Dead (and Innocent) Men Walking: Will Foster v. Chatman Mark the Beginning of the End for the Death Penalty?

Abstract

The death penalty is a cancer on this country’s legal system, particularly its commitment to fairness, due process, and equal protection of the law. Whether it is the number exonerations, the mental illnesses and neurological disorders of inmates who are executed, the problems with lethal injection procedures, the ability of judges to Alabama to override a jury’s recommendation of life imprisonment, the quality of defense counsel, or the substantial barriers to meaningful appellate review, the death penalty is plagued with problems that make its existence contrary to any sense of common decency. Put simply, to the extent that death is really different, the most significant difference is the unfairness and arbitrariness with which it is imposed. When the Supreme Court decides Foster v. Chatman, it should not merely focus on whether the prosecution violated Batson v. Kentucky when striking all African-Americans from the jury pool. The Court should remember the words spoken by Justice Brennan in Gregg v. Georgia and Justice Breyer in Glossip v. Gross and hold that the death penalty constitutes cruel and unusual punishment. In so doing, the Court will breathe life into the notion that the “arbitrary imposition of punishment is the antithesis of the rule of law.”