By Jeffrey Fagan, Garth Davies & Raymond Paternoster

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman. Analyzing a dataset of 2,328 first degree murder convictions in Georgia from 1995–2004 that produced 1,317 death eligible cases, we show that two features of these cases combine to produce a small group of persons facing execution: victim race and gender, and a set of case-specific features that are often correlated with race. We also show that these features explain which cases progress from the initial stages of charging to a death sentence, and which are removed from death eligibility at each stage through plea negotiations. Consistent with decades of death penalty research, we also show the special focus of prosecution on cases where Black defendants murder white victims. The evidence in the Georgia records suggests a regime marred less by overbreadth in its statute than capriciousness and randomness in the decision to seek death and to seek it in a racially disparate manner. These two dimensions of capital case adjudication combine to sustain the twin failures that produce the fatal lottery that is the death penalty

Columbia Public Law Research Paper No. 4324073; Cornell Law Review, Vol. 107, No. 1565, 2022

By Giada Girelli, Marcela Jofré, and Ajeng Larasati

Harm Reduction International (HRI) has monitored the use of the death penalty for drug offences worldwide since our first ground-breaking publication on this issue in 2007. This report, our 13th on the subject, continues our work of providing regular updates on legislative, policy and practical developments related to the use of capital punishment for drug offences, a practice which isa clear violation of international human rights and drug control standards.

This year marks the beginning of a new approach to our flagship publication. Every edition of this report will provide key data and updated categories, as well as high-level developments at the national and international level. A deeper analysis of developments and trends will be published in the 2024 edition and on alternate years. The methodology used for both reports remains the same. HRI opposes the death penalty in all cases without exception.

Harm Reduction International, 2024. 22p.

By The Death Penalty Research Center

In January 2024, Ohio lawmakers announced plans to expand the use of the death penalty to permit executions with nitrogen gas, as Alabama had just done a week earlier. But at the same time the Attorney General and the Ohio Prosecuting Attorneys Association are championing this legislation, a bipartisan group of state legislators has introduced a bill to abolish the death penalty based on “significant concerns on who is sentenced to death and how that sentence is carried out.” The competing narratives make it more important than ever for Ohioans to have a meaningful, accurate understanding of how capital punishment is being used, including whether the state has progressed beyond the mistakes of its past.

Early 19th century Ohio Black Laws imposed various legal restrictions on the rights and status of Black people in the state, not dissimilar to what would later become Black Codes in many Southern states. As constitutional historian Dr. Stephen Middleton explains, “Although the penal code of Ohio did not explicitly provide for a dual system for handling criminal cases, the Black Laws naturally made race an element in the criminal justice system.”

Ohio’s 1807 “Negro Evidence Law” prohibited Black people from testifying against white people in court, thus instituting a legal double standard. Articles in African American newspapers from the time reported numerous instances where white assailants attacked Black victims with impunity because there was no legal consequence without a white person who could testify on the victims’ behalf. The state also passed racial restrictions on juries in 1816 and 1831, officially barring Black people from jury service. These laws no longer exist, but modern studies reveal that jury discrimination continues.

One of the most significant ties between historical death sentencing and the modern use of capital punishment is the preferential valuing of white victims. Multiple Ohio-specific studies have concluded that when a case involves a white victim—especially a white female victim—defendants are more likely to receive a death sentence or be executed. A review of all aggravated murder charges in Hamilton County from January 1992 through August 2017 revealed that prosecutors are 4.54 times more likely to file charges with death penalty eligibility if there is at least one white victim, compared to similarly situated cases without white victims. A separate study of Ohio executions between 1976 and 2014 found that homicides involving white female victims are six times more likely to result in an execution than homicides involving Black male victims. DPIC independently analyzed race of victim data for all 465 death sentences in the state and found that 75% of death sentences were for cases with at least one white victim. For context, most murder victims in the state are Black (66%).

