YEARS AFTER GREGG V. GEORGIAA National Conference on the Death Penalty0

Thursday, March 31 – Saturday, April 2, 2016

University of Texas School of Law

Conference Program

Table of Contents

Welcome 1

Host Organizations 2

Sponsors 3

Agenda 4

Social Media 8

Special Thanks 9

Welcome

The American death penalty seems precarious. Executions and death sentences have declined sharply over the past fifteen years, numerous jurisdictions have abandoned the death penalty, international opposition to capital punishment continues to grow, and many judges – including justices on the U.S. Supreme Court – have voiced constitutional concerns about its administration. All of these developments were also present in the early 1970s, and they contributed to the Court’s decision in Furman v. Georgia to invalidate prevailing capital statutes in 1972. But the resulting political backlash led to new capital statutes, and 1976 marks the reemergence of the American death penalty. The Court’s decisions in 1976 – in five cases from five states (Florida, Georgia, Louisiana, North Carolina, and Texas) – set the basic legal framework for the administration of the modern American death penalty.

We now have had four decades of experience with the constitutional regulation wrought by Gregg v. Georgia and its companion cases. This conference will explore the consequences of that framework, looking at the modern American death penalty from a variety of perspectives. We will hear from the central participants in the capital system – prosecutors, defense lawyers, judges, executive officials, among others – who will offer assessments of prevailing practice and of the challenges going forward. How successfully has the American capital system addressed the problems of arbitrariness, discrimination, and error that motivated the Court’s regulatory efforts? How has the continued presence of the death penalty influenced the larger American criminal justice system? What does the future hold for American capital punishment? We look forward to a timely examination of the American death penalty, and we are grateful for the participation of so many knowledgeable and thoughtful conferees.

Sincerely,

Jim Marcus Seth Miller, ChairRaoul Schonemann Virginia Sloan, Special AdvisorMollie Spalding Misty Thomas, DirectorJordan Steiker American Bar AssociationUniversity of Texas School of Law Death Penalty Due Process Review ProjectCapital Punishment Center

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Host Organizations

Founded in 2001, the American Bar Association’s Death Penalty Due Process Review Project conducts

research and educates the public and decision makers on the operation of capital jurisdictions’ death

penalty laws and processes in order to promote fairness and accuracy in death penalty systems. The

Project encourages adoption of the ABA’s Protocols on the Fair Administration of the Death Penalty; assists

state, federal, and international stakeholders on death penalty issues; and develops new initiatives

to support reform of death penalty processes. The Project published twelve influential State Death

Penalty Assessments between 2006 and 2013, and currently houses the Capital Clemency Resource

Initiative and the Serious Mental Illness Initiative, both established in 2015.

The University of Texas School of Law’s Capital Punishment Center brings together scholars, students

and practitioners interested in the death penalty and its administration. The Law School has long been

committed to educating students about capital punishment. The Capital Punishment Clinic has been

offered every semester since the fall of 1987, and the Center was created in 2006 to expand the Law

School’s academic focus on the issue. Center faculty members teach courses on Capital Punishment,

Right to Counsel and the Death Penalty, and the Clinic, as well as an undergraduate honors course on

the cultural life of the deah penalty. The Center is expanding academic and clinical course offerings,

and involving faculty and students in conferences, research projects, academic programs, lectures,

and the representation of men and women facing the death penalty in Texas.2

Sponsors

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Agenda

Thursday, March 31, 2016

Ward Farnsworth, Dean and John Jeffers Research Chair in Law, University of Texas School of LawPaulette Brown, President, American Bar Association; Partner, Locke Lord LLP

George H. Kendall, Director, Public Service Initiative, Squire Patton BoggsEvan J. Mandery, Professor and Chairperson, John Jay College of Criminal JusticeMichael Meltsner, Matthews Distinguished University Professor of Law, Northeastern University School of Law

MODERATOR — Jordan M. Steiker, Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law; Director, Capital Punishment Center

