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Michael Stoff, Director 305 East 23rd St, CLA 2.102, (G3600) Austin, TX 78712-1250 • 512-471-1442

Robert Owen

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T C 302 • Why Kill? Capital Punishment

42795 • Fall 2010
Meets TTH 330pm-500pm CRD 007A
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This course has a writing flag.

Description:

This course explores some of the issues, themes, debates, etc., surrounding the theory and practice of capital punishment.  Current critiques of the death penalty tend to focus on systemic practical flaws in the American legal system and their tendency to produce unreliable verdicts (e.g., the conviction of the innocent).  Although this seminar covers the structure of the contemporary legal regime of capital punishment in the U.S., that survey primarily provides context for a subsequent in-depth examination of the urgent moral questions underlying the practice of killing human beings as criminal punishment, and the echoes of that practice in our art, music, literature, etc.  Students must articulate, sharpen, and defend their views about right and wrong, justice and mercy, vengeance and forgiveness.  The seminar examines these questions through depictions of the death penalty in books (both fiction and non–fiction), essays, films, and primary source materials (documents from actual capital cases).

 

Texts/Readings:

The basic “law” text is Linda E. Carter and Ellen Kreitzberg, Understanding Capital Punishment Law (Lexis 2004).  Students read a variety of books and novellas including Camus, The Stranger; Capote, In Cold Blood; Thompson, The Killer Inside Me; Clark, The Ox-Bow Incident; Melville, Billy Budd; Gaines, A Lesson Before Dying; Prejean, Dead Man Walking; Kafka, In the Penal Colony; Hugo, Last Day of a Condemned Man.  There are numerous other readings (primarily case opinions from the U.S. Supreme Court (e.g., McCleskey v. Kemp, Roper v. Simmons) and newspaper and magazine articles).  Students also view numerous films, including “A Short Film About Killing,” “I Want to Live!,” “The Widow of Saint-Pierre,” “Dead Man Walking,” “The Thin Blue Line,” “The Exonerated,” and “Two Towns of Jasper.”  

 

Requirements:

Students write 2 short papers (4-5 pages each) and one longer paper (8-10 pages).  The initial short paper constitutes 20 percent of the final grade for the course; the second short paper constitutes 15 percent.  The longer paper constitutes 25 percent of the course grade and must be completed in two phases (first draft plus revision equals final draft). There is one in-class examination, which constitutes 25 percent of the course grade and is administered about 2/3 of the way through the semester. The remaining 15 percent of the course grade is based on class participation, both formal and informal.  Students must make an oral presentation regarding their final paper.

 

About the Professor:

Rob Owen is a criminal defense attorney in Austin and an Adjunct Professor at the University of Texas School of Law, where he teaches a course on the law of capital punishment and serves as co–director of the Capital Punishment Clinic.  He has represented prisoners in death penalty cases at all levels of the court system from state trial courts to the U.S. Supreme Court.  He has an A.B. in Comparative Literature and an M.A. in Speech Communication from the University of Georgia, and received his J.D. from Harvard Law School.  He enjoys live music, cold beer, mountain biking, and playing guitar.  

T C 302 • Why Kill? Capital Punishment-W

43740 • Fall 2009
Meets TTH 1100-1230pm CRD 007B
show description

TC 302 -- FALL 2009
 
WHY KILL?   
CAPITAL PUNISHMENT IN SEARCH OF A RATIONALE
 
Assigned readings and approximate class schedule
 
Clinical Professor Rob Owen (U.T. School of Law)
 Tuesdays & Thursdays, 11:00 a.m. – 12:30 p.m., Carothers Seminar B
 
       On-campus office and phone: School of Law
       Connally Center for the Administration of Justice,
       Room 4.302F
                                                       Phone: 232-9391 (Capital Punishment Clinic)
      Mobile phone: 512-577-8329  
      Email: rowen@law.utexas.edu
 
Fall 2009 office hours: Wednesdays, 10:00 – 11:30 a.m., or by appointment.   
 
