A Latham & Watkins Forum examines the state of the death penalty

A February 1 Latham & Watkins Forum brought together leading experts in capital defense to examine the shifting state of the death penalty in the United States. The discussion commemorated the 50th anniversary of the US Supreme Court’s decision in Furman v. Georgia, which overturned the nation’s capital punishment laws; the Court’s subsequent ruling in Gregg v. Georgia effectively reinstated the death penalty by affirming amended state laws dealing with capital sentences.

The Forum panelists discussed the racially disparate impacts of the death penalty—an issue that the Court grappled with in Furman, and one that remains significant today. They also examined the Supreme Court’s recent jurisprudence on capital cases, agreeing that total abolition of the penalty remains unlikely, given the Court’s current composition.

The Forum was co-sponsored by the Center on Race, Inequality, and the Law (CRIL) and moderated by CRIL co-faculty director and Assistant Professor of Clinical Law Vincent Southerland. Southerland was joined by Alexis Hoag-Fordjour ’08, assistant professor of law and co-director of the Center for Criminal Justice at Brooklyn Law School, and Aren Adjoian, supervisory assistant federal defender within the capital habeas unit of the Federal Community Defender Office in Pennsylvania.

Watch video of their discussion:

Selected remarks:

Alexis Hoag-Fordjour ’08: “When Furman was decided, there were around 600 people on death row and death row was then cleared…There are over 2,300 people on death row today….What has changed is the scale that really mimics the wave of mass incarceration we saw outside the death sentence context. What is predictable about who gets the death penalty today is still driven by the race of the victim. So it’s mostly in white victim cases—and most pronounced when there’s a non-white defendant who’s the alleged perpetrator.” (video, 25:00)

Aren Adjoian: “I think that the execution spree at the end of the Trump administration was really eye-opening to me…because a lot of the rhetoric in capital cases, especially habeas cases, in the Supreme Court is about deference to state courts…but in the federal cases there was none of that, and in fact it was sometimes the opposite: you can get the federal death penalty anywhere, including in states that don’t have it as a matter of state law.” (video, 33:15)

Adjoian: “There’s often been strains of hostility towards habeas and the whole idea of federal courts being able to set aside state criminal convictions in general, by some judges. And this [Supreme] Court, or at least the majority of this Court, definitely has seemed to take up that mantle in recent opinions.” (video, 40:07)

Vincent Southerland: “I think the scary thing about a couple of these cases from this last term is essentially what [the Supreme Court] is saying is ‘You can satisfy all the elements of the habeas statue and we still don’t really have to grant you relief…it’s still up to our discretion whether we want to grant that or not.’” (video, 40:56)

Hoag-Fordjour: “There’s a lot of exciting movement in state courts and in individual states…. What I find most interesting is actually a pre-trial challenge in Kansas…[The case] challenges the constitutionality of the death penalty under Kansas’s constitution, which has greater protections than the federal constitution for the right to life and to liberty and to happiness…. I am cautiously optimistic that that has the potential to be successful.” (video, 42:44)

Posted February 27, 2023.