11:00 am–12:30 pm Transformation of Capital Systems: Trials

Hon. Tom Price, Judge (Ret.), Texas Court of Criminal AppealsDanalynn Recer, Executive Director, Gulf Region Advocacy CenterElisabeth A. Semel, Director, Death Penalty Clinic, University of California Berkeley School of LawHarry L. Shorstein, Partner, Shorstein, Lasnetski & GihonMODERATOR — Kathryn M. Kase, Executive Director, Texas Defender Service

New death sentences have fallen to historic lows across the United States. Meanwhile, the American Bar Association, the State Bar of Texas and other organizations have raised the ethical and professional standards for defending capital cases. Is there a connection between higher standards and lower use of the death penalty? Hear an expert in indigent defense, a law professor, a former Court of Criminal Appeals judge, and a capital trial lawyer discuss how and why the defense of death penalty cases has changed post-Gregg.

9:30 am–11:00 am Gregg in Context

9:00 am–9:30 am Welcoming Remarks

What legal and political forces contributed to the revival of the death penalty post-Furman? This panel will explore the dynamics leading to the passage of new capital statutes and to the Court’s decisions upholding three of the new schemes in the 1976 cases. The panelists bring first-hand knowledge as well as detailed historical research to shed light on the foundational cases of the modern capital era.

12:45 pm–1:45 pm Lunch — Exposing the Machinery: How the Media Have Shaped the Capital Punishment Debate

Lisa Falkenberg, Columnist, Houston ChronicleDahlia Lithwick, Senior Editor and Legal Correspondent, SlateLise Olsen, Deputy Investigations Editor, The Houston ChronicleHenry Weinstein, Professor of Law, University of California Irvine Law SchoolMODERATOR — Virginia E. Sloan, President, The Constitution Project

In recent years, the media have played a unique and vital role in exposing, at every point in the system, the failings of the death penalty system in the United States. As a result, the public and policymakers have learned that the system makes egregious mistakes, that the wrongfully convicted and sentenced have come close to execution or have even been put to death, and that the process is riddled with corruption, error, and indifference by those in power. The media have played an enormous role in changing attitudes about the death penalty, and surely have had an impact on the decrease in capital prosecutions, convictions, and sentences. Panelists will discuss these developments and the role they and their colleagues have played in the shift in public attitudes. Sponsored by the ABA Commission on Disability Rights.

8:00 am–9:00 am Registration/Check-in/Continental Breakfast Atrium

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Agenda

5:30 pm–7:00 pm

2:00 pm–3:30 pm Assessments of the American Death Penalty

3:45 pm–5:15 pm Preventing Errors, Using Discretion, and Serving Justice: How Prosecutors Examine Death Cases

Samuel R. Gross, Professor of Law, University of Michigan Law School; Editor, National Registry of ExonerationsSeth Miller, Executive Director, Innocence Project of Florida; Chair, ABA Death Penalty Due Process Review ProjectCarol S. Steiker, Henry J. Friendly Professor of Law, Harvard Law SchoolHon. Michael A. Wolff, Dean and Professor of Law, Saint Louis University Law School; Former Judge and Chief Justice, Supreme Court of MissouriMODERATOR — Jennifer E. Laurin, Professor of Law, University of Texas School of Law

Brian Baker, Assistant District Attorney, Brazos County District Attorney’s Office Tim Cole, AttorneyRobert N. Kepple, Executive Director, Texas District & County Attorneys AssociationA.M. “Marty” Stroud, Barham, Warner, Stroud, Carmouche, LLCMODERATOR — Hon. Elsa Alcala, Judge, Texas Court of Criminal Appeals

Join a group of current and former prosecutors for a lively discussion about death as punishment for capital murder. The panel will discuss past and present practices from arrest to execution, including the ethical obligations of prosecuters and how discretion is exercised in capital cases. At early stages of litigation, prosecutors evaluate factors that influence the decision to seek death. At later stages of litigation, prosecutors must decide whether to agree or to oppose a capital murderer’s request for post-conviction relief or a stay of execution. At the end of this discussion, it will be clear that not all prosecutors think alike about death.

