October 25, 2012
General
- Richard C. Dieter, Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976 (Death Penalty Information Center, D.C.), July 2011.
- Richard C. Dieter, Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis (Death Penalty Information Center, D.C.), Oct. 2009.
- Richard C. Dieter, A Crisis of Confidence: Americans’ Doubts About the Death Penalty (Death Penalty Information Center, D.C.), June 2007.
- Michael L. Radelet & Traci L. Lacock, Do Executions Lower Homicide Rates?: The Views of Leading Criminologists, J. Crim. L. & Criminology 99 (2009): 489-508.
- Radelet and Lacock survey the world’s leading criminologists on whether their empirical research supports the often-raised contention that the death penalty acts as a super deterrent. The criminologists overwhelmingly agree that capital punishment does not deter more than long-term imprisonment.
- James R. Acker, Be Careful What You Ask For: Lessons from New York’s Recent Experience with Capital Punishment, 32 Vt. L. Rev. 683 (2008).
- Acker explores arguments for and against capital punishment, discusses the failure of New York’s briefly reinstated death penalty, and questions the racial and socio-economic inequities in the American death penalty system.
- Rob Warden, How and Why Illinois Abolished the Death Penalty, 30 Law & Ineq. 245 (2012).
- Roger Hood & Carolyn Hoyle, Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic,” 38 Crime & Just. 1 (2009).
- Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases: An Update and Possible Half-Requiem, 2011 Mich. St. L. Rev 293 (2011).
- Radelet discusses judicial overrides of jury sentencing recommendations in Florida since 1992 and suggests the existence a “half-requiem” for the state’s override system, which has not been used by a judge since 1999.
- Valena E. Beety, The Death Penalty: Ethics and Economics in Mississippi, 81 Miss. L.J. 1437 (2012).
- Beety analyzes Mississippi’s potential willingness to reevaluate its death penalty system in light of budget woes and prison growth. She reviews the history of capital punishment in Mississippi, explores whether court justices who oppose the death penalty are influenced by economics or ethics, examines the political climate surrounding the state’s death penalty and prison growth in light of economic woes, discusses the cost of the death penalty, compares Mississippi to similarly-situated states, and examines two cases that shed light on the fiscal impact of the death penalty.
- Elizabeth Rapaport, A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012).
- Rapaport states, “The long delays between pronouncement of sentence and execution, and the considerable uncertainty about whether any condemned man or woman will be executed in our system of capital punishment, have given rise to a new form of cruelty unknown to our ancestors. Delay is not aberrant but normal. It cannot be purged from the system without doing unacceptable violence to constitutionally mandated due process.”
Clemency
- Since 1976, 272 death row inmates have been granted clemency for humanitarian reasons, including doubts about the defendant’s guilt or the governor’s reservations about the death penalty process. (Death Penalty Information Center)
- Lise Olsen, Clemency Rare on Texas’ Death Row, Hous. Chronicle, Oct. 17, 2009 (noting that in his first nine years as Texas Governor, Rick Perry never spared a life using his power of clemency).
- Greg Bluestein, Pardons Board Grants Clemency to Condemned Ga. Man, Associated Press, Apr. 20, 2012.
- Austin Sarat, Mercy, Clemency, and Capital Punishment: Two Accounts, 3 Ohio St. J. Crim. L. 273 (2005).
- Austin Sarat, Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State, 41 Law & Soc’y Rev. 183 (2008).
- Sarat examines clemency petitions from Texas and Virginia and argues that they may serve an unintended function: that of memorializing and archiving stories of “law’s failures, of alleged breakdowns in the legal process, of a legal process in disrepair, as well as of racial prejudice, of lives shattered by violence and neglect, of remorse, rehabilitation, and redemption.”
Counsel
- Cara H. Drinan, The Revitalization of Ake: A Capital Defendant’s Right to Expert Assistance, 60 Okla. L. Rev. 283 (2007).
