Death Penalty

  • June 12, 2017
    Guest Post

    by Virginia Sloan, President of the Constitution Project and Sarah Turberville, Director of Justice Programs, The Constitution Project

    Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

    In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation.  

    They have already lost twice, but state officials recently secured rehearing so their appeal will now be heard by the full U.S. Court of Appeals for the Sixth Circuit. That argument is scheduled for June 14, 2017 in Cincinnati.

    To understand the situation, it is necessary to go back and look at the lawsuit and landscape when the State originally made definitive statements about its lethal injection protocol. 

    From 1999-2009, Ohio conducted executions using a three-drug method that included sodium thiopental, a barbiturate, followed by pancuronium bromide, a paralytic agent and then potassium chloride to stop the heart. Over the years, various legal challenges questioned the constitutionality of that drug combination, given the intense pain caused by the second and third drugs. Multiple other states also used this drug combination; and criticism was mounting, in Ohio and elsewhere, as evidence accumulated calling the continued use of the method into question.

  • June 2, 2017
    Guest Post

    by Stephen Rushin, Assistant Professor of Law, University of Alabama School of Law

    While many have welcomed the increased national interest in police accountability, critics, including President Donald Trump and police unions, have warned of a so-called “war on cops.”  To their credit, there is evidence that ambush killings of police officers increased in 2016, as did the number of total police officers killed in fatal shootings. But it is difficult to know whether these numbers are part of a larger pattern, or merely a statistical aberration.

    Sen. John Cornyn (R-Texas) and Rep. Ted Poe (R-Texas) do not want to take any chances. In the “Back the Blue Act,” the two legislators (along with several co-sponsors) propose several alterations to federal law meant to protect police officers. Ultimately, though, there is serious reason to doubt whether this measure would make local law enforcement substantially safer. And it is a virtual certainty that, if passed, this law would severely hamper efforts to hold police officers accountable for wrongdoing.

    The measure would create new federal crimes for the assaulting or killing of federally funded law enforcement officers. It would limit habeas relief for some cases involving the killing of a police officer. And it would expand the federal death penalty to cases involving the killing of police officers. There is a lot to say about this bill—much of which has already been covered in depth by other media outlets or advocacy organizations.

  • December 6, 2016
    Guest Post

    by Norman Fletcher, Former Georgia Supreme Court Justice

    In 1967, Georgia enacted the Habeas Corpus Act in reaction to serious friction caused by federal habeas corpus review of Georgia criminal judgments. Georgia had grave systemic problems in its criminal justice system stemming from our most profound historical injustices. Georgia’s 1967 statute is broadly patterned after federal habeas corpus law, with one extremely important exception today: Georgia has never provided a right to counsel in habeas corpus. Over the nearly 50 years of this statute, the Georgia Supreme Court has decided scores of cases raising this very problem. The tragic case of William Sallie demonstrates it is not a theoretical one. If Georgia conducted its death penalty the way that virtually all other capital states do, we could expect that the evidence of a severely biased and untruthful juror tainting his 2001 trial would have been heard, and not procedurally defaulted, and his constitutional violations addressed. Instead, he is scheduled to die on Dec. 6, 2016.

    Read Justice Fletcher's full opinion editorial via The New York Times.  

  • November 23, 2016
    Guest Post

    by Lawrence O. Gostin, Founding O'Neill Chair in Global Health Law at Georgetown Law, Faculty Director of the O'Neill Institute for National and Global Health Law, Director of the World Health Organization Collaborating Center on Public Health Law & Human Rights, and University Professor at Georgetown Law

    Since 2002, the Supreme Court has banned the execution of people with intellectual disability. Writing for the Court, Justice John Paul Stevens looked to the clinical understanding of intellectual disability and explained that people with that condition bear diminished culpability “by definition” and are “categorically excluded from execution,” lest cruel and unusual punishment be imposed.

    In spite of this categorical ban, people with intellectual disability still face execution in the U.S. because Texas – the state that carries out far more executions than any other state – has disregarded the Supreme Court’s directive that intellectual disability evaluations in death penalty cases must be informed by the medical community’s diagnostic framework. The Supreme Court will soon have an opportunity to address Texas’s unusual and bizarre approach.

    Texas is a global outlier when it comes to its method for evaluating intellectual disability claims in death penalty cases. Remarkably, Texas prohibits the use of current medical standards. It is difficult, if not, impossible to locate any other jurisdiction in any country where it is forbidden to use current medical standards in evaluating intellectual disability. As with any field, when policy makers or courts not only defy scientific evidence or standards, but also disregard them, the results can be catastrophic—in this case, literally a matter of life or death. And briefs in the Supreme Court show that no other jurisdiction in the U.S. follows that practice.

  • August 3, 2016

    By Kevin Battersby Witenoff

    Clare Foran in The Atlantic discusses the impact that a recently signed Massachusetts bill will have on eliminating gender-based discrimination in the workplace.

    The recent voting rights victories across the country are examined by Richard L. Hasen at The New York Times.

    Emily Badger of The Washington Post describes a type of overt housing discrimination that is still legal and unfairly targets the poor.

    Delaware’s death-penalty statute was found to be in violation of the Sixth Amendment reports Matt Ford of The Atlantic.