Law Reviews

Two Studies Find Persistent Discrimination in Jury Selection in North and South Carolina

Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court's ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant's challenges to the prosecutor's removal of all Black jurors, saying the prosecution had offered race-neutral reasons for those strikes. Years later, through an open records request, Foster's lawyers obtained the prosecution's jury selection notes, which highlighted the names and race of all the prospective Black jurors, put all of the Black jurors on a list of jurors to "definitely strike," and the Black jurors against one another in case "it comes down to having to pick one of the black jurors." A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that discriminatory practices similar to those in Foster were widespread in North Carolina capital cases, but repeatedly ignored by the state's courts: "In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror." The authors found that the North Carolina Supreme Court had been called upon to decide jury discrimination issues in 74 cases since Batson was decided in 1986, and that "during that time, that court has never once found a substantive Batson violation." By contrast, they said, every other state appellate court located in the Fourth Circuit had found at least one substantive Batson violation during that period. The authors argue, "Thirty years after Batson, North Carolina defendants challenging racially discriminatory peremptory strikes still face a crippling burden of proof and prosecutors’ peremptory challenges are still effectively immune from constitutional scrutiny." A study of South Carolina capital juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that prosecutors exercised peremptory strikes against 35% of otherwise eligible Black prospective jurors, nearly triple the rate (12%) at which they struck otherwise eligible White prospective jurors. Eisenberg also examined the death-qualification process, which excludes jurors who are opposed to capital punishment from serving on death penalty juries. Eisenberg says death-qualification removes "approximately one-third of the population, most of whom are women and African-Americans" from serving on death penalty juries and "functioned as a substantial impediment to jury service by African-Americans in this study." Eisenberg concluded that "removal of jurors for their opposition to the death penalty stands in tension with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence." The combined effects of peremptory strikes and the death-qualification process was even starker. Prior to these strikes, Blacks comprised 21.5% of the prospective jury pool. However, 47% of all Black jurors were removed by one or the other of these strikes, as compared with only 16% of White jurors, reducing the percentage of African Americans in the jury pool to only 14.7%.

LAW REVIEW: "The Death Penalty and the Fifth Amendment"

Some proponents of the death penalty—including the late Justice Antonin Scalia and the 2016 Republican Party platform—have asserted that the Supreme Court cannot declare the death penalty unconstitutional because the Framers included reference to the punishment in the text of the Fifth Amendment. An article by Duke Law School Professor Joseph Blocher, published in the Northwestern University Law Review, critically analyzes that argument and concludes that the Fifth Amendment's acknowledgment of the death penalty as an acceptable practice in the 1700s does not foreclose judicial review of the constitutionality of the practice under the Eighth Amendment or any other constitutional amendment. This, Blocher says, is because the Fifth Amendment contains restrictions on the exercise of government power, rather than affirmatively granting the government any constitutional power. The Fifth Amendment, Blocher writes, "contains three prohibitions on the use of capital punishment." The Grand Jury Clause prohibits the government from bringing charges against a person "for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." The Double Jeopardy Clause prohibits twice placing any person "in jeopardy of life or limb" for the same offense. The Due Process Clause prohibits depriving any person "of life, liberty, or property, without due process of law." No one would argue that the mention of deprivation of limb in the Double Jeopardy Clause constitutionally legitimizes amputation as a criminal punishment. And by imposing constitutional limits on government conduct in attempting to take a defendant's life, Blocher says "there is no reason to suppose that [the Fifth Amendment] somehow nullifies other constitutional prohibitions—most importantly, the ban on cruel and unusual punishment." He notes that the Ninth Amendment reinforces this reading, "The Ninth Amendment indicates that the entire Bill of Rights—let alone any particular provision of it—cannot be read as an exclusive list. ...Compliance with the Fifth Amendment does not provide the death penalty a safe harbor against constitutional challenges, including those derived from the Eighth Amendment." Blocher concludes that to the extent reasons may exist not to abolish the death penalty, "the Fifth Amendment is not one of them."

NEW VOICES: Ninth Circuit Judge Calls for Sweeping Criminal Justice Reform

In a recent article for the Georgetown Law Journal, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit calls for sweeping reforms in the criminal justice system. The former Chief Judge, who was appointed by President Reagan in 1985, outlined a number of "myths" about the legal system, raising questions about the reliability of eyewitness testimony, fingerprint evidence, and even DNA evidence, which can easily be contaminated. Judge Kozinski directed his harshest critism at the limitations the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes on federal habeas corpus review of state criminal cases. He pointed to the case of Ron Williamson, the death-row inmate who was the subject of the John Grisham book, The Innocent Man, who five days before his scheduled execution obtained a stay from the federal courts "that began a process culminating in Williamson’s exoneration." AEDPA, he says, "abruptly dismantled" this habeas corpus "safety-value," and has "pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred." Instead, federal courts "now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted." He calls AEDPA "a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering. It should be repealed." Judge Kozinski also examines the roles of decision makers in criminal cases, highlighting such myths as "juries follow instructions," "prosecutors play fair," and "police are objective in their investigations." He recommends reforms to improve the accuracy and fairness of trials, including requiring "open file discovery" - meaning that all prosecution evidence related to a case is made available to the defense - and adopting more rigorous standards for eyewitness identification, suspect interrogations, and the use of jailhouse informants. He also advocates for the elimination of elected judges, noting that studies show "that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty" and that elected judges often face political retaliation for ruling in favor of the defense or for sanctioning prosecutors for instances of misconduct.

