UNIVERSITY OF BALTIMORE SCHOOL OF LAW SPRING 2019 Course: Instructor: Capital Punishment and the Constitution Seminar LAW 871 (3 credits) John Bessler Phone: (410) 837-4690 Office: AL 1108 E-mail: jbessler@ubalt.edu Days/Times: Thursdays, 1:30-4:15 p.m. Location: Check the Law School class schedule for the room assignment Course Description: LAW 871 CAPITAL PUNISHMENT AND THE CONSTITUTION SEMINAR (3) This course examines constitutional law issues in the context of death penalty litigation with a focus on due process and Eighth Amendment issues in sentencing and Sixth Amendment jury selection issues. We will examine the core values of the criminal justice system with special emphasis on the roles of the prosecutor and defense counsel and the effect of mental illness on prosecutions and executions. The course will address the death penalty in an international context, and students will reflect on moral issues and actual innocence claims. The course will have a writing for publication component and meets the scholarly upper level writing requirement. Students will present work-in-progress to the class, will consult individually with the professor, and will produce a publishable-quality law review article at the end of the term and have the tools to submit their articles for publication. Course Materials: Required Texts Randall Coyne & Lyn Entzeroth, Capital Punishment and the Judicial Process (Durham, North Carolina: Carolina Academic Press, 4th ed. 2012) (hereinafter Casebook ) John D. Bessler, Cruel and Unusual: The American Death Penalty and the Founders Eighth Amendment (Boston: Northeastern University Press, 2012) (hereinafter Cruel and Unusual ). Note: The book is available in hardcopy, paperback or as an e-book. I may also periodically assign other readings. These will either be available online or be distributed in the form of handouts. Because no reading assignments are required for the last several class sessions, reading assignments are front-loaded for the beginning of the semester. 1
Student Learning Outcomes: This course examines constitutional law issues in the context of death penalty litigation. Among the provisions the course will cover are the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. The course focuses on the substantive law of capital punishment and on the procedural aspects of death penalty and post-conviction proceedings. The course will include an examination of the death penalty s history, the abolition movement, U.S. Supreme Court cases, state post-conviction and federal habeas corpus procedures, public policy issues, and state and federal death penalty statutes. The American criminal justice system and the concepts of punishment and proportionality will be explored, with a focus on the role of prosecutors, defense counsel, victims, judges and juries. The use of experts and issues pertaining to innocence, international law, intellectual disabilities, and mental illness will also be examined. The course has a writing-for-publication component and meets the scholarly upper-level writing requirement. Students will present a work-in-progress to the class, will consult individually with the professor throughout the course, and will produce a publishable-quality law review article by the end of the term. The paper requirement for the course offers students the opportunity to write on a topic of their choice pertaining to the death penalty. By the end of this course, you will: (1) be able to state the facts surrounding the history of capital punishment, lynching, and the movement to abolish the death penalty; (2) be able to explain the history and case law relating to the Eighth Amendment s Cruel and Unusual Punishments Clause, including categories of offenders found to be ineligible for execution; (3) be able to articulate how capital litigation and state post-conviction and federal habeas corpus proceedings are conducted; (4) be able to explain the past and current issues surrounding the prosecution of capital defendants and their legal representation, including issues pertaining to ineffective assistance of counsel and the role of mitigation specialists in capital representation; (5) be able to describe the ethical issues physicians, judges, and lawyers face in the context of capital punishment cases and the positions of various professional organizations (e.g., the American Bar Association and the American Medical Association) on the death penalty; (6) be able to recite the development of the law at the U.S. Supreme Court level relating to race, juvenile offenders, offenders with intellectual disabilities, and victim impact statements; (7) be able to articulate the theories of, and the rationales for, punishment; (8) be able to describe the concept of proportionality and its development during the Enlightenment as well as alternatives to capital punishment (e.g., life without possibility of parole); (9) be