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Washington and Lee Journal of Civil Rights and Social Justice
Number of Followers: 8

This is an Open Access Journal

Open Access journal
ISSN (Print) 1535-0843
Published by Washington and Lee University

[3 journals]

Does the Death Penalty Still Matter: Reflections of a Death Row Lawyer
- Authors: David I. Bruck
  Abstract: This talk was given by Professor David Bruck for the Frances Lewis Law Center at Washington and Lee University School of Law, April, 2002. It is a follow-up to “Does the Death Penalty Matter',” given by Professor Bruck as the 1990 Ralph E. Shikes Lecture at Harvard Law School.
  PubDate: Fri, 27 Jan 2023 11:59:33 PST
Severe Mental Illness and the Death Penalty: A Menu of Legislative Options
- Authors: Richard J. Bonnie
  Abstract: In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders. The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006. This brief article focuses primarily on diminished responsibility at the time of the offense, summarizing the reasons why an exclusion for severe mental illness is needed and reviewing the key drafting issues that can be expected to arise in defining the clinical criteria for exclusion. A key question is whether state trial judges and judges appointed to state appellate courts embrace their constitutionally grounded duties to assure sparing and humane administration of the death penalty. Assiduous efforts to prevent execution of prisoners with severe mental illness is a necessary element of that judicial assignment.
  PubDate: Fri, 27 Jan 2023 11:59:30 PST
The Gross Injustices of Capital Punishment: A Torturous Practice and
Justice Thurgood Marshall’s Astute Appraisal of the Death Penalty’s
Cruelty, Discriminatory Use, and Unconstitutionality
- Authors: John D. Bessler
  Abstract: Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. An edict of the Grand Duke of Tuscany, issued in 1786, made Tuscany the first jurisdiction in Western civilization to abolish capital punishment for all crimes. In 2021, decades after Justice Thurgood Marshall spoke out against “the gross injustices in the administration of capital punishment” and filed relentless dissents asserting that the death penalty is a per se violation of the U.S. Constitution’s Eighth and Fourteenth Amendments, the Commonwealth of Virginia became one of the latest jurisdictions to abolish capital punishment.In the more than 250 years since the publication of Beccaria’s On Crimes and Punishments, much penal reform and social change has occurred, including with respect to interrogation, criminal justice, and punishment practices. Judicial torture, for example, was once explicitly authorized in civil law countries in continental Europe, but the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment now expressly prohibits both physical and mental forms of torture. In addition, Western penal systems have abandoned non-lethal corporal punishments—once a staple of centuries-old legal systems. The English common law and the Eighth Amendment, in fact, have long been understood to prohibit torture, though the concept of torture was understood much differently in the seventeenth and eighteenth centuries than it is in the twenty-first century. England’s monarchs, acting outside the common-law prohibition, previously made use of devices of torture such as the rack and the thumbscrew, and the U.S. Supreme Court—in the nineteenth century—explicitly approved the use of public shooting and electrocution as methods of execution even as it simultaneously held that the Eighth Amendment bars torturous punishments. European countries, including England, now explicitly forbid executions altogether through two protocols to the European Convention on Human Rights. Significantly, although the English “Bloody Code” once authorized death sentences for scores of offenses along with various non-lethal corporal punishments such as ear cropping and the pillory, bodily punishments such as branding and the stocks are no longer part of Western penal codes.This Article contextualizes the modern death penalty debate and recalls the cogent arguments that Justice Thurgood Marshall made against capital punishment in his judicial opinions. It then shows how Justice Marshall’s vocal and pragmatic critique of capital punishment—one rooted in his own experience as a civil rights lawyer in capital cases and, later, as a justice—should be taken seriously and adopted by present-day U.S. Supreme Court justices. In laying out Justice Marshall’s persuasive arguments against capital punishment, the Article points out that mock (or simulated) executions and other threats of death or bodily harm in other contexts (e.g., with respect to custodial interrogations) are already treated as impermissible acts of psychological torture. With Justice Marshall regularly classifying the death penalty as a “cruel and unusual punishment” in his powerful, well-grounded dissents, this Article asserts that those dissents against capital punishment should become the law of the land in the twenty-first century. Not only is capital punishment cruel and unusual and a violation of equal protection of the laws as Justice Marshall contended, but it is clear that, in light of the modern definition of torture, statesponsored death threats must be classified under the rubric of torture—what the law considers the extreme form of cruelty. The absolute prohibition of torture is already considered to be a jus cogens norm of international law and that legal prohibition admits of no exceptions, with the death penalty bearing all the tell-tale indicia and characteristics of torture. In fact, an immutable characteristic of capital punishment is that it makes use of credible threats of death.In short, the death penalty’s use—long known to intentionally inflict severe pain and suffering, and long administered in a highly arbitrary and discriminatory fashion in violation of fundamental human rights—must be outlawed and strictly forbidden to ensure that no one is subjected to the cruelty or torture of facing a capital prosecution, living under a sentence of death, or being put to death at the hands of the state. Justice Marshall—along with his colleague, Justice William Brennan—frequently wrote that the U.S. Constitution’s Eighth and Fourteenth Amendments should be interpreted to bar the death penalty’s use in all circumstances. In examining all of the evidence, much of which is irrefutable, this Article concludes that Justice Marshall was correct and that the death penalty’s use must be declared to be unconstitutional and a per se violation of the U.S. Constitution. Death sentences and executions violate human dignity, fundamental human rights, and the equal protection of the laws—concepts at the very heart of American and international law, and ones that Justices Marshall and Brennan regularly cited in their judicial opinions. In the twenty-first century, death s...
