While we’re on the subject. . .

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Scott Turow notes that “Illinois Gov. Bruce Rauner seems to be one of the few people in Illinois who misses the death penalty” in an op-ed in the Chicago Tribune. Rauner recently proposed reinstating the death penalty for mass killers and those who kill law enforcement officials. Among the many reasons it would be a mistake to bring it back, Turow says, is that the plan to apply it in specific circumstances is a flawed policy because “A death-qualifier for multiple murders will soon face demands that it be enlarged to include torture murders, child murders, or terrorist murders. Every person has a different moral sense of what is the worst of the worst.”

In his article, “Death by Nitrogen Should not be America’s New Capital Punishment Method,” in the June 1, 2018 issue of Newsweek, Dr. Charles Blanke, an oncologist and professor of medicine at Oregon Health & Science University School of Medicine, says “We need to put more thought into the methods used, especially since there are no means to scientifically test in advance whether or not they violate the Eighth Amendment. We don’t and can’t know that nitrogen asphyxiation would be painless, and it simply doesn’t qualify as an acceptable means of carrying out a death sentence.”

In the Iowa Law Review Online, George Washington University Law School Professor Phyllis Goldfarb discusses Kevin Barry’s book, The Death Penalty & the Dignity Clauses, and finds that it “buoys our hopes and charts a promising course” with his assertion that “these are death penalty’s dying days” and that the “Supreme Court will soon hold the death penalty unconstitutional under the Eighth Amendment . . . as a violation of human dignity.”

In their article, “The Problem of “Rubber-Stamping” in State Capital Habeas Proceedings: A Harris County Case Study,” in the Houston Law Review, Jordan M. Steiker, James W. Marcus, and Thea J. Posel look at the problems with state post-conviction proceedings, finding that “Despite the modernization of state post-conviction schemes— including the standardization of procedures for filing claims and the provision of counsel to death-sentenced inmates—state post-conviction adjudication remains one of the most troubling and least reliable aspects of the contemporary American death penalty. Two practices are particularly problematic: the reluctance of state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-finding instead of independent state court decision-making.” The examination studies the problem by focusing on Harris County, Texas because of its “extraordinary and disproportionate share of executions” and “because post-conviction courts have a reputation in Texas for lax fact-finding practices, rarely holding evidentiary hearings, and frequently rubber-stamping state proposed findings.”

A two-part series in the New York Times Magazine on a joint investigation by the Times and ProPublica examines the case of Joe Bryan, a high schol principal in Texas who was convicted of killing his wife and sentenced to 99 years in prison, based on no physical evidence other than flecks of “what may or may not have been blood on a flashlight.” The damning evidence was testimony from a police detective who purported to be an expert in bloodstain-pattern analysis. Just as bite marks, and arson and hair samples have been proven unreliable forensic evidence, “the interpretation of bloodstain evidence has become notoriously ambiguous,” the Times says in a follow-up editorial.

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