able to articulate the legal issues that arise in capital cases that relate to international law, extradition, the use of prolonged solitary confinement, the law of torture, and the death row phenomenon ; (10) be able to list and describe methods of execution that have been used throughout history and be able to articulate the issues involved in the current controversy over lethal injection protocols; and (11) be able to write a substantial paper on the death penalty that is of publishable quality and that contains pertinent legal authorities. Grades: Each student must write a paper of not less than 25 pages to satisfy the course requirements. Deadlines for submitting initial drafts are set forth below. After reviewing each draft, I will hold a conference with each student individually to give comments and suggestions 2
on the draft, along with any additional ideas for consideration. First drafts should be as complete as possible to facilitate meaningful discussion at the conference. To satisfy the upper-level writing requirement the paper must earn a grade of C or higher. At the end of the course, each student will also make an informal in-class presentation (approximately 20-25 minutes) on his or her chosen paper topic. On the day that you make your presentation, you will be expected to have prepared a set of three or four questions about your topic to facilitate a discussion of that topic. Students will sign up for class presentation dates at the beginning of the semester. If you need to reschedule your class presentation, please feel free to trade with another student, but let me know of the change. The presentation will constitute one aspect of each student s participation in the course. Course evaluation will be based on the student s final paper as well as the student s inclass presentation and classroom participation. Course Expectations: American Bar Association Accreditation Standards establish guidelines for the amount of work students should expect to complete for each credit earned. Students should expect approximately one hour of classroom instruction and two hours of out-of-class work per week for each credit earned in a class, or an equivalent amount of work for other academic activities, such as simulations, externships, clinical supervision, co-curricular activities, and other academic work leading to the award of credit hours. You are expected to complete all reading assignments and to consistently participate in class discussion in order to demonstrate that you have read and reflected on the issues raised in the reading assignments. It is expected that students will be prepared for class and will have read the assigned pages in the Casebook, as well as any other assigned reading materials, prior to class. Attendance: Class attendance is a primary obligation of each student whose right to continued enrollment in the course and to take the examination is conditioned upon a record of attendance satisfactory to the professor. A student who exceeds the maximum allowed absences (generally 20% of class sessions) as illustrated below may be compelled to withdraw from the course, or may be barred from sitting for the final exam. Students who are forced to withdraw for exceeding the allowed absences may receive a grade of FA (failure due to excessive absence). This policy is consistent with American Bar Association Standards for Law Schools. 3
Regular Semester Hours Credit Hours Meetings Per Week 1 2 2 2 absences 5 absences 3 2 absences 5 absences 4 -- 5 absences Course Web Site: This course has a TWEN page that links to this syllabus and the reading assignments for the semester. You are responsible for self-enrolling in the TWEN page and for checking it regularly for course information. Other assignments, including case hypotheticals, will be periodically distributed via TWEN during the semester. A list of reading assignments for the entire semester is set forth below. Additional reading assignments may also be added, and I may modify the syllabus during the course of the semester. I will announce any such modifications in class or through a posting on TWEN. Computers: Office Hours: Students may use laptop computers for class-related purposes. I have an open-door policy, so please feel free to stop by my office on the 11th floor of the law school. Otherwise, feel free to make an appointment (either by phone or e-mail) to see me. You are welcome to contact me via e-mail, and my e-mail address is listed above. My regular office hours will be determined at the beginning of the semester. Class Cancellation: If the instructor must cancel a class, notices will be sent to students via e-mail and posted on the classroom door. If there is inclement weather, students should visit the University of Baltimore web site or call the University s Snow Closing Line at (410) 837-4201. If the University is open, students should presume that classes are running on the normal schedule. 4
