The Role of Race, Poverty, Intellectual Disability, and Mental Illness in the Decline of the Death Penalty

Stephen B. Bright *

Capital punishment is a difficult and sensitive topic because it involves terrible tragedies, the murder of innocent people, loss and suffering, and the passions of the moment. It is used in only a very small percentage of cases in which it could be imposed and is currently in decline. Six states have recently abandoned it, and the number of death sentences imposed in the country decreased from over 300 per year in the mid-1990s to less than eighty in the last several years. And so it is appropriate for us to ask whether death remains an appropriate punishment in a modern society, whether it is fairly carried out without race and poverty influencing who dies, and whether it is imposed only upon the most incorrigible offenders who commit the most heinous crimes.

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A Survey of the History of the Death Penalty in the United States

Sheherezade C. Malik *
Paul Holdsworth **

Since the founding of Jamestown Colony in 1607, few topics in American life and culture have generated as much controversy, both in terms of persistence and volatility, as the death penalty. Foreign policy, economic recessions, and social movements come to the forefront of national discussion in their own respective ebbs and flows. Capital punishment, however, has been a staple of the American criminal justice system since the early inhabiting of the continent, and has remained a permanent vehicle through which we can enact retribution on the most heinous criminal offenders in our society, ridding ourselves of the worst among us.

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Lethal Injection: States Medicalize Execution

Joel B. Zivot, MD *

In Baze v. Rees, the Supreme Court of the United States upheld the constitutionality of a method of lethal injection used for capital punishment. The three-drug protocol referenced in Baze consisted of three chemicals injected into the condemned inmate via an intravenous drip. The three-drug protocol began with sodium thiopental, followed by pancuronium bromide, and lastly, potassium chloride. The claim that this lethal injection method would violate the Eighth Amendment’s ban on cruel and unusual punishment was made on behalf of two individuals, Ralph Baze and Thomas Bowling, both sentenced to death in Kentucky.

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The Executioners’ Dilemmas

Eric Berger *

When people learn that I study lethal injection, they are usually curious to know more (or at least they are polite enough to ask questions). Interestingly, the question that arises most often—from lawyers, law students, and laypeople—is why states behave as they do. In the wake of botched executions and ample evidence of lethal injection’s dangers, why do states fail to address their execution procedures’ systemic risks? Similarly, why do states so vigorously resist requests to disclose their execution procedures’ details?

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Witnessing Executions

Frank Green *

In the office early one morning in 1999 and groggy from working late the night before, I was checking my voicemail when I was jarred by a familiar voice.

The message was from Andre L. Graham, a man I had watched die a few hours earlier. I had reached him on the telephone in recent days at the death house in the Greensville Correctional Center. He had not returned from the dead; the message was a day old. Still, suddenly, I was wide awake.

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A Shot in the Dark: Why Virginia Should Adopt the Firing Squad as its Primary Method of Execution

P. Thomas DiStanislao, III*

On July 23, 2014, Arizona carried out Joseph Rudolph Wood III‘s death sentence by lethal injection in what was one of the most protracted executions in the history of the United States. Executioners began injecting lethal drugs—midazolam (a sedative) and hydromorphone—into his blood stream at 1:57 PM and finally pronounced him dead at 3:49 PM, nearly two hours later. Wood‘s attorneys had enough time to file emergency appeals with the Arizona Supreme Court and the United States District Court for the District of Arizona soliciting an injunction to stop the execution. They argued he was still alive and requested an order to resuscitate him as he lay in the death chamber. Wood died during the hearings on those filings. According to witnesses, he gasped more than 600 times before he succumbed and was compared to a fish on shore gulping for air while on the gurney.

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A Pink Cadillac, An IQ of 63, and a Fourteen-Year-Old From South Carolina: Why I Can no Longer Support the Death Penalty

Mark L. Earley, Sr. *

If you believe that the government always “gets it right,” never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty. I no longer have such faith in the government and, therefore, cannot and do not support the death penalty.

I supported the death penalty for all of my public life spanning from 1987 to 2001—as a Virginia State Senator, Attorney General, and Republican candidate for governor. Today, I can still make a conceptual argument as to why it should be a tool in the arsenal of a prosecutor—but it is just an argument. And, to me, the argument is tired, strained, and no longer defensible.

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The Politics of Botched Executions

Corinna Barrett Lain *

For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014. “2014 is Already the Worst Year in the History of Lethal Injection” one headline blared after a fourth execution went awry in July. With fallout from botched executions named one of the “Top 10 Stories of 2014,” there can be little doubt: the death penalty is once again in the spotlight, and botched executions are what put it there.

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Has the “Machinery of Death” Become a Clunker?

Stephen F. Smith *

In 1994, Justice Blackmun famously announced that he would no longer “tinker with the machinery of death.” The timing of that announcement said as much about the state of America’s death penalty on the eve of the new millennium as it did about how he wished to be remembered when he retired from the Supreme Court of the United States later that same year.

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Death as a Bargaining Chip: Plea Bargaining and the Future of Virginia’s Death Penalty

John G. Douglass *

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia’s death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

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