On P int Bulletin: THE DEATH PENALTY

A Curriculum Guide

prepared by Andrew Brett Carrabis University of Florida, Class of 2010 Research Assistant, Center for the Study of Race and Race Relations

Special thanks to the following for use of materials in this guide Amnesty International U.S.A. James R. Acker, School Of Criminal Justice, University at Albany, State University of New York The American Civil Liberties Union The Capital Punishment in Context Institute The Legal Information Institute at Cornell University University of Alaska Anchorage Justice Center

Mission Statement The Center for the Study of Race and Race Relations is committed to de-stigmatizing race in America. With the objective of fostering communities of dialogue, the center embraces historically and empirically based thinking, talking, teaching, and writing on race. To this end, the center creates and supports programs designed to enhance race-related curriculum development for faculty, staff and students in collegiate and professional schools. Of the five U.S. law schools with race centers, the CSRRR is uniquely focused on curriculum development.

Vision • Producing, supporting, and highlighting race-related scholarship within and beyond the UF community • Gathering, analyzing, and sharing historical and contemporary knowledge about race and race relations • Developing and supporting—through teaching, research, writing, and workshops—race-related curricula for collegiate and professional schools • Fostering non-stigmatizing ways of discussing issues of race and ethnicity, including African Americans, Latino/as, American Indians, Asian Americans, and Whites.

From the author: The CSRRR is pleased to present Race and the Death Penalty: A Curriculum Resource Guide. We have designed this guide as a resource tool to support race-based curriculum development in the area of criminal law. The controversial subject of the death penalty, compounded with the issue of race, raises a broad range of issues—legal, social, economic, health, political, racial, and global. We have included approximately 150 references to overviews, books, cases, law reviews, articles, websites, documentary and feature films. We hope you find this publication to be a useful resource. Please join us in our efforts to identify and address difficult but important race-related issues. We look forward to working with you and welcome your questions and comments at [email protected]. Respectfully yours, Andrew Brett Carrabis University of Florida, Class of 2010 Research Assistant, Center for the Study of Race and Race Relations Center for the Study of Race and Race Relations 1

On P int Bulletin: THE DEATH PENALTY 2 University of Florida Levin College of Law

On P int Bulletin: THE DEATH PENALTY Contents Death Penalty: An Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Proportionality Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4



Principle of Individualized Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4



Method of Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5



Classes of Persons Not Eligible for the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Supreme Court Evaluation of Racial Bias in the Criminal Justice System . . . . . . . . . . 6

Race and Jury Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



Race and the Application of the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



Ways in Which Race Can Impact Capital Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

RESOURCE LIST Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Casebooks and Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Key Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Law Reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Films & Documentaries on the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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On P int Bulletin: THE DEATH PENALTY

Death Penalty: An Overview From: The Legal Information Institute at Cornell University http://topics.law.cornell.edu/wex/Death_penalty

Congress or any state legislature may prescribe the death penalty, also known as capital punishment, for murder and other capital crimes. The Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment’s ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment’s Due Process Clause, the Eighth Amendment applies to the states as well as the federal government. Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine whether a particular punishment is cruel or unusual. When considering evolving standards of decency, courts look for objective factors to show changes in community standards and also make independent evaluations about whether the statute in question is reasonable.

Proportionality Requirement The U.S. Supreme Court has determined that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment’s prohibition against cruel and unusual punishments. In performing its proportionality analysis, the Supreme Court looks to the following three factors: a consideration of the offense’s gravity and the stringency of the penalty; a consideration of how the jurisdiction punishes its other criminals; and a consideration of how other jurisdictions punish the same crime. In the landmark case Coker v. Georgia, 433 U.S. 584 (1977), the Supreme Court ruled that a state cannot apply the death penalty for the crime of raping an adult woman because it violates the proportionality requirement. The Court came to this conclusion by considering objective indicia of the nation’s attitude toward the death penalty in rape cases. At the time only a few states allowed for executions of convicted rapists. Twenty-one years later, in Kennedy v. Louisiana (2008), the Supreme Court extended its ruling in Coker, holding that the penalty is categorically unavailable for cases of child rape in which the victim lives. Because only six states in the country permitted execution as a penalty for child rape, the Supreme Court found the national consensus to hold its use in these cases as disproportionate.

