Law Reviews

In a forth­com­ing arti­cle in the Washington and Lee Law Review, Ty Alper (pic­tured), Clinical Professor of Law at the University of California at Berkeley, exam­ines how recent U.S. Supreme Court deci­sions may affect the abil­i­ty of defen­dants to raise claims of inef­fec­tive assis­tance of coun­sel. Although the right to effec­tive coun­sel is con­sti­tu­tion­al­ly guar­an­teed, most defen­dants, espe­cial­ly those charged with non-cap­i­tal crimes, do not have ade­quate oppor­tu­ni­ties dur­ing appeals to raise claims of inef­fec­tive coun­sel, in part because such a claim requires the aid of coun­sel. Alper argues that…

A recent arti­cle by Professor Aliza Kaplan (pic­tured) of the Lewis & Clark Law School exam­ines Oregon​’s death penal­ty in light of the action take by the state’s gov­er­nor, John Kitzhaber, to halt all exe­cu­tions. The arti­cle explores the his­to­ry of Oregon’s death penal­ty, the risk of wrong­ful con­vic­tions, and the costs asso­ci­at­ed with main­tain­ing cap­i­tal pun­ish­ment. Kaplan found that exe­cu­tions are car­ried out very rarely, and, since 1976 only in instances where the inmate waived his appeals. According to one esti­mate cit­ed by Kaplan, the cost of putting a…

In a new study in Harris County (Houston), Texas, crim­i­nol­o­gist Scott Phillips found sig­nif­i­cant racial and gen­der dis­par­i­ties in the appli­ca­tion of the death penal­ty under for­mer District Attorney Charles Rosenthal. Prof. Phillips of the University of Denver exam­ined homi­cides from 2001 to 2008 and found that death sen­tences were imposed on behalf of white vic­tims at 2.5 times the rate one would expect if the sys­tem were race neu­tral. Furthermore, death sen­tences were imposed on behalf of white-female vic­tims at 5 times the rate one would expect if the…

Professor Samuel R. Gross (pic­tured) of the University of Michigan Law School has pub­lished an arti­cle in the Iowa Law Review exam­in­ing the his­tor­i­cal impor­tance of a series of stud­ies show­ing racial bias in the death penal­ty. The issue of race was brought to a head by the Supreme Court’s con­sid­er­a­tion of McCleskey v. Kemp in 1987. McCleskey focused on a sta­tis­ti­cal exam­i­na­tion of Georgia death sen­tences con­duct­ed by David Baldus. Though the study found com­pelling and sta­tis­ti­cal­ly sig­nif­i­cant evi­dence of racial bias in sen­tenc­ing, the Court held (5 – 4) this…

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…

A 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…

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…

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,…

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…