SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify.  Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower.  Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests.  “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.”  (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.   (more…)

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Marquette Conference to Consider Healing for Family Members of Homicide Victims

I’m looking forward to the upcoming conference here, “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community.”  The conference was inspired by a fascinating empirical study comparing the long-run experiences of family members of homicide victims in Texas, which has the death penalty, and Minnesota, which does not.  Authored by Marilyn Peterson Armour and Mark S. Umbreit and forthcoming in the Marquette Law Review, the article concludes that the Minnesota family members achieved a higher level of physical, psychological, and behavioral health.

The conference kicks off with a keynote address by Armour herself at 4:30 on February 21.  The following day will include several panels providing a diverse set of first-hand perspectives on the impact of homicide, capital punishment, and the criminal process on family members, lawyers, judges, and many others.  Additional information about the conference is available here.

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New Report on Criminal-Justice Reforms in 2011: States Continue to Look for Ways to Cut Costs

In a new report entitled “The State of Sentencing 2011: Developments in Policy and Practice,” Nicole Porter of The Sentencing Project summarizes the most recent set of criminal-justice reforms adopted across the United States.  Continuing a recurring theme in recent years, many of these reforms are intended to reduce incarceration numbers and corrections budgets.  Here are some highlights:

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David Baldus, R.I.P.

Iowa Law Professor David Baldus died earlier this week.  His statistitical study of racial disparities in the administration of the death penalty was at the center of the Supreme Court’s important 1987 decision in McKleskey v. Kemp.  Despite Baldus’s demonstration that the race of the victim seemed to play a critical role in determining which murderers were sentenced to death, the Court turned aside the defendant’s Equal Protection challenge to his death sentence.  The 5-4 decision was an agonizingly close near-miss for death-penalty opponents.  In fact, the author of the majority opinion, Justice Powell, later called McCleskey the one case in which he would like to change his vote.  If Baldus and his colleagues had been able to get that one extra vote, sentencing law might have developed very differently over the past quarter-century.

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Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

The federal death penalty is plagued by two important types of disparity.  One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black.  The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and 9 have produced nearly half.  Although both disparities have been much commented on separately, it seems they are actually connected.  Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.

The patterns are striking.

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Research on Wrongful Convictions: Half-Full or Half-Empty?

Jon Gould and Richard Leo have an interesting new paper entitled “One Hundred Years Later: Wrongful Convictions After a Century of Research.”  They are responding to a recent claim by Samuel Gross and Barbara O’Brien that researchers “do not know much about false convictions.”  Gould and Leo essentially take the “glass is half-full” position – although our knowledge may be less precise than we might like, we have nonetheless come a long way since American researchers first began to study wrongful convictions a century ago, especially as a result of studies of DNA-based exonerations over the past twenty years.  In advancing the claim, Gould and Leo provide a helpful overview of the burgeoning empirical literature on the frequency, consequences, and causes of wrongful convictions.

Here are a few tidbits I found especially intriguing:

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Mississippi Lifers Exonerated in Rape-Murder Case

Phillip Bivens was released yesterday after serving thirty years of a life sentence for a rape-murder in 1979.  As reported by the New York Times, Bivens and a codefendant pled guilty in the case, while a third defendant was convicted by a jury.  New DNA analysis of the rape kit exonerated all three men earlier this year, although only Bivens was still serving time — one codefendant died in prison, and the other had already been released for medical reasons.  Little evidence connected the men to the crime aside from their own incriminating statements, which had apparently been coerced from them. 

DNA exonerations in recent years have done a great deal to highlight the reliability problems with confessions that are uncorroborated by physical evidence.  I wonder, though, to what extent these problems have really sunk in with the lay public.  On their face, confessions seem such extraordinarily compelling evidence — what could be more reliable than a statement so directly and profoundly against personal interest?

The Mississippi case is also interesting as an illustration of reliability problems with guilty pleas, particularly when the death penalty is available.  Bivens entered his false guilty plea in order to avoid facing the death penalty.  My own views about the death penalty are neither strongly for nor strongly against, but I have long thought that the biggest problems with the death penalty are not in the very small number of cases in which it is actually imposed, but in the possibly much larger number of cases in which fear of the death penalty leads to a guilty plea and an undeserved life sentence.

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