BOOKS: "The Case of Rose Bird," and the Continuing Power of Money in Judicial Elections
In 1986, California voters removed Rose Bird, the state's first female supreme court chief justice, from office after conservative groups spent more than $10 million in a recall effort that portrayed her as "soft on crime," emphasizing her court opinions overturning death sentences that had been unconstitutionally imposed. Ten years later, Tennessee Supreme Court Justice Penny White lost a retention election after death penalty proponents and other conservative groups targeted her for voting with the court majority in a 3-2 decision overturning a death sentence that had been imposed in a rape-murder case. Similar efforts to remove justices from state supreme courts in Kansas and Washington failed in the November 8, 2016 elections. As recent events illustrate the continuing power of money in judicial elections, a new book, The Case of Rose Bird: Gender, Politics, and the California Courts, chronicles Bird's career and the repeated efforts to remove her from office. A recent report from the Brennan Center for Justice suggests that outside money continues to play an outsized role in judicial elections today. The Brennan Center found that this year, TV spending in state supreme court races set a record of $19.4 million. Seventeen of the 20 groups that spent money on such elections this cycle do not disclose their donors, making it difficult to identify the people and groups weighing in on judicial races. But in Kansas, four of the five justices facing reelection were targeted for their decision to overturn the death sentences of Reginald and Jonathan Carr, and in the Washington Supreme Court retention election, business interests attempted to portray Justice Charlie Wiggins as "enabling predators." Both efforts to remove the justices failed. In Kansas, outside groups spent approximately $1.7 million on TV ads, but while a group calling itself Kansans for Justice attempted to oust the justices, another group called Kansans for Fair Courts spent almost equal amounts supporting retention. All five justices were reelected, but the four who were targeted by ads averaged about 56% support, as compared to 71% of the vote for the fifth justice, who was not the focus of TV ads. Alicia Bannon, Senior Counsel at the Brennan Center's Democracy's Program, said, "This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all."
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BOOKS: "Courting Death: The Supreme Court and Capital Punishment"
Courting Death: The Supreme Court and Capital Punishment by Harvard Law Professor Carol S. Steiker and University of Texas Law Professor Jordan M. Steiker examines the U.S. Supreme Court's "extensive—and ultimately failed—effort to reform and rationalize the practice of capital punishment in the United States through top-down, constitutional regulation." The authors argue that significant constitutional flaws persist in the death penalty system despite the Court's attempts to regulate it, and present the case for its abolition in the near future. In Harvard Magazine, Lincoln Caplan called Courting Death, "the most important book about the death penalty in the United States—not only within the past generation but, arguably, ever—because of its potential to change how the country thinks about capital punishment." The book explores the arbitrariness of the modern death penalty system, including racial and geographic disparities, and the Court's failure to adequately address those problems. In a review of the book for The Huffington Post, Michael Meltsner, a law professor at Northeastern University School of Law, describes the Steikers' concluding argument, saying, "After taking the reader through the Court’s failed project to rationally regulate the death penalty, the Steikers set out 'A Blueprint for Constitutional Abolition,' a path they believe builds, on precedent, takes seriously language used by Justice Anthony Kennedy, the key swing vote in many previous decisions narrowing the death penalty, and protects the Court from the another backlash of the sort that occurred after the Furman decision."
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BOOKS: Justice Breyer's Dissent in Glossip v. Gross, Edited and Contextualized
In a new book, Against the Death Penalty, Professor John Bessler of the University of Baltimore School of Law presents Justice Stephen Breyer's historic dissent in Glossip v. Gross, which questioned the continuing constitutionality of capital punishment in the United States, in a new format intended to make the opinion more accessible to a broad audience. "I tried to contextualize the opinion by doing a longer introduction which makes the opinion into a book and summarize what the other justices did in their opinions," Bessler told the National Law Journal. In his Glossip dissent, which was joined by Justice Ruth Bader Ginsburg, Breyer raised—and set forth a potential blueprint for answering—a number of questions concerning the constitutionality of the death penalty. Breyer wrote: "Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use." Bessler praised Breyer's efforts to make his dissent more widely available, saying, "One of the things Justice Breyer been really good at has been going out there with his books, trying to engage the public about the importance of the law and the Constitution. He wants to get his ideas out. ...I think this will be picked up and read by people and, hopefully, they will get a better understanding of the Eighth Amendment and the death penalty itself."
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BOOKS: "Race and the Death Penalty: The Legacy of McCleskey v. Kemp"
In a landmark ruling in McCleskey v. Kemp in 1987, a bitterly divided U.S. Supreme Court voted 5-4 vote that statistical evidence of racial discrimination in the application of the death penalty was insufficient to overturn an individual death sentence. A new book, Race and the Death Penalty: The Legacy of McCleskey v. Kemp, edited by David P. Keys, associate professor of criminal justice at New Mexico State University and R.J. Maratea of the Youth Research and Resource Center, Inc. explores the lasting effects of the McCleskey ruling. Race and the Death Penalty contains 12 chapters by death penalty experts, each discussing a different aspect of race in the post-McCleskey death penalty system, including research on the racial disparities in capital sentencing that persist today. In a review, Scott William Bowman, Assistant Professor of Criminal Justice at Texas State University, said the book "does a marvelous job of balancing the historical and contemporary narratives of how race and racism interact with the ongoing application of the death penalty.... Keys and Maratea have rejuvenated the dialogue."
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BOOKS: "Executing Grace"
In his new book, Executing Grace, evangelical Christian speaker, activist, and author Shane Claiborne weaves together personal narratives, theology, and research to make a Christian case against the death penalty. Claiborne says "[t]he death penalty did not flourish in America in spite of Christians but because of us." Arguing that "[w]e can't make death penalty history until we make death penalty personal," he tells the stories of people affected by the death penalty in a variety of ways: family members of murder victims, executioners and corrections officers, death row exonerees, and death row inmates. Each chapter closes with an individual story he calls "Faces of Grace." Claiborne also explores biblical history and the Bible's teachings on capital punishment, forgiveness, and mercy. Archbishop Desmond Tutu said, "In these pages, Shane Claiborne exposes the harm that the death penalty does to us as humans–to executioners, judges, governors, to the convicted and the exonerated, and to all of us as citizens. Here is an invitation to build a world where we reject all forms of killing, both legal and illegal. It is a call to join a movement where grace gets the last word. Shane Claiborne’s brilliant book reminds us that without forgiveness, there is no future.”
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BOOKS: "13 Ways of Looking at the Death Penalty"
The recent book, 13 Ways of Looking at the Death Penalty, by Mario Marazziti, explores the United States' continuing use of the death penalty in a world community that is increasingly rejecting the practice. The Philadelphia Inquirer calls the book "an interesting, compelling look at the cultural and religious underpinnings of the death penalty and how we got here. More important, [Marazziti's] interviews with U.S. death-row inmates - living and now-deceased - their survivors, and their victims' families highlight the gray of a subject too many paint in black and white." Marazziti, who was deeply involved in the efforts that led the United Nations to call for a global moratorium on capital punishment, draws on his experiences as a co-founder of the World Coalition Against the Death Penalty and as spokesperson for the Community of Sant'Egidio, a progressive Catholic organization based in Rome. Pope Francis' appeal last month for Catholic government officials to work to halt all executions during the Church's Holy Year of Mercy came on the eve of an international conference against the death penalty organized by the Sant'Egidio Community. Marazziti's book includes research, personal narratives of those directly affected by the death penalty, and Marazziti's own reflections on the issue. Archbishop Desmond Tutu said, "13 Ways of Looking at the Death Penalty by Mario Marazziti is a deeply moving and cogently argued account of why an abominable practice should be abolished. The death penalty dehumanizes those who use it. Its mistakes cannot be corrected."
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BOOKS: "Confronting the Death Penalty: How Language Influences Jurors in Capital Cases"
In her new book, Confronting the Death Penalty: How Language Influences Jurors in Capital Cases, Marshall University Anthropology Professor Robin Conley examines "how language filters, restricts, and at times is used to manipulate jurors' experiences while they serve on capital trials and again when they reflect on them afterward." Conley spent fifteen months in ethnographic fieldwork observing four Texas capital trials and interviewing the jurors involved. She analyzes the language used in those trials, as well as written legal texts, to gain a greater understanding of how jurors go about making the decision for life or death. She also explores the questioning jurors undergo as to their beliefs about the death penalty, characterizing it as "socialization into killing." She writes that death penalty trials involve a number of communication practices - such as "dehumanizing references to defendants that stymie empathy between them and jurors, written and oral instructions that allow jurors to deny their personal involvement in defendants' deaths" - that create distance between jurors and defendants and "deny the humanistic side of legal decision-making." In the book's conclusion, she writes of the importance of this type of language for the maintenance of the death penalty: "It is the words with which attorneys address potential jurors during voir dire, the written instructions on which jurors rely in the deliberation room, and the talk about defendants throughout the trial that maintain the persistent operation of the death penalty. By subverting other forms of experience, moreover, particular, authoritative modes of language allow jurors to send defendants to their deaths."
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