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…

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…

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…

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…

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…

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…

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,…

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…

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,…