Law and Race Commons^™

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber

Publications

10th Annual David H. Bodiker Lecture on Criminal Justice delivered on Wed., Oct. 21, 2020 at Ohio State University Moritz College of Law.

Sister Helen Prejean And The Death Penalty: Decades Of Fighting Capital Punishment, University Marketing And Communications, Helen Prejean

DePaul Download

Sister Helen Prejean has dedicated her life to opposing the death penalty after she witnessed an execution in her home state of Louisiana. Her efforts have sparked a national dialogue on capital punishment and she has helped shape the Catholic Church’s position on the topic. In 2011, she donated her personal archives to the university to help the DePaul community continue to learn from her work. On this episode of DePaul Download, Sister Helen talks about life’s work and what keeps her going.

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross

Articles

False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but …

The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai

Faculty Scholarship

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …

Institutionalized Racism And The Death Penalty, Ashleigh Ellis

Student Scholar Symposium Abstracts and Posters

Overtime, support for capital punishment has evolved. Compared to previous decades, support has changed amongst different variables such as: age, race, gender, and political perspective; therefore, today, these variables have changed the amount of support for it. For example, as of today, 6 states have repealed the death penalty with New Jersey being the first in 2007 to do so in 40 years. As memories of Jim Crow and the Civil Rights era have faded due to generational replacement, American society today still has this racial gap, however it is due to this racial resentment or symbolic resentment that the …

Murder, Minority Victims, And Mercy, Aya Gruber

Publications

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest …

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …

Representing Black Male Innocence, Joan W. Howarth

Scholarly Works

This Article is a case study of a California capital case. Drawing on cultural studies, the first part develops the social construction of Black male gang member, especially as that identity is understood within white imaginations. The powerful and frightening idea of a Black man who is a gang member, even gang leader, captured the imagination and moral passion of the decisionmakers in this case, recasting and reframing the evidence in furtherance of this idea. In fundamental ways, this idea or imposed identity is fundamentally inconsistent with any American concept of innocence.

The second part uses the case to investigate …