Editor’s Preface: Vol. 75 No. 3 (Fall/Winter 2018)

Meredith Osborne


For generations, National Lawyers Guild members have fought against the glaringly racist use of the death penalty as a form of state-sanctioned murder. The Guild has long recognized that capital punishment is nothing more than a form of state sanctioned murder.

Yet, despite the myriad moral, constitutional, financial, and practical argu­ments against it, capital punishment persists. Proponents commonly argue that it should remain available to deter and express outrage against horrible crimes. Even if this argument were morally tenable (which it isn’t), the reality is that capital punishment doesn’t work this way in practice. In fact, those who commit the most heinous and tragic acts are often not sentenced to death—they plead to multiple life sentences, but are not condemned to die —and those who commit less shocking crimes often get a date with the executioner.

Take, for example, Colorado. There, the three men on death row are all black and went to the same high school. If that isn’t disturbing enough, there are notable absences from Colorado’s death row, such as James Holmes, the Aurora move theater shooter; Robert Dear, the Planned Parenthood shooter; and Scott Ostrem, the Wal-Mart shooter. These men were not condemned to death, despite collectively killing four times as many people as their death row counterparts. Unsurprisingly, they are white. Thus, like other death penalty states, Colorado’s death row reflects who juries are most comfortable putting to death: black men.

In this theme issue, our scholars provide new insights into different aspects of capital punishment, including philosophic arguments against the practice; insights into the Kafkaesque hurdles defendants face in postconviction proceedings; and a discussion of the Washington Supreme Court’s recent decision to strike down state murder in light of emerging, statistical research demonstrating the racial biases of capital jurors.

In Counter-Revolutionary: Liberalism, Capital Punishment, and the Next Step Forward, Jason Tiplitz attacks state-sanctioned murder on the grounds that it is unconstitutional and undermines the two core values of any post-enlightenment, liberal democracy: human rights and civil liberties. As the debate around capital punishment intensifies, Tiplitz’s article gives us additional political and philosophical arguments against the practice.

In Davila v. Davis, Brady, and the Future of Procedural Default Doctrine in Federal Habeas Corpus, Ian Eppler analyzes the procedural default doc­trine, a postconviction hurdle facing convicted defendants, including those condemned to death by the state, that makes relief for the accused much more difficult. Eppler provides a thorough, but still accessible, doctrinal overview of postconviction litigation, including criticisms of the procedural default doctrine and thoughtful considerations for postconviction lawyers and liti­gants alike. In a time when most defendants are represented by overworked public defenders, a viable and robust postconviction process is essential to safeguarding due process. Eppler’s article is a starting place for reaching this goal and a must-read for any postconviction lawyer.

Finally, in The Struggle Against the Death Penalty Moves Forward in Washington State: Reflections on State v. Gregory, Neil Fox discusses the case the case he argued before his state’s Supreme Court, which ultimately led—at long last—to the abolition of the death penalty in Washington. Fox discusses the critical role that statistics played in achieving this victory, offering yet another key strategy for anti-death penalty lawyers in state court litigation. Namely, he reviews the Beckett Report, a statistical study commissioned by defense lawyers in Gregory and conducted by University of Washington Sociology Professor Katherine Beckett and then-graduate student, Heather Evans. Among other conclusions, the study revealed that, in the prior three decades of capital litigation in Washington, black defendants were four and a half times more likely to be sentenced to death than white defendants in similar circumstances. This finding led the Washington Supreme Court to conclude that, while theoretically constitutional, the death sentence is not applied in a constitutional manner and cannot stand.

In these articles, another truth becomes clear: the current composition of the Supreme Court likely means that capital punishment will remain enshrined in the U.S. Constitution for at least another generation. Therefore, as the Guild has long-recognized, we cannot rely on the Supreme Court for reason and refuge. Rather, state courts provide the best arena for challenging this fundamentally unfair and racist practice. State by state, we are hopefully on our way to abolishing capital punishment nationwide.