Black capital defendants have also faced instances of overt racism from jurors, prosecutors, and even their own attorneys. During closing arguments, the prosecuting attorney in Dwight Denson’s trial suggested that if jurors did not sentence him to death, they might as well rename Cincinnati’s Over-the-Rhine neighborhood to “Jungle Land,” adding, “Leave it to Dwight Denson. Leave it to people like him.” An attorney for Malik Allah-U-Akbar (tried as Odraye Jones) reiterated false, racialized testimony from an expert witness during closing arguments: “I think it’s a quarter of the…urban [B]lack American youth come up with antisocial personality disorder…. This isn’t a situation you can treat. … You have to put him out of society until it runs its course.”

As the current debate over the use of the death penalty in Ohio continues, this report provides historical information, context, and data to inform the critical decisions that will follow.

Washington, DC: Death Penalty Information Center, 2024. 49p.

By Wren Collective

 When he was just 4 years old, Christopher Jackson was sexually abused by a teen boy he lived with—abuse that continued until he turned 9. His grandmother, who took him in afterward, regularly beat him until he passed out. Jeffery Prevost was sexually assaulted when he was a child. His mother physically abused him, at one point firing a gun at him. Mabry Landor, who suffers from bipolar disorder, was sexually and physically abused by his brothers. Roosevelt Smith and Joseph Jean had an IQ of 69; they are both intellectually disabled, and thus, ineligible for the death penalty. Each of these men went to trial in Harris County facing the death penalty. In every case, defense counsel failed to present this evidence, and juries sentenced all these men to death. Sixty years ago, in Gideon v. Wainwright, the Supreme Court issued a landmark ruling that would ultimately ensure every person facing the possibility of having their liberty stripped away would get an attorney if they could not afford one.1 Nowhere is that right more important than in a capital murder case, where the potential sentence is death and where almost every person in this country who is charged with a capital crime is poor. That right, however, has been elusive in death penalty cases in Harris County, Texas, the death penalty capital of the nation and the world.2 Over the last few decades, news outlets have run periodic stories about death penalty lawyers in Harris County with too-high caseloads who have missed critical filing deadlines or who did minimal work on their client’s case. On the 60th anniversary of Gideon, the Wren Collective investigated whether these stories were isolated examples of flawed representation or whether the representation reflected problems that exist throughout the system of capital defense. We interviewed judges, trial and postconviction attorneys, and mitigation specialists.3 We reviewed caseloads, jail visits, and billing records. We read postconviction pleadings from the majority of Harris County capital cases that ended with death sentences in the last two decades. We focused primarily on those cases where individuals are still on death row, but also looked at a few whose sentences have been overturned. In total, we examined 28 cases.4 Our findings are documented in this report. They are difficult to read.5 The system is utterly broken.   

Austin, TX?: Wren Collective, 2023. 40p.

By The Death Penalty Information Center

The Death Penalty Information Center’s new report on race and the death penal­ty in Tennessee places the state’s death penal­ty sys­tem in his­tor­i­cal con­text, doc­u­ment­ing how racial dis­crim­i­na­tion and racial vio­lence con­tin­ue to influ­ence the admin­is­tra­tion of the death penal­ty. Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty, released June 22, 2023, notes that as the Tennessee Department of Correction devel­ops new lethal injec­tion pro­to­cols and pre­pares to resume exe­cu­tions, the state may find it use­ful to under­stand how Tennessee arrived at its cur­rent cap­i­tal pun­ish­ment sys­tem.

The report explains that in the 18th and 19th cen­turies, the use of cap­i­tal pun­ish­ment in Tennessee was large­ly depen­dent on the race of the defen­dant. There were 13 offens­es for which Black peo­ple could receive the death penal­ty, com­pared to just two offens­es that could result in death sen­tences for white cit­i­zens. From the begin­ning, the death penal­ty was applied dif­fer­ent­ly based on race.  The death penal­ty was not the only form of lethal pun­ish­ment that tar­get­ed Black Tennesseans. The report ties Tennessee’s use of cap­i­tal pun­ish­ment to its trou­bled his­to­ry of racial ter­ror. Tennessee was the site of more than 500 lynch­ings, accord­ing to Tennesseans for Historical Justice, and a nation­wide study of death sen­tences between 1989 and 2017 found a sig­nif­i­cant sta­tis­ti­cal rela­tion­ship between a state’s his­to­ry of lynch­ing and the num­ber of death sen­tences giv­en to Black defendants. 