Gregg gave way to the reinstatement not of a singular American “capital punishment,” but to a multiplicity of different systems for administration of the death penalty in the states and, eventually, by the federal government. In the decades since Gregg, researchers, advocates, and policymakers have labored in the face of this fragmentation to understand and study the operation of the death penalty — with the American Bar Association assuming a leading role in pushing forward the assessment process across the country. In this panel, leading players in those efforts will reflect on the historical and current trajectory of research, challenges posed to evaluating administration of the death penalty, and how the products of that learning and evaluation have shaped understanding, dialogue, and decisionmaking surrounding capital punishment.

Reception/Happy HourSponsored by the ABA Criminal Justice Section

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Jamail Pavilion

Thursday, March 31, 2016

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Agenda

Friday, April 1, 20168:00 am–9:00 am Continental Breakfast and PechaKucha/Lightning Talks

Transformation of Capital Systems: Appellate & Post-Conviction Litigation

Hon. Keith R. Ellison, Judge, United States District Court for the Southern District of TexasHon. Patrick E. Higginbotham, Senior Judge, United States Court of Appeals for the Fifth CircuitHon. John Neiman, Appellate Chair, Maynard Cooper & Gale PC; former Solicitor General of AlabamaRobert C. Owen, Clinical Professor, Northwestern University Pritzker School of LawMODERATOR — Jim Marcus, Clinical Professor, University of Texas School of Law

A Columbia Law School study of the first twenty-three years of post-Gregg capital cases found a 68% overall rate of prejudicial error. However, the post-Gregg era has also ushered in increased judicially and legislatively imposed restrictions on the availability of federal and state review of convictions, some of which were specifically designed to expedite capital cases. Recent Supreme Court decisions, such as Maples v. Thomas, Martinez v. Ryan, and Christeson v. Roper, illustrate the consequences when the post-trial review system breaks down. The case of Anthony Porter, whose conviction and sentence were upheld throughout all state and federal review before he was exonerated by the arbitrary intervention of undergraduate journalism students, as well as other wrongful convictions that grabbed the nation’s attention, triggered new reflections on the reliability of existing safeguards. This panel will bring a variety of perspectives to bear on the post-Gregg transformation of appellate and post-conviction litigation in capital cases and the functioning of the current system of review.

9:00 am–10:30 am

Robert Dunham, Executive Director, Death Penalty Information CenterTanya Greene, Director of Training and Resource Counsel, Capital Resource Counsel ProjectSamuel R. Gross, Professor of Law, University of Michigan Law School; Editor, National Registry of ExonerationsMichael L. Radelet, Professor, Department of Sociology, University of Colorado, BoulderMODERATOR — Carol S. Steiker, Henry J. Friendly Professor of Law, Harvard Law School

This panel will discuss the changing politics of the death penalty in the modern era, charting trends in public and professional opinion and in public discourse. The panelists will explore reasons for the decreasing support for the death penalty, with attention to the impact of exonerations and concerns about wrongful convictions. This increasing skepticism has generated a wide variety of legislative initiatives and judicial rulings, which in turn have influenced public attitudes. At the same time, the shape of pro-death penalty arguments has shifted, with decreased emphasis on deterrence, incapacitation, cost, and religious justifications and increased emphasis on retribution and the needs of victims’ families. In short, today’s death penalty debates are profoundly different from those of 1976, and these differences offer insight into the death penalty’s future.

10:45 am–12:15 pm Shifts in Death Penalty Politics: Public Opinion and Legislative Changes since Gregg

Stephen B. Bright, President & Senior Counsel, Southern Center for Human RightsHenderson Hill, Executive Director, 8th Amendment ProjectSheri Johnson, The James and Mark Flanagan Professor of Law, Cornell Law School; Assistant Director, Cornell Death Penalty ProjectChristina Swarns, Litigation Director, NAACP Legal Defense & Educational Fund, Inc.INTRODUCTION — Jordan M. Steiker, Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law; Director, Capital Punishment Center

12:30 pm–2:00 pm Lunch — The Role of Race in the U.S. Death Penalty

Race discrimination has long cast a shadow over the American criminal justice system, particularly in its administration of capital punishment. The four panelists — leading litigators and activists in the fight for racial justice — discuss the continuing challenges of racial bias in the American death penalty. They will discuss what things have changed and what things have remained the same in numerous capital practices, including charging decisions, jury selection, and sentencing. Sponsored by the ABA Section of Civil Rights & Social Justice.

