Understanding the Modern Death Penalty: A Conversation with Professor Lee Kovarsky

This interview was conducted in Fall 2025. It has been edited for brevity and clarity.

HULR: Our first question is just on a little bit of background: we were wondering what initially drew you to study criminal procedure and capital punishment specifically?

Professor Kovarsky: Yeah, I’m really interested in human responsibility and blaming practices. I think, like a lot of folks, I had a sense that we blame individual people as though they’re autonomous decision makers exercising free will in a vacuum, which, of course, characterizes a lot of the decisions we make, but we make those decisions subject to social constraints and in view of social limitations. Even though I didn’t have the vocabulary for talking about it, I always had a sense that our ideas about why we decided to impose suffering on people punitively didn't really match up with how we understood causation in the world.

HULR: Awesome. Thank you. So we were wondering if there was any specific moment in history or throughout your life that solidified your stance on the death penalty.

Professor Kovarsky: There’s not a discrete moment. What happened for me was that I went to clerk for a federal judge, and I was deeply uncomfortable with the death penalty cases that I encountered at that time. Then I went into practice and just started taking a lot of death penalty cases because of that. … Over time, [it] became who I was and what my professional identity

HULR: So this is a little bit more career-based, but we were just wondering generally, what inspired you to become a professor, specifically at UT Austin, and now what brought you to HLS as a visiting professor?

Professor Kovarsky: I kind of always knew I wanted to teach, whether it was when I was younger and I was like, “oh, I’ll teach social studies in high school,” or as I got a little bit older and I started to think about being a professor…I think there’s a lot of family expectation that’s kind of built into it, too. But, I really, really love the research and the writing, and actually, the death penalty space is sort of unique in that it’s a place where a lot of the people who do theory also live out there in the real world, and so it kind of gave me the opportunity to do that.
Now, in terms of why Texas… Texas is often referred to as the buckle of the death belt. I’m from Texas, and it’s a top law school, so when they offered me the professorship, and then also the opportunity to co-direct the Capital Punishment Center here, it was pretty hard to turn down. And the capital punishment center here, ironically, houses some of the folks that got me started in this space to begin with. In terms of coming to Harvard… Harvard Law School has Carol
Steiker on it, who’s probably her generation’s leading death penalty scholar, along with her brother Jordan, who’s actually on faculty with me at Texas. Carol is on leave this semester. Harvard has a very big capital punishment program. It uses this big capital punishment lecture course to platform a lot of the offerings that it has as students get older, and so they need someone to teach it in the fall. With Carol on leave, they were gracious enough to ask me, and so that is how I ended up here.

HULR: Going back a little further in your career, we were wondering what some of the most important lessons you learned during your professional career were before becoming a professor? You were speaking a little bit about your clerkship and then defending death penalty clients, so we wanted to get into a little bit of that.

Professor Kovarsky: I don’t know if it’s a lesson per se, but by the time I came into academia, I’d learned something that a lot of people who go into the death penalty space learn quickly. And that makes sense if you have the sort of interests and intuitions that I have around, like I said, human blame and responsibility. I think that the public likes to think of it as a practice and social space defined by the pursuit of innocence. Almost as if there are these guys that are wrongly on death row in the sense that they didn’t commit whatever murder they were accused of committing. And, sure, there’s that. But far more common is a scenario where you've got somebody who did pull the trigger or did wield the knife, but that nonetheless has lower indicia of blameworthiness than you might imagine from a greater institutional or public distance. … That’s both because of details about the way they grew up and the way their moral feedback loop was constructed, but also because, I learned that for the most part, these folks are 15-20 years removed from the crime by the time they’re executed. And so by the time that you actually inflict the sentence itself, you’re inflicting it on somebody very different from the person who committed whatever horrifying crime was the subject of the conviction.

HULR: Thank you, that was truly insightful. Now we want to move on to a more legal framework. We were wondering how you believe the legal landscape surrounding capital punishment, specifically, has evolved since cases like Furman v. Georgia or Gregg v. Georgia [1].

