News and Developments 2008: Law Reviews

A new study published in the Houston Law Review, “Racial Disparities in the Capital of Capital Punishment,” explores the relationship of race to death sentencing in Harris County (Houston), Texas. In the study, Prof. Scott Phillips of the University of Denver explores patterns involving the race of both victims and defendants, while controlling for other variables.

Civil rights litigator and death penalty expert Ronald J. Tabak recently published “The Private Bar’s Efforts to Secure Proper Representation for those Facing Execution” in the Justice System Journal. The article presents an in-depth review of the American Bar Association’s (ABA) role in ensuring effective counsel in capital cases. Tabak recounts the ABA’s efforts since the mid-1980’s to secure competent representation at every state of legal proceedings, stating that “someone without counsel has little chance of securing redress for constitutional violations that may have tainted a conviction or death sentence.”

The article explores the particular problem that exists because the Supreme Court has not recognized a right to counsel in post-conviction proceedings. Death-sentenced inmates may lack representation after their trial and direct appeal even though the legal proceedings that follow would offer opportnities to challenge their convictions and death sentences. Mr. Tabak discusses the ABA’s efforts to find pro bono lawyers to represent death-sentenced inmates in post-conviction proceedings, federal habeas corpus proceedings, and clemency proceedings. “Dealing with the issues specific to capital cases, whether arising from the trial record or requiring further investigation, requires an expertise far beyond that of most criminal law practitioners--not to mention the civil lawyers who predominate among the volunteers whom the ABA recruits,” explains Tabak. If lawyers do not understand the complex procedures and rules of capital cases, it "can literally prove fatal to clients.”

Professor Celestine Richards McConville explores the plight of inmates on Alabama's death row who face execution despite being denied adequate representation for key parts of their appeal in her law review article, "The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel.” The article is part of a University of Tulsa Law Review symposium issue on "The Death Penalty and the Question of Actual Innocence." The article points out that Alabama’s courts will not grant counsel to a death row inmate in post-conviction appeals until after the pe

Prof. James Acker has published an article in the latest edition of the Vermont Law Review entitled, “Be Careful What You Ask For: Lessons from New York’s Recent Experience with Capital Punishment.” The article explores the various standards by which the death penalty was evaluated during the last decade in New York. The public debate first addressed the question of, “Is it right?” with a focus on retribution, morality and religion. The second set of questions addressed was, “Is it useful? Is it cost-effective?