“This has not been a happy month for death penalty opponents,” Austin Sarat writes in Slate, noting that seven people were killed, or are scheduled to be executed. Further noting that “several of the cases in which executions occurred this month involved truly egregious miscarriages of justice,” and the courts nevertheless refused to intervene, including the U.S. Supreme Court which “avoided doing so by invoking procedural barriers as reasons to avoid addressing the substantive claims raised by the death row inmates,” he praises Justice Sonia Sotomayor, who “staked out her position as the court’s leading anti-death-penalty spokesperson. Her dissenting opinions cut through to the heart of the matter. . . and while Sotomayor’s conservative colleagues were not moved by the clarity and force of her arguments, we should be. America’s death penalty will continue to be an embarrassment until the American people say that it is long past time to abolish it.”
“Due to the widespread implementation of the death penalty across the states in this country, it is unlikely that the [U.S. Supreme] Court would abolish the death penalty in the near future,” Fernanda Gonzalez writes in her article on “The Inadmissibility of Victim Impact Evidence,” in the UC Law Constitutional Quarterly. Gonzalez suggests that the inequalities in capital punishment could be alleviated if the U.S. Supreme Court reversed its decision in Payne v. Tennessee (1991). The Court’s 6 -3 ruling in Payne found that it was not unconstitutional to allow victim impact statements in death penalty proceedings, any more than it is unconstitutional to allow mitigating evidence. But Gonzalez’s “central aim of this paper is to demonstrate that victim impact evidence has no place in death penalty sentencing proceedings because it has no bearing on the defendant’s culpability and moreover it has a prejudicial effect on the defendant’s verdict.”
In his article, “Eighth Amendment Stare Decisis” in the Southern California Law Review,“ William W. Berry III looks at the U.S. Supreme Court’s ruling in Kennedy v. Louisiana (2008), that found that the Eighth Amendment barred death sentences for child rape on the basis that it constituted cruel and unusual punishment as it relates to Florida’s 2023 statute making sexual assault against a child a capital offense.. Berry argues that stare decisis — the obligation of the Court to follow prior precedent — could apply to the statute by relying on “two possibilities with respect to applying stare decisis under the Eighth Amendment.” One is to defer to precedent and “not overrule a prior decision unless it rises to “the level of the test previously set forth in Casey and now articulated in Dobbs.” Or, two, by “following the evolving standards of decency doctrine. This approach contemplates that the Amendment would change over time, such that stare decisis would require the overruling of precedent, moving the case law in a progressive, less punitive direction.”