LAW REVIEWS: Should Mentally Incompetent Death Row Inmates be Forcibly Medicated?

A recent article by Professors Brian D. Shannon (pictured) of Texas Tech and Victor R. Scarano of the University of Houston examines the ethical implications of forcibly medicating mentally incompetent death-row inmates in order to prepare them for execution.  According to the authors, this issue, particulary in Texas, pits "the ethical duties of the medical and legal professions in opposition and casts a shadow over the legitimate and appropriate intentions and professional responsibilities of physicians and lawyers." While the U.S. Supreme Court has ruled that mentally incompetent prisoners cannot be executed, only lower courts have ruled on the question of forcing death row inmates to take medication with the purpose of rendering them competent for execution. The article concludes with a legislative recommendation that would solve the ethical dilemma of forcible medication: "[U]pon a determination by the trial court that the defendant is incompetent to be executed (and following any appeal), the court should vacate the death sentence and substitute a life sentence without the possibility of parole," thus allowing psychiatrists to "proceed to treat the symptoms of the inmate’s serious mental illness, without the ethical concern that such treatment could lead to the inmate’s execution."

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STUDIES: Reasons Behind the Abolition of the Death Penalty in Illinois

A new report by Rob Warden (pictured), Executive Director of the Center on Wrongful Convictions, explores the conditions that led to the end of Illinois's death penalty in 2011. Warden says abolition came about because of a series of fortuitous circumstances, but also because of the work of countless attorneys, academics, journalists and activists who took advantage of these developments. The cavalcade of exonerations from death row, including the high-profile release of Anthony Porter, who was freed through the work of journalism students, underscored the flaws in the death penalty. Police abuse and prosecutorial misconduct caused an erosion of public confidence in the death penalty system. Finally, the report of the Capital Punishment Reform Study Committee, finding that the state could have saved $200 million if it ended the death penalty in 2000, greatly impacted the movement for repeal. Warden noted that what happened in Illinois carried over to other states and said he believes, “The future of the movement [to end the death penalty] hinges on how the arguments that carried the day in Illinois, New Jersey, New Mexico, and Connecticut resonate in the thirty-three states where death penalties remain in force but have fallen increasingly into disuse.”  The report is published in the Journal of Law and Inequality.

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RESOURCES: New Study Examines Effect of Death Penalty on Plea Bargaining

Sherod ThaxtonA recent study by Sherod Thaxton (pictured) of the University of Chicago Law School examined the effect of the threat of the death penalty on plea bargaining. Using statistical analysis of charging and sentencing data in Georgia between 1993 and 2000, Thaxton found that the possibility of a death sentence increased the likelihood of a plea bargain: "deterring two out of every ten death noticed defendants from pursuing a trial." However, the lower number of trials does not offset the high costs of the death penalty, he found. "The empirical findings in this article suggest that the threat of the death penalty has a substantial causal effect on the likelihood that a defendant accepts a plea agreement. Nevertheless, the magnitude of the effect is clearly insufficient to offset the substantial administrative and financial costs arising from the occasional capital defendant taking her chances at trial." In many cases, the author said, significant pre-trial costs are incurred even before a plea agreement is reached.  The study, Leveraging Death, will be published in a forthcoming edition of the Journal of Criminal Law and Criminology.

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NEW RESOURCES: Michigan State Law Review Dedicated to Death Penalty Research

The Michigan State Law Review recently dedicated a special issue to the late Professor David C. Baldus (pictured), well known for his groundbreaking research on racial bias in the death penalty.  Distinguished authors contributed a variety of articles on issues related to capital punishment, including: “Capital Punishment and the Right to Life” by the late Hugo Adam Bedau and a special tribute to Prof. Baldus by Barbara O’Brien and Catherine Grosso. Other authors included in this special edition were Jeremy Collins, Steven Dow, Emily Hughes, Mona Lynch, Craig Haney, Issac Unah, Jennifer Adger, Christopher Weiss, SpearIt, Sheri Lynn Johnson, John Blume, Patrick Wilson, Michael Radelet, Jody Lynee Madeira, Mary Rose, Jeffrey Abramson, and Deborah Denno.

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LAW REVIEWS: Use of Behavioral Genetics Evidence in Criminal Cases

Professor Deborah Denno of Fordham University Law School has published an article in the Michigan State Law Review concerning her research into the use of genetic evidence possibly related to behavior characteristics in criminal cases.  Denno found that the primary use of this evidence was in death penalty cases at the penalty phase, and that it is almost always used as mitigation evidence.  The article notes some of the dangers in this kind of evidence based on past use.  Nevertheless, the author concludes that courts are accepting of this evidence, even though it does not determine the outcome of the case.

(D. Denno, "Courts' Increasing Consideration of Behavioral Genetics Evidence in Criminal Cases: Results of a Longitudinal Study," 2011 Michigan State Law Review 967; posted Aug. 22, 2012).  See Law Reviews and Studies.

