Law Reviews

Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court’s ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant’s challenges to the…

Some proponents of the death penalty — including the late Justice Antonin Scalia and the 2016 Republican Party platform — have asserted that the Supreme Court cannot declare the death penalty unconstitutional because the Framers included reference to the punishment in the text of the Fifth Amendment. An article by Duke Law School Professor Joseph Blocher, published in the Northwestern University Law Review, critically analyzes that argument and concludes that the Fifth Amendment’s acknowledgment of…

In a recent article for the Georgetown Law Journal, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit calls for sweeping reforms in the criminal justice system. The former Chief Judge, who was appointed by President Reagan in 1985, outlined a number of ​“myths” about the legal system, raising questions about the reliability of eyewitness testimony, fingerprint evidence, and even DNA evidence, which can easily be contaminated. Judge Kozinski directed his harshest criticism…

In an article for the University of Richmond Law Review, Stephen Bright (pictured), President and Senior Counsel at the Southern Center for Human Rights, describes the arbitrary factors that continue to influence the death penalty. Bright first describes the historical context that led the Supreme Court to strike down the death penalty in 1976. He draws comparisons between lynchings, which he says were ​“used to maintain racial control after the Civil War,” and capital punishment, which in 1976…

In a new article for the University of Chicago Law Review, Professors Carol S. Steiker (left) of the University of Texas School of Law and Jordan M. Steiker (right) of Harvard Law School examine the racial history of the American death penalty and what they describe as the U.S. Supreme Court’s ​“deafening silence” on the subject of race and capital punishment. They assert that the story of the death penalty ​“cannot be told without detailed attention to race.” The Steikers’ article recounts the…

A recent article by Prof. Eric Berger of the University of Nebraska College of Law argued that defendants facing execution have a fundamental right to know important information about the lethal injection drugs they will be given. Berger wrote, ​“Judicial recognition of this due process right would both protect Eighth Amendment values and also encourage states to make their execution procedures more transparent and less dangerous.” After discussing the history of recent developments in lethal…

A recent law review article reported wide variations among states in exempting defendants with intellectual disability from the death penalty. Professor John Blume (l.) of Cornell Law School, along with three co-authors, analyzed claims filed under the Supreme Court’s decision in Atkins v. Virginia (2002) against executing defendants with intellectual disability (formerly, ​“mental retardation”). Overall, from 2002 through 2013, only about 7.7% (371) of death row inmates or capital defendants…

On January 23 the U.S. Supreme Court agreed to hear a challenge to Oklahoma’s lethal injection procedures, particularly its use of midazolam that was used in three botched executions in 2014. Four Oklahoma inmates asked the Court to review the state’s procedures, but one of them, Charles Warner, was executed before the Court agreed to take the case. It is likely the other three defendants will be granted stays. When Warner was executed, Justice Sotomayor along with three other Justices…

A forthcoming article by University of Miami law professor Scott E. Sundby in the William & Mary Bill of Rights journal examines the ​“unreliability principle” established by the U.S. Supreme Court in Atkins v. Virginia and Roper v. Simmons. The article defines the unreliability principle as, ​“if too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty…

A newly published study by Professor John Donohue of Stanford Law School found that arbitrary factors, including race and geography, significantly affected death sentencing decisions in Connecticut. While controlling for a variety of factors related to the severity of the crime, the study’s abstract indicated that “[M]inority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, [and] that geography influences both…