Academic Integrity: Students are obligated to refrain from acts that they know or, under the circumstances, have reason to know will impair the academic integrity of the University and/or the School of Law. Violations of academic integrity include, but are not limited to: cheating; plagiarism; misuse of library materials; use of another s book or study materials without consent; unapproved multiple submissions; material misrepresentation of one s academic history or standing; misrepresentation of any academic matter; intentionally giving another student false or inaccurate information about class requirements; inappropriate discussion of exams; and misrepresenting or falsifying class attendance reports. [Reference to School of Law Honor Code: https://law.ubalt.edu/academics/policiesandprocedures/honor_code/index.cfm] Title IX Sexual Harassment and Sexual Misconduct Policy: The University of Baltimore s Sexual Harassment and Sexual Misconduct policies are compliant with federal laws prohibiting discrimination. Title IX requires that faculty, student employees and staff members report to the University any known, learned or rumored incidents of sex discrimination, including sexual harassment, sexual misconduct, stalking on the basis of sex, dating/intimate partner violence or sexual exploitation and/or related experiences or incidents. Policies and procedures related to Title IX and UB s nondiscrimination policies can be found at: http://www.ubalt.edu/titleix. Disability Policy: If you are a student with a documented disability who requires an academic accommodation, please contact Karyn Schulz, Director, Center of Educational Access, Office of Disability and Access Services, at 410-837-4141 or kschulz@ubalt.edu. FIRST CLASS READING ASSIGNMENT: Thursday, January 10, 2019 Randall Coyne & Lyn Entzeroth, Capital Punishment and the Judicial Process (Durham, North Carolina: Carolina Academic Press, 4th ed. 2012), pp. 3-7, 54-62, 729-31 John D. Bessler, Cruel and Unusual: The American Death Penalty and the Founders Eighth Amendment (Boston: Northeastern University Press, 2012), pp. 1-30 OTHER COURSE-RELATED INFORMATION: Appointments: Please feel free to contact me at any time during the semester if you have questions or would like to discuss paper topics or your paper. In addition to the Casebook, one particularly useful source for researching paper topics or locating recent information on topics pertaining to capital punishment is the website of the Washington, D.C.-based Death Penalty Information Center ( DPIC ). See http://www.deathpenaltyinfo.org. Also, please feel free to 5
make an appointment (either by phone or e-mail) to see me. My contact information is listed above. TWEN: I will set up a TWEN site for the course. Please be sure to sign-up for the TWEN page as I may communicate with students in the class through the TWEN site. Attendance: Class attendance is mandatory and your contribution to the course is considered an important part of the course. Consequently, students are expected to be present for every class and to actively participate. After one absence from class, any additional missed classes may impact your grade. If you have any special circumstances warranting an exception to this policy, please speak with me first. A student who fails to attend and participate in class may receive a lowered grade in the course. CLASS SCHEDULE/READING ASSIGNMENTS: CLASS ONE: INTRODUCTIONS AND COURSE OVERVIEW; THE HISTORY OF CAPITAL PUNISHMENT, LYNCHING, AND THE ABOLITION MOVEMENT Thursday, January 10, 2019 Assigned reading: Casebook, pp. 3-7, 54-62, 729-31; Cruel and Unusual, pp. 1-30 Topics: The history of capital punishment, lynching and the abolition movement; overview of course and background information pertaining to capital punishment; review of all stages of a death penalty case from charging decisions to jury selection to the penalty phase of a capital trial and from state and federal post-conviction proceedings to executions CLASS TWO: METHODS OF EXECUTION, THE CONCEPTS OF PUNISHMENT AND PROPORTIONALITY, AND THE U.S. SUPREME COURT S REVIEW OF THE CONSTITUTIONALITY OF LETHAL INJECTION Thursday, January 17, 2019 Assigned Reading: Casebook, pp. 83-113, 719-22; Cruel and Unusual, pp. 31-65; Glossip v. Gross, 135 S. Ct. 2726 (2015) (available on WESTLAW) Topics: Methods of execution; the concepts of punishment and proportionality; the U.S. Supreme Court s review of Kentucky s lethal injection protocol in Baze v. Rees; stays of execution; Glossip v. Gross (available on WESTLAW) 6