Overview   
 
In this course, we will explore together some of the issues, themes, debates, etc., that
surround the theory and practice of capital punishment.  Current critiques of the death
penalty tend to focus on systemic practical flaws in the American legal system and their
tendency to produce unreliable verdicts (e.g., the conviction of the innocent).  Our
seminar will cover the structure of the legal regime for regulating capital punishment in
the U.S. today.  That survey, however, will also provide context for our in-depth
examination of the urgent moral questions underlying the practice of killing human
beings as criminal punishment, and the echoes of that practice in our art, literature, music,
etc.  You will be expected to articulate, sharpen, and defend your own views about right
and wrong, justice and mercy, vengeance and forgiveness.  We will explore all these
questions through depictions of the death penalty in books (both fiction and non–fiction),
essays, films, and primary source materials (documents from actual capital cases).  
 
Syllabus  
 
The syllabus represents an approximate schedule of assignments.  As the course
progresses, I will provide guidance about the pace at which you should be completing the
readings, and may supplement the syllabus with additional readings.  In addition, from
time to time I may have to appear in court, or travel for a court appearance, on a day
when we are scheduled to meet.  We will modify the course schedule as necessary to
accommodate these events. 

 
Attendance  
 
You are expected to attend class.  If you know in advance that you will miss a class (e.g.,
because you have fallen ill, or have just learned that a family emergency will require you
to leave town for a few days), please contact me before you miss class, if at all possible,
so that I can excuse your absence.  If you have three unexcused absences during the
course of the semester, the highest grade I will award you is a C.  If you have more than
three unexcused absences, the highest grade I will award you is a D.  
 
Evaluation  
 
This course has a “Substantial Writing Component.”  Grades will be determined as
follows:
 
Students will write two short papers (about 7 pages each) and one longer paper (about 10
pages).   
 
Each of the short papers will constitute 25 percent of your grade for the course.   
 
The longer paper will constitute 35 percent of your grade for the course and will be
completed in two phases, i.e., you will be required to submit an in-progress draft for my
review, and will thereafter revise and improve the draft to produce the final version.   
 
The remaining 15 percent of your grade will be based on class participation, both formal
(you may be directed from time to time to address specific questions at the next class
meeting) and informal (in what I hope will be our lively and wide-ranging discussion of
the class readings, films, current events, etc.).  This portion of your grade will also be
based in part on informal writing assignments of approximately 250 words each, which I
will assign from time to time throughout the semester.  
 
Within the first few class meetings, I will distribute a memo giving you more detailed
information about your papers (approximate due dates, suggested topics, etc.)
 
Accommodations for students with disabilities
 
Upon request, the University of Texas at Austin provides appropriate academic
accommodations for qualified students with disabilities.  To determine if you qualify,
please contact the Dean of Students at 471-6259 (471-4641 TTY).  If that office certifies
your needs, I will work with you to make appropriate arrangements.  
 
Religious observances
 
If you miss an examination, work assignment, or other project due to observing a
religious holy day, I will give you an opportunity to complete the work missed within a reasonable time after the absence, provided that you have properly notified me.  It is the
policy of the University of Texas at Austin that you must notify me at least 14 (fourteen)
days prior to the classes scheduled of dates you expect to be absent for purposes of
observing a religious holy day.  For religious holy days that fall within the first two
weeks of the semester, you should give me that notice on the first day of the semester.  
You will not be penalized for these excused absences, but you may suffer adverse
consequences if you fail to complete satisfactorily the missed assignment or examination
within a reasonable time after the excused absence.  
 
Note regarding readings  
 
Texts of readings listed below which are not contained in the books listed for this course
are included in a course packet which will be available for purchase through University
Services (formerly “University Duplicating Service”).  I will also post the first few
readings for the semester in the “Documents” section of the course Blackboard™ site,
and as the semester progresses may post additional readings there, or provide copies of
those documents directly to you in class.  
 
August 27: Introduction: The death penalty in America and Texas today
 
! Death Penalty Fact Sheet (August 14, 2009)
! Josh Gerstein, “Death Penalty Decisions Loom,” Politico (June 21,
2009)
! Steve Mills, “States Weigh Cost of Death Penalty,” The Los Angeles
Times (March 14, 2009)
! Hillary Chabot, “Boy’s Beating Pushes Pols to Support Death
Penalty,” Boston Herald (June 25, 2009)
 
September 1 : Introduction: The death penalty in historical, philosophical and
political context
 
