When the Wall Has Fallen: Decades of Failure in the Supervision of Capital Juries

Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have long criticized juries for administering punishment. Of particular concern to the Supreme Court has been the problem of jury discretion in capital cases. Finding ways to control the deliberations of the capital jury to prevent them from rendering decisions which are as arbitrary as being struck by lighting has been the primary focus of the Supreme Court at least since the early 1970\u27s. If one considers the plurality opinion in Furman as a great wall erected to prevent continued movement toward implementation of arbitrary and capricious death sentences, the public movement which followed to reinstate capital punishment affected the mortar with which the wall was erected. The jurisprudence that followed the calls for control over the arbitrary behavior of the capital jury has wavered in recent years from the commitment to place controls over the death penalty, and to insure it is a true last resort for the worst of the worst. The rise in crime that occurred during the early seventies combined with the political rhetoric that emerged from partisan politics made the Supreme Court and the death penalty fair game for controversy. A shift in the political climate along with a change in the leadership and the personnel of the Supreme Court made the fragile wall of protection erected in Furman increasingly vulnerable to attack. Shifts in the Supreme Court majority have led to grave concerns about the fairness of capital punishment in the decades following Furman. With aggressive state action to pass new death penalty statutes in order to resume executions, inevitably the Court has become less protective of the values advanced in the Furman opinions. One of the primary casualties of the post-Furman decline in constitutional protection advances in the form of various controls on juries that decide capital cases. Decisions during the 1980\u27s regarding what a capital jury may consider, what they may not hear, and what type of statutory instructions and forms must guide them demonstrated some promise that Furman concerns would, at times, be seriously regulated. However, over the last several decades the Court has issued opinions which indicate that it is more concerned with state autonomy in administering the death penalty than the defendant focused concerns of Furman. In my view, instructions to the capital jury are the primary vehicle of procedural protection against unjust imposition of the death penalty. Unfortunately, the Supreme Court has approached its capital punishment jurisprudence without due regard to the scientific research that is available regarding how consideration of death sentences is different from other jury decisions. This article is an attempt to discuss what went wrong with the Supreme Court\u27s jurisprudence regulating capital juries and proposes some solutions that direct how the Court might increase scrutiny of jury instructions when reaching life and death decisions

Big Brother or Little Brother? Surrendering Seizure Privacy for the Benefits of Communication Technology

Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution\u27s Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave importance for privacy purposes. By our behavior as a nation, have we indicated a rejection of the liberty Franklin was writing about in our modern times? In no area has the rapid rise of technology affected our lives more than in the area of communication through computers and other devices, like so called smart telephones. As long as people have been communicating, there has been a desire for others to be interested in hearing what they say. Sometimes the speaker or writer desires an audience and the speaker\u27s freedom to communicate desires protection. At other times, people intend to keep their private words private while others desire to know their thoughts and intentions. This human desire, the right to be let alone, has both practical and legal limitations. Obviously society has its own right to protect its members from violence and keep the peace by legislating and enforcing criminal law. When technology comes into existence, law enforcement often uses it first to engage in the competitive enterprise [to] ferret out crime. Further, the technology itself may make it impossible to permit people who desire to keep information private from achieving that goal. Among the reasons that keeping matters private has become more difficult is that the law simply cannot keep up with the rapid rise in communications technology

Punitive Damages vs. The Death Penalty: In Search of a Unified Approach to Jury Discretion and Due Process of Law

The role of the jury in awarding monetary damages to plaintiffs in a wide range of civil cases has captured the attention of the media, contemporary non-fiction writers, and reform-minded politicians in recent years. Particular attention has been focused on huge jury awards, which has led many commentators to criticize the wisdom of permitting juries to move so much money from one place to another. Although the right to a jury trial, and with it the exercise of broad judicial discretion, is constitutionally based, many reform efforts have moved toward removing juries from cases both as to the subject matter of cases and the amount of money they can award. This article is an attempt to examine what reasonable reforms should be made to jury discretion, particularly with regard to the jury\u27s consideration of punitive damages. My hope is to advance a process that will strike a balance between jury discretion and the valid concerns of those who perceive a need to protect against arbitrary and unfair damages verdicts. Others have also insightfully written in this area, but my approach builds on the structure for controlling jury discretion fashioned by the American Law Institute (“ALI”) in its important work dealing with capital juries

The Viability of Multi-Party Litigation as a Tool for Social Engineering Six Decades after the Restrictive Covenant Cases

