M, W, 11:10 - 12:25
Course DescriptionIn this class, we will review the history, morality, constitutionality, and effectiveness of the death penalty. Along the way, we will examine the laws and judicial decisions governing:
We will devote some attention to racial discrepancies in capital sentencing and recent revelations from DNA testing that many innocent people are currently on death row. The class meets twice weekly, for 75 minutes. While I will lecture occasionally, especially to review some of the high points from the previous class meeting, I expect that much of class time will be dedicated to class discussion of the cases and articles that are assigned. I do not cold-call. Instead, I will have a handful of students on call for each class. You will have ample notice of when you will be on the "hot seat." I hope and expect that all students will feel free to ask questions and participate in class discussion, regardless of whether they are on call. The death penalty is a topic that arouses strong passions in people and, despite what some of your friends from college might tell you, law students are people, too. I encourage frankness in class, tempered by reason, and informed by a healthy respect for the opinions of others. Please feel free to speak your mind, but be courteous to your fellow students (and me, too). In the interest of keeping up with the syllabus, I might occasionally have to cut off discussion while students are still waiting to speak. If I should ever do this to you, please know that it is not because of what you have to say, but only because of when you want to say it. I will set up a web conference board for this class so that you can all continue any interesting discussions after class. In addition, I am available during office hours to continue discussions on any topic of interest. Many professors teach capital punishment as an "advocacy" course. That is, the professor has a strong normative or policy stance on the death penalty and uses the course to try to convince the students of the correctness of her position. In addition, the professor might introduce the students to reform strategies that have been successful in the past. While such a course has much to recommend it, this is not an advocacy course. As the term winds on, you will no doubt discover my own views about the state of capital punishment in the United States. That said, I view all the questions we ask in this course to be open questions. While this course will be valuable to anyone interested in reforming the system, and we will discuss ongoing reform efforts, such reform is not the primary focus of the class. Course RequirementsI will try my best to keep the assigned reading to a manageable level. I have assigned Cases and Materials on the Death Penalty by Rivkind and Shatz, which is a very new casebook on the topic. In addition, I will assign additional cases and articles that will be assembled in a reader available from the copy center. As mentioned above, I do not cold call on students. All I ask in return is that you do the reading on time and come to class prepared to participate. While there are some procedural and legal features of the system that I can impart to you, most of the questions we will address in this class do not have easy answers. As such, this semester will be a journey of collective exploration. If you are not prepared for class, your class experience will suffer, as will those of your classmates. I will assign a few short exercises during the term. I will ask you to work in pairs (if enrollment permits) and will assign you each a partner. I imagine that each assignment will only take you a few hours. There is a standard three-hour open book final examination for this class. I prefer to have the exam self-scheduled and I successfully arranged this with the registrar last year, so it should be no problem to do so again. The final exam will require no outside research. You will be able to complete it entirely from the materials for the course. Course SchedulePlease note that CB refers to readings in the casebook, XP refers to readings in the first Xeroxed packet, and XP2 refers to readings in the second Xeroxed packet. -- EPS Monday, August 25. Introductory Remarks. Wednesday, August 27. Historical use of the death penalty. CB: 18-26. Monday, September 1. Labor Day. No class. Wednesday, September 3. Ethical disputes about capital punishment. CB: 1-18, 107-118. Monday, September 8. Does capital punishment deter crime? XP: 49-81. Wednesday, September 10. What crimes are capital? CB: 202-224. Monday, September 15. Who can be executed ? CB: 224-257. Wednesday, September 17. Professional Development Day. No class. Monday, September 22. The Death Penalty pre-Furman. CB: 34-74. Top Reforms to eliminate arbitrariness. CB: 74-90, 101-107, 135-147. Monday, September 29. How much discretion should the jury have? CB: 91-101, 147-166. Wednesday, October 1. State schemes for capital punishment. CB: 796-818. Monday, October 6. Advisory Jury verdicts on death. CB: 90-91, 419-433. Wednesday, October 8. Judges vs. Juries: The Apprendi problem. Monday, October 13. Columbus Day and Fall Break. No class. Tuesday, October 14. Make-up class. Prosecutorial Discretion: CB: 380-410. Wednesday, October 15. Defense Counsel in Capital Cases. CB: 348-379, 584-596. Top Jury Selection in Capital Cases. CB: 298-318. Wednesday, October 22. Problems with the Death Qualified Jury. CB: 318-328. Monday, October 27. Lesser Included Offenses and Double Jeopardy in Capital Cases. XP: 239-253. Wednesday, October 29. Jury Instructions in Capital Cases. What should the jury consider? CB: 507-542. Monday, November 3. Jury Instructions in Capital Cases. What does the jury understand? CB: 542-560. Wednesday, November 5. Victim Impact Statements and other extra-legal factors at the Sentencing Hearing. CB: 454-506. Monday, November 10. Habeas Corpus Review. CB: 597-611. Wednesday, November 12. Substantive limits on Habeas appeals. CB: 611-663. Monday, November 17. Procedural limits on Habeas appeals. CB: 663-717. Wednesday, November 19. Racial Disparities in Capital Sentencing. CB: 26-34, 258-282. Monday, November 24. DNA evidence of wrongful convictions. XP: 349-357. Wednesday, November 26. Thanksgiving Break. No class. Monday, December 1. Schedule Shuffle. No Class. Wednesday, December 3. Recommendations for Reform.
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