Many of the his­tor­i­cal issues relat­ed to race in the state, includ­ing seg­re­ga­tion and Black vot­er dis­en­fran­chise­ment, are still preva­lent in Tennessee today. For exam­ple, the state has the high­est pro­por­tion of dis­en­fran­chised Black res­i­dents in the United States, with more than 1 in 5 Black peo­ple unable to vote. Concerns regard­ing vot­er dis­en­fran­chise­ment have been height­ened as the state leg­is­la­ture has con­tin­ued to remove pow­er from local­ly elect­ed pros­e­cu­tors to han­dle var­i­ous aspects of cap­i­tal cas­es, and shift­ed the author­i­ty to the state’s Attorney General, who is not elected. 

Washington DC: Death Penalty Information Center, 2023. 69p.

By Giada Girelli, Marcela Jofré, and Ajeng Larasati : Harm Reduction International

As of December 2022, Harm Reduction International (HRI) recorded at least 285 executions for drug offences globally during the year, a 118% increase from 2021, and an 850% increase from 2020. Executions for drug offences are confirmed or assumed to have taken place in six countries: Iran, Saudi Arabia, Singapore, plus in China, North Korea and Vietnam – on which exact figures cannot be provided because of extreme opacity. Therefore, this figure is likely to reflect only a percentage of all drug-related executions worldwide. Confirmed death sentences for drug offences were also on the rise; with at least 303 people sentenced to death in 18 countries. This marks a 28% increase from 2021.

These setbacks were not completely unexpected, nor unpredictable. After defending its barbaric policy on the death penalty throughout 2021, Singapore issued execution warrants against individuals convicted of drug trafficking in February 2022. These were eventually stayed after legal appeals and pleas from families and civil society, but more execution warrants quickly followed. In Saudi Arabia, civil society had warned of the risk of resumption in drug-related executions since the partial moratorium was announced in 2021. When the Kingdom carried out the worst mass execution in its history in March 2022, the risk became even more apparent. Similarly, Iranian civil society warned of the risk of a spike in executions, absent persistent international pressure.

London: Harm Reduction International, 2023. 54p.

By AMNESTY INTERNATIONAL

From the Introduction: Amnesty International’s research on the global use of the death penalty in 2022 revealed a spike in the number of people known to have been executed worldwide, including a significant increase in executions for drug-related offences. This negative trend contrasts with a countervailing positive tendency: a substantial number of countries have taken decisive steps away from the death penalty in 2022, marking remarkable progress against the ultimate cruel, inhuman and degrading punishment. Known executions, excluding the thousands believed to have taken place in China, significantly increased by 53% on those for 2021, from 579 (2021) to 883 (2022). The executions recorded in 2022 were the highest since 2017 (993).2 Secrecy and restrictive state practices continued to impair an accurate assessment of the use of the death penalty in several countries, including China, North Korea and Viet Nam.

AMNESTY INTERNATIONAL GLOBAL REPORT 2022. 46p.

By Thielman J. von Braght. Introduction by Graeme R. Newman

From the introduction: It is difficult to go one better than Foxe’s Book of Martyrs of the 17th century that contains endless illustrations of the dreadful tortures and deaths inflicted on the Christian martyrs. The book was so popular that it went through at least three editions in Foxe’s lifetime. Since then, various authors have reproduced aspects of Foxe’s classic, interspersed with some new prints and illustrations,  This book, compiled by Mennonites for Mennonites,  is one such book. The descriptions of the martyrs and their lives and deaths do become tiresome to the secular reader, and the lessons their editors presume to convey – those of the moral superiority, chastity and devotion to their faith – focus on the tenets of Christianity of course, but fail to make any attempt at under­standing the details, procedures, and choices of the tortures and horrible deaths inflicted upon the martyrs by their brutal captors.