! GENESIS 4: 2-16 (King James Version)
! Foucault, excerpt from Chapter 1, “The Body of the Condemned,” in
DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (1979)
! Carey, “Payback Time: Why Revenge Tastes So Sweet” (July 27,
2004), and excerpts from “Living on Impulse” (April 4, 2006) and
“Study Finds Brain Injury Changes Moral Judgment” (March 21,
2007), all from The New York Times
! Elisabeth Rosenthal, “When Bad People Are Punished, Men Smile
(But Women Don’t),” The New York Times (January 19, 2006)
! Ariana Cha, “Ant Fraud Yields Death Sentence,” The Washington
Post (March 20, 2007)
! Associated Press, “China Says Death Penalty to be Used More
Sparingly” (July 25, 2009) ! Tori Brock, “Aguilar Taunts Victims’ Families; Denies Killings,” The
Huntsville Item (May 26, 2006)
! Luis Ramirez, “What’s in the brown paper bag?”
 
September 3:  Killing and punishment: traditional theories, unconventional ideas  
 
! J.S. Mill, Speech In Favor of Capital Punishment
! Ernest van den Haag, “The Ultimate Punishment: A Defense,” 99
HARV. L. REV. 1662 (1986)
! Albert Camus, Reflections On The Guillotine
! Lt. Col. David Grossman, excerpts from ON KILLING: THE
PSYCHOLOGICAL COST OF LEARNING TO KILL IN WAR AND SOCIETY
(1995)
! Walter Berns, “Religion and the Death Penalty: Can’t Have One
Without the Other?”, The Weekly Standard (February 4, 2008)
! Douglas A. Berman and Stephanos Bibas, “Engaging Capital
Emotions,” NORTHWESTERN UNIVERSITY LAW REVIEW, Vol. 102
(2008).  
! Robert Tanner, “Studies Say Death Penalty Deters Crime,” Associated
Press (June 11, 2007)
! Cass R. Sunstein and Justin Wolfers, “A Death Penalty Puzzle: The
Murky Evidence For and Against Deterrence,” The Washington Post
(June 30, 2008)
! Linda E. Carter, Ellen Kreitzberg, and Scott W. Howe,
UNDERSTANDING CAPITAL PUNISHMENT LAW (2nd edition, Lexis 2008)
(hereafter “UCPL”), Chapter 2, “The Death Penalty Debate.”  
 
September 8:  To abolition and back
 
! UCPL, Chapter, 6 (“Modern Death Penalty Statutes”).
! Tex. Penal Code § 19.03 (capital murder)
! Tex. Code Crim. Proc., Art. 37.071 (current capital sentencing
procedure)
! Excerpts from the Federal Death Penalty Act of 1994
 
** Before September 10, you should view the films “A Short Film About Killing,”  
“The Widow of Saint-Pierre,” and “Monster”
 
September 10, 15, 17:  The killer as human being
 
! UCPL, pp. 131-141 (through subheading [c] on page 141), 306-315
(up to § 22.03).
! Discussion of the films A Short Film About Killing, The Widow of
Saint-Pierre and Monster ! “Capital Trials and the Ordinary World of State Killing,” from Austin
Sarat, WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE
AMERICAN CONDITION (2001)
! Kotlowitz, “In the Face of Death,” The New York Times Magazine
(July 6, 2003)
! American RadioWorks audio documentary “Deadly Decisions,”
available online at
http://americanradioworks.publicradio.org/features/deadlydecisions/
 
September 22:  The killer as human being? (continued)
 
! Thompson, THE KILLER INSIDE ME
! Merkin, “Passion and the Prisoner,” The New York Times Magazine
(August 28, 2005)
 
September 24:  In Cold Blood
 
! Truman Capote, IN COLD BLOOD
! Carr, “In Cold Print: The Genre Capote Started,” The New York
Times (July 13, 2005)
! Daniel LaChance, “Executing Charles Starkweather: Lethal
Punishment in an Age of Rehabilitation,” PUNISHMENT AND SOCIETY,
Vol. 11, No. 3 (2009)
 
September 29:  Reason, evil, madness, dignity
 
! Finnegan, “Defending the Unabomber,” The New Yorker (March 16,
1998)
! Excerpt from Petition for Writ of Certiorari, Panetti v. Quarterman  
! UCPL, 261-275 (up to § 19.02).
! Jordan Smith, “Panetti Sane Enough to Die,” Austin Chronicle (April
4, 2008)
! Miller, “Can’t Die For Trying,” Dallas Observer (n.d.)
! Diane Jennings, “Fight Looms Over Meds For Condemned Man,” The
Dallas Morning News (June 12, 2006)
! Atul Gawande, “Hellhole,” The New Yorker (March 30, 2009) 
October 1, 6:  Punishment and proportionality
 
