May a death-row prisoner use 42 U.S.C. § 1983 to challenge a state’s proposed method of execution as cruel and unusual under the Eighth Amendment, when his proposed alternative method of execution is not presently authorized under the extant state law?

If the death penalty is racist, arbitrary and serves no valid penological purpose, does it violate the Kansas constitution? The Sedgwick County District Court will grapple with this question at an unprecedented evidentiary hearing beginning on April 11, 2022. The ACLU, together with the ACLU of Kansas and law firm Hogan Lovells US LLP, is challenging the Kansas death penalty statute under the Kansas Constitution and United States Constitution in the case of Kansas v. Cornell McNeal. Mr. McNeal is a Black man facing a capital trial in Sedgwick County, Kansas. Prosecutors are seeking a death sentence.

Whether the district court committed reversible error in excluding mitigating evidence that Dzhokhar Tsarnaev’s older brother had previously committed three brutal murders in the name of jihad, where the defense’s central mitigation theory was that he had acted under his brother’s influence and had a lesser role in the offense.

Whether Georgia violated due process or the Eighth Amendment when it required capital defendant Rodney Young to prove that he is intellectually disabled beyond a reasonable doubt in order to be protected from the death penalty.

The ACLU represents Dennis Glover a Black man who faces execution in Duval County Florida for killing a white woman named Sandra Allen. Prosecutors are seeking a death sentence. A jury will decide his fate. But, under current law and practices, it won’t be a jury of his peers. It will be a jury rigged, by race, for death. On February 17, 2022, the ACLU, on Mr. Glover’s behalf, filed a motion to ban the practice called “death qualification.”  Under this practice, all persons so opposed to execution that they could never consider voting for a sentence of life are automatically excluded as jurors. Studies show that this process whitewashes juries and biases them in favor of execution. For example, in in South Carolina, Louisiana, and California, this jury rigging has been shown, time and again, to disproportionately remove Black jurors. This ACLU motion relies on an original and path-making study of all available capital trials in Duval County since 2010, in 12 trials, involving over 800 jurors. The study demonstrates, as did prior studies in other locations, that death qualification in Duval County Florida has excluded Black potential jurors at a rate of more than twice as high as white potential jurors, and excludes other jurors of color at even higher rates. It also disproportionately excludes religious persons, including Catholics. These exclusions violate multiple protections set out in the Constitution, but, more fundamentally, the principle of equal justice under law. The State of Florida is opposing the motion. Despite the duty of prosecutors to seek justice rather than convictions and sentences, Florida prosecutors are in fact opposing all ACLU’s efforts to obtain further data and information relevant to the motion, including prosecutor jury-selection notes that we anticipate will only strengthen our legal claims. The prosecutors even oppose a defense motion seeking the judge’s permission to interview the excluded jurors. The next hearing date will be April 29, 2022.