Arkansas Law Review

Vol. 70, No.2

Eleven Years of Lethal Injection Challenges in Arkansas

Julie Vandiver

In 2015, the Supreme Court decided Glossip v. Gross, which upheld the denial of a challenge to the lethal injection protocol in Oklahoma. Justice Breyer dissented, writing that he believed the death penalty was unconstitutional because, among other reasons, it had become “unusual.” He pointed out that Arkansas, along with 10 other states, had not conducted an execution in more than 8 years. This Article provides a look into how Arkansas made it onto this list. The drought was not from a lack of effort by the state. In the ten years preceding Glossip, twenty-one execution dates were set and all were stayed. Nineteen of those were stayed because of lethal injection litigation. As this Article will recount, the decade-long hiatus was the result of dogged litigation on behalf of deathsentenced prisoners, repeated amendment of the state’s lethal injection law, and missteps by state officials.

Article

Should Death Be So Different?: Sentencing Purposes and Capital Jury Decisions in an Era of Smart on Crime Sentencing Reform

Jelani J. Exum

We are in an era of “Smart on Crime” sentencing reform. Several states and the federal government have made major changes to their sentencing policies—from reducing the incarceration of low-level, nonviolent drug offenders to the use of evidence-based sentencing to focus the most severe punishments on those who are at the greatest risk of recidivism. Often, today’s reform efforts are spoken about in terms of being fiscally responsible while still controlling crime. Though such reform efforts do not explicitly acknowledge purposes of punishment—such as retribution, incapacitation, rehabilitation, or deterrence—an undercurrent running through all of these reforms is an effort for sentencing to make sense in light of sentencing goals given the resources available. Therefore, thinking about ultimate purposes or goals in sentencing is necessarily a part of the sentencing reform discourse.

Article

Chasing Justice: The Monumental Task of Undoing a Capital Conviction and Death Sentence

Jennifer L. Givens

After the botched 2014 execution of Clayton Lockett in Oklahoma, John Oliver tackled the issue of the death penalty on the second episode of his HBO show, Last Week Tonight with John Oliver. Oliver opens the discussion with a sound bite from former U.S. Attorney General Alberto Gonzales, who says, “I [] do believe in the death penalty, but [] only with respect to those [that] are guilty of committing the crime.” Oliver responds, “Okay, bold idea. We shouldn’t execute innocent people. I think most people would probably agree with that. You, sir, are a regular Atticus Finch. But [] executing the innocent is not really the tough question here.” Oliver was right, of course; this should not be a tough question, but the number of judicial and institutional hurdles— both procedural and substantive—currently in place should raise grave concerns about our commitment to ensuring that only the guilty are executed. Since 1973, there have been 157 death row exonerations. That is approximately one exoneration for every ten executionsin this country. Recent research suggests that the rate of wrongful convictions in capital cases where a death sentence was imposed is approximately four percent, which means that approximately 120 of the roughly 3,000 inmates on death row in this country are not guilty. The fact that countless individuals sit behind bars for crimes they did not commit is troubling enough, but even more terrifying, obviously, is the prospect of their execution. There is every reason to believe that we already have executed innocent individuals.

Article

Death Beyond a Reasonable Doubt

Janet C. Hoeffel

In the forty-four years since the Court employed the Eighth Amendment to temporarily suspend the death penalty in the United States in Furman v. Georgia in 1972, the Court has spilled an enormous amount of ink attempting to instruct the states on how to properly guide jurors’ discretion in imposing the death penalty. Yet, in its voluminous Eighth Amendment jurisprudence, the Justices spilled not one drop suggesting the familiar and unifying standard of beyond a reasonable doubt as a guide.

Article

Keep Tinkering: The Optimist and the Death Penalty

Susan D. Rozelle

When it comes to capital punishment, it may make sense to be a little bit defeatist. Like abortion, the death penalty is a topic about which you have to presume that you are never going to change anyone else’s mind. Whether the other person views it as a necessary part of the justice system or as a moral outrage, odds of changing the other person’s mind through reasoned discourse are slim.

Article

The Coming Federalism Battle in the War over the Death Penalty

Michael J. Zydney Mannheimer

From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a state that did not authorize the death penalty for the same conduct. However, in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty states. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level. And since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in nondeath penalty states. While some federal capital defendants in non-death penalty states have raised constitutional objections in their cases based on federalism principles, these objections have uniformly been rejected at the district court level. However, no federal courts of appeals have yet addressed these objections. Currently, thirty-one states authorize capital punishment while nineteen do not. The category of non-death penalty states includes some of the Nation’s most populous, such as New York, Illinois, and Michigan. In the coming decades, it is likely that other large states, such as California and Pennsylvania, and perhaps even Texas, will abandon the death penalty. It is also likely that capital punishment will be retained in many states, particularly in the South and West, and at the federal level. Given these premises, the use of the federal death penalty in non-death states, which is now mostly a side issue in the death penalty debate, may take on more prominence. As the demand for retribution against the very worst murderers in these statescontinues, future pro-death penalty Attorneys General will likely bring more of these cases in federal court. Moreover, Congress may continue to expand federal jurisdiction over murders that have tenuous connections to interstate commerce. In short, we may soon see a federalism battle in the war over the death penalty.