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Agenda

Hon. Mark L. Earley, Principal, Earley Legal Group, LLP; Former Attorney General of VirginiaHon. Bob Taft, Distinguished Research Associate, University of Dayton; Former Governor of OhioHon. Mark W. White, Jr., President, GeoVox Security, Inc.; Former Governor of TexasMODERATOR — Virginia E. Sloan, President, The Constitution Project

Hon. Elsa Alcala, Judge, Texas Court of Criminal AppealsHon. Keith P. Ellison, Judge, United States District Court for the Southern District of TexasHon. Alex Kozinski, Judge, United States Court of Appeals for the Ninth CircuitHon. Tom Price, Judge (Ret.), Texas Court of Criminal AppealsHon. Michael A. Wolff, Dean and Professor, Saint Louis University Law School; Former Judge and Chief Justice, Supreme Court of MissouriMODERATOR — Hon. Andre M. Davis, Senior Circuit Judge, United States Court of Appeals for the Fourth Circuit

Stephen B. Bright, President & Senior Counsel, Southern Center for Human Rights

INTRODUCTION — Misty C. Thomas, Director, ABA Death Penalty Due Process Review Project

Many people sentenced to death were represented at their trials by grossly incompetent lawyers who lacked the skills, resources, and, on occasion, the inclination and sobriety, to competently try capital cases. Over 80 people sentenced to death have been denied any review of their convictions and death sentences in the federal courts because the lawyers assigned to represent them missed the statute of limitations for filing petitions for a writ of habeas corpus. Many lawyers have repeatedly failed to provide competent representation at trial and some lawyers have missed the statute of limitations in more than one case. Yet these lawyers are appointed to new cases. Neither the judiciary nor the bar has removed these lawyers from practice or taken other action to sanction them. Their clients pay with their lives; the lawyers go on to the next case.

The Executive Branch plays a vital role in ensuring that the system “gets it right” when we prosecute criminal cases, and in correcting errors when the system gets it wrong. Panelists will discuss the roles that governors, attorneys general, and others in the executive branch play in considering clemency and pardon requests, requests to vacate wrongful convictions and sentences, creating study commissions, imposing moratoriums, lobbying legislatures for reforms or repeal, and the like. They will discuss their own experiences as executive officials in some of the most active death penalty states in the country, how new information has changed their views of the roles they played, and that their successors are playing, and the role of politics in the decisions with which state executives are confronted.

4:00 pm–5:45 pm A Conversation with Judges on the Changing Death Penalty: A View from the Bench

6:00 pm–8:00 pm Dinner — Representation in the post-Gregg Era: A Continuing Failure

2:10 pm–3:45 pm Unique Role of the Executive Branch in the Administration of the Death Penalty

A panel of distinguished state and federal judges will offer candid assessments of the ever-evolving contours — both jurisprudential and pragmatic — surrounding capital punishment in America. The discussion will include an examination of such salient issues as: aspects of the use and administration of capital punishment that inform their thinking about the death penalty; whether any of the transformative changes in law or practice they have encountered, or expect to encounter, have provided surprising insights from the bench; and the ways in which the availability, use, underlying structures, and standards (judicial and otherwise) at the foundation of the death penalty continue to evolve in the post-Gregg era.

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Atrium

Friday, April 1, 2016

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This panel will discuss various perspectives on the death penalty in relation to victims and witnesses of crime and punishment. Topics will include the evolution of the modern death penalty alongside the crime victims movement, focusing on commonalities and bridge building; lessons learned from victims and witnesses while advocating for abolition; the experience of witnessing executions; the death penalty as a public health issue, focusing on intergenerational trauma and the effects of violence on death penalty stakeholders; and perspectives from a Texas death row exoneree.