! UCPL, pp. 63-74 (up to § 8.03), 80-93  
! Roper v. Simmons
! Kennedy v. Louisiana
! Lawrence Tribe, “The Supreme Court is Wrong on the Death Penalty,”
The Wall Street Journal (July 31, 2008)
 
** Before October 8, you should view the film “Let Him Have It”
 
October 8:  Punishment and proportionality, continued
 
! Discussion of the film Let Him Have It   
! UCPL, pp. 79-85 (up to § 8.05)
! David G. Savage, “IQ Debate Unsettled in Death Penalty Cases,” The
Los Angeles Times (June 11, 2007)
! Petition for Writ of Certiorari, Chester v. Texas
 
October 13:  Punishment and proportionality, continued
 
! Herman Melville, BILLY BUDD, SAILOR
! Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884)
 
October 15:  Law, rough justice, and mercy
 
! Walter van Tilburg Clark, THE OX-BOW INCIDENT
! Scott, “Vengeance Is Ours, Says Hollywood,” The New York Times
(May 2, 2004)
! “Mob Beats Man Sought in Girl’s Rape,” Philadelphia Daily News
(June 2, 2009)
 
** Before October 20, you should view the films “The Thin Blue Line,” “The
Exonerated,” and “At the Death House Door”
 
October 20 and 22:  The wrong man
 
! Discussion of the films The Thin Blue Line, The Exonerated, and At
the Death House Door
! Glenn Frankel, “Burden of Proof,” The Washington Post Magazine
(May 14, 2006)
! Michael Miner, “Not Guilty Isn’t The Same As Innocent,” Chicago
Reader (February 4, 2005) ! UCPL, pp. 229-231 (up to Section § 17.01[C]), 234 (starting with
Section  § 17.02) – 237 (up to Section § 17.02[B][2]), 241 (starting
with Section  § 17.03) – 247.
! Jay D. Aronson and Simon A. Cole, “Science and the Death Penalty:
DNA, Innocence, and the Debate Over Capital Punishment in the
United States,” LAW & SOCIAL INQUIRY, Vol. 34, Issue 3 (Summer
2009)
! Richard Fausset, “Case of Death Row Inmate Troy Davis Puts New
D.A. in Tight Spot,” The Los Angeles Times (June 3, 2009)
! Petition for Writ of Habeas Corpus and Response, In Re Troy Anthony
Davis, No. 08-1443 (U.S. Sup. Ct.)
! In Re Troy Anthony Davis, ___U.S.___ (U.S. Sup. Ct., August 17,
2009) (concurring and dissenting opinions)
 
** Before October 27, you should view the film “I Want To Live!”
 
October 27:  The wrong (wo)man, continued
 
! Discussion of the film I Want To Live!
! UCPL, pp. 297-303.  
 
October 29:  Imprisoned by the past
 
! Ernest Gaines, A LESSON BEFORE DYING
! Brief Amicus Curiae of the ACLU, ACLU of Louisiana, and NAACP
Legal Defense and Educational Fund, Inc., supporting the petitioner in
Snyder v. Louisiana
 
**Before November 3, you should view the films “Scottsboro: An American
Tragedy”and “Two Towns of Jasper” **Before November 3, you should view the films “Scottsboro: An American
Tragedy”and “Two Towns of Jasper”
 
November 3:  Imprisoned by the past
 
! Discussion of the films Scottsboro: An American Tragedy and Two
Towns of Jasper
! Excerpt from Ricardo C. Ainslie, LONG DARK ROAD: BILL KING AND
MURDER IN JASPER, TEXAS (2004)
! Michael Berryhill, “Prisoner’s Dilemma,” The New Republic
(December 27, 1999)
! Schmidt, “Fleming Senior Wears Racist T-Shirt to School,” The
Florida Times-Union, September 15, 2005.
! Associated Press, “Texas Law Students Chastised Over ‘Ghetto
Fabulous’ Party” (October 13, 2006)
!  “County Won’t Apologize for Historic Lynchings,” Austin American-
Statesman (May 17, 2006)
! Sharon Begley, “Racism Studies Find Rational Part of Brain Can
Override Prejudice,” The Wall Street Journal (November 19, 2004)
 