Principle of Individualized Sentencing To impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualized sentencing process. In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court ruled that a jury, rather than a judge, must find an aggravating factor to exist for cases in which those factors underlie a judge’s choice to impose the death penalty rather than a lesser punishment. An aggravating factor is any fact or circumstance that increases the culpability for a criminal act. The Supreme Court further refined the requirement of “a finding of aggravating factors” in Brown v. Sanders. 546 U.S. 212 (2006). For cases in which an appellate court rules a sentencing factor invalid, the Court ruled that the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor.

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Another 2006 case, Kansas v. Marsh, 548 U.S. 163, offered yet another clarification to the principle of individualized sentencing jurisprudence. After Marsh, states may impose the death penalty for situations in which the jury finds the aggravating and mitigating factors to equally balance, without violating the principle of individualized sentencing.

Method of Execution A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal. Courts apply an “objectively intolerable” test when determining whether the method of execution violates the Eighth Amendment’s ban on cruel and unusual punishments. State courts and lower federal courts have refused to strike down hanging and electrocution as impermissible methods of execution; however, the U.S. Supreme Court did not take up a method of execution case for 117 years until Baze v. Rees, 553 U.S. 35(2008). In Baze the Supreme Court held that lethal injection did not constitute a cruel and unusual punishment. This case resolved a controversial issue in light of recent evidence that the lethal injection three-drug combination fails to alleviate pain and prevents the criminal from signaling such pain because of paralysis inducement.

Classes of Persons Not Eligible for the Death Penalty Also recently, in Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court determined that executing mentally retarded criminals violates the ban on “cruel and unusual punishments” because their mental handicap lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe. However, in Bobby v. Bies, 129 S. Ct. 988 (2009) the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled intellectually disabled before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate such claims. In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court invalidated the death penalty for all juvenile offenders. The majority opinion pointed to teenagers’ lack of maturity and responsibility, greater vulnerability to negative influences, and incomplete character development. The Court concluded that juvenile offenders assume diminished culpability for their crimes.

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On P int Bulletin: THE DEATH PENALTY

Supreme Court Evaluation of Racial Bias in the Criminal Justice System From: Capital Punishment in Context Institute http://www.capitalpunishmentincontext.org/issues/race

Race and Jury Selection Race was raised as an issue in the criminal justice system when the U.S. Supreme Court held in Batson v. Kentucky 476 U.S. 79 (1986) that a prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for the strikes. In Miller-El v. Dretke, 535 U.S. 231 (2005), the Court determined that the prosecutor’s race-neutral explanations for the strikes of potential black jurors were so far at odds with the evidence that the explanations indicated discriminatory intent.

Race and the Application of the Death Penalty Questions of whether the death penalty is applied fairly along racial lines were raised in McCleskey v. Kemp, 481 U.S. 279 (1987). McCleskey argued that there was racial discrimination in the application of Georgia’s death penalty. As evidence for this claim, McCleskey presented the results of an extensive statistical study by Professor David Baldus of the University of Iowa Law School and his colleagues. Baldus’ study collected information about all the capital defendants in Georgia—regardless of whether they were sentenced to death. This information allowed the researchers to control for hundreds of variables about the offender, victim, and crime—thereby permitting a statistical comparison of cases in order to see what factors influenced whether a person was sentenced to death. Professor Baldus found, among other things, that: • Fewer than 40% of Georgia homicide cases involve white victims, but in 87% of the cases in which a death sentence is imposed the victim is white. White-victim cases are roughly 11 times more likely than black-victim cases to result in a sentence of death. • When the race of the defendant is added to the analysis, the following pattern appears: 22% of black defendants who kill white victims are sentenced to death; 8% of white defendants who kill white victims are sentenced to death; 1% of black defendants who kill black victims are sentenced to death; and 3% of white defendants who kill black victims are sentenced to death. (Only 64 of the approximately 2,500 homicide cases studied involved killings of blacks by whites, so the 3% figure in this category represents a total of two death sentences over a six-year period. Thus, the reason why a bias against black defendants is not even more apparent is that most black defendants have killed black victims; almost no cases are found of white defendants who have killed black victims; and virtually no defendant convicted of killing a black victim gets the death penalty.) • No factor other than race explains these racial patterns. The multiple-regression analysis with the greatest explanatory power shows that after controlling for non-racial factors, murderers of white victims receive a death sentence 4.3 times more frequently than murderers of black victims. The race of the victim proves to be as good a predictor of a capital sentence as the aggravating circumstances spelled out in the Georgia statute, such as whether the defendant has a prior murder conviction or was the primary actor in the present murder.