Article

Capital Punishment: The Great American Paradox

A. M. Stroud III

On June 6, 1944, American forces landed on Omaha and Utah beaches as part of the Normandy invasion that had as its objective the liberation of occupied Europe from the tyranny of the Nazi Occupation. This was America at its finest hour. This was not a professional army, but an army consisting of young men who had been drafted or had enlisted after Pearl Harbor. The young men came from all walks of life: farmers, teachers, family members, mechanics, truck drivers and the rest, with the sole objective to make the world safe again from the atrocities of the Axis Powers. They were part of America’s Greatest Generation. Ten months later the war was over; Germany had been defeated. Europe owed America a debt of gratitude. American blood had been spilled to drive the Hun into submission. This author has been to the American Cemetery on the cliffs of Normandy overlooking the English Channel. There, in neat rows, are hundreds of small crosses and Stars of David marking the graves of those who died in this cause for freedom. It was a very emotional experience. Indeed, if one goes there and does not shed a tear of emotion, that person should check his pulse for signs of life. On June 16, 1944, ten days after the invasion, as American troops were slowly advancing along the hedge rows of Normandy, fourteen-year-old George Stinney, Jr. was executed for the killing of two white girls. He was tried in the Jim Crow South. After a two-hour trial and a ten-minute deliberation, the young boy was convicted of murder by an all-white jury and sentenced to die by electrocution. His lawyer elected not to appeal. The main evidence against Stinney was his alleged confession that was reportedly made without the presence of his lawyer or parents. There was no written record of the confession. Many young Americans died on June 16, 1944, in defense of the ideals for which this country supposedly stands. On the same date, as these unsung heroes were battling the Nazi war machine, Stinney, who was barely five feet tall and weighed just more than 90 pounds, was led to the electric chair. “The electric chair’s straps were too big for his frail body. Newspapers at the time reported he had to sit on books to reach the headpiece. And when the switch was flipped, the convulsions knocked down the large mask, exposing his tearful face to the crowd.” It would take seven decades after this brutal execution to exonerate him. For George Stinney, the American ideal had no meaning. He died solely as a result of the color of his skin and the prejudices of the time. Unspeakable horrors occurred on the battle fields of France and in the court house in Alcolu, South Carolina on that date in June 1944, only ten days after the invasion. This is but one example of the great American Paradox. We kill in the name of justice, while portraying ourselves as a leader of the civilized world in the effort to protect basic human rights. It is time for this masquerade to stop. We should finally accept what most of the civilized world has long ago acknowledged: capital punishment is an anathema to any country that purports to call itself civilized. It is time to separate ourselves from the totalitarian regimes of our world. We should not walk in lockstep with those nations who view executions as justice.

Article

Death Row Conditions Through an Environmental Justice Lens

Andrea C. Armstrong

Glenn Ford lived on death row at Louisiana State Penitentiary for twenty-nine years, three months and five days. Typically, he was confined in his cell for at least twenty-three hours of a given day, seven days a week. Glenn was convicted of the armed robbery and murder of Isadore Rozeman. After prosecutors Martin Stroud and Carey Schimpf used six of their eight peremptory challenges to exclude African-Americans from the jury venire, Glenn was sentenced to death in 1984 by an allwhite jury. He was a devoted friend to many and, to the extent possible given his incarceration, a committed father and grandfather. Glenn Ford was released in March 2014 after the state conceded that he was wrongly convicted of armed robbery and murder. During his decades on death row, he was involuntarily exposed to hazardous chemicals, sewage, toxic mold, excessive heat, rust, and lead.

Comment

Food with Integrity?: How Responsible Corporate Officer Prosecutions Under the Federal Food, Drug, and Cosmetic Act Deny Fair Warning to Corporate Officers

Clay D. Sapp

[W]hen it comes to food safety, we have to rely on the companies that manufacture and distribute food to ensure that the food we buy is safe. In fact, most consumers give little thought to the safety of their food. I know I don’t and I bet many of you don’t either. We simply don’t expect to get sick from the food at our favorite restaurant, or from peanut butter or the eggs or the cantaloupes or the countless other products that we buy at the supermarket. That is why food safety is a priority for the Justice Department. Our role in protecting consumer safety is at its apex when consumers can least protect themselves.1

Arkansas Law

Recent Developments

Daisy C. Karlson

Recent developments in Arkansas and related law for Volume 70, Number 2.