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Speakers Address Future of Death Penalty

By Jason Searle, 1L
February 12, 2016

The keynote speaker at a symposium at Michigan Law predicted the abolition of the death penalty—and cited race as the primary issue from which the persistence of the death penalty stems.

Henderson Hill, a longtime advocate for capital defendants and the executive director of the 8th Amendment Project, which works toward the abolition of the death penalty through Supreme Court litigation, delivered the keynote address for the Michigan Journal of Law Reform’s symposium, At a Crossroads: The Future of the Death Penalty.

Hill, also a founder and former director of the Center for Death Penalty Litigation, discussed what he said is capital punishment’s racist background. Building off previous presentations, Hill’s address suggested that lingering racism propels the death penalty’s continued existence. Hill alluded to an earlier talk by Ben Cohen, ’96, describing how only 2 percent of U.S. counties, primarily in the South, regularly sentence defendants to death. Hill shared a final message of hope from himself and the 8th Amendment Project: “This is a good time to be involved in the work.”

Other speakers at the symposium largely supported the abolition of the death penalty. Carol Steiker, a law professor at Harvard Law School, and her brother Jordan Steiker, a law professor at the University of Texas Law School, began the day with an introduction that focused on the Supreme Court’s role in abolishing the death penalty. The route the Court will take to abolition, they argued, will not focus on the popular ground of wrongful convictions or on arguments of inefficiency. Rather, they predicted, the Court will gauge changing attitudes of the American public and reconsider the shaky philosophical justification of retribution for the death penalty. Carol Steiker noted that she thinks abolition is not far off, but is not likely in the next several years.

The first panel of the day focused on problems with the current administration of death sentences, and included topics such as jury selection, false convictions, and the geographic disparity in which counties execute capital offenders. Referring to the concentration of death sentences in a handful of southern counties, Cohen, of counsel at the Louisiana Capital Appeals Project, closed his talk by observing that, “[n]o Justice Kennedy I know looks at that map and says, ‘that is a death penalty I can support.’”

J. Richard Broughton, a professor at the University of Detroit Mercy Law School and former prosecutor, suggested that how and when executions are carried out is the “issue of our time.” Broughton struck a note outside the symposium’s prevailing tone of abolition, though his assessment of the protracted time capital offenders spend on death row took a critical stance toward the capital offense system.

In a panel that focused on what happens to capital defendants after they are sentenced to death, Deborah Denno of Fordham Law School discussed methods of execution and the pros and cons of lethal injection versus the firing squad. Other panels focused on intellectual and emotional issues in capital cases and capital punishment around the world. Jim Ellis, a professor of law at the University of New Mexico who argued Atkins v. Virginia in the Supreme Court, illustrated the many problems facing capital defendants with intellectual disability. Amy Dillard, professor at the University of Baltimore School of Law, and Greg Wiercioch, professor at the University of Wisconsin Law School, discussed some of the big-picture issues with intellectually disabled capital defendants at different points during trial. Wiercioch noted that the current sentencing systems’ mitigating factors are inadequate and do not sway juries toward verdicts for these defendants.

The day’s final panel included discussion about the development and movement toward abolition of capital punishment on an international stage. Sandra Babcock, professor at Cornell Law School, discussed her work reversing death sentences in Malawi. Both Babcock and Saul Lehrfreund, co-executive director of the London-based Death Penalty Project, noted that the death penalty’s decline in the United States mirrors its decline throughout the rest of the world.

The Michigan Journal of Law Reform will publish five articles written in conjunction with the symposium in the fourth issue of JLR’s Volume 49, scheduled to print during summer 2016.

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