STUDIES: Racial Disparities in the Capital of Capital Punishment

A new study published in the Houston Law Review, “Racial Disparities in the Capital of Capital Punishment,” explores the relationship of race to death sentencing in Harris County (Houston), Texas. In the study, Prof. Scott Phillips of the University of Denver explores patterns involving the race of both victims and defendants, while controlling for other variables. Phillips concludes death sentences were more likely to be imposed in cases with white victims than in those with black victims, and that death sentences were more likely to be imposed on black defendants than on white defendants in the county.

With respect to the defendant bias, which has not appeared in some other race studies, Phillips found "The DA pursued death against black defendants and white defendants at the same rate, but controlling for confounders revealed the disparate treatment of black defendants. The apparent equal treatment is misleading because black defendants committed murders that were less “serious” along several dimensions. Despite the fact that the DA was considerably more likely to pursue death against black defendants, juries were slightly more likely to impose death against white defendants. Presumably, the jurors' behavior is a response to the DA's occasional overreaching against black defendants. The net effect is that juries attenuate, but do not eliminate, disparities between black and white defendants that originate in the DA's office."

(S. Phillips, “Racial Disparities in the Capital of Capital Punishment,” 45 Houston Law Review 807 (2008)). See Studies, Law Reviews, and Race.

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NEW RESOURCES: The Supreme Court’s Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier

Professor Bruce Winick of the Miami School of Law has written an article arguing that the Supreme Court should extend the protection it presently offers to those with mental retardation and juveniles to offenders with severe mental illness, as well. In The Supreme Court’s Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier, Winick reviews the High Court’s analysis of capital punishment under the Eighth Amendment with a focus on when the Court has found the death penalty disproportionate to the crime or for the offender. While Winick argues that the Supreme Court is not prepared to render the death penalty itself as cruel and unusual, he concludes that, “At least some (although by no means all) offenders suffering from severe mental illness, like those with mental retardation and juveniles, will have sufficiently diminished culpability and deterability at the time of the offense to render capital punishment a disproportionate penalty under the Eighth Amendment.”

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NEW RESOURCES: The Private Bar’s Efforts to Secure Proper Representation for those Facing Execution

Civil rights litigator and death penalty expert Ronald J. Tabak recently published “The Private Bar’s Efforts to Secure Proper Representation for those Facing Execution” in the Justice System Journal. The article presents an in-depth review of the American Bar Association’s (ABA) role in ensuring effective counsel in capital cases. Tabak recounts the ABA’s efforts since the mid-1980’s to secure competent representation at every state of legal proceedings, stating that “someone without counsel has little chance of securing redress for constitutional violations that may have tainted a conviction or death sentence.”

The article explores the particular problem that exists because the Supreme Court has not recognized a right to counsel in post-conviction proceedings. Death-sentenced inmates may lack representation after their trial and direct appeal even though the legal proceedings that follow would offer opportnities to challenge their convictions and death sentences. Mr. Tabak discusses the ABA’s efforts to find pro bono lawyers to represent death-sentenced inmates in post-conviction proceedings, federal habeas corpus proceedings, and clemency proceedings. “Dealing with the issues specific to capital cases, whether arising from the trial record or requiring further investigation, requires an expertise far beyond that of most criminal law practitioners--not to mention the civil lawyers who predominate among the volunteers whom the ABA recruits,” explains Tabak. If lawyers do not understand the complex procedures and rules of capital cases, it "can literally prove fatal to clients.”

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NEW RESOURCES: Symposium: The Lethal Injection Debate: Law & Science

The Fordham Urban Law Journal has published a series of articles based on a symposium on lethal injection that was held at Fordham Law School in March 2008.  The issue includes articles by Professor Deborah Denno of Fordham, a leading historian and expert on methods of execution, Judge Jeremy Fogel, a federal judge overseeing the challenge to lethal injection in California, Judge Fernando Gaitan, a federal judge who oversaw the challenge to Missouri's lethal injection process, and articles by doctors and other experts who spoke at the symposium.
("Symposium: The Lethal Injection Debate: Law and Science," 35 Fordham Urban Law Journal 701 (2008)).  See Richard Dieter's (DPIC Executive Director) contribution to the symposium.  See also Lethal Injection and Law Reviews.

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NEW RESOURCES: The Absence of Adequate Counsel in Alabama Death Penalty Appeals

Professor Celestine Richards McConville explores the plight of inmates on Alabama's death row who face execution despite being denied adequate representation for key parts of their appeal in her law review article, "The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel.” The article is part of a University of Tulsa Law Review symposium issue on "The Death Penalty and the Question of Actual Innocence." The article points out that Alabama’s courts will not grant counsel to a death row inmate in post-conviction appeals until after the petitioner files the petition and survives a challenge from the state for summary dismissal of the appeal. Prof. McConville argues that those are two very difficult tasks to accomplish without representation.