- Drinan explains the under-utilization of Ake v. Oklahoma, which guaranteed indigent capital defendants access to expert assistance at trial and sentencing, and she describes the possible consequences of a more stringent application of that guarantee.
- Celestine R. McConville, The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel, 42 Tulsa L. Rev. 253 (2006).
- McConville addresses the importance of the right to postconviction counsel in capital cases to protect against wrongful execution and criticizes Alabama for failing to meet its acquired constitutional duty, under the Due Process Clause, to provide meaningful capital postconviction counsel.
- William Redick et al., Pretend Justice--Defense Representation in Tennessee Death Penalty Cases, 38 U. Mem. L. Rev. 303 (2008).
- The authors examine the quality of capital representation in Tennessee and argue that the state fails to provide effective counsel in capital cases. They point to insufficient qualification standards, compensation, and resources for capital attorneys, as well as inequalities in the allocation of resources to defense attorneys and prosecutors as causes.
- Ronald J. Tabak, The Private Bar’s Efforts to Secure Proper Representation for Those Facing Execution, 29 Justice System Journal 356 (2008).
- Tabak describes the activities of the American Bar Association and other groups in working to provide and guarantee post-conviction counsel for those facing execution.
Executions
Innocence
- Carlos DeLuna: In 2012, an investigation published by the Columbia Human Rights Law Review outlined the case of Carlos DeLuna, a man who was executed by the State of Texas in 1989 for a murder that he likely did not commit. Read more about DeLuna’s case:
- Cameron Todd Willingham: In 2004, the State of Texas executed Cameron Todd Willingham for the murder, by arson, of his three young children. In 2009, The New Yorker published an investigative report by David Grann that shed new light on Willingham’s case and raised the strong possibility that Willingham was not guilty.
- Troy Davis:
- Jeffrey L. Kirchmeier, Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution, 42 Tulsa L. Rev. 403 (2006).
- Kirchmeier examines the role of innocence and wrongful executions in efforts to abolish the death penalty, probes the issue of whether the United States has ever executed an innocent person, and chronicles specific cases that raised claims of wrongful execution.
- "Faces of Wrongful Conviction" 37 Golden Gate U. L. Rev. 1 (2006)
- Samuel Gross et. al., Exonerations in the United States, 1989 through 2003, J. Crim. L. & Criminology, Vol. 95, No. 2, 2005.
- The authors examine 340 exonerations from 1989 to 2003, one quarter of which involved defendants sentenced to death, a figure that is vastly disproportionate to death row inmates’ share of the American prison population.
- Arnold H. Loewy, Given That We Know We Sometimes Convict Innocent People, What, If Anything, Does That Say About the Death Penalty?: The Death Penalty In a World Where the Innocent are Sometimes Convicted, 41 Tex. Tech L. Rev. 187 (2008).
- Loewy argues that the United States has almost certainly executed innocent persons and will continue to do so unless we eliminate the death penalty, which he deems unjustifiable in light of the dubious merits of capital punishment even when imposed only on the guilty.
- Michael L. Radelet, The Role of the Innocence Argument in Contemporary Death Penalty Debates, 41 Tex. Tech L. Rev. 199 (2008).
- Radelet examines the relationship between our increasing information about wrongful convictions and the declining popularity of capital punishment. He argues that data on wrongful convictions and racial bias undermine the death penalty’s validity and pave the way for a reconsideration of capital punishment.
Race and Capital Punishment
- North Carolina v. Robinson – Order, April 20, 2012. In a historic ruling, a North Carolina judge found intentional and systemic discrimination by state prosecutors against African-American potential jurors in capital cases and commuted the sentence of death-row prisoner Marcus Robinson to life in prison without the possibility of parole.
- Racial Bias in Death Penalty Cases Gets Ohio Supreme Court’s Attention, City Beat, July 19, 2012.