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• Only 5% of Georgia killings result in a death sentence; yet, when more than 230 non-racial variables are controlled for, the death-sentencing rate is 6% higher in white-victim cases than in black-victim cases. A murderer therefore incurs less risk of death by committing the murder in the first place than by selecting a white victim instead of a black one. • The effects of race are not uniform across the spectrum of homicide cases. In the least aggravated cases, almost no defendants are sentenced to death; in the most aggravated cases, a high percentage of defendants are sentenced to death regardless of their race or their victim’s race; it is in the mid-range of cases which, as it happens, includes cases such as McCleskey’s, that race has its greatest influence. In these mid-range cases, death sentences are imposed on 34% of the killers of white victims and 14% of the killers of black victims. In other words, 20 out of every 34 defendants sentenced to die for killing a white victim would not have received a death sentence if their victims had been black. The Supreme Court held, however, that a death-sentenced defendant cannot challenge his sentence as a violation of the constitutional requirement of “equal protection of the laws” by showing that it is consistent with a system-wide pattern of racial disparity in capital sentencing. To make out an equalprotection violation, a defendant is required to prove that some specific actor or actors in his or her individual case—the prosecutor or the judge or the jurors, for example—intentionally discriminated against the defendant on the ground of race in making a decision that resulted in the death sentence.

Ways in Which Race Can Impact Capital Sentencing Studies from across the nation have examined the influence of race in the criminal justice system. Some have shown that race remains a factor in various aspects of death penalty.

Race of the Victim

Nationally, nearly 80% of murder victims in cases resulting in an execution have been white, even though nationally only 50% of murder victims generally are white. A 1990 examination of death penalty sentencing conducted by the U.S. General Accounting Office noted that, “In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.” Individual state studies have found similar disparities. In fact, race of victim disparities have been found in most death penalty states. This is the most compelling aspect and should be developed—every study (except I think NJ) that has looked into the application of the death penalty has found the race of the victim to be the most significant factor in determining death—This has been over years and across states… by advocates and neutral parties. Also look at the writings of Scott Howe and Streiker (Carol and Jordan) on this issue

Race of the Defendant

Nationally, the racial composition of those on death row is 45% white, 42% black, and 10% Latino/ Latina. Of states with more than 10 people on death row, Texas (70%) and Pennsylvania (69%) have the largest percentage of minorities on death row. Year 2000 census data revealed that the racial composition of the United States was 75.1% white, 12.3% black and 12.5% Latino/Latina. While these statistics might suggest that minorities are overrepresented on death row, the same statistical studies that have found evidence of race of victim effects in capital sentencing have not conclusively found evidence of similar race of defendant effects. In fact, while some studies show that the race of the defendant is correlated with death sentences, no researcher has made definitive findings that the death sentence is being imposed on defendants on account of their race, per se, independently of other variables (such as type of crime) which are correlated with defendants’ race. Center for the Study of Race and Race Relations 7

On P int Bulletin: THE DEATH PENALTY

Race of the Jurors

In capital cases, one juror can represent the difference between life and death. A belief that members of one race, gender, or religion might generally be less inclined to impose a death sentence can lead the prosecutor to allow as few of such jurors as possible. For example, a Dallas Morning News review of trials in that jurisdiction found systematic exclusion of blacks from juries. In a two-year study of more than 100 felony cases in Dallas County, the prosecutors dismissed blacks from jury service twice as often as whites. Even when the newspaper compared similar jurors who had expressed opinions about the criminal justice system (a reason that prosecutors had given for the elimination of jurors, claiming that race was not a factor), black jurors were excused at a much higher rate than whites. Of jurors who said that either they or someone close to them had had a bad experience with the police or the courts, prosecutors struck 100% of the blacks, but only 39% of the whites. This must also reference the jury selection process—since that is part of the way that diverse juries are avoided

Race of the Prosecutor

Whenever and wherever capital punishment is authorized by law, the decision of whether to seek a death sentence in particular cases is left to the discretion of the prosecutor. A 1998 examination of Chief District Attorneys in states with the death penalty found that nearly 98% are white, 1% are black, and 1% are Hispanic.