  PubDate: Fri, 27 Jan 2023 11:59:28 PST
The Court and Capital Punishment on Different Paths: Abolition in Waiting
- Authors: Carol S. Steiker et al.
  Abstract: The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past six years – compared to highs of over three hundred per year in the mid-1990s. The last two years have seen only eighteen death sentences per year nationwide – fewer than two per capital jurisdiction.This article examines the dynamics underlying this great decline of the American death penalty and assesses the likelihood of its continued diminution. At the same time capital punishment is withering in practice, the prospects for constitutional abolition via judicial decree have also decreased substantially, as the U.S. Supreme Court has shown marked hostility toward constitutional regulation of the death penalty. This new hostility replaces a jurisprudence that was increasingly hospitable to extensive regulation – even judicial abolition – of American capital punishment. The Court’s recent decisions threaten to jettison the jurisprudential commitment to “evolving standards of decency” as the touchstone for interpreting the Eighth Amendment in favor of a more limited originalist approach to gauging “cruel and unusual” punishments. The Court also appears eager to discourage end-stage litigation and to remove obstacles to both state and federal executions. The simultaneous decline of public support for the death penalty and judicial regulation of the death penalty has produced “abolition in waiting” – a marginalized practice that will remain on the books until changes in the composition of the Court permit reassessment of the death penalty’s constitutionality.
  PubDate: Fri, 27 Jan 2023 11:59:25 PST
Editor's Note
- Authors: Peyton Holahan
  Abstract: To commemorate the accomplishment of abolition and to look back at Virginia’s long and complicated history with the death penalty, the Journal of Civil Rights and Social Justice’s 2021–2022 Symposium titled Revoking Irrevocable Punishment centered around Virginia’s long, complex, and sorrowful path toward abolition. From February 10 to February 11 of 2021, the Journal organized and moderated seven panels that addressed various components of the death penalty discourse in Virginia, past and present.
  PubDate: Fri, 27 Jan 2023 11:59:23 PST
It Just Makes Sense: An Argument for a Uniform Objective Standard for
Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983
- Authors: Pearce Thomson Embrey
  Abstract: In July 2020, the New York Times published an article on a Department of Justice report detailing the systematic abuse of incarcerated individuals by prison guards within the State of Alabama’s Department of Corrections. This report evidences the challenges faced by incarcerated individuals seeking to vindicate their Eighth Amendment rights. In a legal sense, those individuals who turn to the court system for relief face an almost insurmountable burden of proof. This Note begins by surveying the history of excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, as well as deliberate indifference claims under the Eighth and Fourteenth Amendments. This Note then analyzes the success rates of Fourteenth Amendment deliberate indifference claims depending on whether the circuit applies a purely objective standard or a standard with both an objective and a subjective component. Upon the basis of these findings, this Note concludes by advocating for the adoption of a single pronged, objective standard for all individuals seeking to challenge the conditions of their confinement under 42 U.S.C. § 1983.
  PubDate: Mon, 10 Oct 2022 13:04:50 PDT
Wiretapping the Internet: Analyzing the Application of the Federal Wiretap
Act’s Party Exception Online
- Authors: Hayden Driscoll
  Abstract: The federal Wiretap Act—originally enacted to curtail the government’s unbridled use of wiretaps to monitor telephonic communications—was amended in 1986 to provide a private right of action, extending the Act’s Fourth Amendment-like protections to private intrusions. Since the advent of the internet, plaintiffs have attempted to predicate claims of unauthorized online privacy intrusions on the Wiretap Act. In response, defendants claim they are parties to the communications at issue and should be absolved of liability under the Act’s party exception. The federal circuit courts of appeal disagree on how the party exception applies in the internet context. This Note evaluates the courts’ differing conclusions and rationales and proposes two solutions, both of which share the common thread of applying heightened notice and consent requirements to online communications.