- Andrew Welsh-Huggins, Ohio Death Penalty Committee Looks at Racial Bias, SFGate.com, July 19, 2012.
- Seth Kotch & Robert P. Mosteller, The Racial Justice Act and the Long Struggle With Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031 (2010).
- Kieran J. Platt, Precious Lives: Who Lives and Who Dies in America's Contemporary Capital Punishment Complex, SSRN 2035809 (2012).
- Platt discusses the persistence of racial discrimination in post-Gregg reformed death penalty systems. He argues for a paradigm shift in death penalty rhetoric towards a sociological instead of empirical or econometric approach, describes the historical context of racial disparities in capital punishment, and calls for a moratorium.
- Scott Phillips, Racial Disparities in the Capital of Capital Punishment, 45 Hous. Law Rev. 807 (2008).
- Phillips investigates the impact of race on the Houston District Attorney’s decision to pursue the death penalty and the jury’s decision to impose a death sentence in Harris County, Texas capital murder cases from 1992 to 1999. He finds that race of both defendant and victim are pivotal in the imposition of capital punishment.
- Michael L. Radelet & Glenn L. Pierce, Race and Death Sentencing in North Carolina, 1980-2007, 89 N.C. L. Rev. 2119 (2011).
- Radelet and Pierce examine data on 15,000 North Carolina homicides from 1980 to 2007 resulting in 352 death sentences and find that race of suspect and victim impact the frequency of capital punishment.
- Michael J. Songer and Isaach Unah, The Effect of Race, Gender, and Location on Prosecutorial Decision to Seek the Death Penalty in South Carolina, 58 S. C. L. Rev. (Nov. 2006).
- Songer and Unah analyze South Carolina prosecutors’ decisions about whether or not to seek the death penalty between 1993 and 1997; they find that “non-legal cues” such as race, gender, and location of the crime “strongly condition” those decisions, along with the political context facing the state’s elected prosecutors.
- Stephanie Hindson et al., Race, Gender, Region and Death Sentencing in Colorado, 1980-1999, 77 U. Colo. L. Rev. 549 (2006).
- The authors examine the administration of the death penalty in Colorado over several decades, identifying cases in which defendants were sentenced to death and cases in which the death penalty was sought, and comparing the race and gender of all homicide victims with the race and gender of the victims in the identified cases. They find that the death penalty is most likely to be sought when a homicide victim is a white female, and that the death penalty is 4.2 times more likely to be sought for defendants charged with killing whites than defendants charged with killing blacks.
- Glenn L. Pierce and Michael L. Radelet, The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, 46 Santa Clara L. Rev. 1 (2005).
- Pierce and Radelet examine the racial, ethnic, and geographical variables that impacted the imposition of the death penalty in California from 1990 to 1999.
- Glenn L. Pierce and Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008, 71 La. L. Rev. 647 (2011).
- Pierce and Radelet compare all first-degree murder cases in East Baton Rouge Parish from 1990 to 2008 and identify a strong pattern of treating different homicides in varied manners based on victim race.
Mental Health
- Jean Mattimoe, The Death Penalty and the Mentally Ill: A Selected and Annotated Bibliography, 5 the crit: Critical Stud. J. 1 (2012).
- Mattimoe provides a comprehensive listing of articles and resources related to the death penalty and mentally ill inmates.
- Michael Mello, Executing the Mentally Ill: When is Someone Sane Enough to Die?, 22 Crim. Just. 30 (2007-2008).
- Mello presents his personal experience as an attorney working on the appeal in Ford v. Wainwright, and he explores the question of when someone is insane enough to be executed under the Supreme Court’s standing jurisprudence.
- Richard J. Bonnie, Mentally Ill Prisoners on Death Row: Unsolved Puzzles for Courts and Legislatures, 54 Cath. U. L. Rev. 1169 (2005).