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RESOURCE LIST Books Allen, H.W., & Clubb, J.M. (2009). Race, Class and the Death Penalty: Capital Punishment in American History. State University of New York Press. ISBN-13: 978-0791474389. Baird, R.M., & Rosenbaum, S.E. (2010). Death Penalty: Debating the Moral, Legal, and Political Issues. Prometheus Books. ISBN-13: 978-1591027607. Bakken, G.M. (2010). Invitation to an Execution: A History of the Death Penalty in the United States. University of New Mexico Press. ISBN-13: 978-0826348562. Banner, S. (2003). The Death Penalty: An American History. Harvard University Press. ISBN-13: 978-0674010833. Bedau, H.A., & Cassell, P.G. (2004). Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case. Oxford University Press. ISBN-13: 978-0195169836. Blume, J.H., & Steiker, J.M. (2009). Death Penalty Stories (Law Stories). Foundation Press. ISBN-13: 978-1599413433 Del Carmen, R.V., & Vollum, S. (2008). The Death Penalty: Constitutional Issues, Commentaries and Case Briefs. LexisNexis/Matthew Bender (2nd edition). ISBN-13: 978-1593455750. Eisenberg, J.R. (2004). Law, Psychology, and Death Penalty Litigation. Professional Resource Press. ISBN-13: 978-1568870892. Fleury-Steiner, B. (2004). Jurors’ Stories of Death: How America’s Death Penalty Invests in Inequality. University of Michigan Press. ISBN-13: 978-0472068609. Garvey, S.P. (2002). America’s Death Penalty: Beyond Repair? Duke University Press. ISBN-13: 978-0822330431. Gilleland, S. (2005). Race and the Death Penalty: A Study. Unknown Publisher. ASIN: B002ACMSVA. Hammel, A. (2010). Ending the Death Penalty: The European Experience in Global Perspective. Palgrave Macmillan. ISBN-13: 978-0230231986. Haney, C. (2005). Death by Design: Capital Punishment as a Social Psychological System. Oxford University Press. ISBN-13: 978-0195182408. Herda, D.J. (2010). Furman v. Georgia: The Death Penalty Case (Landmark Supreme Court Cases, Gold Edition). Enslow Publishers; Revised Edition. ISBN-13: 978-0766034280. Hood, R. & Hoyle, C. (2008). The Death Penalty: A Worldwide Perspective. Oxford University Press. ISBN-13: 978-0199228478. Jackson, J. (1998). Legal Lynching: Racism, Injustice & the Death Penalty. Marlowe & Co. ISBN-13: 978-1569247068. Jones, S. (2009). Coalition Building in the Anti-Death Penalty Movement: Privileged Morality, Race Realities. Lexington Books. ISBN-13: 978-0739120385. Center for the Study of Race and Race Relations 9

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Kapardis, A. (2010). Psychology and Law: A Critical Introduction. Cambridge University Press. ISBN-13: 978-0521707732. Lanier, C.S., Bowers, W.J., Acker, J.R. (2008). The Future of America’s Death Penalty: An Agenda for the Next Generation of Capital Punishment Research. Carolina Academic Press. ISBN-13: 978-1594604263. Lyon, A., & Dershowitz, A. (2010). Angel of Death Row: My Life as a Death Penalty Defense Lawyer. Kaplan Publishing. ISBN-13: 978-1607144342. Ogletree, C., & Sarat, A. (2006). From Lynch Mobs to the Killing State. NYU Press. ISBN-13: 978-0814740217. Ogletree, C., & Sarat, A. (2009). When Law Fails: Making Sense of Miscarriages of Justice. (Charles Hamilton Houston Institute Series on Race and Justice). NYU Press. ISBN-13: 978-0814740514. Oshinsky, D. (2010). Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America (Landmark Law Cases and American Society). University Press of Kansas. ISBN-13: 978-0700617104. Pradervand, P. (2009). Messages of Life from Death Row. BookSurge Publishing. ISBN-13: 978-1439235607. Rose, D. (2007). The Big Eddy Club: The Stocking Stranglings and Southern Justice. New Press. ISBN-13: 978-1565849105. Sarat, A., & Ogletree, C. (2009). The Road to Abolition?: The Future of Capital Punishment in the United States (Charles Hamilton Houston Institute Series on Race and Justice). NYU Press. ISBN-13: 978-0814762172. Sundby, S. (2007). A Life and Death Decision: A Jury Weighs the Death Penalty. Palgrave Macmillan. ISBN-13: 978-0230600638. Welsh-Huggins, A. (2009). No Winners Here Tonight: Race, Politics, and Geography in One of the Country’s Busiest Death Penalty States (Law Society & Politics in the Midwest). Ohio University Press. ISBN-13: 978-0821418345.

