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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Interrogation Policies

Brandon L. Garrett *

In Miranda v. Arizona, the Supreme Court discussed at length actual police policies, manuals, and training on interrogations to explain the need for the well-known warnings the Court required to precede custodial interrogations. The Court noted: “A valuable source of information about present police practices . . . may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics.” The Court cited to studies of police practices, and focused on the Fred E. Inbau and John E. Reid manual on interrogations, first published in 1962, and still the authoritative treatise. The Court described “tactics . . . designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty.” Those tactics ranged from “Mutt and Jeff” routines to outright deception and trickery.

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The Future of the Death Penalty in the United States

Richard C. Dieter *

Making predictions about the future is always a risky venture. There are, however, concrete reasons to believe that the story of the death penalty in the United States may be approaching its final chapter. In this essay I will identify strong trends that support this prognosis. I will also underscore the inherent problems with the death penalty that have placed it on a collision course with some of our country’s most cherished ideals. These conflicts will likely hasten the demise of the death penalty.

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Temporal Arbitrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial

Mary Kelly Tate *

This symposium essay is a thought experiment—a “back to the future” re-imagining of the capital murder trial of Tommy David Strickler, an indigent man deemed borderline mentally retarded. In 1990, Strickler was convicted and sentenced to death for the robbery, abduction, and murder of a young African American woman. On July 21, 1999, Strickler became the sixty-eighth person executed in Virginia in the death penalty’s modern era.

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Making Sure We Are Getting It Right: Repairing “The Machinery of Death” by Narrowing Capital Eligibility

Ann E. Reid *

Can we fix the American capital punishment system? Do we want to? Or should we simply abolish the death penalty altogether, as so many countries encourage us to do? These were questions that many Americans asked themselves over the course of 2014 as botched execution followed botched execution, and as multiple innocent men were exonerated after sitting on death row for years. Despite the best efforts of the members of the federal and state departments of justice, we continue to face serious constitutional questions when we look at death penalty-related issues, including the estimated rate of false convictions, the disproportionately high exoneration rate for death penalty inmates, racial, social, and geographical disparities in capital conviction rates, and the complicated and messy process of execution itself.

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The Twilight Zone: Perspectives From a Man on Death Row

Interview with Gerald Dean Cruz *

The following interview was conducted through a series of written correspondences between Gerald Dean Cruz and Leah Stiegler, the Allen Chair Editor for Volume 49 of the University of Richmond Law Review. This exchange was reproduced, in excerpts, for the sole purpose of giving readers a rare glimpse into the perspective of a death row inmate. The views expressed below do not reflect those of the University of Richmond Law Review or its editors. Please note some answers were heavily redacted at the discretion of the Law Review.

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Frenemies of the Court: The Many Faces of Amicus Curiae

Helen A. Anderson *

Ask any lawyer what an “amicus curiae” is, and you will be told that the term means “friend of the court.” The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.

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Does the Presumption of Validity Matter? An Experimental Assessment

Jeremy W. Bock*

“We don’t know exactly how often the presumption makes a difference to a case outcome.”

In patent law, the presumption of validity exerts a profound influence on litigation strategy. It has attracted criticism—not only from academics but also from at least one federal judge—for making weak patents difficult to invalidate. When mentioned to the jury, the presumption is perceived by litigants as exerting a powerful pro-patentee influence that overshadows its nominal procedural function of assigning the burden of proving invalidity.

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The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech

Margot E. Kaminski*
Shane Witnov**

Intellectual inquiry has long been a private activity, protected by norms, laws, and physical constraints. Librarians have shielded readers’ records; states have passed reader privacy laws; and printed books do not track your favorite passages unless you underline them. But the advent of the search engine, public video platforms, and the e-book have resulted in a drastic reduction in the normative and structural constraints that once protected the privacy of our intellectual endeavors.

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Testing Sex

Rachel Rebouché*

A revolution has happened in prenatal testing. Ushering in this change is a new prenatal test that relies on a simple blood sample collected from a pregnant woman. From the beginning of pregnancy, cell-free fetal DNA travels across the placental lining into the mother’s bloodstream, increasing in quantity as the pregnancy progresses. Potential parents can test that DNA for chromosomal abnormalities and for fetal sex after ten weeks of gestation, which is several weeks before a reliable ultrasound and seven weeks before an amniocentesis can be performed. As numerous newspaper and popular media articles report, what women can discover during their pregnancies will continue to evolve dramatically over the next ten years. This new non-invasive prenatal test (“NIPT”), coupled with advances in gene sequencing, could give parents information about all manner of traits, disorders, and propensities—from susceptibility to serious diseases, such as cancer and heart disease, to superficial traits, such as hair and eye color. The test is easy to perform, close to 100% accurate for fetal sex, and currently in clinical and commercial use.

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