Spring 1997, Volume XII, Number 2
The Death Penalty
Teaching about the Death Penalty
Editor: I'd like to turn the discussion toward pedagogy, as we wind down toward the end of our talk. Teaching and student learning is one of the special missions of the ABA's College and University Program and Focus on Law Studies, in particular. How do you teach about the death penalty? What are the opportunities and pitfalls?
Leigh Bienen: I think the death penalty is a very rich topic for teaching in law and the social sciences and the humanities, because it is truly a crosscutting issue. The legal issues are technical, complicated, and involve statutes, cases, rules, federal and state law, and everything else. The social science questions are profound, and the philosophical and humanitarian issues are very sharp on both sides.
John McAdams: The issue of whether the death penalty has any deterrent effect is a classic one for any course on social science research methods. All the issues are there. First, how does one define the variable "death penalty" (on the books versus actual use)? Second, how do we deal with simultaneous causality (i.e., the death penalty's impact on the murder rate versus the impact of the murder rate on demand for the death penalty)? Third, can we sort out the influence of confounding variables (multivariate analysis helps, but it often ignores cultural differences)? Finally, what about lack of variance in the key variable (the death penalty rarely has been imposed)? All these compelling questions and accompanying measurement problems can be explored in a research methods course.
James Acker: I have found it rewarding to teach semester-length classes on the death penalty. One of the challenges is to capitalize on the emotions that typically drive students' initial views, by channeling them into more systematic lines of inquiry. I think it would be a mistake, and probably futile, to try to squelch these sentiments. Death penalty classes usually succeed precisely because they are comprised of groups of individuals with sharply different views, anchored by others who pose equally challenging questions and represent unique points of view.
James Coleman: Like Acker, I also teach a semester-long seminar (which I have taught since 1989). My students at Duke come with many different views on capital punishment. Over the course of the semester, all of the students find themselves revisiting things they began the semester firmly convinced of. For the last two years, I have added a very successful clinical component to the seminar, co-taught by a colleague. Students on all sides of the death penalty agree that working with an actual defendant on real issues brings alive what we discuss in class.
Dane Archer: I have included capital punishment in a course on violence and crime. In one part of the course, students have a chance to meet violent offenders from a nearby California Youth Authority facility. Many initially "progressive" students find themselves unexpectedly embracing the penal goals of incarceration and incapacitation, even if they are not persuaded that prisons are otherwise effective (e.g., rehabilitation). When we then examine the debates regarding the death penalty, I have the students break into small discussion groups to try to identify the different purposes that are (or might be) served by executions -- specific deterrence, general deterrence, retaliation, economics, psychological respite for the victims, etc. I find that this approach sensitizes students to the underlying issues surrounding the purposes that can be served by punishment in general, and the death penalty in particular.
Leigh Bienen: In my Homicide course, I spend a good bit of time on the capital punishment statutes, especially the statutory aggravating and mitigating factors and their use of language. I find this a useful teaching device. In my Persuasion course, I ask the students to look at capital punishment opinions as if they were literary texts, in terms of the persuasive aspects of the opinion. One problem with teaching capital punishment is how to deal with the negative materials -- the brutality, the indifference of the judicial system, the pervasive violence, the tolerance for injustice, characteristics of the criminal justice system that are magnified in capital punishment.
Editor: How do students respond in the classroom? Are their views fixed or fluid? Do their attitudes get in the way of the topic?
James Acker: Students who start out firmly in the pro-death penalty camp often become troubled by the issue of executing innocent people, or by evidence of race discrimination, or by the quality of lawyering in some cases, or by the Supreme Court's apparent retreat from meaningful policing of death penalty systems. Students who are strongly against the death penalty often are given pause when they confront the brutal case facts involved in capital murders, or issues of serial killers or life term prisoners who kill, or when asked to contemplate alternative punishments that strike the right combination of justice and social utility. Students who find themselves without strong convictions perpetually agonize, probably more deeply than the strong pro- and anti-death penalty students. I find very few to be indifferent. Some minds are hopelessly closed and will not entertain diverse perspectives or struggle with evidence contrary to their beliefs, but by and large the discussions that evolve over the course of a semester, and the growth that many students do evidence, give me confidence that most students are willing and able to test their views and to think about the issues in academically rigorous fashion. I would be less optimistic about unsettling preconceived notions about the death penalty, if only a class or two is devoted to the subject.