Edited by O. Hayden Griffin III and Vanessa H. Woodward

The Routledge Handbook of Corrections in the United States brings together original contributions from leading scholars in criminology and criminal justice that provide an in-depth, state-of-the-art look at the most important topics in corrections. The book discusses the foundations of corrections in the United States, philosophical issues that have guided historical movements in corrections, different types of punishment and supervision, trends in incarceration, issues affecting race, ethnicity, and special populations in corrections, and a variety of other emerging issues.

This book scrutinizes innovative community programs as well as more traditional sanctions, and exposes the key issues and debates surrounding the correctional process in the United States. Among other important topics, selections address the inherent discrimination within the system, special issues surrounding certain populations, and the utilization of the death penalty as the ultimate punishment. This book serves as an essential reference for academicians and practitioners working in corrections and related agencies, as well as for students taking courses in criminal justice, criminology, and related subjects.

NY. Routledge. 2018. 516p.

By Lane Nelson and Burk Foster

From the cover: Death Watch Is a topical, up-to-date collection of death penalty journalism and personal essays. Drawing on the experiences and perspectives of Lane Nelson, a former death row inmate and current staff writer for "The Angolite," Louisiana's award winning prison news magazine, and Burk Foster, a University of Louisiana-Lafayette criminal justice professor and jail and prison expert witness, Death Watch looks at the death penalty as a legal process, a social reality, and a fundamental issue of public policy. The topics covered in this volume include: ♦  how capital cases are different in the legal process ♦  how death penalty offenders are selected ♦  the selective application of the death penalty to women and juveniles ♦  problems in providing competent counsel to death penalty defendants ♦  medical issues related to organ donation and physician participation in executions ♦  the execution of blacks for rape in the South ♦  how the death penalty was imposed and carried out in the past ♦  reflections on death row life by inmates under death sentence ♦  the last words of men and women before execution ♦  the dilemma of defending the innocent on death row ♦  feature articles on two Louisiana inmates, Antonio James and John A. Brown, Jr., executed in 1996 and 1997. ♦  the ethics of the death penalty today.

Upper Saddle River New Jersey. Prentice Hall. 2001. 307p.

By Ernest van den Haag and John P. Conrad.

From the cover: Never before has there been such a vigorous point- by-point debate in a book on so explosive a topic as the death penalty. Here Ernest van den Haag—a re­nowned conservative—and John P. Conrad—a re­spected liberal—debate with wisdom, sharpness, and vigor yet, in Arthur Goldberg's words, “with scholar­ship, civility, and passion” all questions pertaining to capital punishment. The debaters are well known for their meticulous scholarship and for their distinct compelling styles. Ernest van den Haag is the author of such works as The Jewish Mystique and Punishing Criminals. John P. Conrad's books include Justice and Consequences and In Fear of Each Other. Their debate will provoke the reader with hard-hitting and original arguments for and against the death penalty. Aside from the timeliness of the topic, this book will be appreciated for the sheer excitement of witnessing the ingenious interplay between two brilliant minds.

NY. Plenum. 1983. 302p.

By Magnus Hörnqvist.

Based on a reading of contemporary philosophical arguments, this book accounts for how punishment has provided audiences with pleasure in different historical contexts. Watching tragedies, contemplating hell, attending executions, or imagining prisons have generated pleasure, according to contemporary observers, in ancient Greece, in medieval Catholic Europe, in the early-modern absolutist states, and in the post-1968 Western world.

Routledge (2021) 181p.

By David T. Johnson.

“By arguing that he opposes capital punishment but not in this case, Murakami is articulating a sensibility—the death penalty is “unavoidable” (yamu o enai)—that is ubiquitous in Japan’s culture of capital punishment.”

Palgrave (2019) 139p.

By Graeme Newman, Translated by by Kyung-Jae.

Translation of the classic The Punishment Response into Korean by Kyung-Jae. Contains color illustrations and other small additions appropriate for a Korean audience.

Harrow and Heston Classic Reprint. 2019. 434p.