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I will provide a documentary about William denis

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I will provide a documentary about William denis. The essay must be about William Denis, so You must watch the documentary and write an essay. I will provide slides and you have to connect the William Denis documentary to the death penalty and also compare it to the mcgautha vs California cases in the slides that I will provide.CJ 301 • Now: – The Death Penalty and legal metaphysics – McGautha v. California (1971) • Next: – Metaphysics, Law, and the Death Penalty, continued – Furman v. Georgia (1972) Events • MCJC Open House – Tues. 2/9/21 6:03 pm via zoom Facts about the DP in America • History: • Colonial era: • Just about anything could be a capital crime • 19th Century: • Plenty of capital crimes, but serious abolitionists (e.g., Benjamin Rush) • Michigan abolished the death penalty for all crimes except treason in 1846 • Innovations in execution methods (e.g., electric chair) Facts about the DP in America • History: • Early 20th Century: • Russian revolution, world wars, depression, etc. kept the death penalty alive • Executions peaked in the 1930s, during the rise of the Soviet Union, the great depression, and between the two world wars Facts about the DP in America Facts about the DP in America • History: • Mid 20th Century: • Post war social stability = lower DP activity • Peak of civil rights era = low support for the DP • 42% in 1966 • Court introduces concept that the Eighth Amendment includes an ‘evolving standard of decency that marked the progress of a maturing society’ Facts about the DP in America • History: • 1971: In McGautha, the Court rejects the Fourteenth Amendment claim that arbitrariness caused by unguided discretion is a due process violation • 1972: In Furman, the Court agrees with the Eighth Amendment claim that arbitrariness caused by unguided discretion is cruel and unusual • But does not declare the death penalty as inherently unconstitutional, but that particular statutes were • 629 condemned persons commuted to LWOP Facts about the DP in America • History: • After Furman, many states re-wrote statutes • Mandatory death sentences for capital crimes • Sentencing guidelines for jurors • 1976: In Gregg, the Court rejects mandatory death sentences but approves sentencing guidelines for jurors Facts about the DP in America • History: • Contemporary era = 1976 to the present • Capital statutes have: • Sentencing guidelines • Bifurcated trials • Automatic appellate review Capital Trials • Bifurcated trial: – Guilt phase: • Did the guy commit capital murder? – First degree murder + a special circumstance – Penalty phase: • Should the guy get death or LWOP? • Jury must ‘weigh and give effect to’ aggravation and mitigation Capital Punishment in America • Homicide facts: – Homicide in the USA increased during the 1970s, peaking in 1980 (10.2/100,000). – Homicide high from late 1970s–1990s (9.8/100,000; almost 25,000 homicides in 1991). – Dropped during the 1990s, and has stayed level (5.3/100,00; 17,284 in 2017) Capital Punishment in America • Death Penalty Activity: – Death penalty charging is extremely difficult to measure • In Maricopa County, AZ (Phoenix), there were more than 140 capital cases pending in 2007 • From 2004 – 2012, at least 198 capital defendants • AZ’s death row has 126 persons • AZ has executed 37 since 1976 Capital Punishment in America • Death Penalty Activity: – Death Sentences a more reliable measure but less valid of death penalty support; misleading because of a likely huge gap between charging and sentencing: • National sentences peaked in 1998 (@ 295) – Steady decline since then: » 2008 @120 » 2015 @ 49 » 2016 @ 30 • CA death row = 741 • Texas death row = 254 Capital Punishment in America • Death Penalty Activity: – Executions peaked in 1999 (@ 98) – 1993 – 2004 range from 38 – 35 – 2017 @ 23 – 2017: • Texas, Arkansas, Alabama, Florida, Georgia, Missouri, Virginia, • Ohio Capital Punishment in America • Comparative DP: – China accounts for 95 % of executions worldwide • 2,000 – 10,000 annually – Some Sharia states have relatively high DP activity • Iran and Saudi Arabia @ 100 – 1000 annually – Japan @ fewer than 10 annually since the early 1990s (except 2008, with 15). Capital Punishment in America • Disappearing DP: – Aside from the decrease in sentencing and executions (can’t know about charging), states have legislatively eliminated the DP: • Recent abolitions: – – – – – – – – Washington (2018) Delaware (2016) Maryland (2013) Connecticut (2012) Illinois (2011) New Mexico (2009) New Jersey (2007) New York (2007) Capital Punishment in America • Disappearing DP: • Currently 30 states and Federal Government with death penalty • The USSC has narrowed the DP considerably since around the turn of the century: – Ring v. Arizona (2002): The Court decided (7-2) that it violates the Sixth Amendment for a judge, not a jury, to find the aggravating factors that elevate a murder to capital murder. – Atkins v. Virginia (2002): The Court decided (6-3) that it violates the Eighth Amendment to execute persons with mental retardation. – Roper v. Simmons (2005): the Court decided (5-4) that it violates the Eighth Amendment