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  • Undoing Past Wrongs: Chipping Away at Capital Punishment

    By Hira Baig Associate Editor, Volume 23 The vast majority of countries, 140 to be exact, consider the death penalty cruel and unusual punishment.[1]  The current constitution of Germany, for example, forbids use of capital punishment.[2] Lawyer and activist Bryan Stevenson comments on this policy choice by suggesting there is a connection between Germany’s consciousness of its history and its refusal to use the death penalty.[3] It would be harrowing, after all, for the German government to have a criminal punishment that facilitates the state-sanctioned killing of people after the Holocaust. America, on the other hand, turns a blind eye to its history. Celebrating civil rights leaders and electing a black president does not rid this country of its past sins—especially if those sins are manifesting today in different form. The grave inequality between the races was embedded into our Constitution and our laws. While the Constitution created a form of government for “the people,” it was used for over a century to uphold slavery. Once formal slavery was abolished by the Thirteenth Amendment, the Constitution was used to justify discriminatory treatment, Jim Crow, and today, it is used to embolden our system of mass incarceration. The Constitution also upholds use of the death penalty.[4] The killing of mostly black men is not a violation of the Eighth Amendment, which ought to protect people from cruel and unusual punishment.[5] And in southern states, black defendants are 22 times more likely to get the death penalty if the alleged victim is white.[6] In my home-state of Texas, juries can still sentence mentally ill offenders to death. Texas has one of the busiest death rows in the country, and recently, a lawmaker filed a bill that might curtail use of this punishment.[7] This bill limits the maximum punishment for mentally ill people to life in prison without parole. Mitigating use of the death penalty ought to be considered a valiant effort. After all, Texas uses the death penalty more than any other state.[8]

  • Rethinking Death Penalty Reform: The Case Against Death-qualified Juries

    By Anonymous Associate Editor Since the U.S. Supreme Court reinstated the death penalty through Gregg in 1976, racial bias has continued to pervade its administration.[1] 34.5% of defendants executed have been Black and 55.6% have been white,[2] despite the fact that only 13.3% of people in the U.S. identify as Black, while 77.1% identify as white.[3]  I consider myself an abolitionist regarding the death penalty, as I do not think that it is justified for the state to kill a citizen in any circumstance. However, given these alarming statistics and the dire situation they illuminate, I find that efforts to reform the capital process to reduce racial disparity are also worthwhile. Reformers would do well to focus on the elimination of the death qualification process, as well as Eighth Amendment and Batson challenges to the death penalty.

  • The Abolition of the Death Penalty in New Jersey and Its Impact on Our Nation’s “Evolving Standards of Decency”

    In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. The Note further hypothesizes that this lack of executions created the policy space for legislative abolition. The Note then explores the effect that New Jersey's abolition might have on capital punishment in other states, as well as the potential influence of state-level abolition on the United States Supreme Court's evaluation of the constitutionality of the death penalty.

  • Performing Discretion or Performing Discrimination: Race, Ritual, and Peremptory Challenges in Capital Jury Selection

    Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate the reasons prosecutors offer as race neutral motivations for peremptorily striking Black jurors.

  • Choosing Those Who Will Die: The Effect of Race, Gender, and Law in Prosecutorial Decision to Seek the Death Penalty in Durham County, North Carolina

    District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in Durham County, North Carolina from 2003 to 2007. The analysis indicates that although law has an important effect in determining criminal punishment, extrinsic elements such as race and gender overwhelm the law in influencing prosecutorial decisions to go for death. Durham county prosecutors are 43% more likely to seek the death penalty when a Black defendant kills a White victim compared to a situation where a Black defendant kills a Black victim. The analysis also demonstrates the existence of a gender gap in prosecutorial decision-making. Female murder victims are significantly more likely to precipitate a capital prosecution compared to male victims. These results have important policy implications. Despite publicized attempts by the Supreme Court to eradicate the twin evils of arbitrariness and discrimination from our system of capital punishment, these problems persist. Therefore, it is important for policy makers to devise explicit mechanisms to channel the discretionary judgments of local prosecutors toward greater reliance upon legal precepts rather than extra-legal considerations such as race and sex. As Justice William Brennan warned in his dissent in McKleskey v. Kemp, "The way in which we choose those who will die reveals the depth of moral commitment among the living."