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Defendants Begin Systemic Challenges to Constitutionality of Death Penalty

Lawyers for capital defendants and death row inmates across the country have begun to respond to what lawyers in one federal case described as the "clarion call for reconsideration of the constitutionality of the death penalty" issued by Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg in their dissenting opinion in June in Glossip v. Gross. Systemic challenges to the death penalty have been filed in a Vermont federal court and a Utah state trial court seeking hearings to present evidence that the death penalty is administered in a systemically cruel and unusual manner. A Pennsylvania defendant has likewise filed a petition in the U.S. Supreme Court seeking review of her claim that the death penalty is unconstitutionally arbitrary. Attorneys for Brandon Perry Smith allege that while their client and a very small number of other defendants face the death penalty for potentially capital crimes, approximately 150 Utah inmates received life sentences for similar offenses. They seek to depose all 29 of Utah's county attorneys to learn why prosecutors choose to seek the death penalty in certain cases but not others. Gary Pendleton and Mary Corporan, Smith's attorneys, wrote, "The infirmity of Utah's present scheme is apparent. The exercise of prosecutorial discretion becomes arbitrary and capricious by definition when the law establishes no basis for determining when a death-eligible murder, as defined by statute, is charged as a capital offense and when it is charged as a noncapital homicide." Citing the Glossip dissent, lawyers in the federal trial of Donald Fell in Vermont argue that the federal death penalty is unconstitutional because it is unreliable, arbitrary, and discriminatorily applied. They write that "Most places within the United States have abandoned its use under evolving standards of decency," and highlight evidence of significant racial and geographic inequities in the use of the federal death penalty, including that it is overwhelmingly imposed in a small number of states that are also disproportionately responsible for state death sentences. In Walter v. Pennsylvania, death-row prisoner Shonda Walter argues that the assumptions underlying the Supreme Court's reinstitution of the death penalty in the 1970s "have proved wrong, flawed, or illusory." She has asked the Supreme Court to review her claim that American "standards of decency have evolved to the point where the [death penalty] is no longer constitutionally sustainable." 


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EDITORIALS: USA Today Urges Life Without Parole for Dzhokhar Tsarnaev

On May 12, the editorial board of USA Today affirmed its opposition to the death penalty in an editorial urging that Dzhokhar Tsarnaev be sentenced to life without parole, rather than the death penalty, for his role in the Boston marathon bombing. "Laws aren't written for a single individual, and the death penalty applies to many people," the editorial said.  "Tsarnaev and other infamous defendants . . . demonstrate the penalty's arbitrary nature. While Tsarnaev has a superb legal team, most defendants get by with lawyers who are inexperienced, low-paid and often inept." USA Today noted that "[m]ore than 150 death-row prisoners have been exonerated since 1972" and many cases have been reversed because of "'intolerable' errors by the defense" and "prosecutors withholding evidence."  The editorial also criticized the death penalty as "discriminatory," saying that death sentences are more likely to be imposed if the defendant is poor or black or "most certainly" if the victim is white.  USA Today also questioned the purpose of capital punishment, saying "[t]here's no credible evidence that it deters crime. Tsarnaev certainly wasn't deterred by the execution of terrorist Timothy McVeigh, who took 168 lives in the 1995 Oklahoma City bombing." After describing the conditions of the federal supermax prison where Tsarnaev would serve a life sentence, the editorial concluded, "He deserves extreme punishment. But with the death penalty or without, that outcome is assured."


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The Difficulties in Selecting Impartial Jury for Boston Bombing Trial

According to a recent article in the New Yorker, it has been diffcult selecting a jury for the trial of Dzhokhar Tsarnaev, who is accused of the Boston Marathon bombing. Many of the 1,350 people who filled out a juror questionnaire have been eliminated from service based on their written answers. But even of those who remain, only a few have been found sufficiently impartial regarding Tsarnaev's guilt or innocence and on potential sentences, putting the selection process behind schedule. Eventually, 18 people - 12 jurors and 6 alternates - will be seated for the trial. Most of those questioned so far have said they believe Tsarnaev is guilty. The judge and lawyers must determine whether those people can set aside their opinions to fully consider the evidence presented at trial. One potential juror who was asked whether she could put aside her belief that the defendant is guilty, said, “I think it’s hard. Because if you have a belief in your head … it’s hard to set that aside. I can try to, but I can’t say that it wouldn’t influence my thinking. I don’t know that the brain works that way.” Because the death penalty is possible if Tsarnaev is found guilty, the jurors must also be willing to consider both capital punishment and life in prison. It is also difficult to arrive at an impartial jury because so many potential jurors have connections to the Boston Marathon or to people who were affected by the bombing.


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Neuroscience Research Indicates Susceptibility to Influence in Younger Defendants

A growing body of research into adolescent brain development indicates that the brains of even those over the age of 18 continue to physically change in ways related to culpability for criminal offenses. The Supreme Court referred to such scientific evidence regarding those under the age of 18 when it struck down the death penalty for juveniles in 2005 (Roper v. Simmons) and when it recently limited life without parole sentences for juveniles. According to Laurence Steinberg (pictured), a professor of psychology at Temple University, the brain continues a process called myelination into a person's twenties. That process affects planning ahead, weighing risks and rewards, and making complex decisions. This research may yield mitigating evidence for younger defendants, including accused Boston marathon bomber Dzhokhar Tsarnaev. Steinberg's research shows that someone like Tsarnaev, who was 19 at the time of the bombing, may not have the same understanding of his actions as an older adult would. Young adults are particularly susceptible to the influence of peers. “What we know is that this is an age when people are hypersensitive to what other people think of them. It’s also an age when people are trying to figure out who they are, and one way is by identifying with a group. There probably are similarities between the dynamics here and dynamics of antisocial or delinquent gangs. Older, more powerful young adults persuading younger adolescents to do their bidding for them,” Steinberg said. 


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