPIC: Race and the Death Penalty 
Racial Justice Act (Kentucky)  

1. Class

Texas Dept. Criminal Justice: Final Meal Requests

Gender

HB p. 68, 75
DPIC: Women and the Death Penalty 

1. Geography

HB p. 76-83
DPIC: Geography and the Death Penalty 
"Why Texas is #1 in Executions"
Texas Department of Criminal Justice  

1. The Capital Trial

1. Prosecutorial Discretion

Video: The Thin Blue Line
"A Good Murder" in HB pp. 319-332

QUERY III: During the 1992 presidential campaign, George Bush was questioned repeatedly about the high rate of executions carried out by Texas during his tenure as governor, and about his failure to exercise the power of executive clemency. He replied that all convicts executed in Texas had full access to the judicial system, and that he had complete confidence in the reliability of the Texas justice system. Is there anything you find in The Thin Blue Line (aside the fact that an innocent man came within weeks of his execution) that would call the governor’s confidence into question? Be specific.

1. The Death Qualified Jury

Witherspoon v. Illinois in BL pp. 137-142
Lockhart v. McCree, in BL pp.143-154
Turner v. Murray, in BL pp. 155-158

1. Adequate Counsel

"Counsel for the Poor: the Death Sentence not for the Worst Crime but for the Worst Lawyer" HB pp. 275-303
Burger v. Kemp, in BL pp. 159-168

1. Sentencing Responsibility

Ring v. Arizona
Godfrey v. Georgia, in BL pp. 87-94
McCoy v. North Carolina, BL pp. 101-110
Spaziano v. Florida, BL 185-190
"How American Juries Decide Death Penalty Cases: the Capital Jury Project" HB pp. 333-342

1. Appeals, Habeas Corpus & the "Deregulation of Death"

"Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions" HB pp. 344-359
Pulley v. Harris, BL pp. 191-196
"Habeas Corpus and Other Constitutional Controversies" HB pp. 238-245
Video: A Case for Innocence
"The New Speed-Up in Habeas Corpus Appeals"
Anti-Terrorism and Effective Death Penalty Act of 1996 (digest)  
Summary of Senator Leahy’s "Innocence Protection Act"
Herrera v. Collins 

DEBATE II: Should President Clinton have signed the Anti-terrorism and Effective Death Penalty Act in 1996?

QUERY IV: In many of its practices—the presumption of innocence, the standard of proof beyond a reasonable doubt, the provision of counsel—the criminal justice system has balanced the risks of false convictions and false acquittals in the defendant’s favor. Although the latter seem more likely than the former, we know that erroneous convictions do occur—but we do not really know how often. The Supreme Court’s policy of "deregulating death" rests on its confidence in the reliability of the system in sorting out the innocent from the guilty, and those who should be executed from those deserving a less severe punishment. Assess the Court’s confidence—where might it seem least justifiable and why? (In other words, what is the system’s most glaring point of unreliability?) Can this be reconciled with Furman v. Georgia?

2. The Myth of Executive Clemency

"An Appeal for Clemency: the Case of Harold Lamont Otey" HB pp. 361-383
Video: A Case for Innocence (conclusion)
DPIC: Executive Clemency 

 

1. Life on Death Row

1. The Condition of the Condemned

HB p. 69-73
DPIC: Death Row 
RJ: chapters 3, 4, pp. 61-119
Video: The Execution
"The Story"  
"Who Was Clifford Boggess?"  

2. The Execution Team

RJ: chapters 5, 6, pp. 121-166
"Reporter’s Notebook"  
NPR "Witness to an Execution" (distributed by instructor—you will need RealPlayer)

Video: Dead Man Walking (evening viewing)

REQUIRED PAPER: The film, Dead Man Walking (and Helen Prejean’s book, on which it is loosely based) has focused public attention on the death penalty and has provoked renewed debate over its morality and efficacy. Evaluate the film—how accurately does it portray the issues surrounding capital punishment, as you have come to understand them? Be selective in your critique and sensitive to the values implicit in these depictions.

 

6. The Bereaved: Families of Victims and Condemned

1. A Quest for Closure

Payne v. Tennesee, BL pp. 169-184
"The Impact of the Death Penalty on the Families of Homicide Victims and of Condemned Prisoners" Margret Vandiver (Library Reserve)

B. Right to View

"To See or Not to See: Televising Executions" HB pp. 384-386
"Is There a First Amendment Right of the Public to View Preparations for Executions?"
"Witness to Another Execution" HB pp. 387-400
Video: View to a Kill: Witnessing an Execution
"An Argument Against Allowing Families of Murder Victims to View Executions"  

DEBATE III: The KQED case—should executions be televised?

QUERY V: Who (beyond the execution team) should be permitted to witness executions that are otherwise closed to the public, and why? What outcome would your policy promise?

 

1. The Search for a Humane Execution

1. Modes of Execution

Glass v. Lousiana (Opinion of Brennan)
DPIC: Modes of Executions 
DPIC: The Federal Death Penalty 
RJ: chapters 7, 8

2. Botched Executions

DPIC: Botched Executions 

 

1. Who May be Executed?

1. Rape

Coker v. Georgia, in BL pp. 61-68

2. Felony Murder

Emmund v. Florida, BL pp. 111-120
Tison v. Arizona, BL pp. 121-136

3. Minors

DPIC: Juveniles 
Stanford v. Kentucky, BL pp. 203-212

4. The Mentally Ill

Ford v. Wainwright, BL pp. 213-218

5. The Developmentally Impaired

DPIC: Mental Retardation 
Atkins v. Virginia

 

1. The Economics of Capital Punishment

"Millions Misspent: What the Politicians Don’t Say About the High Costs of Capital Punishment" HB pp. 401-409
DPIC: The Cost of Capital Punishment 

 

2. The Politics of Capital punishment

1. Public Opinion

HB pp. 84-88
"Hardening of Attitudes: Americans’ View on the Death Penalty" HB pp. 90-115
"Sentencing for Life: Americans Embrace Alternatives to the Death Penalty" HB pp. 116-126
RJ pp. 230-249
DPIC: Public Opinion 

2. The Abolitionist Movement

"International Human Rights Law and the Death Penalty in the United States" HB pp. 246-247
"The Death Penalty Once More" HB pp. 445-455
"A Reply to van den Haag" HB pp. 457-469
American Bar Association Call for Moratorium
Judge Rakoff's Ruling