  PubDate: Mon, 10 Oct 2022 13:04:48 PDT
Check Your Bank Account First: Examining Copyright Formalities and
Remedies Through a Race Conscious Lens
- Authors: Emma Burri
  Abstract: This Note examines copyright formalities through a race conscious lens and concludes that further change is necessary given the legacy of economic inequality that communities of color experience. It examines the history of copyright formalities in the United States and the disenfranchisement of Black musical creators through the theft of their intellectual property. In exploring the relationship between race, wealth, and musical copyright protection this Note explains why considering the economic inequality is relevant to ensure copyright protection for Black creators. This Note proposes abolishing the registration timeline for certain remedies and altering the filing fee structure of the copyright office to remove barriers to entry into the copyright system which may disproportionately impact creators of color.
  PubDate: Mon, 10 Oct 2022 13:04:45 PDT
Revisiting The Ox-Bow Incident: The Almost Forgotten Western Classic About
the Lynching of Three Innocent Men is as Relevant as Ever
- Authors: Marc Bookman
  Abstract: The concept of lynching, several hundred years old and unclear in its origins, has never really left the lexicon. The word itself, however, has taken on different meanings over the years, from a mob’s taking the law into its own hands, to an organized utilization of racial violence as a means of societal control and intimidation; and finally to the more casual and defensive use of the word (“high tech lynching”) by current Supreme Court justices Thomas and Kavanaugh and others after being questioned about their past behaviors. Many academics have opined that the modern system of capital punishment is an offspring of lynching. This essay examines that idea through the parallel lenses of the classic and almost forgotten western novel The Ox-Bow Incident, and the travails of Henry Lee McCollum, a low-functioning man who spent more than three decades in a North Carolina prison and came close to execution. In the simple and direct language of the Old West, The Ox-Bow Incident dissects a lynching from its nebulous beginnings to its predictable denouement. The McCollum case has virtually all of the same attributes as its fictional counterpart, and its outcome is just as predictable. Whether in art or life, the root causes of injustice turn out to be the same.
  PubDate: Mon, 10 Oct 2022 13:04:43 PDT
Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in
the Developmental Period
- Authors: Sheri Lynn Johnson et al.
  Abstract: Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, Georgia, has through the use of juries and a crippling burden of proof, rendered Atkins a nullity. Although the Court has intervened to prohibit some of these practices, it has not granted certiorari to consider others, including Georgia’s. And due to limits the Court has put on federal habeas corpus relief, many persons who fall within the Court’s categorical bar prohibiting persons with intellectual disability from being sentenced to death or executed, have no effective state or federal remedy.
  PubDate: Mon, 10 Oct 2022 13:04:40 PDT
Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the
Abolition of Virginia’s Death Penalty
- Authors: Bernadette M. Donovan
  Abstract: Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty is not per se unconstitutional, but that the Eighth Amendment constrains its application. In particular, modern death penalty law is concerned with the arbitrary or unusual infliction of the death penalty. Since 2015, the concept of “geographical arbitrariness”—that the death penalty’s localization could render it so random or rare as to be unconstitutional—has gained increased attention.This Article examines whether and how Virginia’s abolition contributes to the geographical arbitrariness of capital punishment in America. The Article finds that Virginia’s experience demonstrates the geographical arbitrariness of the contemporary death penalty in two important ways. First, this Article examines the localization of capital sentencing within Virginia. Capital sentencing and execution data show that as Virginia’s death penalty declined, the practice was kept alive by a small minority of prosecutors who had an unusual passion for death sentencing. In its latter years, Virginia’s death penalty thus increasingly reflected the unfettered discretion of local decisionmakers. Second, this Article considers how Virginia’s abolition affected the national landscape of the death penalty. The Article concludes that both quantitively and qualitatively, the end of Virginia’s death penalty supports a conclusion that capital punishment has become too arbitrary to be constitutional.