November 5:      (Still) imprisoned by the past
 
! UCPL, pp.279-296.
! Claire Cooper, “Death Penalty and Race: Scales of Justice May Weigh
Heavily Against Blacks,” The Sacramento Bee (July 6, 2008).  
! Excerpt from Petitioner’s Revised Proposed Findings of Fact and
Conclusions of Law, Rosales v. Quarterman (S.D. Tex., pending).  
! Lewis, “A Black Defendant, A Racist Juror,” The Los Angeles Times
(May 19, 2005)
! Excerpt from Brief for the NAACP as Amicus Curiae, Sterling v.
Dretke, No. 04-9337 (U.S. Sup. Ct., O.T. 2004)
! Mark Peffley and Jon Hurwitz, “Persuasion and Resistance: Race and
the Death Penalty in America,” AMERICAN JOURNAL OF POLITICAL
SCIENCE, Vol. 51, No. 4 (Oct. 2007)
! Eberhardt, et al., “Looking Deathworthy: Perceived Stereotypicality of
Black Defendants Predicts Capital Sentencing Outcomes,”
PSYCHOLOGICAL SCIENCE, Vol. 17, No. 5 (2006)
! Eberhardt, et al., “Not Yet Human: Implicit Knowledge, Historical
Dehumanization, and Contemporary Consequences,” JOURNAL OF
PERSONALITY AND SOCIAL PSYCHOLOGY, Vol. 94, No. 2 (2008)
 
November 10 and 12:  The machinery of death
 
! UCPL, pp. 33-42.  
! Franz Kafka, “In the Penal Colony” ! Mike Ward, “Death Penalty’s Drug Cocktail Rooted in Texas,” The
Austin American-Statesman (May 28, 2006)
! Carl Sandburg, “The Hangman at home” (poem)
! O’Neill, “Muzzling Death Row Inmates: Applying the First
Amendment to Regulations That Restrict a Condemned Prisoner’s Last
Words” (excerpt), 33 ARIZ. ST. L. J. 1159 (2001)
! Price, “The Last Supper,” Legal Affairs (2004)
! McVicker, “Death row inmates under television blackout,” Houston
Chronicle (September 4, 2004)
! Donny J. Perales, “Rethinking the Prohibition on Death Row Prisoners
as Organ Donors,” 34 ST. MARY’S L. J. 687 (2003) (excerpt)
 
 
November 17:  Eyes wide shut
 
! Craig Haney, “Frameworks of Misunderstanding: Capital Punishment
and the American Media,” from DEATH BY DESIGN: CAPITAL
PUNISHMENT AS A SOCIAL PSYCHOLOGICAL SYSTEM (2005)
! Chapter 6, “Being There,” from Lesser, PICTURES AT AN EXECUTION:
AN INQUIRY INTO THE SUBJECT OF MURDER
! Aimee Molly, “Degradation, Inc.,” The New York Times Magazine
(August 6, 2006).
! Ch. 5 (“The Peek-a-Boo World”) and 8 (“Shuffle Off to Bethlehem”)
from Postman, AMUSING OURSELVES TO DEATH: PUBLIC DISCOURSE IN
THE AGE OF SHOW BUSINESS (1985)
! Susan Moeller, “Death’s Strange Spell,” The Los Angeles Times
(January 3, 2007)
 
November 19:   Victims’ voices
 
! UCPL, pp. 122-128 (up to § 11.04)
! Excerpts from “victim impact” testimony and penalty-phase closing
arguments from United States v. Bernard and Vialva
! Vince Beiser, “Vengeance is Mom’s,” Mother Jones (March/April
2006)
! Dahlia Lithwick, “For Closure,” slate.com (March 25, 2006)
! Ronnie Dugger, “Aggie and Her Killer,” The Texas Observer
(February 8, 2008)
! “Families of 9/11 Victims Testify for Moussaoui,” The Los Angeles
Times (April 20, 2006)
! Robbins, “A Monumental Controversy at the Lubbock County
Courthouse,” Texas Lawyer (June 20, 2005)
! Associated Press, “Death Penalty Cases Harder on Survivors than Life
Sentences” (August 1, 2009)
 November 24:   The death penalty outside the U.S. 
! Additional readings to be distributed
 
December 1:  To be announced
 
 
December 3:  Looking back, looking around, looking ahead
 
! Evaluations

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