Arbitrariness

In most states, a death sen­tence may only be imposed by a jury in unan­i­mous agree­ment. But in two recent cas­es, defen­dants faced the pos­si­bil­i­ty of a death sen­tence despite the objec­tions of jurors. 

Charles Ogletree, Jr., a pas­sion­ate advo­cate for racial and crim­i­nal jus­tice, died on August 4, 2023, after a long ill­ness. As a tenured pro­fes­sor at Harvard University, Professor Ogletree spoke and wrote often about the death penal­ty and men­tored many stu­dents, includ­ing both Barack and Michelle Obama. In a 2014 Washington Post op-ed, he crit­i­cized the use of the death penal­ty in the United States, par­tic­u­lar­ly for peo­ple with severe men­tal ill­ness, brain impair­ments, or who suf­fer from the effects of severe trau­ma. He not­ed that ​“bar­ring the death penalty…

On July 24, 2023, the Louisiana Board of Pardons and Parole set aside all 56 clemen­cy appli­ca­tions filed by near­ly every death-sen­tenced pris­on­er in Louisiana last month with­out review­ing the mer­its of a sin­gle one of them. The pris­on­ers asked for their sen­tences to be com­mut­ed to life with­out parole, but the Board made its deci­sion to return the appli­ca­tions based on an advi­so­ry, non­bind­ing opin­ion from the Louisiana Attorney General Jeff Landry. Attorneys for death row pris­on­ers have respond­ed by argu­ing that the Attorney General’s office mis­in­ter­pret­ed the language…

Florida’s new death sen­tenc­ing law can­not apply to defen­dants who com­mit­ted their crimes before the law was passed ear­li­er this year, Florida Circuit Judge Kevin Abdoney rules. Florida law pre­vi­ous­ly required that a sen­tenc­ing jury must unan­i­mous­ly vote for death before the court could impose a death sen­tence, but in April of 2023, Gov. Ron DeSantis signed a bill into law that allows a jury to rec­om­mend a death sen­tence with as few as 8 votes. The rul­ing in Bryan Riley’s case means that the new law will not apply…

A forth­com­ing arti­cle in the Denver Law Review dis­cuss­es two the­o­ries of homi­cide law, the felony mur­der rule and accom­plice lia­bil­i­ty, that cre­ate group lia­bil­i­ty for the actions of an indi­vid­ual. The arti­cle, writ­ten by Professors G. Ben Cohen (pic­tured), Justin D. Levinson, and Koichi Hioki states that ​“Research sug­gests that the admin­is­tra­tion of accom­plice lia­bil­i­ty [and] felony mur­der doc­trines dis­pro­por­tion­ate­ly impact Black and minor­i­ty defen­dants,” caus­ing minor­i­ty defen­dants to be sen­tenced for first degree mur­ders they did not per­son­al­ly com­mit at greater rates than white defen­dants. The researchers’ expla­na­tion for this dis­par­i­ty is that ​“Americans auto­mat­i­cal­ly indi­vid­u­al­ize white…

The fol­low­ing law review arti­cles by sev­er­al key death penal­ty researchers were recent­ly pub­lished in 107 Cornell Law Review, No. 6, September, 2022. They cov­er a vari­ety of issues, such as the inter­play between race and cap­i­tal pun­ish­ment, the his­to­ry of the death penal­ty, the fed­er­al death penal­ty, sen­tenc­ing trends, and the fed­er­al court’s role in cap­i­tal punishment:

In a forth­com­ing update to their ground­break­ing 2018 research on the impor­tance of mit­i­ga­tion in death penal­ty cas­es, researchers Russell Stetler, Maria McLaughlin, and Dana Cook (pic­tured) have great­ly expand­ed the num­ber of cap­i­tal cas­es reviewed and drawn the con­clu­sion that ​“the effec­tive inves­ti­ga­tion and pre­sen­ta­tion of mit­i­gat­ing evi­dence can fore­stall a death sen­tence no mat­ter how death-wor­thy the crime facts may appear at first glance.” Their study — titled ​“Mitigation Works” — focused on high­ly aggra­vat­ed cap­i­tal cas­es that result­ed in life sen­tences, rather than death. The update expand­ed the num­ber of poten­tial death-penal­ty cas­es reviewed to about 600, while their prior…

An in-depth piece in the Huffington Post exam­ines Harris County’s (Texas) sys­tem for pro­vid­ing rep­re­sen­ta­tion to those fac­ing the death penal­ty who can­not afford their own attor­ney. The process is explored through the sto­ry of Obel Cruz-Garcia, a pris­on­er on Texas’ death row.

In a 2022 arti­cle pub­lished in the Idaho Journal of Critical Legal Studies, author Sidney Balman (pic­tured), exam­ines the rela­tion­ship between racism and geo­graph­i­cal arbi­trari­ness in the appli­ca­tion of the death penal­ty in the U.S. As in oth­er areas of soci­ety, he finds that Black lives are not val­ued equal­ly with oth­ers. He cites the Supreme Court’s deci­sion in McCleskey v. Kemp (1987) as the main legal obsta­cle to revers­ing this bias affect­ing cap­i­tal pun­ish­ment. ​“Today,” he writes, ​“McCleskey has come to stand for the Court’s refusal to address the…

A Dallas County judge has rec­om­mend­ed that the con­vic­tion and death sen­tence of a Jewish death-row pris­on­er be over­turned because his tri­al was poi­soned by the vir­u­lent anti-Semitic big­otry of the Texas judge who presided over his case.