The author states that Alabama’s system of “forcing indigent capital inmates to run the post-conviction course alone--even for a brief time--undermines the very purpose of granting post conviction counsel in the first place.” She adds that, “Alabama’s system provides nothing more than an empty promise” and does not protect the rights of capital inmates.
(C. McConville, “The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel,” 42 Tulsa Law Review 253 (2006)). See Law Reviews.

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NEW RESOURCE: Revitalization of a Capital Defendent's Right to Expert Assistance

A recent law review article argues that capital defendants' right to expert assistance would grow stronger through the revitalization of the 1983 Supreme Court decision in Ake v. Oklahoma. The author explains that recent court decisions and the revised American Bar Association Guidelines for the Appointment and Performance of Defense Council in Death Penalty Cases “offer the hope that the theoretical entitlement of Ake will be fully realized.” As a result, the article argues that one of two outcomes will result at the state level; “1) capital defendants will receive a fully-litigated, fair trial consistent with the principles set for the by the Supreme Court and the ABA and/or 2) some states will be unable to bear the financial burden of a fully-implemented Ake, and they will either reduce the number of capital cases pursued or they will cease pursuit of the death penalty all together.” The article examines the Ake promises in theory and why it has historically been under-utilized, offers evidence that Ake is in the process of being revitalized, and then discusses the “impact that this trend will likely have on all capital cases.”
(C. Drinan, "The Revitalization of Ake: A Capital Defendant’s Right to Expert Assistance," 60 Oklahoma Law Review, Summer 2007, 2). See Law Reviews.

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NEW RESOURCES: "Lessons from New York's Recent Experience with Capital Punishment"

Prof. James Acker has published an article in the latest edition of the Vermont Law Review entitled, “Be Careful What You Ask For: Lessons from New York’s Recent Experience with Capital Punishment.” The article explores the various standards by which the death penalty was evaluated during the last decade in New York. The public debate first addressed the question of, “Is it right?” with a focus on retribution, morality and religion. The second set of questions addressed was, “Is it useful? Is it cost-effective? Is it necessary?” with a focus on costs and alternatives such as life in prison without parole. The final question discussed was, “Is it fair?”

Acker is a Distinguished Teaching Professor of the School of Criminal Justice at the State University at Albany. He explores the issues that New York faced first in reinstating the death penalty and then in abandoning it, issues such as innocence, race discrimination, arbitrariness, quality of representation, and the makeup of the capital jury. Based on his extensive review of the legislative debate and public hearings, Acker concluded, “Between 1995, when their state enacted a death penalty statute after not having one for more than a generation, and 2004, when the New York Court of Appeals invalidated the law on state constitutional grounds, New Yorkers invested millions of dollars and an incalculable amount of time and effort in an enterprise that vexed many and ultimately benefited no one.”
(J. Acker, "Be Careful What You Ask For: Lessons from New York’s Recent Experience with Capital Punishment," 32 Vermont Law Review 683 (2008)). See Law Reviews.

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NEW RESOURCES: Study on Quality of Defense Representation in Tennessee Death Penalty Cases

A recent law review article explores the quality of defense representation in capital cases in Tennessee. Authors William Redick, Jr., Bradley Maclean, and M. Shane Truett conducted an in depth study of Tennessee death penalty cases in their article, “Pretend Justice--Defense Representation in Tennessee Death Penalty Cases” in the University of Memphis Law Review. The article argues that Tennessee fails to provide effective defense representation in death penalty cases, citing ineffective attorney qualification standards, inadequate compensation and resources for indigent capital defense representation, and inequalities between defense to prosecution resources. It also examines various inherent difficulties defense attorneys face in death penalty cases, such as the “death qualification” of jurors.

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NEW RESOURCES: Study Finds Evidence of Race-of-Defendant Bias in Texas Death Penalty

A new study by Professor Scott Phillips of the Univeristy of Denver found that black defendants in Houston, Texas, are more likely to be sentenced to death than white defendants, even when other variables are accounted for. The research, to be published in a forthcoming edition of the Houston Law Review, looked at cases eligible for the death penalty in the county that is the source of the highest number of executions in Texas, which itself is responsible for more executions than any other state. The study, which looked at 504 defendants indicted for murder, also found that a person is more likely to be sentenced to death if they killed a white victim than if they killed a black victim, a finding consistent with over 20 race studies around the country. Race-of-defendant bias has not been shown as often in other studies.

Prof. Phillips found that when the severity and other factors of the crime are taken into account, prosecutorial disparities show up: "the odds of a death trial are 1.75 times higher against black defendants than white defendants." The odds that a black defendant would actually be sentenced to death were almost 1.5 times as high as for a white defendant.

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NEW RESOURCES: Pierce Law Review Releases Special Death Penalty Issue

The March 2008 issue of the Pierce Law Review explores many aspects of the death penalty through articles written by renowned death penalty scholars and attorneys. With a forward by Christopher M. Johnson, the Review examines the death penalty at individual, societal, and international levels. To coincide with the publication of this issue, the Franklin Pierce Law Center in New Hampshire held a panel discussion on the death penalty on April 15, 2008.

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