  PubDate: Mon, 10 Oct 2022 13:04:38 PDT
Minority and Vulnerable Populations Voting by Mail: A Convenience or a
Disadvantage
- Authors: Kylan Sophia Josephine Memminger
  Abstract: Mail-in voting has feverishly gained popularity in the United States over the last few primary and general elections. In light of this new balloting reality, a trend has emerged. Statistics from minority and vulnerable populations reveal that mail-in ballots composed and sent by these groups have been consistently rejected at a higher rate compared to majority populations. This Note begins by surveying the constitutional background for bringing a challenge to voting rights legislation, while confronting the divisive history of legal precedent surrounding these claims. This Note then analyzes the Supreme Court’s decision in Crawford v. Marion County Election Board and the balancing test from that decision applied to election regulation challenges. This Note will then proceed to identify the legislature’s continued attempt to safeguard the election process with the Voting Rights Act of 1965 and discuss the origin and evolution of absentee voting in the United States, pointing out issues faced specifically by minority and vulnerable groups. After a thorough discussion of these issues, this Note will advocate for a cognizable claim of action for disenfranchised minority and vulnerable voters under the Equal Protection Clause of the Fourteenth Amendment, focusing on the application of the balancing test developed in Crawford to claims of discriminatory voting practices, manipulating the test to give less deference to how individual state’s justify strict mail-in voting regulations. This Note will emphasize the broader utilization of mail-in voting system moving forward and the importance of correcting systemic errors to provide unrestricted access to the ballot.
  PubDate: Thu, 17 Mar 2022 08:42:16 PDT
As Fires Blaze Through California, Could They Blaze a New Path for
Incarcerated Individuals: A Model for Back-End Abolition
- Authors: Jacquelyn Kelsey Arnold
  Abstract: This Note provides a critique on the current system of prison labor through the lens of the California wildfires and the lack of inmate labor due to early release in the wake of COVID-19. This Note provides an overview of the relevant history of the Thirteenth Amendment, contextualizes mass incarceration as a product of the “War on Drugs” in the United States, and consequently, discusses the significant and dramatic expansion of the prison industrial complex and the use of prison labor as a growing source of production labor. It concludes with a recommendation for a provisional back-end abolition model that provides relief for any inmate who completes prison labor. This includes both those who are currently incarcerated, and those who have already been released. The relief is meant to go beyond the measures currently implemented on the front-end and to complement the prison abolition movement.
  PubDate: Thu, 17 Mar 2022 08:42:13 PDT
Senseless Sentencing: The Uneven Application of the Career Offender
Guidelines
- Authors: Christopher Ethan Watts
  Abstract: Federal appellate courts are currently split on the definition of “controlled substance” in the career offender guideline, with one side using federal law to define the phrase, and the other side allowing standalone state law offenses to trigger the guideline. Allowing state law to define the phrase allows countless substances Congress never intended to penalize to be able to trigger one of the most severe penalties in the Sentencing Guidelines. This Note assesses the landscape of the circuit split and analyzes the arguments for and against federally defining “controlled substance offense.” This Note then proposes a novel way to resolve the circuit split using the Supreme Court’s decision in United States v. Labonte to federally define “controlled substance offense.”
  PubDate: Thu, 17 Mar 2022 08:42:11 PDT
Blood, Sweat, Tears: A Re-Examination of the Exploitation of College
Athletes
- Authors: Keely Grey Fresh
  Abstract: 2021 Louise Halper Award Winner for Best Student NoteThe unrest revolving around compensation for college athletes is not a new concept. However, public attitudes are shifting. With spirited arguments on both sides, and the recent Supreme Court decision of National Collegiate Athletic Association v. Alston regarding antitrust exemptions, the issue has been placed in a spotlight. This Note examines the buildup of discontentment through the history of the NCAA and amateurism, specifically how the term “student-athlete” became coined. It will then move to litigation efforts by athletes in an attempt to gain employment status, and an alternative route of unionization. Models that examine the fair market value of athletes, as well as the issue of rent sharing, place the monetary value of this labor into perspective. This Note highlights recent legislative pushes, both state and federal, to compensate athletes through name, image and likeness laws and the subsequent approval of the NCAA. However, this Note proposes that this new publicity surrounding NIL law creates the opportunity to rectify injustices beyond that of what third-party compensation models could provide. In conclusion, this Note advocates for the full-spectrum protection offered through a proposed College Athletes Bill of Rights.
  PubDate: Thu, 17 Mar 2022 08:42:08 PDT
Reproductive Privacy in the World: Critical Examination of June Medical
Services, L.L.C. v. Russo and Buck v. Bell
- Authors: Kumiko Kitaoka
  Abstract: Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection of privacy, in contrast to textualist Justices’ skepticism towards the theory. Part III provides an overview of reproductive privacy law in the United States and foreign jurisdictions. It highlights the judicial acknowledgement that reproductive freedom underpins human dignity and autonomy. Part IV then examines representative methods of judicial review in various jurisdictions, showing the remarkable similarities in the courts’ analyses. In conclusion, this Article identifies the role of judicial review based on the universal right theory, the convergence in the applicable standards of review, and the diminished precedential value of Buck v. Bell.
  PubDate: Thu, 17 Mar 2022 08:42:05 PDT