Casebooks and Materials Branham, L., & Hamden, M. (2009). Cases and Materials on the Law and Policy of Sentencing and Corrections (American Casebooks). West Publishing; Eighth Edition. ISBN-13: 978-0314199430 Branham, L.S. (2005). The Law and Policy of Sentencing and Corrections: In a Nutshell. West Publishing; Seventh Edition. ISBN-13: 978-0314159373. Carter, L.E. (2008). Understanding Capital Punishment Law. LexisNexis/Matthew Bender; Second Edition. ISBN-13: 978-1422423868. Gardner, M.R. (2004). Crimes and Punishment: Cases, Materials, and Readings in Criminal Law. LexisNexis Publishing. ISBN-13: 978-0820562063. Levenson, L.L. (2009). Glannon Guide to Criminal Law: Student Manual. Aspen Publishers; Second Edition. ISBN-13: 978-0735579552. Levenson, L.L., & Chemerinsky, E. (2009). Criminal Procedure: 2009 Case & Statutory Supplement. Wolters Kluwer Law & Business. ISBN-13: 978-0735584921.

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Marcus, P. & Whitebread, C. (2008). Gilbert Law Summaries on Criminal Procedure. Gilbert Law Publishing; Seventeenth Edition. ISBN-13: 978-0314194336. Rivkind, N., & Shatz, S.F. (2009). Cases and Materials on the Death Penalty (American Casebook). West Publishing; Third Edition. ISBN-13: 978-0314199560. Streib, V.L. (2008). Death Penalty in a Nutshell. West Publishing; Third Edition. ISBN-13: 978-0314189820.

Key Cases From: Professor James R. Acker, School of Criminal Justice, University at Albany, State University of New York, from the Law and Politics Book Review of Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment by Barry Latzer (Editor), Woburn, MA, Butterworth-Heinemann Publishing (1997) http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/latzer98.html From: University of Alaska Anchorage Justice Center, “History of the Death Penalty & Recent Developments.” Compiled by Melissa S. Green http://justice.uaa.alaska.edu/death/history.html From: The American Civil Liberties Union http://www.aclu.org/capital-punishment/race-and-death-penalty

Adams v. Texas, 448 U.S. 38 (1980). Prospective jurors cannot be excluded from service in capital trials because they would be “affected” by the possibility of a capital sentence. Arizona v. Rumsey, 467 U.S. 203 (1984). Applying double jeopardy principles to the capital-sentencing context. Batson v. Kentucky, 476 U.S. 79 (1986). Ruling that prosecutors may not use race as a factor in eliminating potential jurors from the jury pool. Beck v. Alabama, 447 U.s. 625 (1980). Striking a portion of Alabama’s death penalty law that blocked juries from convicting defendants of an included lesser offense rather than the capital crime itself; juries were required to either convict a defendant of the capital crime or to acquit him. Blystone v. Pennsylvania, 494 U.S. 299 (1990). Holding that legislation requiring that a death penalty be imposed if the sentencer finds at least one aggravating factor and no mitigating factors, or that aggravating factors outweigh mitigating factors, does not create an impermissible “mandatory” capital punishment scheme. Burger v. Kemp, 483 U.S. 776 (1987). Rejecting a capital defendant’s claim that he had received ineffective assistance of counsel. Coker v. Georgia, 433 U.S. 584 (1977). Declaring unconstitutional the death penalty for the rape of adult women, on the grounds that the sentence was disproportionate to the crime. Twenty prisoners from around the country were removed from death row as a consequence of this decision. Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1987). Clarifying the circumstances under which the “nontrigger-person” in a felony murder can be sentenced to death. Center for the Study of Race and Race Relations 11

