Professor: John Bessler
Cell Phone: (612) 386-4495
Office: AL 1108
E-mail: jbessler@ubalt.edu
University of Baltimore School of Law
Spring Semester 2016
Capital Punishment and the Constitution Seminar
LAW 871 (3 credits)
Course Meeting Times: Mondays, 1:30-4:15 p.m.
COURSE DESCRIPTION
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, habeas corpus, 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, mental illness, and methods of executions 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.
FIRST CLASS READING ASSIGNMENT:
Monday, January 11, 2016
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
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.
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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.
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
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.
COURSE EVALUATION:
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
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.
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CLASS SCHEDULE:
CLASS ONE: INTRODUCTIONS AND COURSE OVERVIEW; THE HISTORY OF
CAPITAL PUNISHMENT, LYNCHING AND THE ABOLITION MOVEMENT
Monday, January 11, 2016
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
Monday, January 18, 2016 – NO CLASS (Martin Luther King Jr. Holiday)
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
Monday, January 25, 2016
Assigned Reading: Casebook, pp. 83-113, 719-22; Cruel and Unusual, pp. 31-65
Topics: Methods of execution; the concepts of punishment and proportionality; the U.S. Supreme
Court’s review of lethal injection protocols; stays of execution
CLASS THREE: THE EIGHTH AMENDMENT AND CONSTITUTIONAL
CHALLENGES TO THE DEATH PENALTY
Monday, February 1, 2016
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
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CLASS FOUR: CONSTITUTIONAL LIMITATIONS ON DEATH ELIGIBILITY,
SELECTING THE CAPITAL JURY, AND THE FEDERAL AND MILITARY DEATH
PENALTY
Monday, February 8, 2016
Assigned reading: Casebook, pp. 256-68, 285-300, 304-316, 325-34, 339, 343-51, 358-63, 36773, 947, 964-75, 1010-23; Cruel and Unusual, pp. 97-161
Topics: Eighth Amendment and felony murder; juvenile offenders; insanity; criminal defendants
with intellectual disabilities, including mental retardation; death-qualification; jury selection in
capital cases; federal and military death penalty statutes
CLASS FIVE: RACE, GENDER, INTERNATIONAL LAW, AND THE DEATH
PENALTY
Monday, February 15, 2016
Assigned reading: Casebook, pp. 185-217, 219-235, 239-40, 277-83, 1025-1032, 1037-42,
1048-51, 1070-72, 1081-96; Cruel and Unusual, pp. 162-221
Topics: International law restrictions on capital punishment; extradition issues; race and gender;
the “death row phenomenon”; the U.S. Supreme Court’s decision in Medellin v. Texas
CLASS SIX: HABEAS CORPUS, INNOCENCE CLAIMS, CAPITAL SENTENCING,
VICTIM IMPACT EVIDENCE, AND “AGGRAVATING”/“MITIGATING” FACTORS
Monday, February 22, 2016
Assigned reading: Casebook, pp. 41-45, 51-52, 401-403, 409-427, 434-37, 441-67, 508-19, 52123, 532-36, 561-62, 576-88, 598-608, 612-15, 734-35, 759-77, 786-91, 796-807, 809-10, 817-18,
842-852, 855-59, 862, 903-905; Cruel and Unusual, pp. 222-264
Topics: Habeas corpus; death penalty statutes; the Antiterrorism and Effective Death Penalty Act
of 1996; exhaustion of state remedies; procedural bars; innocence claims; sentencing phase of
capital trials; victim impact evidence; expert witnesses
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CLASS SEVEN: ASSISTANCE OF COUNSEL, THE ROLE AND RESPONSIBILITIES
OF LAWYERS IN DEATH PENALTY CASES
Monday, February 29, 2016
Assigned reading: Casebook, pp. 615-16, 621, 625-33, 635, 640-49, 663-80, 683-91, 702-709,
716-18, 755-57, 845-46; Cruel and Unusual, pp. 265-338; 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/
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 FEBRUARY 29, 2016. AN INDIVIDUAL
MEETING WITH EACH STUDENT WILL BE SCHEDULED AFTER REVIEW OF
EACH FIRST DRAFT.***
Monday, March 7, 2016: NO CLASS - ONE-ON-ONE CONFERENCES WITH
STUDENTS THIS WEEK; CONTINUE RESEARCH OF SCHOLARLY SOURCES FOR
YOUR PAPER
Monday, March 14, 2016 – NO CLASS (University of Baltimore’s Spring Break)
CLASS EIGHT: THE DEATH PENALTY DEBATE; EXECUTIVE CLEMENCY
Monday, March 21, 2016:
Assigned reading: Casebook, pp. 7-40, 45-62, 933-40; Cruel and Unusual, pp. 339-48
Topics: The death penalty as public policy; deterrence vs. brutalization; retribution; public vs.
private executions; executive clemency
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CLASS NINE: THE DEATH PENALTY DEBATE (CONTINUED)
Monday, March 28, 2016
Assignment: No reading assignment, but continue to work on your papers and in-class
presentations by doing more research and organizing your presentation. IMPORTANT NOTE:
Before class, watch one course module of your choice (unrelated to your paper topic) at
http://campuspress.yale.edu/capitalpunishment/, make notes, and come to class prepared to
discuss what you learned.
Topics: The death penalty as public policy; the Supreme Court, the Constitution and the Bill of
Rights, and capital punishment
CLASS TEN (Monday, April 4, 2016): STUDENTS PRESENT PAPERS
CLASS ELEVEN (Monday, April 11, 2016): STUDENTS PRESENT PAPERS
CLASS TWELVE (Monday, April 18, 2016): STUDENTS PRESENT PAPERS
CLASS THIRTEEN (Monday, April 25, 2016): STUDENTS PRESENT PAPERS
DEADLINE FOR FINAL PAPER: FINAL VERSION OF PUBLISHABLE-QUALITY
PAPER DUE NO LATER THAN MONDAY, MAY 9, 2016. FINAL PAPERS SHOULD
BE SENT TO JBESSLER@UBALT.EDU.
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