While we’re on the subject . . . .


In an op-ed in AZ Central, Arizona Attorneys for Criminal Justice president Amy Kalman explains why she and more than 20 former Arizona judges, former prosecutors and legal experts, including the former judge who co-authored the state’s death penalty statute, are urging the U.S. Supreme Court to end capital punishment not just in Arizona, but nationwide. “There are now so many aggravating factors that Arizona prosecutors can seek the death penalty in 99 percent of first-degree murder cases. Ninety-nine percent of cases cannot all be ‘the worst,’ ” she writes.

Harvard law professor Laurence Tribe also uses that argument in his call for the U.S. Supreme Court to strike down the death penalty in the United States. In an op-ed in the Washington Post, Tribe writes, “After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the ‘worst of the worst.’ ”

In “A Culture That is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases,” in Northwestern Law’s Journal of Criminal Law and Criminology, Jon B. Gould and Kenneth S. Leon report that “extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence.” They say that these are “systemic and systematic extralegal factors that stand between a defendant and his opportunity to defend against a death sentence.”

In the Georgia Law Review, Lauren Sudeall Lucas offers “An Empirical Assessment of Georgia’s Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases.” She contends that although Georgia was the first state to bar the execution of defendants with intellectual disability, instituting the law more than 10 years before the U.S. Supreme Court found in Atkins v. Virginia that executing the intellectually disabled violated the Eighth Amendment, its statute requiring that intellectual disability be proved beyond a reasonable doubt has created an “unacceptable risk” that intellectually disabled defendants will be executed.

In “SCOTUS, a Death Sentence Should not be the Price of a Lazy Defense,”
an op-ed in the October 25 issue of “The Hill,” law professor Scott Sundby writes of the importance of mitigating evidence in a death penalty trial, and how the failure to present such evidence in the Texas case of Carlos Ayestas who was subsequently sentenced to death (you can read about his case in this newsletter), should be grounds for a new penalty trial. Ayestas’ case is now before the U.S. Supreme Court.

In “Executing Humanity: Legal Consciousness and Capital Punishment in the U.S., 1915-1940” in this month’s Cambridge University Press, Daniel LaChance examines how, “From the 1830s to the 1930s, elites across the United States increasingly privatized executions and standardized execution protocols.” That strategy, he says, may not have had the desired outcome.

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