In their book, The Slow Death of the Death Penalty: Toward a Postmortem, editors Jamie Almallen, Mary Welek Atwell, and Todd C. Peppers “put together a collection of essays that would constitute, in effect, and autopsy of capital punishment; our authors have done a postmortem on the death penalty to determine the pathologies that caused its illness and death. . . . Racism. Sexism. Mediocre defense counsel. Conviction-prone juries. Botched executions. Poorly presented mitigation evidence. The lack of a deterrent effect. Inconsistency in case law. Cost. A politicized clemency process.” The writers, composed of death-penalty scholars, activists, and attorneys, “take an accounting of the damage inflicted by the machinery of death,” the editors write. And while they believe the death penalty is dying, they “do not want to create the impression” that it “has disappeared. And “its power and destructive impact is waning.”
“While AEDPA [the Anti-Terrorism and Effective Death Penalty Act of 1996] was meant to codify habeas jurisprudence that valued finality and innocence above all else, it has instead prioritized finality at the expense of innocence,” Paige Skousen Nelson writes in her BYU Law Review article, “Innocence and Habeas Corpus: A Call for Equitable Reforms.” Nelson suggests that two congressional reforms could “reinstate innocence to its paramount role without compromising finality: first, amending the federal habeas petition rule to allow petitioners to file successive motions based on changes in statutory interpretation; and second, repealing the statute of limitations.” Both reforms would “make it easier for innocent petitioners to challenge their detentions,” she writes.
In her piece, “Unequal Before the Law: How Trump’s Death Penalty Order Codifies Dangerous Speech,” in the law and policy journal Just Security, Cathy Buerger notes that when President Trump reinstate federal executions by executive order on his first day in office, he “directed the Attorney General to seek the death penalty in every case in which a “capital crime” is committed by an undocumented migrant.” She says that “by tying the harshest punishment the State can impose to the identity of the accused,” he is sending a “signal” that “some people—by virtue of who they are—deserve to be killed. This is not merely an expansion of policy; it is dangerous speech that can increase the risk of intergroup violence.” Buerger maintains that “Nowhere else in the contemporary U.S. legal system does one’s identity make one worthy of a more severe punishment.”
“When the death penalty’s objective characteristics are considered, capital punishment should easily—and immediately—be declared unconstitutional under the U.S. Constitution’s Eighth Amendment,” John Bessler writes in his article, “Lost and Found: The Forgotten Origins of the ‘Cruel and Unusual Punishments’ Provision’” in the British Journal of American Legal Studies. “America’s death penalty has always been extraordinarily cruel and torturous—and it has clearly become unusual, especially in comparison to life and life-without-parole (“LWOP”) sentences, in the twenty-first century. In fact, America’s use of capital punishment is unusual in at least three ways: (1) it is unusual or rare in frequency, especially in comparison to life and LWOP sentences, (2) it is unusual because it is administered in an arbitrary and discriminatory manner, thus running afoul of the Fourteenth Amendment’s Equal Protection Clause; and (3) it is unusual that such a torturous practice would still be permitted when the law has articulated an absolute bar on torture, one admitting of no exceptions.”