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Ford v. Wainwright, 477 U.S. 399 (1986). Recognizing that the Eighth Amendment forbids the capital punishment of offenders who have become “incompetent” for execution, and requiring minimal procedural safeguards for resolving incompetency claims. Furman v. Georgia, 408 U.S. 153 (1972). Invalidating capital punishment laws as then administered, and becoming the watershed case in the modern death-penalty era. Furman struck down federal and state capital punishment laws permitting wide discretion in the application of the death penalty. Characterizing these laws as “arbitrary and capricious,” the majority ruled that they constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and the due process guarantees of the Fourteenth Amendment. Godfrey v. Georgia, 446 U.S. 420 (1980). Declaring unconstitutionally vague, as applied, a statutory aggravating factor involving the commission of an “outrageously or wantonly vile, horrible and inhuman...” murder. Gregg v. Georgia, 428 U.S. 153 (1976), Jurek v. Texas, 428 U.S. 262 (1976), Proffitt v. Florida, 428 U.S. 242 (1976). Determining that punishment by death is not per se cruel and unusual under the Eighth Amendment, and that “guided discretion” statutes are capable of remedying the constitutional infirmities identified by the Furman Court. In Gregg, Jurek, and Proffitt respectively, the Georgia, Texas, and Florida statutes validated by the Supreme Court afforded sentencing courts the discretion to impose death sentences for specified crimes and provided for two-stage, or “bifurcated,” trials, involving in the first stage the determination of a defendant’s guilt or innocence and, in the second, determination of the sentence after consideration of aggravating and mitigating circumstances. Hopper v. Evans, 456 U.S. 605 (1982). Upholding the death sentence of a defendant convicted under the Alabama statute partially struck down in Beck v. Alabama, 447 U.S. 625 (1980). The court held that, since a lesser offense was not an issue, the law’s failure to allow for it did not prejudice the case; i.e., the conviction of a capital prisoner tried under a partially flawed statute need not be reversed unless it was actually touched by the imperfection. Evans was executed on April 22, 1983. Lockett v. Ohio, 438 U.S. 586 (1978) and McKoy v. North Carolina, 494 U.S. 433 (1990). Ruling, respectively, that the sentencer in a capital trial must be allowed to consider all relevant mitigating evidence, and that jurors may not be required to agree unanimously that a mitigating factor has been established before crediting mitigation evidence. In Lockett v. Ohio, 438 U.S. 586 (1978), the high court forced a number of states to again revise their death penalty statutes by ruling that the sentencing authority in a capital case must consider every possible mitigating factor to the crime rather than limiting, as Ohio had, the mitigating factors that could be considered to a specific list. McCleskey v. Kemp, 481 U.S. 279 (1987). Rejected equal protection and cruel and unusual punishment challenges to Georgia’s death-penalty system. Raised by an African American defendant sentenced to death for murdering a white victim, the case was based on a statewide study suggesting that killers of whites were significantly more likely to be charged with capital crimes and sentenced to death than killers of blacks in otherwise similar cases. Miller-El v. Cockrell, 537 U.S. 322 (2003). Ruling that Miller-El should have been given the opportunity to prove that his death sentence was the result of discriminatory jury practices. Such practices included the so called “Texas shuffle” to limit or eliminate African American jurors. Other practices included disparate questioning of potential jurors based on race, and a training memo instructing prosecutors on ways to skew juries based on race.

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Payne v. Tennessee, 501 U.S. 808 (1991). Allowing the sentencing authority in capital trials to consider “victim-impact evidence.” Penry v. Lynaugh, 492 U.S. 302 (1989). Ruling that it is not categorically unconstitutional to execute an intellectually challenged person found guilty of capital murder. Some states have enacted laws specifically excluding capital sentencing for persons determined to be intellectually challenged. Pulley v. Harris, 465 U.S. 37 (1984). Holding that the federal Constitution does not require “comparative proportionality review” of capital sentences. Spaziano v. Florida, 468 U.S. 447 (1984). Approving Florida’s practice of allowing the trial judge to impose a death sentence in disregard of a jury’s advisory verdict recommending a sentence of life imprisonment. Stanford v. Kentucky, 492 U.S. 361 (1989), and Penry v. Lynaugh, 492 U.S. 302 (1989). Ruling, respectively, that the federal Constitution does not prohibit the execution of 16- and 17-year old murderers, or intellectually challenged murderers. Thompson v. Oklahoma, 487 U.S. 815 (1988) Ruling that youths younger than 16 years old at the time of their offense cannot be constitutionally executed. Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976). Providing a mandatory death penalty for specific crimes, and allowing no judicial or jury discretion beyond the determination of guilt. The laws were declared unconstitutional in Coker v. Georgia, 433 U.S. 584 (1977), holding that death is a constitutionally excessive punishment for the crime of raping an adult. In 1977, the Supreme Court declared that in applying the death penalty in rape cases was unconstitutional because the sentence was disproportionate to the crime.

