While the death penalty “appears to be experiencing a renaissance of sorts,” in light of the 34 executions so far this year, that may not be the case,” William W. Berry III writes in the abstract for his forthcoming Richmond Law Review article, “Rethinking Strategies for Abolition.” Instead, “what is most notable . . . is the decline in the number of new death sentences in 2025,” he says. Berry points out that juries have imposed only 15 death sentences this year, continuing a “decade-long trend.” He posits that this downward trend calls for “a rethinking of the agenda for pushing the abolition of the American death penalty,” and suggests “a strategic path forward, with the overall conclusion that the death penalty remains an institution that is dying, albeit slowly, in the United States.”
In 1986, “in a 7-2 decision that was immediately recognized as momentous,” the U.S. Supreme Court did an “about-face” on its 1965 ruling in Swain v. Alabama (1965), which allowed race-based peremptory strikes in jury selection. In Batson v. Kentucky (1986), the court “changed course” and called for the abolition of peremptory strikes. In his article, “How Batson was Decided,” University of Virginia law professor Thomas Ward Frampton analyzes the decision, drawing on the private papers of eight of the nine justices who participated in the ruling. These papers, he explains, “allow scholars and practitioners to peel back the layers of the Batson Court’s work, offering new insights into the conflicts and compromises that shaped this landmark decision. . . . illuminat[ing] how a case that was briefed and argued as a Sixth Amendment case concerning the meaning of an ‘impartial jury’ became, instead, a landmark Equal Protection Clause decision.”
In his Yale Law Journal Comment, “Deference Spillover: The End of Witherspoon in Capital Appeals,” Kevin Z. Yang maintains that Witherspoon v. Illinois (1968) in which the U.S. Supreme Court held that a capital juror couldn’t be disqualified solely on the basis of their opposition to the death penalty, is “as a matter of practice. . . a mirage in capital appeals.” Yang notes that “Federal habeas courts have not overturned a death sentence based on Witherspoon error in more than a decade, and state courts do so only rarely.”