Law Reviews

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…

In its land­mark deci­sion in Atkins v. Virginia in 2002, the U.S. Supreme Court declared that the use of the death penal­ty against indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty con­sti­tut­ed cru­el and unusu­al pun­ish­ment in vio­la­tion of the Eighth Amendment. Twenty years lat­er, how­ev­er, ​“there is not just the risk, but the cer­tain­ty” that states con­tin­ue to sen­tence intel­lec­tu­al­ly dis­abled defen­dants to death, three legal schol­ars argue, and the fed­er­al courts are let­ting them get away with it.

A new study sug­gests that Idaho​’s cap­i­tal pun­ish­ment statute fails to nar­row the use of the death penal­ty to the ​“worst of the worst” crimes, rais­ing ques­tions about its con­sti­tu­tion­al­i­ty. In Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis, pub­lished in the February 2022 issue of the Idaho Law Review, Aliza Plener Cover (pic­tured) argues based on data from near­ly 20 years of mur­der con­vic­tions that the Idaho leg­is­la­ture ​“has done lit­tle to mean­ing­ful­ly nar­row a sub­set of those who are most deserv­ing of death.”

A new law review arti­cle high­lights the lack of pro­tec­tions for crim­i­nal defen­dants’ rights to make mean­ing­ful deci­sions despite court-rec­og­nized rights to auton­o­my. In ​“The Myth of Autonomy Rights,” a 2021 arti­cle pub­lished in the Cardozo Law Review, Professor Kathryn E. Miller (pic­tured) argues that there are inad­e­quate safe­guards for the auton­o­my rights of the aver­age crim­i­nal defen­dant, espe­cial­ly in cap­i­tal pun­ish­ment cases.

Louisiana’s death penal­ty is dis­pro­por­tion­ate­ly imposed in cas­es involv­ing white female vic­tims, espe­cial­ly if the defen­dant in the case is a Black man, a new study by three lead­ing death-penal­ty researchers has con­firmed. Louisiana pros­e­cu­tors were more than five times as like­ly to seek the death penal­ty, and juries more than five times as like­ly to impose it, in cas­es involv­ing a Black male offend­er and a white female vic­tim than in crimes in which both the alleged offend­er and the vic­tim were Black.

The death penal­ty is reserved for “’the worst of the worst’ — or at least that is what we are told,” writes University of Richmond law pro­fes­sor Corrina Barrett Lain (pic­tured) in a Washington & Lee Law Review post-mortem on Virginia​’s use of cap­i­tal pun­ish­ment. Although the ​“worst of the worst” is a core com­mand of a con­sti­tu­tion­al­ly com­pli­ant death penal­ty, ​“the death penal­ty doesn’t just exist in the abstract,” Lain notes. And when she takes the oppor­tu­ni­ty ​“to set the record straight about who we exe­cute gen­er­al­ly, and what…

“What should become of indi­vid­u­als who are await­ing exe­cu­tion fol­low­ing the repeal or judi­cial inval­i­da­tion of cap­i­tal pun­ish­ment leg­is­la­tion?,” ask authors James R. Acker (pic­tured, left) and Brian W. Stull (pic­tured, right) in a recent arti­cle pub­lished in the Akron Law Review. If his­to­ry is a guide, they say, the pris­on­ers’ lives should be spared.

In the 1970s, the United States Supreme Court famous­ly declared that ​“death is dif­fer­ent” from all oth­er pun­ish­ments and, as such, required the pro­vi­sion of height­ened pro­ce­dur­al safe­guards to ensure that its appli­ca­tion was not cru­el or unusu­al. But in a new arti­cle, Death Penalty Exceptionalism and Administrative Law, University of Richmond law pro­fes­sor and cap­i­tal pun­ish­ment schol­ar Corinna B. Lain (pic­tured) argues that in the con­text of admin­is­tra­tive law, the doc­trine has been ​“turn[ed] … on its head.”

The leg­is­la­ture doesn’t want cap­i­tal pun­ish­ment, the exec­u­tive branch can’t obtain exe­cu­tion drugs, and Nebraska pros­e­cu­tors have moved for­ward this year with the pan­dem­ic-delayed cap­i­tal sen­tenc­ing tri­als of two defen­dants sep­a­rate­ly con­vict­ed of a mur­der out of a voyeuris­tic true-crime nov­el. The state, writes Associated Press reporter Grant Schulte in a May 9, 2021 analy­sis, is ​“still wed­ded to the idea of exe­cut­ing pris­on­ers, just not the prac­ti­cal part of doing it” and appears ​“caught in a law vs. real­i­ty netherworld.”

To rein in the social and eco­nom­ic costs caused by the over­ly aggres­sive use of the death penal­ty by pros­e­cu­tors, a California legal schol­ar is propos­ing a plan he believes will reduce mis­car­riages of jus­tice and increase pros­e­cu­to­r­i­al accountability.