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Allen Chair Issue 2015: Lethal Injection, Politics, and the Future of the Death Penalty

The University of Richmond Law Review had a very successful Allen Chair Symposium this academic year, titled, “Lethal Injection, Politics, and the Future of the Death Penalty.” The Symposium featured a keynote address from Professor Stephen B. Bright, President and Senior Counsel for the Southern Center for Human Rights and professor at the Yale School of Law, as well as incredible panels comprised of nationally renowned death penalty scholars, practitioners, doctors, politicians, and journalists. Through the subsequent months of hard work, the Law Review proudly presents the corresponding Allen Chair Issue. This, Volume 49’s third issue, is sure to be a great source for all things related to this controversial and important topic. We encourage all to read these articles and allow them to shed some unique light on the issue of the death penalty in American society and jurisprudence.

Professor Stephen Bright was our keynote speaker at the Allen Chair Symposium. His thought-provoking piece, largely developed from his address, is titled, “The Role of Race, Poverty, Intellectual Disability, and Mental Illness in the Decline of the Death Penalty.” Its citation is 49 U. Rich. L. Rev. 671 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Bright-493.pdf

Students Sheherezade Malik (Executive Editor, Volume 49) and Paul Holdsworth (Editor-in-Chief, Volume 49) then lay a foundation for the rest of the pieces of the Allen Chair Issue with “A Survey of the History of the Death Penalty in the United States.” This contribution’s citation is 49 U. Rich. L. Rev. 693 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/History-493.pdf

THE DEATH PENALTY AND LETHAL INJECTION

Doctor Joel Zivot of the Emory School of Medicine & Emory University Hospital provides an unprecedented analysis of lethal injection from the medical perspective. His contributions to the panel were incredibly insightful, and this piece is sure to be a “game-changer” in legal academia as well. His contribution is titled, “Lethal Injection: States Medicalize Execution.” Its citation is 49 U. Rich. L. Rev. 711 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Zivot-493.pdf

Professor Eric Berger then offers a compelling reflection on states’ execution procedures and their possible constitutional implications titled, “The Executioners’ Dilemmas.” Its citation is 49 U. Rich. L. Rev. 731 (2015), and it is available at http://lawreview.richmond.edu/files/2015/04/Berger-493.pdf

Distinguished Richmond journalist Frank Green sheds his expertise and reflections on having covered Virginia executions since 1982. His contribution is titled, “Witnessing Executions.” Its citation is 49 U. Rich. L. Rev. 763 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Green-493.pdf

Second-year law student, and Editor-in-Chief-elect, Thomas DiStanislao offers a compelling proposal for Virginia to return to the firing squad in lieu of the recent complications with lethal injection. His comment is titled, “A Shot in the Dark: Why Virginia Should Adopt the Firing Squad as Its Primary Method of Execution.” Its citation is 49 U. Rich. L. Rev. 779 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/DiStanislao-493.pdf

THE SHIFTING POLITICS OF THE DEATH PENALTY

Former Attorney General Mark Earley shifts the Issue’s focus to political and policy analysis. His contribution, titled, “A Pink Cadillac, An IQ of 63, and a Fourteen-Year-Old From South Carolina: Why I Can No Longer Support the Death Penalty” is an interesting reflection about how Mr. Earley’s views and opinions of the death penalty have evolved throughout and following his political career. It can be cited at 49 U. Rich. L. Rev. 811 (2015) and is available at http://lawreview.richmond.edu/files/2015/04/Earley-493.pdf

Professor Corinna Lain, without whose generosity and ideas the Allen Chair Symposium and Issue would not have been possible, offers a piece that highlights and analyzes 2014’s string of botched executions, and their various legal and societal implications. Her contribution is titled, “The Politics of Botched Executions.” The piece’s citation is 49 U. Rich. L. Rev. 825 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Lain-493.pdf

Following Professor Lain’s piece, Notre Dame law professor Stephen Smith, urges caution in declaring that the demise of the death penalty has been realized. While many recent developments have certainly called into question the future of America’s death penalty, there is much more to do. Professor Smith’s piece is titled, “Has the ‘Machinery of Death’ Become a Clunker?” Its citation is 49 U. Rich. L. Rev. 845 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Smith-493.pdf

THE FUTURE OF THE DEATH PENALTY

Richmond Law’s esteemed professor and former Dean, John G. Douglass, shifts the Issue’s focus to the future of the death penalty. Professor Douglass’ contribution tackles the issue of plea bargaining in Virginia death penalty cases. His essay is titled, “Death As a Bargaining Chip: Plea Bargaining and the Future of Virginia’s Death Penalty.” It can be cited at 49 U. Rich. L. Rev. 873 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Douglass-493.pdf

Professor Brandon Garrett, from the University of Virginia School of Law, then offers his contribution by analyzing interrogation policies in the Commonwealth of Virginia and proposing that such policies are in need of a major overhaul. Professor Garret’s piece, “Interrogation Policies” can be cited at 49 U. Rich. L. Rev. 895 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Garrett-493.pdf

Next, Richard Dieter, the Executive Director of the Death Penalty Information Center, discusses the trajectory of the death penalty in the United States. His piece, appropriately titled, “The Future of the Death Penalty in the United States” can be cited at 49 U. Rich. L. Rev. 921 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Dieter-493.pdf

Professor Mary Tate, the Director of the University of Richmond School of Law’s Institute for Actual Innocence, reflects on the inherent arbitrariness of doctrinal developments, public policy, and societal mood in death penalty outcomes. Professor Tate does so through reexamining the case of Tommy David Strickler, an indigent Virginia man executed in 1999. Her piece is titled, “Temporal Abritrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial.” Its citation is 49 U. Rich. L. Rev. 939 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Tate-493.pdf

Student Ann Reid, the Law Review’s Lead Articles Editor-elect, rounds out the Allen Chair 2015 Issue with an innovative proposal of narrowing capital eligibility in the aftermath of 2014’s botched execution and the controversial atmosphere surrounding death penalty sentiment. Her comment, “Making Sure We Are Getting It Right: Repairing ‘The Machinery of Death’ by Narrowing Capital Eligibility” can be cited at 49 U. Rich. L. Rev. 967 (2015). It is available at http://lawreview.richmond.edu/files/2015/04/Reid-493.pdf

POSTSCRIPT

In a unique postscript, Leah Stiegler, the Allen Chair Editor for Volume 49, interviewed an inmate on death row in California. This brief exchange serves to provides readers with a glimpse into one death row inmate’s views on the death penalty, lethal injection, and the criminal justice system. It is available at http://lawreview.richmond.edu/files/2015/04/Cruz-Update.pdf

ACKNOWLEDGMENTS

Please also read the Acknowledgments from Leah Stiegler, the Allen Chair Editor: http://lawreview.richmond.edu/files/2015/04/Ack.pdf

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.

* 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.

* 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]

* 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?

* 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.

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