Agenda

Hon. Renny Cushing, New Hampshire House of Representatives; Founder, Murder Victims’ Families for Human RightsAnthony Graves, Criminal Justice Advocate, Anthony Graves Foundation / Anthony Believes; Texas Death Row ExonereeKristin Houlé, Executive Director, Texas Coalition to Abolish the Death PenaltyWalter C. Long, Founder, Texas After Violence ProjectMichelle Lyons, Former Director of Public Information, Texas Department of Criminal JusticeMODERATOR — Mollie Spalding, Clinical Fellow, University of Texas School of Law

Kathryn M. Kase, Executive Director, Texas Defender Service Jennifer Moreno, Death Penalty Clinic, University of California Berkeley School of LawRobert J. Smith, Senior Fellow, Charles Hamilton Houston Institute, Harvard Law School; Litigation Director, 8th Amendment Project

MODERATOR — Raoul Schonemann, Clinical Professor, University of Texas School of Law

9:00 am–10:30 am Impacts on Victims and Witnesses to Crime and Punishment

10:45 am–12:15 pm 21 Century Challenges to the Death Penalty

Administration of the “modern” death penalty in the United States was on the ascent through the last quarter of the 20th century, culminating in 98 executions nationwide in 1999, the most in the post-Gregg era. But the death penalty has been in steady decline since then, thanks to the convergence of a series of developments in the early 21 century: Supreme Court decisions protecting intellectually disabled defendants and juveniles from execution in 2002 and in 2005, higher standards of capital defense practice promoted by the 2003 ABA Guidelines, and sustained challenges to lethal injection procedures that have stalled executions in many states. Most recently, Justices Breyer and Ginsburg called for re-examination of the constitutionality of the death penalty, citing “fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.” This panel will explore the impact of these developments and what they may portend for the future of the death penalty.

8:00 am–9:00 am Continental Breakfast and PechaKucha/Lightning Talks Eidman Courtroom

Eidman Courtroom

Eidman Courtroom

Please consider tweeting about the conference! You can use #greggconference and

#greggat40 when you tweet. Also, please follow the Project on Twitter @abadueprocess

to get conference information and photos, information about our death penalty work,

and relevant news updates!

Social Media

Saturday, April 2, 2016

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Special Thanks

Kathryn M. Kase, Executive Director, Texas Defender Service Jennifer Moreno, Death Penalty Clinic, University of California Berkeley School of LawRobert J. Smith, Senior Fellow, Charles Hamilton Houston Institute, Harvard Law School; Litigation Director, 8th Amendment Project

MODERATOR — Raoul Schonemann, Clinical Professor, University of Texas School of Law

The ABA Death Penalty Due Process Review Project and the University of Texas Capital Punishment Center would like to express our gratitude to all of our distinguished speakers and moderators, without whom there would be no conference. We are also very grateful for the support of our sponsors, who made it possible to host this as a public-interest focused conference with no registration fee.

Special thanks must also be given to the UT Law and ABA staff who spent innumerable hours helping to prepare for this conference, including: the Section of Civil Rights and Social Justice team (particularly Alli Kielsgard and Jaime Campbell), Angel Leffingwell, Eden Harrington and Rachel Sidopulos at the William Wayne Justice Center, Rachel Galloway and the UT Law Special Events team, Charlie Thomas, Matt Cimento, Regina Ashmon, and Chris Roberts and the UT Law Media Relations team.

Additionally, we would like to recognize James Silkenat, Sarah Turberville, Ana Otero, Amanda Marzullo, and Kathryn Kase, all of whom provided valuable ideas and helped with the early conference planning. Finally, the Project would like to recognize its dedicated Steering Committee and Advisors whose support and efforts extend well beyond this conference: Tania Z. Alavi, Hon. Andre M. Davis, Michael A. Grace, Tanya Greene, Michael N. Herring, Edward C. Monahan, Seth Miller, William Montross, Jennifer Moreno, John Neiman, Virginia Sloan, Carol S. Steiker, Ronald J. Tabak, and the Hon. Michael A. Wolff.

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