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LAW REVIEWS: "A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute"

A recent article in the Brooklyn Law Review argues that executing long-serving, elderly death row inmates should be deemed unconstitutional as cruel and unusual punishment.  In A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute, Professor Elizabeth Rapaport (pictured) of the University of New Mexico School of Law maintains that harsh death row conditions, along with the fragility of the growing number of elderly inmates due to the aging process, result in excess suffering that should render their execution a violation of the Eighth Amendment. Rapaport states, “The long delays between pronouncement of sentence and execution, and the considerable uncertainty about whether any condemned man or woman will be executed in our system of capital punishment, have given rise to a new form of cruelty unknown to our ancestors. Delay is not aberrant but normal. It cannot be purged from the system without doing unacceptable violence to constitutionally mandated due process.”

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LAW REVIEWS: Revisiting the Constitutionality of the Death Penalty

A recent law review article by Professors Carol and Jordan Steiker examines two decades of attempts to regulate capital punishment and concludes that this process may have paved the way to a finding that the death penalty is unconstitutional: “[T]he modern American death penalty - with its unprecedented costs, alternatives, and legal regulatory framework - seems newly vulnerable to judicial invalidation. Reform of the death penalty and its abolition might well be on the same path.” The authors point to developments such as the number of exonerations from death row, the emergence of the sentence of life without parole, and the focus in death penalty trials on the sentencing phase as helping to produce a “precipitous and unexpected turnaround” in the number of sentences and executions.

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STUDIES: Racial Bias Among Jurors in Death Penalty Cases

A recent article in the Michigan State Law Review examined the problem of racial bias in capital cases, particularly with respect to jurors' decision making. Authors Mona Lynch and Craig Haney (pictured), both professors at the University of California, summarize past statistical studies on race and the death penalty and present new experimental research on juror decision-making in a simulated capital trial. Research participants were shown one of four simulated trial videotapes. The videos were identical except for the race of the defendant and the race of the victim. Participants who viewed the case with a black defendant were more likely to sentence the defendant to death, particularly in the scenario with a white victim. Participants' questionnaires revealed that the jurors gave more weight to mitigating evidence when the defendant was white than when he was black, and were significantly more likely to improperly use mitigating evidence in favor of a death sentence when the defendant was black. The researchers noted, "We surmised that the racial disparities that we found in sentencing outcomes were likely the result of the jurors’ inability or unwillingness to empathize with a defendant of a different race—that is, White jurors who simply could not or would not cross the 'empathic divide' to fully appreciate the life struggles of a Black capital defendant and take those struggles into account in deciding on his sentence."

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INNOCENCE: New Evidence That Texas May Have Executed an Innocent Man

In one of the most comprehensive investigations ever undertaken about the execution of a possibly innocent defendant, Professor James Liebman and other researchers at Columbia University Law School have published a groundbreaking report on the case of Carlos DeLuna (pictured), who was executed in Texas in 1989.  This "Anatomy of a Wrongful Execution" is being published today (May 15) in Columbia's Human Rights Law Review.  Prof. Liebman concluded DeLuna was innocent and was wrongly convicted "on the thinnest of evidence: a single, nighttime, cross-ethnic eyewitness identification and no corroborating forensics." DeLuna maintained his innocence from the time of his arrest until his execution, claiming that the actual culprit was Carlos Hernandez, who looked so similar to DeLuna that friends and family had mistaken photos of the two men for each other. Prosecutors called Hernandez a "phantom" of DeLuna's imagination, although Hernandez was known to police and prosecutors because of his history of violent crimes, including armed robberies and an arrest for a murder similar to the one for which DeLuna was executed. Liebman's investigation found that Hernandez "spent years bragging around Corpus Christi that he, not his tocayo - his namesake and 'twin' - Carlos DeLuna, killed Wanda Lopez."

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HISTORY: "Gruesome Spectacles: The Cultural Reception of Botched Executions in America"

Recently published historical research led by Professor Austin Sarat (pictured) of Amherst College examines the way gruesome executions were reported in the media in the late 19th and early 20th centuries. Prof. Sarat's study found that newspapers generally presented two competing narratives in their coverage: “a sensationalist narrative, which played up the gruesomeness of botched execution[s], and an opposing, recuperative narrative, which sought to differentiate [the] law’s violence from violence outside the law.”  (Article abstract) Gruesome executions were put into a larger context of an orderly and justified punishmnet:  "They situated such executions within a framework that justified capital punishment as the proper way to avenge violent crimes. Problems were attributed to unavoidable human errors or technological breakdowns, and executions, even when they became gruesome spectacles, generally did not seem to inflict undue suffering on the condemned."  The report, Gruesome Spectacles: The Cultural Reception of Botched Executions in America, reviewed newspaper accounts of botched executions between 1890 and 1920, and was published in inaugural issue of the British Journal of American Legal Studies.    Read full text of report.

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