News and Developments 2009: Law Reviews

Christopher Slobogin, Professor of Law and Psychiatry at Vanderbilt University, has written an evaluation of Florida's death penalty to be published in a forthcoming edition of the Elon University Law Review.  The evaluation is based on a study by an assessment team sponsored by the American Bar Association. Florida is one of the leading states in sentencing people to death, but it also has the most death row exonerations of any state in the country.  Florida was chosen by the ABA to be one of eight death penalty states reviewed under its Death Penalty Moratorium Implementation Project. The purpose of this project was to allow states to identity and eliminate flaws in their death penalty system. The Florida Assessment Team was led by Prof. Slobogin and was instructed to investigate the following aspects of death penalty administration: "police investigation procedures; the use of DNA evidence; crime laboratories and medical examiners; prosecutorial discretion; defense services; jury instructions; the judicial role; the direct appeal process; state post-conviction and federal habeas proceedings; clemency proceedings; the treatment of racial and ethnic minorities; and the treatment of people with mental illness and mental retardation."

The Council of the American Law Institute (ALI) recently voted to withdraw a section of its Model Penal Code concerned with capital punishment because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."  The Council based its decision on a study it commissioned to look into the practice of the death penalty since the recommendations were made in the Model Penal Code.  The recommendations for how to make the death penalty less arbitrary had been adopted in 1962 and were cited by the U.S. Supreme Court in its 1976 opinion allowing a reformed death penalty to be reinstated.  Section §210.6  of the Code defines cases appropriate for capital punishment, aggravating and mitigating circumstances, and special sentencing procedures, and was intended to meet significant concerns regarding the practice.  This move essentially withdraws ALI from any attempt to fashion an acceptable death penalty because the system has proven to be unworkable.

Professor Ty Alper of the Boalt School of Law at Berkeley has written an article for the forthcoming edition of the North Carolina Law Review entitled “The Truth About Physician Participation in Lethal Injection Executions.”  Prof. Alper, a noted death penalty expert, reviews the available research and recent litigation on the most widely used method of execution in the U.S., focusing especially on the potential role of doctors in executions.  As states are challenged to ensure that inmates do not suffer excruciating pain during lethal injections, Alper contends that physician participation is more plausible than many states are willing to admit.  He states that many doctors are willing to and, in fact, do regularly participate in executions. He argues that defense attorneys are obligated to protect their clients from unneccessary pain and that states have exaggerated their inability to find willing doctors.  The article may be found here.