to execute persons who were juveniles (under 18) at the time of the crime. Capital Punishment in America • Strongholds of the DP: – Charging by state is almost impossible to know – Sentencing by state: Death rows/rates by state: • • • • • CA = 741 (1.9/100,000) FL = 396 (1.98/100,000 TX = 254 (.90/100,000) AL = 194 (3.88/100,000) PA = 175 (1.35/100,000) Capital Punishment in America • Strongholds of the DP: – Executions are extremely arbitrary – Top 10 states: • • • • • • • • • • Oklahoma Texas Delaware Virginia Missouri Alabama South Carolina Arkansas Mississippi Louisiana Death Rows by County Executions by State Executions by County Executions by County, Excluding Texas Jurisprudence • What is the U.S. Supreme Court? • What is certiorari? • What is jurisprudence? – Legal reasoning • What is stare decisis? • What is caselaw? • Significance? – Citizens United v. Federal Election Commission, 558 U.S. 50 (2010) • the Court held that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions Metaphysics • Metaphysics: – The study of the nature of reality – Are there universal truths? – What are the conditions of one’s lived experience? – Etc . . . Metaphysics Metaphysics Metaphysics McGautha v. California (1971) • McGautha’s guilt trial: – CA procedure required a ‘guilt phase’ and a separate ‘punishment phase’ – McGautha and co-D Wilkinson were charged with committing two armed robberies and a murder in 1967 – McGautha and Wilkinson robbed one store, then robbed a second store and killed the co-owner of the store • Unclear who was the actual shooter • Jury convicted both men of two counts of robbery and one count of first-degree murder McGautha v. California (1971) • McGautha’s penalty trial: – Both men listed some mitigation • McGautha – came from a broken home – was wounded during WWII • Wilkinson – – – – – – mixed-race honorably discharged from the army had low intelligence scores went to church worked to support his family was shot in the back by a gang – But this is not what the case is about McGautha v. California (1971) • Issue: – Were the defendant’s constitutional rights infringed by permitting the jury to impose the death penalty without any governing standards? – Is it possible to govern such a decision? McGautha v. California (1971) • Historical context: – Jury nullification – Legislatures granted discretion McGautha v. California (1971) • Jury instruction: – “. . . Notwithstanding facts, if any, proved in mitigation, in determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience, and absolute discretion . . .” – “. . . The law itself provides no standard for the guidance of the jury in the selection of the penalty, but rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury.” McGautha v. California (1971) • McGautha’s claim: – “That to leave the jury completely at large to impose or withhold the death penalty as it sees fit is fundamentally lawless and therefore violates the basic command of the Fourteenth Amendment that no State shall deprive a person of his life without due process of law” – The lower courts rejected this claim – The USSC also rejected it McGautha v. California (1971) • What does McGautha mean by ‘lawless’? McGautha v. California (1971) • The majority’s reasoning: – English common law “reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die” – “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability” – And thus, the CA and OH statutes do not violate the Fourteenth Amendment – Do you agree? McGautha v. California (1971) • The majority’s reasoning: – “For a court to attempt to catalog the appropriate factors [for juries to consider] in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete” – “The infinite variety of cases and facets to each case would make general standards either meaningless ‘boilerplate’ or a statement of the obvious that no jury would need” – Do you agree? McGautha v. California (1971) • The majority’s reasoning: – “It may well be . . . That bifurcated trials and criteria for jury sentencing discretion are superior means of dealing with capital cases . . – . . . But the Federal Constitution . . . Does not guarantee trials procedures that are the best of all worlds, or that accord with the most enlightened ideas of the students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court . . . – The Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected” – In other words: it’s not the Court’s job to created ‘perfect’ trial procedures – What do you think of this viewpoint? McGautha v. California (1971) • A final remark by the majority: – “Certainly the facts of these gruesome murders bespeak no miscarriage of justice. The ability of juries, unassisted by standards, to distinguish between those defendants for whom the death penalty is appropriate punishment and those for whom imprisonment is sufficient is indeed illustrated by the discriminating verdict of the jury in McGautha’s case, finding Wilkinson the less culpable of the two defendants and sparing his life” McGautha v. California (1971) • The dissent: – Douglas’s dissent (the first one) focuses mostly on Ohio’s single trial method • “. . . The hazards to an accused resulting from mingling the issues of guilt, insanity, and punishment in one unitary proceeding are multiplied.” McGautha v. California (1971) • The dissent: – But Douglas does make an interesting point about evolving standards of decency (@241) – “The truth is . . . that the wooden position of the Court, reflected in today’s decision, cannot be reconciled with the evolving gloss of civilized standards which this Court, long before the time of those who now sit here, has been reading into the protective procedural due process safeguards of the Bill of Rights.” McGautha v. California (1971) • Brennan’s dissent: – “The question is . . . whether the rule of law, basic to our society and binding upon the States by virtue of the Due Process Clause of the Fourteenth Amendment, is fundamentally inconsistent with capital sentencing procedures that are purposely constructed to allow the maximum possible variation from one case to the next, and provide no mechanism to prevent that consciously maximized variation from reflecting mere random or arbitrary choice” – Brennan thinks the answer is yes McGautha v. California (1971) • Brennan’s dissent: – The majority treats the defendants’ claims as if they argue that the Constitution requires laws giving no discretion to the deciders – Which leads them to say legislators cannot possibly articulate standards for guiding discretion – And thus, states must be allowed to have statutes giving no guidance – Because states rights are more important than ‘rule of law’ (equal protection), so the majority opinion says – Essentially, the majority simply agrees with legislators in CA and OH that it is impossible to guide jury discretion in the death penalty decision McGautha v. California (1971) • Brennan’s dissent: – Brennan thinks these assumptions are wrong and that a) It is possible to articulate guidance for discretion, and b) Even if it weren’t, rule of law (equal protection) is more important than states’ rights McGautha v. California (1971) • Brennan’s dissent: – He focuses A LOT on the point that state power must be exerted responsibly – In other words: not arbitrarily or randomly – Lists many examples of how government provides standards in a variety of contexts • Rules for licensing of a laundry – Delineates doctrines such as ‘void-for-vagueness’ • Requires govt to make explicit their choices amongst competing social policies • Un-guided juries would be doing the opposite of that McGautha v. California (1971) • Brennan’s dissent: – “A legislature that has determined that the State should kill some but not all of the persons whom it has convicted of certain crimes must inevitably determine how the State is to distinguish those who are to be killed from those who are not” – The $64,000 question is whether simply handing the decision to a jury (with no guidance) counts as ‘determining’ who gets killed or doesn’t – What do you think? McGautha v. California (1971) • Brennan’s dissent: – “Is there anything inherent in the nature of capital sentencing that makes impossible the application of any or all of the means that have been elsewhere devised to check arbitrary action?” – Brennan thinks not – What do you think? McGautha v. California (1971) • Brennan’s dissent: – “What ends does any given State seek to achieve by imposing the death penalty?” • Retribution • Deterrence • Incapacitation – “Will those ends be served in any given case?” – Why, he asks, does the majority believe that these questions should NOT be put to jurors? McGautha v. California (1971) • Brennan’s dissent: – Hypothetical guidance: • The DP will only be applied to persons who have been previously convicted of first degree murder • The jury shall consider only whether the defendant appears to be an extremely high risk for repeating murder • Etc. – The California and Ohio statutes had no language about the purpose of the DP – But the constitution requires laws to be based on articulated policy purposes McGautha v. California (1971) • Brennan’s dissent: – “The Due Process Clause commands us . . . to make certain that no State takes one man’s life for reasons that it would not apply to another.” – Brennan thinks that un-guided juries lead to like cases not being treated alike McGautha v. California (1971) • The fundamental questions: – Should human beings be allowed by law to decide the fate of another human being? – What things should a person deciding life or death think about? – Is it possible to create understandable rules to guide the decider to adequately think about those things? – In other words, is there a set of rules that can apply to every decision about whether a killer should get life or death? – What types of murders and killers should be death worthy? Discussion Question • Factors in determining life or death: – Which types of homicide (if any) should be death eligible? – What background factors should matter? – What social policy factors should matter? – If you were a juror, what would you want to consider when deciding whether a person guilty of first degree murder should be executed or imprisoned for life? CJ 301: Law in Society • Now: – Defining law – The American legal system – Legal Realism • Next: – Durkheim Why do we Retain the Death Penalty? • • • • • • • American harshness? Religiousness? Individualism (choice)? Vigilantism (fear of state)? Victims’ advocacy? Gun culture? Bias? – Race/Class/Gender/SES Theories of Death