Law Reviews Adler, J.S. (2009). Race, Class, and the Death Penalty: Capital Punishment in American History. Journal of Southern History, 75:1117. Baldus, D.C., & Woodworth, G. (2004). Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception. DePaul University Law Review, 53:1411. Baldus, D.C., Woodworth, G. Zuckerman, D. Weiner, N.A. & Broffitt, B. (1998). How the Death Penalty Works: Empirical Studies of the Modern Capital Sentencing System -Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview. Cornell University Law Review, 83:1638. Ball, H. (2008). Thurgood Marshall’s Forlorn Battle against Racial Discrimination in the Administration of the Death Penalty: The McCleskey Cases, 1987, 1991. Mississippi College Law Review, 27:335. Banks, R.R., & Ford, R.T. (2009). (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality. Emory Law Journal, 58:1053. Eldridge, K.R. (2002). Racial Disparities in the Capital System: Invidious or Accidental?: Capital Defense Journal, 14:305.

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On P int Bulletin: THE DEATH PENALTY

Gonzalez-Perez, M. (2002). The Potential for Bias in Capital Juries. Justice System Journal, 23:235. Goodman, M. (2007). A Death Penalty Wake-up Call: Reducing the Risk of Racial Discrimination in Capital Punishment. University of California-Berkeley Journal of Criminal Law, 12:29. Greenlee, H., & Greenlee, S. P. (2008). Women and the Death Penalty: Racial Disparities and Differences. William & Mary Journal of Women and Law, 14:319. Hughes, E. (2009). Media, Race, and the Death Penalty: Introduction to a Frank Conversation. DePaul University Law Review, 58:591. Hutchinson, D. L. (2009). Racial Exhaustion. Washington University Law Review, 86:917 (2009). Johnson, O. C. A. (2007). Symposium on Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp—Legislating Racial Fairness in Criminal Justice. Columbia University Human Rights Law Review, 39:233. Klein, R. (2009). Twentieth Annual Supreme Court Review: An Analysis of the Death Penalty Jurisprudence of the October 2007 Supreme Court Term. Touro University Law Review, 25:625. Lee, E. T., & Bhagwat, A (1998). The McCleskey Puzzle: Remedying Prosecutorial Discrimination against Black Victims in Capital Sentencing. Supreme Court Review, 1998:145. Levinson, J.D. (2009). Media, Race, and the Death Penalty - Eighteenth Annual DePaul Law Review Symposium: Race, Death, and the Complicitous Mind. DePaul University Law Review, 58:599. Lynch, M., & Haney, C. (2009). Capital Jury Deliberation: Effects on Death Sentencing, Comprehension, and Discrimination. Law and Human Behavior Journal, 33: 481. Mason, D. W. (2008). Racism on our Juries: The Impossibility of Impartiality in Capital Cases. Jones Law Review, 12:169. Mears, M. (2008). The Georgia Death Penalty: A Need for Racial Justice. John Marshall Law Journal, 1:71. Mello, M. (2007). Ivon Stanley and James Adams’ America: Vectors of Racism in Capital Punishment. Criminal Law Bulletin, 43:1. Millemann, M., & Christopher, G. W. (2005). Preferring White Lives: The Racial Administration of the Death Penalty in Maryland. University of Maryland Law Journal on Race, Religion, Gender & Class, 5:1. Phillips, S. (2009). Status Disparities in the Capital of Capital Punishment. Law & Society Review, 43:807. Robinson, M. B. (2009). The Real Death Penalty: Capital Punishment According to the Experts Criminal Law Bulletin, 45:3. Schebb, J. M., Lyons, W., & Wagers, K. A. (2008). Race, Prosecutors, and Juries: The Death Penalty in Tennessee. Justice System Journal, 29:338. Songer, M. J., & Unah, I. (2006). The Effect of Race, Gender, and Location on Prosecutorial Decisions to Seek the Death Penalty in South Carolina. University of South Carolina Law Review, 58:161. Unnever, J.D., Cullen, F. T., & Jonson, C. L. (2008). Race, Racism, and Support for Capital Punishment. Crime and Justice Journal, 37:45. Williams, K. (2002). The Death Penalty: Can it be Fixed? Catholic University Law Review, 51:1177. Wolf, M. P. (2007). Proving Race Discrimination in Criminal Cases Using Statistical Evidence. University of California-Hastings Race and Poverty Law Journal, 4:395.

