Death Penalty – Columbia Journal of Law & Social Problems

Bargaining Life Away: Appellate Rights Waivers and the Death Penalty

By Edmund A. Costikyan

In our criminal justice system, it is now a matter of little note that the vast majority of cases are resolved by guilty plea rather than at trial, without a single fact ever presented to a jury. Since the passage of the Sentencing Reform Act of 1984, it has become common practice for plea agreements to require not only that a defendant waive her right to trial by pleading guilty, but also that she waive her right to ever appeal her conviction or sentence. This Note explores the waiver of appellate rights from both a due process and public policy standpoint, arguing ultimately that when a defendant faces a potential death sentence at any point during the adjudication of her case, her appellate rights cannot be constitutionally waived; additionally, that in both the interest of justice and the public interest, such waivers should not be sought or upheld.

Part II of this Note introduces the relevant background of the plea bargaining system and the use of appellate waivers. Part III discusses the issues raised both when a defendant is asked to waive her appellate rights and by the enforcement of such waivers once effected, before addressing the arguable benefits of such waivers. Finally, Part IV seats these arguments in the context of capital punishment, where, due to the finality of the punishment and its powerful coercive force, the unreviewability of a conviction is at the highest level of concern.

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Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row

Issues Volume 55, Issue 4

By Brandon Vines

Many of the two thousand Americans living under a sentence of death spend twenty-three hours a day in a concrete box the size of a parking space. Often the only human touch they feel is being handcuffed and the only natural light comes from a small grill at the top of an exercise cell. However, change is at hand. The Supreme Court has emphasized that the Eighth Amendment’s prohibition of cruel and unusual punishments draws its meaning from the evolving standards of decency that mark the progress of a maturing society. To date, there has been a dearth of information available regarding the historical and modern conditions on death row.

This Note addresses this gap. Part I provides, for the first time, a complete historical narrative of the development of the American death row from the Colonial Era to the Twenty-First Century. Part II reviews the findings of a survey of every jurisdiction with capital punishment to capture a national snapshot of conditions on America’s death rows. The findings in both Parts suggest that the system of permanent solitary confinement on death row has neither the weight of history nor the support of the majority in either contemporary practice or social values. Indeed, there is an accelerating trend away from the practice. Part III places this evidence in constitutional context and argues that the twelve states that retain permanent solitary death rows are out of pace with America’s evolving standards of decency and violate the Eighth Amendment.

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Lethal Paralytics and the Censorship of Suffering

Issues Volume 57, Issue 1

By Drew S. Brazer

Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons. This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (iii) potassium chloride (which stops the heart). The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die.

This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech. State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (iii) discriminate based on viewpoint; and (iv) compel speech. The state’s interest in requiring the paralytic—to censor the violence of the condemned person’s death—is neither legitimate nor compelling. As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment.

Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States. It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically. Part II examines the constitutional rights of incarcerated persons and considers whether an individual’s decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test. Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic. Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review. Part III explores the policy implications of recognizing a condemned person’s right to refuse lethal paralytics. Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering.

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