LAW REVIEW: Stephen Bright on Race, Poverty, Arbitrariness and the Death Penalty

In an article for the University of Richmond Law Review, Stephen Bright (pictured), President and Senior Counsel at the Southern Center for Human Rights, describes the arbitrary factors that continue to influence the death penalty. Bright first describes the historical context that led the Supreme Court to strike down the death penalty in 1976. He draws comparisons between lynchings, which he says were "used to maintain racial control after the Civil War," and capital punishment, which in 1976 "was very much tied to race - the oppression of African Americans, carried out by this country's criminal courts." He then explains how this legacy of racial bias continues today, saying, "The race of the defendant and the race of the victim continue to influence the imposition of the death penalty. The courts remain the part of American society least affected by the civil rights movement of the mid-twentieth century." Bright also addresses bias against the poor, and those with mental illness and intellectual disabilities. He concludes, "What purpose is the primitive penalty of death serving in a modern society? When we look closely at the issues - race, poverty, arbitrariness, conviction of the innocent, mental illness, and intellectual disability - from both a moral and practical standpoint, it will not be long before we join South Africa and the rest of the civilized world in making permanent, absolute, and unequivocal the injunction: 'Thou shall not kill.'"

LAW REVIEW: "The American Death Penalty and the (In)Visibility of Race"

In a new article for the University of Chicago Law Review, Professors Carol S. Steiker (left) of the University of Texas School of Law and Jordan M. Steiker (right) of Harvard Law School examine the racial history of the American death penalty and what they describe as the U.S. Supreme Court's "deafening silence" on the subject of race and capital punishment. They assert that the story of the death penalty "cannot be told without detailed attention to race."  The Steikers' article recounts the role of race in the death penalty since the early days of the United States, including the vastly disproportionate use of capital punishment against free and enslaved blacks in the antebellum South and describes the racial and civil rights context in which the constitutional challenges to the death penalty in the 1960s and 1970s were pursued. The authors contrast the "salience of race" in American capital punishment law and practice through the civil rights era with the "relative invisibility [of race] in the judicial opinions issued in the foundational cases of the modern era."

LAW REVIEW: Lethal Injection Secrecy and Due Process

A recent article by Prof. Eric Berger of the University of Nebraska College of Law argued that defendants facing execution have a fundamental right to know important information about the lethal injection drugs they will be given. Berger wrote, "Judicial recognition of this due process right would both protect Eighth Amendment values and also encourage states to make their execution procedures more transparent and less dangerous." After discussing the history of recent developments in lethal injection, the right to discover evidence under the Federal Rules of Procedure, and the need to be fully informed in order to demonstrate the cruelty of a method of execution, the article concluded: "By permitting states to execute inmates without disclosing key details about their lethal injection procedures, courts are not only denying inmates their Eighth Amendment due process rights but are also implicitly blessing states' secretive and often unprofessional administration of their most solemn task."

LAW REVIEWS: Disparities in Determinations of Intellectual Disability

A recent law review article reported wide variations among states in exempting defendants with intellectual disability from the death penalty. Professor John Blume (l.) of Cornell Law School, along with three co-authors, analyzed claims filed under the Supreme Court's decision in Atkins v. Virginia (2002) against executing defendants with intellectual disability (formerly, "mental retardation"). Overall, from 2002 through 2013, only about 7.7% (371) of death row inmates or capital defendants have raised claims of intellectual disability. The total "success" rate for such claims was 55%. In North Carolina, the success rate was 82%, and in Mississippi 57%. However, in Georgia (where Warren Hill was recently executed), the success rate for those claiming this disability was only 11%, and in Florida, the success rate was zero. The authors found that states that significantly deviated from accepted clinical methods for determining intellectual disability, such as Florida, Alabama, Georgia, and Texas, had the lowest success rates. To preserve equal protection under the law, the authors recommended the Supreme Court strike down aberrant practices in isolated states, just as it struck down Florida's strict IQ cutoff.

Supreme Court Agrees to Review Oklahoma's Lethal Injections

On January 23 the U.S. Supreme Court agreed  to hear a challenge to Oklahoma's lethal injection procedures, particularly its use of midazolam that was used in three botched executions in 2014. Four Oklahoma inmates asked the Court to review the state's procedures, but one of them, Charles Warner, was executed before the Court agreed to take the case. It is likely the other three defendants will be granted stays. When Warner was executed, Justice Sotomayor along with three other Justices, dissented from the denial of a stay, saying, "I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol...." The case will be argued in April and likely decided by the end of June. The questions presented by the petitioners appear below. Florida uses the same drugs as Oklahoma.

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