- Bonnie looks at the plight of mentally ill defendants after sentencing and argues that execution of mentally ill prisoners should be prohibited in three circumstances: (1) when a defendant’s diminished comprehension of their situation and punishment renders them incompetent under Ford v. Wainwright; (2) when a defendant’s mental illness impedes their ability to assist in their own defense or attempts at post-conviction relief; and (3) when a defendant wishes to waive their right to post-conviction review.
- Richard J. Bonnie, Panetti v. Quarterman: Mental Illness, the Death Penalty, and Human Dignity, 5 Ohio St. J. Crim. L. 257 (2007).
- Bonnie comments on the Supreme Court’s ruling in Panetti v. Quarterman that a delusional mentally ill prisoner who is aware that the state plans to execute him is not, based solely on that finding, competent to be executed under the Eighth Amendment.
- Bethany C. Bryant, Comment, Expanding Atkins and Roper: A Diagnostic Approach to Excluding the Death Penalty as Punishment for Schizophrenic Offenders, 78 Miss. L. J. 905 (2009).
- Bryant compares individuals suffering from schizophrenia with individuals diagnosed with mental retardation under the framework of Atkins v. Virginia and Roper v. Simmons, concluding that schizophrenic offenders also should not be subjected to the death penalty.
- Rebecca J. Covarrubias, Comment, Lives In Defense Counsel's Hands: The Problems and Responsibilities of Defense Counsel Representing Mentally Ill or Mentally Retarded Capital Defendants, 11 Scholar 413 (2008-2009).
- Covarrubius examines the plight of death row inmates who suffer from serious mental illnesses that would exempt them from execution but have been overlooked because of the difficulty in identifying them as mentally ill.
- Lyn S. Entzeroth, The Challenge and Dilemma of Charting a Course to Constitutionally Protect the Severely Mentally Ill Capital Defendant from the Death Penalty, 44 Akron L. Rev. 529 (2011).
- Entzeroth explores which capital defendants should qualify or be exempt from execution under the framework established by the Supreme Court in Atkins v. Virginia, Roper v. Simmons, Kennedy v. Louisiana, and Panetti v. Quarterman. She concludes that a death penalty exemption for those with severe mental illness must necessarily depend not only on the Court’s Atkins-Roper framework, but also on state legislative advocacy.
- Lyn S. Entzeroth, The Illusion of Sanity: The Constitutional and Moral Danger of Medicating Condemned Prisoners in Order to Execute Them, 76 Tenn. L. Rev. 641 (2009).
- In this article, Entzeroth considers death row inmates who would be exempted from execution based on the Supreme Court’s holdings in Ford v. Wainwright and Panetti v. Quarterman, but whose mental illnesses have been mitigated by voluntary or involuntary use of antipsychotic medication. She concludes that the Eighth Amendment’s prohibition on executing mentally ill inmates should be extended to apply to those who would be insane but for medication.
- Nita A. Farahany, Cruel and Unequal Punishment, 86 Wash. U. L. Rev. 859 (2009).
- Farahany argues that the death penalty exemptions carved out by the Supreme Court in cases like Atkins and Roper put the Eighth Amendment ban on cruel and unusual punishment in direct conflict with the Fourteenth Amendment’s Equal Protection Clause. She describes how category exemptions have led to an arbitrary and unequal application of the Eighth Amendment.
- Anthony E. Giardino, Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury, 77 Fordham L. Rev. 2955 (2009).
- Giardino argues that combat veterans suffering from service-related post-traumatic stress disorder should be treated with special consideration in determinations about whether or not to impose the death penalty.
- Elizabeth Rapaport, A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012).
- Rapaport states, “The long delays between pronouncement of sentence and execution, and the considerable uncertainty about whether any condemned man or woman will be executed in our system of capital punishment, have given rise to a new form of cruelty unknown to our ancestors. Delay is not aberrant but normal. It cannot be purged from the system without doing unacceptable violence to constitutionally mandated due process.”
