This month Elizabeth Kelley reviews Quest for Justice: Defending the Damned – 2nd ed. by Richard S. Jaffe.

The imposition of the death penalty is on the decline. However, 40 execution dates have been scheduled by seven states and the federal government for 2020.

Mercy does not surface often on death row. That is what makes the story of Jason McGehee so remarkable.

Willie Herring’s case cried out for mitigation. The cry went unanswered. The 5-4 decision from the Ohio Supreme Court in Herring’s case does not break new ground. It does, however, provide important reminders about the duty of capital defense attorneys to ensure that a comprehensive mitigation investigation is conducted in every case.

This month Robert Sanger reviews Capital Defense: Inside the Lives of America’s Death Penalty Lawyers by Jon B. Gould and Maya Pagni Barak.

Recent U.S. Supreme Court decisions illustrate how the continued use of the death penalty will inevitably invite arbitrary results and fails to serve any legitimate sentencing purpose.

The Supreme Court decided Gregg more than 40 years ago, and the promise of a reliable death penalty has still not been met.

Attorneys representing clients in capital post-conviction proceedings should focus on the “prejudice” that the law requires they prove in order to win relief for their clients. Too many lawyers focus on “error” at the trial court level without marshaling their resources to address the “so what?” question that is usually the impediment to relief in the courts. Ty Alper’s approach — which he calls “reverse investigating” — applies to capital and non-capital post-conviction cases.

As of January 2013, there are a total of 3,125 inmates on death row in the United States.²  It is estimated that five to ten percent of all inmates on death row suffer from mental illness.³ In 1986, the U.S. Supreme Court ruled, in Ford v. Wainwright, that it is unconstitutional to execute the insane.⁴ What about the severely mentally ill individual whose symptoms do not, at the moment of the competency determination, indicate that the individual is “floridly psychotic”?

Capital punishment is on the wane. Executions and the number of states that permit capital punishment both declined in 2012. Moreover, the ABA Death Penalty Due Process Review Project identified 12 distinct flaws that are prevalent in jurisdictions that still allow capital punishment. These flaws create an unacceptably high risk of injustice and inadequate safeguards to minimize the potential that innocent people will be executed.

In 2002 the U.S. Supreme Court issued its opinion in Atkins v. Virginia,¹ which categorically banned the death penalty for defendants who have intellectual disability.² Since the Supreme Court’s ruling in Atkins, hundreds of capital defendants’ cases have come before state and federal courts for factual determination of the presence of this disability. A review of these cases demonstrates that courts, attorneys, law enforcement, and forensic experts have limited understanding of the scientific fundamentals of a diagnosis of intellectual disability.

The botched lethal executions in Oklahoma, Ohio, and Arizona have many legal experts questioning whether methods used for carrying out these killings violate the constitutional prohibition against cruel and unusual punishment.

Capital litigation attorney Elizabeth Franklin-Best writes that the U.S. Supreme Court’s most recently published death penalty decision, Glossip v. Gross, has become more notable for Justice Breyer’s dissent than for its “reticent journey into the murky wilds of legal injection jurisprudence.” Breyer calls for full reconsideration of the constitutionality of the death penalty as a punishment and offers a road map for challenges going forward. Franklin-Best also discusses other death penalty cases from the 2014-2015 Term as well as the death penalty cases to be argued in the 2015-2016 Term.

Arkansas set out to execute eight men in 11 days in April 2017. Barry Pollack gives a brief description of the men and their cases.

In United States v. Fell, a district judge in Vermont concluded that the federal death penalty is arbitrary and biased, but only the Supreme Court can rule it unconstitutional.