John McAdams: I teach the death penalty in about two weeks of a broader Public Policy course, where expecting students to fully examine and reconsider their own views is simply too ambitious. I try to convey a few points, to which students seem quite open: (1) the issue is more complex than they think; (2) the empirical evidence is unclear; and (3) there are real possibilities of unintended consequences. Students are not resistant to these points, probably because none of them challenge students on the basic social values that determine their views of the death penalty. I don't ask students to express an opinion pro or con on the death penalty, and I very much doubt that any students change their minds. What I hope for is a bit more subtle and nuanced opinions, but not different opinions.
Dane Archer: I encourage students to examine their own views about the death penalty to learn what kind of pro-executionist or abolitionist they are. Why do they support the death penalty, and what purposes do they believe it serves? Why do they oppose the death penalty, and what harm do they believe it causes? In either case, I encourage students to articulate what kinds of empirical evidence would provide support for their views.
James Coleman: Our students feel comfortable disagreeing with each other about issues we discuss. I think that is critical to a successful seminar. Students who favor the death penalty do not feel reticent about expressing their views, and those who oppose the death penalty try to deal with the legal issues on the merits, rather than resort to moral or politically correct positions.
Editor: How do your own beliefs and attitudes about the death penalty influence your teaching?
James Acker: From a teaching perspective, I continuously am reminded that reasonable people can and do disagree about capital punishment on all levels, from emotional to intellectual. These reminders make it difficult to get lazy, or even entirely comfortable with the treatment of given issues. Because the issues can be supercharged, I find myself playing -- more than usual -- the role of devil's advocate, in an attempt to not let people (or myself) rest easy with the last statement made.
James Coleman: Like Acker, I also play the devil's advocate, but students know what my position is on the death penalty. We all try not to let our personal views prevent us from discussing the issues and respecting and listening to each other's views.
Editor: What are 2 or 3 of the best books for teaching about the death penalty? Why are they particularly effective with students.
Jim Acker: My top three books for teaching are: (1) Coyne & Entzeroth, Capital Punishment and the Judicial Process (Carolina Academic Press, 1994). This is the only casebook, to my knowledge, that covers the death penalty. It presents major cases and has interesting discussion notes. (2) Victor Streib (ed.) A Capital Punishment Anthology (Anderson Press, 1993). This edited collection presents excerpts from numerous law review articles, which cover the range of law, philosophy, and empirical aspects of the death penalty. The recent editions of this book now come with a disk, on which Streib presents edited cases and other materials, an invaluable addition for those who use electronic teaching materials. (3) Hugo Bedau (ed.), The Death Penalty in America (Oxford University Press, 1983, 3d ed.) remains the classic (though now somewhat dated) collection of historical, legal, and empirical articles about the death penalty, with a few edited cases. There are many more books, of course, that might be appropriate for classes with different objectives.
Shari Diamond: Greenhaven Press recently published a book on the death penalty as part of its "opposing viewpoints" series, which would be useful as a supplement in courses not specifically focused on capital punishment. Death Penalty (Paul Winters, ed.) is a collection of short essays by researchers, judges and journalists on issues from deterrence to equity. Though short on the social scientist's point of view, the book is great for setting out the various positions that this controversial topic has stimulated.
Leigh Bienen: In my Persuasion course, I am currently teaching Mikal Gilmore's Shot in the Heart (Doubleday/Anchor Books, 1994) as my death penalty book. I find it a very powerful, well-written book that describes the family background and institutional history of Gary Gilmore. I have also used Helen Prejean's Dead Man Walking (Vintage Press, 1993), which is very good in showing law students a side of the death penalty that most of them had not considered (the popularity of this book and the movie have made that less true in 1997 than in 1995).
Austin Sarat: One of the best books for teaching about the death penalty is Truman Capote's In Cold Blood (Random House, 1965). It gives a deep and rich sense of who the killers are and why they did what they did, as well as a nice portrait of their trials, their lives on death row, and their execution. Another good book for teaching purposes is Lesser's Pictures at an Execution (Harvard University Press, 1993). This book picks up the important question of how, if at all, the death penalty differs from murder. It provides a nice overview of literary treatments of capital punishment while focusing on the Harris execution, California's first post-Furman.
Spring 1997 Issue Home | The Death Penalty: A Scholarly Forum
Arbitrariness and the Death Penalty | Race and the Death Penalty
Victims and the Death Penalty | Purposes of the Death Penalty
Teaching about the Death Penalty | Conclusion and Participants List
Unedited Death Penalty Forum
ABA Calls for Moratorium | Policy, Statistics, and Public Opinion
Multidisciplinary Teaching about the Death Penalty
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