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.[1] 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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    President and Senior Counsel, Southern Center for Human Rights, Atlanta, Georgia; Harvey Karp Visiting Lecturer, Yale Law School. The author’s curriculum vitae and publications are available at www.law.yale.edu/faculty/SBright.htm.

This essay was adapted from the keynote address given at Allen Chair Symposium, on October 24, 2014, at the University of Richmond School of Law. Parts of this essay and speech have been previously presented by Professor Bright, including at the United Nations Headquarters on April 24, 2014.

[1].    Death Penalty Trends, Amnesty Int’l, http://www.amnestyusa.org/our-work/issu es/death-penalty/us-death-penalty-facts/death-penalty-trends (last visited Feb. 27, 2015).

 

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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* J.D. Candidate 2015, University of Richmond School of Law. B.A., 2012, University of Pennsylvania. I would like to thank the University of Richmond Law Review staff and editors for their assistance in the multiple drafts of this article. I would also like to thank Haven Ogbagiorgis for her valuable feedback and support throughout the writing process. Most importantly, I would like to thank my family—my brother, Ehsan, and my parents, Muneer and Victoria Malik—for their unstinted support and unconditional love, and for making my dreams their own.

** J.D. Candidate 2015, University of Richmond School of Law. B.A., 2012, Brigham Young University. I would like to thank the entire staff of the University of Richmond Law Reveiw for their work on this essay, and for making this year’s Allen Chair Symposium and Issue a success. Of course, every personal acheivement in my life would not be possible without the unwavering support of my wife, Claire.

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.[1] The three-drug protocol referenced in Baze consisted of three chemicals injected into the condemned inmate via an intravenous drip.[2] The three-drug protocol began with sodium thiopental, followed by pancuronium bromide, and lastly, potassium chloride.[3] 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.[4]

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*    Assistant Professor of Anesthesiology & Surgery, Medical Director of the Cardio-Thoracic Intensive Care Unit, Emory School of Medicine & Emory University Hospital. ABA, Anesthesiology/Critical Care Medicine, 1995, Cleveland Clinic Foundation; FRCP(C), Anesthesiology, 1993, University of Toronto; MD, 1988, University of Manitoba.

Thank you to the University of Richmond School of Law for giving me a forum to share my views on the problems of lethal injection. I want to especially thank Professor Corinna Barrett Lain, Tara Ann Badawy, Leah Stiegler, and the University of Richmond Law Review Allen Chair Symposium. Doctors have a unique perspective that has been mostly absent in law reviews and I hope my effort here will shed additional light on this important subject.

[1].    553 U.S. 35, 47 (2008).

[2].    Id. at 44.

[3].    Id.

[4].    Id. at 46–47.

 

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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* Associate Professor of Law, University of Nebraska College of Law. I thank Ginger Anders, Anne Duncan, Jim Gibson, Megan McCracken, and the participants in the University of Richmond Law Review’s Allen Chair Symposium on Lethal Injection, Politics, and the Future of the Death Penalty for extremely helpful suggestions on earlier drafts. I also thank Nate Clark and Krystia Reed for splendid research assistance and Leah Stiegler, Sheherezade Malik, and the other wonderful editors of the University of Richmond Law Review for organizing this symposium. A McCollum Grant helped support the writing of this symposium contribution.

 

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.[1] 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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* Frank Green has been a reporter with the Richmond Times-Dispatch since 1980 and began covering the death penalty in 1982 with the reporting of the execution of Frank Coppola, Virginia’s first post-Furman execution. The Times-Dispatch has given prominent coverage to every execution in Virginia since.

This symposium essay recaptures the author’s descriptions of past executions in Virginia. To maintain accuracy, the author used past articles he wrote right after executions in addition to his memory.

[1].    See Frank Green, Graham Dies by Injection—He Killed Woman, 20, in Richmond Robbery, Rich. Times-Dispatch, Dec. 10, 1999, at B1; see also Graham v. Commonwealth, 464 S.E.2d 128, 131 (Va. 1995), cert. denied, Graham v. Angelone, 528 U.S. 1058 (1999) (denying the application for stay of execution).

 

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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* J.D. Candidate 2016, University of Richmond School of Law. B.A., 2011, Wake Forest University. I would like to thank Pietro Sanitate for his suggestions and the University of Richmond Law Review staff and editors, especially Glenice Coombs and Leah Stiegler, for their assistance. I would also like to thank Judith and Stephen Smith for their valuable insight, Robert Harrison for his help, and my parents, Gini and Phil DiStanislao, for their support, encouragement, and for always answering my early-morning phone calls. Most importantly, I would like to thank my wife, Elizabeth, without whom none of this would be possible, for having faith in me and for reminding me to pray for a world where articles like this are no longer needed.

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