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Films & Documentaries on the Death Penalty From: Amnesty International U.S.A. (annotations added by the author) www.amnestyusa.org

After Innocence (2005). This documentary tells the true-life, compelling stories of exonerated prisoners. It examines the trials and tribulations waiting for them upon their release from prison. It also examines the U.S. justice system and the flaws that led to the wrongful conviction of these men. The Closure Myth (2007). This documentary traces one woman’s dramatic transformation from being consumed by desire to seek the death penalty as revenge for her daughter’s murderer to her realization that only in forgiveness would she find closure. Dead Man Walking (1995). This acclaimed film traces the relationship between a death row inmate and the nun to whom he turns for spiritual guidance in the days leading up to his scheduled execution. Deadline (2004). This documentary explores two of the most significant, yet unexamined, events in the history of American capital punishment—the abolition of the death penalty in 1972 and the momentous debate in Illinois in 2002 over clemency for all of the state’s death row inmates. The film reveals the inner workings of these events and raises profound questions about America’s approach to crime and punishment. The Empty Chair (2003). Four stories of murder victims’ families reliving the crimes and confronting the loss of loved ones. Reactions range from revenge and desire for punishment to searching for forgiveness and healing. Commentary by Sister Helen Prejean. The Execution of Wanda Jean (2004). An unflinching investigation of the role that poverty, mental health, race, and sexuality play within the criminal justice system. Wanda Jean Allen was an attractive young woman with what many considered to be an appealing personality. She was also an African-American lesbian whose low IQ indicated borderline intellectual disability. By the age of 29, Wanda Jean had killed twice—and would become one of the most controversial death-row inmates in recent history. The Exonerated (2005). Susan Sarandon and Danny Glover star in this film based upon the stage play of the same name. Actual court depositions, transcripts, letters, and interviews comprise the chilling and moving script that chronicles the stories of six wrongly convicted death row inmates. The Green Mile (1999). Set on Death Row in a Southern prison in 1935, the film tells the story of the cellblock’s head guard, who develops a poignant, unusual relationship with one inmate who possesses a magical gift that is both mysterious and miraculous. Interview with an Executioner (2007). This documentary goes behind the scenes in a Mississippi penitentiary during the 14 days leading up to the execution of Edward Earl Johnson. Don Cabana, the executioner, recounts the chilling experience of the execution of Johnson, who maintained his innocence until the end with his final words: “I want you to know exactly what you are doing when you execute me. I want you to remember every last detail, ’cause I am innocent.”

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On P int Bulletin: THE DEATH PENALTY

The Life of David Gale (2003). A respected death penalty opponent finds himself on death row for the rape and murder of fellow activist Constance Hallaway. With only three days before his scheduled execution, Gale, in an effort to reveal the truth, agrees to give reporter Bitsey Bloom an exclusive interview that ends with a terrible discovery. Monster (2003). Actress Charlize Theron stars as serial killer Aileen Wuornos, who was executed in Florida on October 9, 2002. Director Patty Jenkins chronicles the love story between Wuornos and Selby Wall, played by Christina Ricci, and the transformation Wuornos undergoes from being a prostitute and victim of abuse, to contemplating suicide, to becoming a cold-blooded murderer. Race to Execution (2006). By Rachel Lyon, this film follows the stories of two death row inmates and exposes how race infects America’s death penalty system. The Religious Community Speaks Against the Death Penalty (2002). Produced by the American Friends Service Committee’s Religious Organizing Against the Death Penalty Project, this video includes Dennis Brutus, South African poet and activist; Rev. Bernice King, Rev. Martin Luther King Jr.’s daughter and author of Hard Questions, Heart Answers; Sister Helen Prejean, CSJ, author of Dead Man Walking; Millard Fuller, founder and president, Habitat for Humanity International; Rev. Kobutsu Malone, Zen Buddhist priest; Marshall Dayan, Jewish activist against the death penalty; and Marietta Jeagar-Lane, with Murder Victims’ Families for Reconciliation. The Thin Blue Line (1988). Through the use of reenactments of the crime, photo montages, film clips, and interviews, this is a reconstruction and investigation of the 1976 murder of a Dallas policeman and the subsequent arrest and sentencing to death of a man who claims to be innocent. Too Flawed to Fix (2002). A powerful documentary that explores and exposes the irreparable flaws in the criminal justice system by examining the 13 individuals who were wrongfully convicted and released from Illinois’ death row. The Trials of Daryl Hunt (2006). This documentary offers a deeply personal story of a wrongfully convicted man who spent 20 years in prison in North Carolina for a crime he did not commit.

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