Does the Death Penalty Require Death Row? The Harm of Legislative Silence

This Article addresses the substantive question, Does the death penalty require death row? and the procedural question, Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent scholars have written about death row, they have focused on its harshness. None has objected to the fact that prison administrators are the ones who have decided to maintain death row in most capital punishment states. This Article addresses for the first time the authority of prison administrators to establish or retain death row. It begins by exploring the nature of this death row decision, and concludes that death row is rational only if its intended purpose is to punish. This conclusion leads to the second and more significant claim in the Article: that only legislatures are competent to require death row. This claim is grounded in the need for democratic legitimacy and public deliberation in the imposition of punishment, in the separation of powers, and in the principle of legality. Death row should be abolished unless legislatures choose to retain it, expressly and deliberately, for retributive or deterrent reasons

A Humble Justice

Media and scholarly critics often claim that Justice Thomas\u27s criminal law opinions reflect intentional cruelty or callousness, and dismiss his opinions without engaging seriously with their substance. This Essay contends that judicial humility is a far more plausible explanation for Justice Thomas\u27s criminal case decisions. If observers recognize that his approach to the law is guided by humility, rather than his own cruel or callous views, they will be more likely to consider the substance of his opinions and will benefit from wrestling with his challenging jurisprudential and historical perspective - even if they do not agree with the conclusions to which it leads

The Death Penalty as Incapacitation

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime. How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary. Yet solitary confinement and life without parole entail new harms— either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time. This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair. It concludes by highlighting several of the most promising reforms

The major genetic determinants of HIV-1 control affect HLA class I peptide presentation.

Infectious and inflammatory diseases have repeatedly shown strong genetic associations within the major histocompatibility complex (MHC); however, the basis for these associations remains elusive. To define host genetic effects on the outcome of a chronic viral infection, we performed genome-wide association analysis in a multiethnic cohort of HIV-1 controllers and progressors, and we analyzed the effects of individual amino acids within the classical human leukocyte antigen (HLA) proteins. We identified >300 genome-wide significant single-nucleotide polymorphisms (SNPs) within the MHC and none elsewhere. Specific amino acids in the HLA-B peptide binding groove, as well as an independent HLA-C effect, explain the SNP associations and reconcile both protective and risk HLA alleles. These results implicate the nature of the HLA-viral peptide interaction as the major factor modulating durable control of HIV infection