This class first examines the question of innocent people being sentenced to death and, in some instances executed. Next, we turn to the issue of clemency and the vast power of the executive to grant or withhold clemency. Then we examine executions – how they are carried out and the questions surrounding lethal injection and botched executions. Finally, Prof. Bright reviews some different perspectives on the death penalty in America. He talks about why some people oppose it, why some people support it, and where we stand in our long national experiment with the ultimate penalty.
A. Innocence
A number of people sentenced to death have been exonerated and released. There are substantial questions about the innocence of others who were executed. This segment examines the factors that lead to conviction of the innocent.
Readings:
Innocence (PDF), including:
- Glenn Ford Exonerated After 30 Years on Death Row
- The Case of Carlos DeLuna
- Procedural Barriers to Issues of Innocence
- Herrera v. Collins, 506 U.S. 390 (1993)
- Schlup v. Delo, 513 U.S. 298 (1995), and House v. Bell, 547 U.S. 518 (2006)
- Sawyer v. Whitley, 505 U.S. 333, 350 (1992)
- Standards Governing a Second Habeas Corpus Petition (Anti-terrorism and Effective Death Penalty Act
- 28 U.S.C. § 2244
- Seeking Supreme Court Review Despite the Statute
- Kansas v. Marsh, 548 U.S. 163 (2006) (Souter, J., dissenting), (Scalia, J., concurring)
- Innocence – Further Reading
Recommended Reading:
- James S. Liebman, “Face it, the death penalty is broken,” L.A. Times, June 1, 2012
- David Grann, “Trial by Fire: Did Texas execute an innocent man?,” The New Yorker, Sept. 7, 2009
- Chuck Lindell, “Experts criticize, defend Willingham arson investigators,” Austin American-Statesman, Jan. 7, 2011
- Rick Casey, “Willingham: Scientists vs. lawyers,” Houston Chronicle, Jan. 9, 2011
- Brandi Grissom, “Inmate’s Release Brings Call for New Evidence Law,” N.Y. Times, Oct. 8, 2011
Lecture:
B. Clemency
Some death sentences are commuted to life imprisonment or another sentence. This segment examines the power of the executive in exercising the commutation power and the factors that often influence the clemency decision.
Readings:
Clemency/Execution (PDF), including:
- Introduction
- Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)
- Right to Counsel in Capital Clemency Cases
- Clemency in Texas
- Posthumous Pardons
- Executive Order by Gov. Bill Ritter Jr. Granting Pardon to Joe Arridy
Recommended Reading:
- Gov. George Ryan, “I Must Act,” January 11, 2003
Lecture:
C. Execution
States have encountered many problems in using lethal drugs to bring about executions from obtaining the drugs to the qualifications of those who administer them. After a number of botched executions, some states made all information about carrying out executions secret. This segment reviews the problems and the legal issues presented by them.
Readings:
Execution portion of Clemency/Execution PDF, including:
- Baze v. Rees, 553 U.S. 35 (2008)
- Ohio’s Attempt to Execute Romell Broom, Sept. 15, 2009
- The Search for a Solution and More Botched Executions
Recommended Reading:
- Erik Eckholm, “One Execution Botched, Oklahoma Delays the Next,” N.Y. Times, April 29, 2014
- Manny Fernandez, “Executions Stall as States Seek Different Drugs,” N.Y. Times, Nov. 8, 2013
- Adam Liptak, “Deciding if Inmates Get to Know How They’ll Be Executed,” N.Y. Times, March 10, 2014
- Erik Eckholm & John Schwartz, “Timeline Describes Frantic Scene at Oklahoma Execution,” N.Y. Times, May 1, 2014
- Ziva Branstetter, “Eyewitness account: A minute-by-minute look at what happened during Clayton Lockett’s execution,” Tulsa World
- Marc Stern, “I was told to approve a lethal injection, but it violates my basic medical ethics,” The Guardian, August 6, 2014
- Ed Pilkington, Amanda Holpuch, & Tom Dart, “Experts decry ‘failed experiment’ with new death penalty drug combinations,” The Guardian, July 25, 2014
- Mark Berman and Robert Barnes, “Everything you need to know about executions in the United States,” Washington Post, May 1, 2014
- David R. Dow, “The Beginning of the End of America’s Death-Penalty Experiment,” Politico, July 25, 2014
- Ashley Fantz, “Executed man’s last request honored – pizza for homeless,” CNN, May 9, 2007
Lecture:
D. Perspectives
This segment reviews perspectives of Supreme Court justices, governors, commentators and others about how well the death penalty has worked since the Supreme Court allowed its resumption in 1976.
Readings:
Perspectives (PDF), including:
- Callins v. Collins, 510 U.S. 1141 (1994) (Blackmun, J., dissenting from the denial of certiorari; and Scalia, J., concurring in the denial of certiorari)
- Baze v. Rees, 553 U.S. 35 (2008) (Stevens, J., concurring, and Scalia, J., concurring)
- Edward G. Rendell’s Message to the Pennsylvania Legislature, Jan. 14, 2011
- Governors call a Halt to Executions in Oregon, Colorado and Washington
- Wiles v. Bagley, 561 F.3d 636 (6th Cir. 2009) (Martin, J., concurring)
Recommended Reading:
- “Death in Little Rock,” The Economist, Feb. 9, 2013
- Patt Morrison, “Judge Alex Kozinski on bringing back firing squads: No, I wasn’t kidding,” L.A. Times, July 30, 2014
- Joshua Marquis, “For Select Few, Death Is Just,” USA Today, Dec. 11, 2005
- Michael D. Bradbury, “The Death Penalty Is an Affirmation of the Sanctity of Life,” L.A. Times, Sept. 24, 2000
- Adam Liptak, “[American Law Institute] Gives Up Death Penalty Work,” N.Y. Times, Jan. 5, 2010
- Michael Traynor, “The death penalty – it’s unworkable,” L.A. Times, Feb. 4, 2010
- Adam Cohen, “The Uncommon Life and Natural Death of Delbert Tibbs,” The Atlantic, Dec. 3, 2013
- Kirsten Powers, “Conservative case against death penalty,” USA Today, June 24, 2014
- Maura Dolan, “California chief justice urges reevaluating death penalty,” L.A. Times, Dec. 24, 2011
- Jim Provance, “Ohio justice urges repeal of death penalty,” Toledo Blade, Dec. 15, 2011
- Grant Jones & Sam Millsap, “Legislature should seriously reconsider the death penalty,” Houston Chronicle, Dec. 13, 2012
- Jim Dwyer, “Dizzying Price for Seeking the Death Penalty,” N.Y. Times, June 2, 2011
- Jennifer Sullivan, “King County’s death-penalty dilemma: Soaring cost worth it?” Seattle Times, Aug. 14, 2011
Restorative Justice
- Paul Tullis, “Can Forgiveness Play a Role in Criminal Justice?,” N.Y. Times Magazine, Jan 4, 2013
- Patricia Leigh Brown, “Opening Up, Students Transform a Vicious Circle,” N.Y. Times, April 4, 2013
Epilogue
- Albin Krebs, “‘Scottsboro Boys’ defendant dies in New York at 76,” N.Y. Times, Jan. 26, 1989
Lecture: