STUDIES: A Review of the Florida Death Penalty

Photo of Christopher SloboginChristopher Slobogin, Professor of Law and Psychiatry at Vanderbilt University, has written an evaluation of Florida's death penalty to be published in a forthcoming edition of the Elon University Law Review.  The evaluation is based on a study by an assessment team sponsored by the American Bar Association. Florida is one of the leading states in sentencing people to death, but it also has the most death row exonerations of any state in the country.  Florida was chosen by the ABA to be one of eight death penalty states reviewed under its Death Penalty Moratorium Implementation Project. The purpose of this project was to allow states to identity and eliminate flaws in their death penalty system. The Florida Assessment Team was led by Prof. Slobogin and was instructed to investigate the following aspects of death penalty administration: "police investigation procedures; the use of DNA evidence; crime laboratories and medical examiners; prosecutorial discretion; defense services; jury instructions; the judicial role; the direct appeal process; state post-conviction and federal habeas proceedings; clemency proceedings; the treatment of racial and ethnic minorities; and the treatment of people with mental illness and mental retardation."

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LAW REVIEWS: The Past, Present, and Future of the Death Penalty

The Tennessee Law Review recently published a compilation of articles and essays from its colloquium, "The Past, Present, and Future of the Death Penalty," held in February 2009. Contributors focused on issues that have influenced capital punishment throughout the course of history. An article by Hugo Adam Bedau, a prominent death penalty scholar, addresses the issues of innocence and racial bias in the application of the death penalty.  Lyn Entzeroth focuses on whether mentally ill defendants should be excluded from the death penalty, and asks whether states should be allowed to forcibly medicate mentally ill defendants in order to make them competent for execution. The colloquium included a keynote address by Stephen Bright of the Southern Center for Human Rights on representation, and papers by Dwight Aarons, David Baldus, Julie Brain, Neil Weiner, George Woodworth, John Blume, Sheri Lynn Johnson, Christopher Seeds, Bradley MacLean, Judge Gilbert Merritt, Penny White, and Pamela Wilkins.

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Leading Law Group Withdraws Model Death Penalty Laws Because System is Unfixable

The Council of the American Law Institute (ALI) recently voted to withdraw a section of its Model Penal Code concerned with capital punishment because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."  The Council based its decision on a study it commissioned to look into the practice of the death penalty since the recommendations were made in the Model Penal Code.  The recommendations for how to make the death penalty less arbitrary had been adopted in 1962 and were cited by the U.S. Supreme Court in its 1976 opinion allowing a reformed death penalty to be reinstated.  Section §210.6  of the Code defines cases appropriate for capital punishment, aggravating and mitigating circumstances, and special sentencing procedures, and was intended to meet significant concerns regarding the practice.  This move essentially withdraws ALI from any attempt to fashion an acceptable death penalty because the system has proven to be unworkable.

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LAW REVIEW: Death Penalty Stories

The University of Missouri-Kansas City Law Review recently published a symposium issue of Death Penalty Stories, highlighting the role of the narrative in the defense of death penalty cases. The compilation includes contributions from litigators who have used persuasive narrative in support of a life sentence. Russell Stetler’s The Unknown Story of a Motherless Child chronicles the case of Edgar H., who was convicted of killing four men in California. Edgar’s traumatic childhood was influential in negotiating a sentence of life instead of death. Dr. Craig Haney’s article, On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence, introduces the concept of the "master narrative," the official story--often laden with inflammatory rhetoric--that public officials supply to the media and that sets the stage for a capital trial ending in a death sentence. Haney argues that “more accurate information about the role of adverse social histories and powerful social conditions" might lead to more informed public debate over the utility of capital punishment.

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LAW REVIEWS: Physician Participation in Lethal Injection Executions

Professor Ty Alper of the Boalt School of Law at Berkeley has written an article for the forthcoming edition of the North Carolina Law Review entitled “The Truth About Physician Participation in Lethal Injection Executions.”  Prof. Alper, a noted death penalty expert, reviews the available research and recent litigation on the most widely used method of execution in the U.S., focusing especially on the potential role of doctors in executions.  As states are challenged to ensure that inmates do not suffer excruciating pain during lethal injections, Alper contends that physician participation is more plausible than many states are willing to admit.  He states that many doctors are willing to and, in fact, do regularly participate in executions. He argues that defense attorneys are obligated to protect their clients from unneccessary pain and that states have exaggerated their inability to find willing doctors.  The article may be found here.

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Amy Smith

17 B.U. Pub. Int. L.J. 237

The Boston University Public Interest Law Journal, Spring, 2008

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LAW REVIEWS: Convicting the Innocent

A new article in the Annual Review of Law and Social Science entitled “Convicting the Innocent” by Prof. Samuel Gross of the Universiry of Michigan Law School explores the rate of false convictions among death-sentenced inmates and examines the demographical and procedural predictors of such errors.  Prof. Gross noted that earlier research showed the exoneration rate to be 2.3% for inmates who had been on death row at least 15 years and a similar rate for those who had been on death row for at least 20 years.  He further noted, “This figure–2.3%--is the actual proportion of exonerations for death sentences imposed in the United States between 1973 and 1989.”  He concludes that this error rate is probably a low estimate of the true rate of mistaken convictions: “The proportion of capital exonerations is almost certainly an underestimate of the true rate of false capital convictions.” 

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RESOURCES: Tennessee Law Review to Host Colloquium on Past, Present, & Future of Death Penalty

The Tennessee Law Review is hosting a colloquium entitled, “The Past, Present, and Future of the Death Penalty.”  The event will take place February 6-7 at the University of Tennessee College of Law in Knoxville and will feature nationally known experts in this field, including David Baldus, Hugo Adam Bedau, Stephen Bright, Deborah Denno, Lyn Entzeroth, the Honorable Gilbert S. Merritt, and Penny White.  Judge Merritt will deliver the keynote address on "Why So Much Prosecutorial Error in Death Penalty Cases?" The gathering will feature a performance of the play, "The Exonerated."  The event’s full schedule may be found here

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LAW REVIEWS: Innocence and the Death Penalty

The Texas Tech Law Review’s latest edition is focused on innocence and the death penalty.  Among the articles included, are, “Presumed Guilty: A Death Row Exoneree Shares His Story of Supreme Injustice and Reflections on the Death Penalty,” by Juan Roberto Melendez; “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process,” by Keith A. Findley; "The Role of the Innocence Argument in Contemporary Death Penalty Debates," by Michael Radelet; and “What Price Justice? The Importance of Costs to Eyewitness Identification Reform,” by Sandra Guerra Thompson. 

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