Law Reviews

A new study by Prof. Meredith Martin Rountree of Northwestern University Law School exam­ined the char­ac­ter­is­tics of Texas death row inmates who waived all or part of their nor­mal appeals, thus has­ten­ing their exe­cu­tion. Referring to these inmates as ​“vol­un­teers,” she com­pared them with sim­i­lar­ly-sit­u­at­ed inmates who did not waive their appeals. She found that more vol­un­teers expe­ri­enced depres­sion or had attempt­ed sui­cide than non-vol­un­teers. She also exam­ined the role of ​“self-blame” in pris­on­ers’ deci­sions to move towards exe­cu­tion. Inmates who waived appeals were more like­ly ​“to have been previously…

A recent law review arti­cle by Professors Carol and Jordan Steiker describes how the Supreme Court’s attempt to close­ly reg­u­late the death penal­ty has led instead to more unpre­dictabil­i­ty in its prac­tice, espe­cial­ly with exe­cu­tions. Writing in the Southern California Law Review, the Steikers, of Harvard Law School and the University of Texas Law School respec­tive­ly, note that, “[T]he shape of con­tem­po­rary death penal­ty prac­tice is in many respects less reg­u­lar than the prac­tice it replaced. … Some death penal­ty juris­dic­tions exe­cute a sub­stan­tial per­cent­age of those sen­tenced to death,…

Some defen­dants who com­mit mur­der are auto­mat­i­cal­ly exclud­ed from the death penal­ty in the U.S., such as juve­niles and the intel­lec­tu­al­ly dis­abled. Others with sim­i­lar deficits are reg­u­lar­ly exe­cut­ed. A new study by Robert Smith (l.), Sophie Cull, and Zoe Robinson exam­ined the mit­i­gat­ing evi­dence present in 100 recent cas­es result­ing in exe­cu­tion, test­ing whether the offend­ers pos­sessed qual­i­ties sim­i­lar to those spared from exe­cu­tion. The authors found that ​“Nearly nine of every ten exe­cut­ed offend­ers pos­sessed an intel­lec­tu­al impair­ment, had not yet reached their twen­ty-first birth­day, suf­fered from a…

A new study pub­lished by Professors Jon Gould (l.) of American University and Richard Leo of the University of San Francisco, along with oth­er researchers, exam­ined fac­tors that have con­tributed to wrong­ful con­vic­tions in crim­i­nal cas­es. The study com­pared cas­es in which ​“guilty” defen­dants were even­tu­al­ly exon­er­at­ed to those in which defen­dants were not con­vict­ed in the first place. The researchers found a num­ber of vari­ables that sep­a­rat­ed wrong­ful con­vic­tions from so-called ​“near miss­es,” includ­ing the crim­i­nal his­to­ry of the defen­dant, with­held excul­pa­to­ry evi­dence, errors with foren­sic evi­dence, and inadequate…

In Ford v. Wainwright (1986), the U.S. Supreme Court banned the exe­cu­tion of inmates who were insane. In a dis­sent­ing opin­ion, Justice Rehnquist and Chief Justice Burger warned that the major­i­ty deci­sion ​“offers an invi­ta­tion to those who have noth­ing to lose…to advance entire­ly spu­ri­ous claims of insan­i­ty.” A new study has exam­ined cas­es since 1986 in which death row inmates filed claims of men­tal incom­pe­tence and found that the del­uge of spu­ri­ous claims has not mate­ri­al­ized. Of the 1,307 peo­ple the study con­sid­ered ​“Ford-eli­gi­ble,” that is, those whose cases…

In a lec­ture at the Widener University School of Law, Pennsylvania Supreme Court Justice Thomas G. Saylor crit­i­cized the poor state of death penal­ty rep­re­sen­ta­tion in Pennsylvania. He offered numer­ous cas­es in which death sen­tences were over­turned because attor­neys had failed to present mit­i­gat­ing evi­dence to the jury. Quoting from a spe­cial con­cur­rence he wrote on a cap­i­tal case involv­ing inef­fec­tive assis­tance of coun­sel, he said, ​“Of great­est con­cern, these sorts of excep­tion­al­ly cost­ly fail­ures, par­tic­u­lar­ly as man­i­fest­ed across the wider body of cas­es, dimin­ish the State’s cred­i­bil­i­ty in terms…

One of the nation’s lead­ing aca­d­e­m­ic experts on the death penal­ty has writ­ten a new arti­cle describ­ing how the con­tro­ver­sy sur­round­ing lethal injec­tions has great­ly inten­si­fied since the Supreme Court’s rul­ing on the sub­ject in 2008 (Baze v. Rees). Deborah Denno, a law pro­fes­sor at Fordham University, ana­lyzed over 300 court deci­sions in the last five years cit­ing Baze. She found there have been more changes in lethal injec­tion pro­to­cols in that time than in the last 30 years, some of which have made mat­ters worse. ​“The result­ing pro­to­cols,” she…

A new study of the cost of the death penal­ty in Colorado revealed that cap­i­tal pro­ceed­ings require six times more days in court and take much longer to resolve than life-with­out-parole (LWOP) cas­es. The study, pub­lished in the University of Denver Criminal Law Review, found that LWOP cas­es required an aver­age of 24.5 days of in-court time, while the death-penal­ty cas­es required 147.6 days. The authors not­ed that select­ing a jury in an LWOP case takes about a day and a half; in a cap­i­tal case, jury selec­tion aver­ages 26…

A new study test­ing inter­nal atti­tudes and stereo­types among poten­tial jurors in six death penal­ty states may help to explain the racial dis­par­i­ties that per­sist in the appli­ca­tion of cap­i­tal pun­ish­ment. Researchers Justin Levinson (l.), Robert Smith (r.), and Danielle Young test­ed 445 jury-eli­gi­ble indi­vid­u­als and found they har­bored two kinds of racial bias: they main­tained racial stereo­types about Blacks and Whites and made asso­ci­a­tions between the race of an indi­vid­ual and the val­ue of his or her life. Those stud­ied tend­ed to asso­ciate Whites more with ​“worth” and Blacks…

The lat­est edi­tion of the Yale Law Journal fea­tures essays com­mem­o­rat­ing the 50^th anniver­sary of Gideon v. Wainwright, the land­mark 1963 U.S. Supreme Court deci­sion guar­an­tee­ing all crim­i­nal defen­dants a right to an attor­ney. The col­lec­tion of essays from lead­ing legal experts includes an arti­cle by Stephen Bright and Sia Sanneh, titled ​“Fifty Years of Defiance and Resistance After Gideon v. Wainwright,” argu­ing that the crim­i­nal sys­tem is not tru­ly adver­sar­i­al because pros­e­cu­tors pos­sess broad pow­er and resources, while defense sys­tems are often poor­ly fund­ed. Other essays by death penalty…