Six decades ago, a group of lawyers sought ways to overturn the racially restrictive covenants that were common across the United States. These restrictions on integrated neighborhoods were the first legal battleground of the civil rights movement using the courts of civil justice to remove what many thought were immoral restrictions on the rights of free people. The most famous of those cases was Shelley v. Kraemer, but the doctrine that emerged from that particular case was actually a series of separate, multi-party lawsuits in various locations, using teams of lawyers acting in concert with each other to achieve justice. It was at Howard University that its former Dean, Charles Hamilton Houston, perfected the academic laboratory for litigating multi-party civil rights, which both developed and trained civil rights lawyers. This Article attempts to explain some of the housing discrimination litigation and place it in its proper historical context. It will discuss the important role of a few lesser-known cases leading up to the more famous Supreme Court litigation in Shelley v. Kraemer. Among the goals of this Article is to encourage the courts to become active participants in resolving major social issues that affect large groups of similarly situated litigants. This Article will offer perspective on how the lessons taught by those cases will serve us today, even as access to courts of civil justice has been under attack in the Legislature and by government executives who might like to limit access to the courts for groups seeking to collectively obtain relief through the use of a variety of lawsuits in the nation\u27s courts. The Supreme Court\u27s recent reluctance to expand the role of class action in reform litigation as demonstrated in its opinion in AT&T Mobility v. Concepcion, suggests a disturbing trend to limit the power of the class action tool. Such a short-sighted approach is likely to limit legitimate group claims that seek redress in the courts without the ability to consolidate their cases with other aggrieved parties. The restrictive covenant cases should have taught us that claims that are not popular, but may be meritorious often require group litigation to obtain justice

From Fugitives to Ferguson: Repairing Historical and Structural Defects in Legally Sanctioned Use of Deadly Force

The lawful use of lethal force to subdue suspected wrongdoers has a long tradition in our nation. There is certainly nothing wrong with securing, incapacitating, or even killing violent persons who pose a serious threat to the lives of innocent individuals. One of the important roles of government is to protect people from harm and keep the peace. Recent events in Ferguson, Missouri, have highlighted the tension between the officers on the beat and citizens on the street. These tensions are not likely to subside unless there are major structural changes in the way the police do their job and the perception of officers in the community. Police are often perceived as getting special privileges in the courts, even when they engage in wrongdoing. This is particularly true in African-American neighborhoods, which seem to distrust police. Similar to other components of the judicial system that give rise to racial concerns such as obtaining confessions or selecting a jury -concerns that police officers receive special treatment instills little confidence in police for minority communities. Some of that distrust comes from the troubling application of the Fourth Amendment in the urban setting

When the Wall Has Fallen: Decades of Failure in the Supervision of Capital Juries

Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have long criticized juries for administering punishment. Of particular concern to the Supreme Court has been the problem of jury discretion in capital cases. Finding ways to control the deliberations of the capital jury to prevent them from rendering decisions which are as arbitrary as being struck by lighting has been the primary focus of the Supreme Court at least since the early 1970\u27s. If one considers the plurality opinion in Furman as a great wall erected to prevent continued movement toward implementation of arbitrary and capricious death sentences, the public movement which followed to reinstate capital punishment affected the mortar with which the wall was erected. The jurisprudence that followed the calls for control over the arbitrary behavior of the capital jury has wavered in recent years from the commitment to place controls over the death penalty, and to insure it is a true last resort for the worst of the worst. The rise in crime that occurred during the early seventies combined with the political rhetoric that emerged from partisan politics made the Supreme Court and the death penalty fair game for controversy. A shift in the political climate along with a change in the leadership and the personnel of the Supreme Court made the fragile wall of protection erected in Furman increasingly vulnerable to attack. Shifts in the Supreme Court majority have led to grave concerns about the fairness of capital punishment in the decades following Furman. With aggressive state action to pass new death penalty statutes in order to resume executions, inevitably the Court has become less protective of the values advanced in the Furman opinions. One of the primary casualties of the post-Furman decline in constitutional protection advances in the form of various controls on juries that decide capital cases. Decisions during the 1980\u27s regarding what a capital jury may consider, what they may not hear, and what type of statutory instructions and forms must guide them demonstrated some promise that Furman concerns would, at times, be seriously regulated. However, over the last several decades the Court has issued opinions which indicate that it is more concerned with state autonomy in administering the death penalty than the defendant focused concerns of Furman. In my view, instructions to the capital jury are the primary vehicle of procedural protection against unjust imposition of the death penalty. Unfortunately, the Supreme Court has approached its capital punishment jurisprudence without due regard to the scientific research that is available regarding how consideration of death sentences is different from other jury decisions. This article is an attempt to discuss what went wrong with the Supreme Court\u27s jurisprudence regulating capital juries and proposes some solutions that direct how the Court might increase scrutiny of jury instructions when reaching life and death decisions

Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation \u27With All Deliberate Speed\u27

This essay examines the continuing struggle that centers around whether this country will allow public elementary and secondary school officials to use race-conscious, and sometimes aggressive, tools to eliminate the continuing presence of predominantly single race schools in most of our urban centers. Despite the promise of Brown v. Board of Education, the efforts to desegregate schools in some areas of America appear to have eliminated only the legal barriers to truly integrated schools. Many school systems have simply resegregated through demographic shifts prompted by urban decay and white flight. In Missouri v. Jenkins, the Supreme Court struck down certain district court-ordered remedies designed to attract non-minority students to the Kansas City, Missouri School District ( KCMSD ). In this decision, a sharply divided Court once again confronted the problem of what local school districts can be compelled to do to eliminate the problem of past discrimination. By weakening the power of the federal courts to order aggressive remedies, the Supreme Court has clearly indicated that it intends to abandon its commitment to desegregating public schools, seemingly joining the political opposition to busing, magnet school programs, and other educational reforms that have already compromised the promise that schools should be desegregated with all deliberate speed. The real tragedy of the Supreme Court\u27s decision in Jenkins is that it is likely to have a chilling effect on school officials trying to achieve desegregation, and federal judges and litigants attempting to draft plans that are designed to facilitate that goal. The struggles encountered in achieving legal recognition of the impropriety of de jure segregation suggest that the high cost that has already been paid by so many should encourage our nation to continue to push aggressively toward the goal of integration. My view is that we must pursue integration even while acknowledging recent failures that have led some to call for the abandonment of techniques designed to integrate public schools. It is my hope that those decision makers who are attempting to continue efforts to desegregate will not be discouraged by the Supreme Court\u27s most recent reduction of the power of the federal courts to advance efforts to achieve desegregated education. This nation should press forward with good faith efforts to integrate the public schools despite the challenges that might lead some educational policy makers to abandon that goal. Failure to do so will result in the erosion of public education for all. Such a consequence we can hardly afford. Before I offer my thoughts on integration and the Supreme Court\u27s decision in Jenkins, it seems appropriate that I should disclose something of my background and experience. I am of African-American and Filipino heritage and am the product of the integrated schools of a majority white public school district. I would characterize my public educational experience as good, but certainly not perfect. My elementary and secondary education occurred while the schools I attended were trying to adjust to the challenges of desegregation. I encountered some parents, teachers, and students who were uncomfortable with the mixed-race classroom, but there were also many people of good faith who worked toward making an unfamiliar setting comfortable for all. Consequently, my integrated education was more beneficial than it was harmful. My experience cannot, of course, stand alone as reason to endorse aggressive plans to integrate public school systems; but my experience does tell me that to abandon all such efforts would be premature. It is with such a view and, if you will, with such a bias that I approach the concept of integration and challenge the Supreme Court\u27s opinion in Jenkins

Freedom of Association, the Communist Party, and the Hollywood Ten: The Forgotten First Amendment Legacy of Charles Hamilton Houston

Charles Hamilton Houston, the most important civil rights lawyer of the first half of the 20th century who developed the legal strategy in Brown v. Board of Education, ended his fabulous legal career representing a group of Hollywood screen writers known as the Hollywood Ten. See Lawson and Trumbo v. United States, 176 F.2d 49 (D.C. App.1949). In that case convictions and jail sentences were upheld for the defendants\u27 failure to answer questions from the House Committee on Un-American Activities (HCUA) about their views on communism and whether or not each was members of the Communist Party. The matters in Congress led to blacklisting of certain persons from jobs in the film and entertainment industry who either were named as Communist or refused to provide names of others who might be. This article suggests that Houston\u27s Theory of Freedom combining various provisions of the Constitution to develop greater fundamental rights. An examination of the documents filed in the case reveal this prophetic approach to constitutional litigation that is the hallmark of what some have called Houstonian Jurisprudence . Furthermore, a historical examination of Houston\u27s long and interesting relationship with the Communist party in matters of litigation, while at the same time maintaining a steadfast belief in the principles of Democracy create an interesting tapestry of an important historical and legal period in the United States