Penalty Activity • Capital punishment in America has devolved to symbolism: – Justice John Paul Stevens said this is illegitimate • Debates about retention: – Deep, longstanding ideologies (individualism) – American polity (local politics) – American racism Racist Localism and Capital Punishment • Almost all there is to know about the USA’s death penalty is local, not national • Localism explains: – Its presence at all – Its Southern-ness – Its racism – Its deference to victims’ families – Its ‘broken-ness,’ etc. Racist Localism Parochialism (real and imagined fear of dangerous nonwhite outsiders) + Libertarianism (preference for individual autonomy, low taxes, few services, vigilantism, and dislike of state power) _______________ = Death sentences Current Legislative Activity • States continue to outlaw capital punishment, emplace moratoria, or restrict its usage • States continue to write laws to re-instate the death penalty or increase its usage What is Law? • Max Weber’s definition is good: – “an order will be called law if it is externally guaranteed by the probability that physical or psychological coercion will be applied by a staff of people in order to bring about compliance or avenge violation” (and we might add that they have legitimate authority to coerce). Where does law come from? • • • • • God? The Constitution? Custom? The State? The Popular Sovereign? Why is law so important? • • • • • Protects equality Creates consistency Establishes norms Reflects norms Provides a ‘language’ to discuss issues The State and the Law • Law implies a state and a government • Stateless societies have norms, customs, and other forms of social control, but not laws Civics • Legislative • Senate • House of Representatives • Executive • President • Judicial • USSC • Federal Courts U.S. Legal System • Examples of Other Systems: – Totalitarian states • Law flows from state priorities • E.g., China, North Korea, Cuba • Law can thus be inconsistent – Religious states • Law flows from God • E.g., Iran, Saudi Arabia • Law can thus be inconsistent U.S. Legal System U.S. Legal System • Common law system: – Stare Decisis (‘let the decision stand’) – Binding doctrines are developed through jurisprudence – England is the originator of common law systems – Courts share power with the executive and legislative – Adversarial criminal system U.S. Legal System • Cases are decided through syllogistic reasoning – Major premise: – Minor premise: – Conclusion: All humans are mortal Paul is human Paul is mortal • Or – Major premise: – Minor premise: – Conclusion: Murder requires intent The defendant planned to kill the victim The defendant is guilty of murder U.S. Legal System • By Contrast, Civil Law Countries (not to be confused with ‘civil law’ in the USA): – Law is almost entirely statutory – Very little ‘caselaw’ – Less ‘adversarial’ more ‘inquisitorial’ – Continental Europe (France and Germany) U.S. Legal System • Decentralization – Federalism – E.g, the 2nd Amendment case that outlawed a gun ban in Washington DC. District of Columbia v. Heller (2008) – Lots of variation in CJ law and CJ process – Hard to generalize about ‘American’ Criminal Justice – Vermont might have more in common with France than with Arkansas Federal Courts in the USA • District Courts – Federal trial courts – Federal crimes: e.g., crimes on national lands, terrorist crimes, counterfeiting, tax evasion, etc – Judges are appointed by the President and confirmed by the US Senate – In criminal cases, the prosecutor would be a U.S. Attorney and the defense would be a Federal Public Defender Federal Courts in the USA • Circuit Courts – Federal appellate courts – There are 11 Circuit Courts – CA is in ‘The Ninth Circuit’ • CA, AZ, NV, OR, WA, ID, MT, AK, HI – 90% of caselaw is determined here – Judges are appointed by the President and confirmed by the US Senate The Federal Circuits Federal Courts in the USA • United States Supreme Court – Highest court of appeal in the USA – Usually hears Circuit Court appeals and State Supreme Court cases – Has discretion to accept cases, usually taking only 10% or so – Usually takes cases to settle doctrinal differences between circuit courts – Judges are appointed by the President and confirmed by the US Senate Federal Courts in the USA Federal Courts in the USA Federal Courts in the USA State Courts in the USA • Generally: – Trial courts of limited jurisdiction • ‘Municipal Court’ • Misdemeanors – Trial courts of general jurisdiction • ‘Superior Court’ • Felonies – Appellate Court • State Supreme Court State Courts in the USA • San Diego has no Municipal Court – Judges are elected • California has two levels of state appeals: – Superior Court • Misdemeanors • Felonies – Appellate Courts • California Court of Appeal—Fourth District • California Supreme Court Federal Court Judges in the USA • All Federal Court Judges are appointed by the President of the USA and confirmed by Congress in hearings • This process gets big news when it is a USSC Justice • Less hype when a Circuit Court Judge—but Circuit Court Judges are extremely influential Constitutional Law • Due process: • The 5th and 14th Amendments guarantee that a person must be afforded due process if the government intends to take away his or her life, liberty, or property • Equal protection: • The 14th Amendment states that no state shall deny any person the equal protection of the laws, meaning that all persons must be treated equally when a law is applied Constitutional Law • Two basic interpretive approaches: – Originalism: • Narrow, literalist interpretation of the text, kind of like fundamentalist religious interpretation • Assumes that the ‘intention of the framers of the Constitution’ can be known for certain – Living Constitution: • Focuses on the principles in the Constitution and attempts to apply it to modern issues • ‘Liberty’ meant something different in 1791 than 2016 – Note that both of these are highly problematic and reflect the indeterminate nature of the legal system (more on this later in the class) Functions of Law • • • • • • • • Social control Dispute resolution Social change Allocating justice Symbolic gestures Human rights Declared functions v. unspoken functions But, what is functional for some might not be for others Features of Criminal Law • Criminal law v. civil law • Criminal law defines crimes and punishments • Criminal procedure defines how crimes are adjudicated (e.g., steps in a trial, jury selection, etc.) Features of Criminal Law • Elements of a crime: • Mens Rea • Actus Reus Features of Criminal Law • Affirmative Defenses: • • • • • Self Defense Duress Diminished capacity Insanity Etc. Purposes of Punishment • Utilitarian: – Deterrence – Incapacitation – Rehabilitation • Symbolic: – Retribution • Information gathering? • Sadistic pleasure? Legacies of Legal Theory • Divine law: – Law is derived from god and the morality in religious texts • Natural law: – Law reflects universal moral truths, but not necessarily based in religion • E.g., ‘murder is bad’ Legal Formalism • The Enlightenment – Era beginning in the 17th century – 18th century – Rationalism – Reason – Science – Bureaucracy – Law Legal Formalism • Legal formalism separates law from values and treats law from an empirical, scientific perspective as separate from morality • Law + Facts = Outcome • Individuals’ status’ should not matter • Law is separate from the influence of other aspects of the society • Of course, this is an ideal, not reality Sociological Jurisprudence • Roscoe Pound’s ‘Sociological Jurisprudence’ was a radical shift from Legal Formalism: – Pound shifted the emphasis away from ‘legal science’ to the idea that law should be understood in its social context – Law should be used as a tool of social engineering – He thought law should focus on its effects on actual people—not on its own internal logic Critique of Sociological Jurisprudence • The big criticism is that when you start thinking of law as a method for social change, you run into the problem of ‘rule of men’ not ‘rule of law.’ E.g., why should we trust judges to decide what is ‘good’ for society? – It’s undemocratic • Do you think that Pound’s view of law should prevail in the contemporary USA? Legal Realism: Fact Skepticism • What constitutes the relevant facts, after all? • Which facts are actually let into the case? • There is a major screening process that takes place prior to a court getting involved in facts – Police – Prosecutor • Then, the judge screens what gets to the jury Legal Realism: Rule Skepticism • The deciding of a case is based more on hunches, feelings, intuition, instinct, conviction or unconscious processes (e.g., extra-legal factors) • Ex post facto (after the fact) justifications or rationalizations can always be provided, based on some theory, doctrine, formula, rule or precedent which justifies the decision • Jerome Frank: ‘Case opinions are formal clothes in which the judge dressed up his thoughts’ Legal Realism • Focus on the ‘real’ reasons why judges decide cases rather than the ‘legal’ reasons • This question emerged at a time when huge variation in appellate court decisions became apparent – Partly simply due to technology • It became obvious that legal formalism did not determine the outcome of cases • ‘Indeterminacy’ Legal Realism Legal Realism Legal Relativity • Black’s theory of legal relativity shows how even indeterminacy has ‘rules’ • Law varies with the social distance between the parties in a case, their social elevation, and the social direction of the complaint • Whether the complaint is downward (against a social inferior), upward (against a social superior), or lateral (against a social equal) Legal Relativity • Principles of legal relativity: – The closest cases (as between members of the same household) and the most distant cases (as between members of different societies) attract the least legal attention – But within a single society, the more relational distance, the more legal attention • Despite the identical legal definition for first degree murder, stranger killings are treated as more serious than family killings Legal Relativity • The Code of Hammurabi and the Code of the Roman Empire explicitly prescribed different penalties for different offenders and victims, whether nobles, ordinary citizens, or slaves • Modern law obeys the same principles, but largely in the dark, unrecognized or ignored by the legal profession • Definitely not Law + Facts = Outcome Legal Relativity • Distance also matters in other realms of law – Rape – Negligence – Contract