CLASS THREE: THE EIGHTH AMENDMENT AND CONSTITUTIONAL CHALLENGES TO THE DEATH PENALTY Thursday, January 24, 2019 Assigned reading: Casebook, pp. 63-76, 80-83, 127-39, 143-77, 241-55, 884-86, 901-902; Cruel and Unusual, pp. 66-96 Topics: Historical origins and application of the Eighth Amendment; proportionality; constitutional challenges to the death penalty; retroactivity/nonretroactivity; an examination of the U.S. Supreme Court s decision in Kennedy v. Louisiana CLASS FOUR: CONSTITUTIONAL LIMITATIONS ON DEATH ELIGIBILITY, SELECTING THE CAPITAL JURY Thursday, January 31, 2019 Assigned reading: Casebook, pp. 256-68, 325-34, 339, 343-51, 358-63, 367-73, 947; Cruel and Unusual, pp. 97-126 Topics: Eighth Amendment and felony murder; juvenile offenders; death-qualification; jury selection in capital cases CLASS FIVE: RACE AND GENDER Thursday, February 7, 2019 Assigned reading: Casebook, pp. 185-217, 219-235, 239-40; Cruel and Unusual, 126-161; John D. Bessler, The Inequality of America s Death Penalty: A Crossroads for Capital Punishment at the Intersection of the Eighth and Fourteenth Amendments, 73 WASH. & LEE L. REV. ONLINE 487 (2016) Topics: Race, gender, and sexual orientation; the Civil Rights Act of 1866 and the Fourteenth Amendment; the relationship between the Eighth and Fourteenth Amendments CLASS SIX: INSANITY, INTELLECTUAL DISABILITIES, MENTAL ILLNESS, AND INTERNATIONAL LAW Thursday, February 14, 2019 Assigned reading: Casebook, pp. 270-83, 285-300, 304-316, 1025-42, 1048-51, 1070-72, 1081-96; Cruel and Unusual, pp. 162-193 7
Topics: Insanity; intellectual disabilities; medicate-to-execute schemes; international law restrictions on capital punishment; extradition issues; the death row phenomenon ; the U.S. Supreme Court s decision in Medellin v. Texas CLASS SEVEN: STATE POST-CONVICTION AND FEDERAL HABEAS CORPUS, INNOCENCE CLAIMS, AND AGGRAVATING / MITIGATING FACTORS Thursday, February 21, 2019 Assigned reading: Casebook, pp. 41-45, 51-52, 401-405, 409-427, 434-37, 441-67, 508-19, 734-35, 759-77, 786-91, 796-807, 809-10, 817-18, 842-852, 855-59, 862, 903-905; Cruel and Unusual, pp. 193-221 Topics: Habeas corpus; death penalty statutes; the Antiterrorism and Effective Death Penalty Act of 1996; exhaustion of state remedies; procedural bars; innocence claims CLASS EIGHT: CAPITAL SENTENCING, VOLUNTEERS, AND VICTIM IMPACT EVIDENCE Thursday, February 28, 2019 Assigned reading: Casebook, 521-23, 532-36, 561-62, 576-97, 598-615; Cruel and Unusual, pp. 222-264 Topics: Capital sentencing; volunteers ; expert witnesses; psychiatric experts; victim impact evidence CLASS NINE: ASSISTANCE OF COUNSEL; THE ROLE AND RESPONSIBILITIES OF LAWYERS IN DEATH PENALTY CASES Thursday, March 7, 2019 Assigned reading: Casebook, pp. 43-45, 615-16, 621, 625-33, 635, 640-49, 663-80, 683-91, 702-709, 716-18, 755-57, 845-46; ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. ed., Feb. 2003), available at http://www.americanbar.org/advocacy/other_aba_initiatives/death_penalty_representation/resour ces/guidelines.html; Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008), available at http://www.hofstralawreview.org/2012/05/11/supplementary-guidelines-for-the-mitigationfunction-of-defense-teams-in-death-penalty-cases-pdf/ 8
Topics: Sixth Amendment of the U.S. Constitution and right to counsel; ineffective assistance of counsel and conflicts of interest; American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. ed., Feb. 2003); Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008). ***FIRST DRAFTS OF PAPERS DUE ON MARCH 7, 2019. AN INDIVIDUAL MEETING WITH EACH STUDENT WILL BE SCHEDULED AFTER REVIEW OF EACH FIRST DRAFT.*** CLASS TEN: THE EIGHTH AMENDMENT, THE DEATH PENALTY, AND TORTURE Thursday, March 14, 2019 Assigned Reading: Cruel and Unusual, pp. 265-286; John D. Bessler, The Abolitionist Movement Comes of Age: From Capital Punishment as a Lawful Sanction to a Peremptory, International Law Norm Barring Executions, 79 MONT. L. REV. 7 (2018) (available on WESTLAW); John D. Bessler, What I Think About When I Think About the Death Penalty, 62 ST. LOUIS U. L.J. 781 (2018) (available on WESTLAW) Topics: evolving standards of decency test; the evolving nature of views toward the death penalty in the U.S. and under international law; torture Thursday, March 21, 2019: NO CLASS SPRING BREAK CLASS ELEVEN: THE FEDERAL AND MILITARY DEATH PENALTY, THE DEATH PENALTY DEBATE, AND EXECUTIVE CLEMENCY Thursday, March 28, 2019 Assigned reading: Casebook, pp. 7-40, 45-62, 933-40, 964-75, 1010-23; Cruel and Unusual, pp. 286-317 Topics: Federal and military death penalty statutes; the death penalty as public policy; deterrence vs. brutalization; retribution; public vs. private executions; executive clemency CLASS TWELVE: THE DEATH PENALTY DEBATE (CONT.); STUDENTS PRESENT PAPERS Thursday, April 4, 2019 9
Assigned reading: Cruel and Unusual, pp. 317-48 Topics: The death penalty as public policy CLASS THIRTEEN (Thursday, April 11, 2019): STUDENTS PRESENT PAPERS CLASS FOURTEEN (Thursday, April 18, 2019): STUDENTS PRESENT PAPERS DEADLINE FOR FINAL PAPER: FINAL VERSION OF PUBLISHABLE-QUALITY PAPER DUE NO LATER THAN THURSDAY, APRIL 25, 2019. FINAL PAPERS SHOULD BE SENT TO JBESSLER@UBALT.EDU. 10