Professor Kovarsky: So it’s been through a few cycles since then. Coming out of Furman and Gregg, you went through a period where the Supreme Court was deeply committed to enforcing a constitutional norm that states had to take what’s called mitigating evidence, very, very, very seriously, and that is, they had to admit any evidence that tended to show that a person was less blameworthy. Then, what is commensurate with the death sentence? And they showed not only interest in a sort of structural reformation of the different capital punishment schemes in the States, but also some interest in monitoring retail-like individual sentencing determinations. But
that was a very different court at a very different time, and the Supreme Court got a lot more conservative over time, for lack of a better word, and so the interest and that type of oversight fell, and at the same time, in the late 80s and 90s, the interest of individual states and executing was at an all time high. So you saw this enormous surge during the 1990s of death sentencing and execution activity. Then something funny started to happen after 1999 or 2000, and that is that death penalty usage started to fall precipitously [2]. And that’s not so much because of a Supreme Court that was carefully superintending capital punishment in America, so much as it was that the states were losing interest in the death penalty. More states were abolishing [the death penalty], and even within the retention of states, the individual counties that were trying to secure and then implement death sentences were changing. … What I think has happened is that there’s this strange mismatch now that accounts for a lot of the decline, and that is that getting a death sentence. … Converting that death sentence into an execution is really, really expensive.
Unless you do it a lot, it’s hard to realize the economies of scale that come with that sort of capital sentencing conversion. So it’s really the large cities and counties that can do that and can afford to do it; because they can do it at scale, they can have a unit trained on how to do a capital case: on what you have to do to defend the conviction of the sentence after they’re imposed. The problem is that those big, well-heeled jurisdictions tend to be urban spaces that are blue and have democratic criminal justice leadership that isn’t as interested in the death penalty. Conversely, you have rural jurisdictions that are very interested a lot of times in imposing the death penalty, but lack the financial resources to realize the practice [3]. And so that’s why I refer to it as kind of a mismatch, and that you have a state of affairs in which the localities that want to do it can’t afford it, and the localities that can afford it don’t want to do it.

HULR: Which constitutional principles, particularly under the Eighth and Fourteenth Amendments, are most central to understanding the modern death penalty?

Professor Kovarsky: The Eighth Amendment and certainly the Cruel and Unusual Punishment Clause have been the font of most Supreme Court rules that regulate capital punishment, much to the consternation of many of the justices, I should add. So the Eighth Amendment is the source of a rule that you can’t execute all first-degree murderers. There has to be some aggravation. In other words, you have to narrow the category of offenses for which capital punishment can be imposed. The Eighth Amendment is a source of a constitutional rule that a defendant has to be permitted to introduce, and a jury has to be permitted to weigh any mitigating evidence that might show reduced blameworthiness. And then the Eighth Amendment is the source of a bunch of other categorical bars on executions and distances, sometimes with respect to attributes of the offender, sometimes with respect to attributes of the offense. So starting with the latter category, you can’t get the death penalty unless there’s a killing. The Eighth Amendment has a bar against the death penalty for rape, even rape of a child, [and] is a source of a bar if you are not the shooter, even though you’re part of a conspiracy in which somebody is killed. You can be capitally punished if you’re not the shooter, but there are certain benchmarks you have to hit in terms of culpability for that sentence to be imposed. And the Eighth Amendment is the source of the rule for that. It’s also the source of the rule against executing people who were minors when they committed the crime. The amendment is the source of the rule against executing people with intellectual disability. It’s the source of the rule against executing folks who are insane at the time of the execution. There are other constitutional provisions that do a lot of work in death penalty cases. The Equal Protection Clause does a lot of work. The Sixth Amendment right to counsel regulates a lot of what capital defense lawyers have to do when they investigate and litigate a capital case [4]. But certainly, the Eighth Amendment is the most important constitutional provision.

HULR: Thank you. We’re also wondering: how do procedural safeguards in capital cases differ from those in other areas of criminal law, and are they sufficient to ensure fairness?

Professor Kovarsky: We are certainly more attentive to procedure and capital punishment cases than we are in non-capital cases, and I think that state of affairs is pretty frustrating to people in the defense community writ large. The [metaphorical] idea is that the capital defense sort of sucks the oxygen out of the room where [there are] millions and millions of people whose lives are being ruined by minor misdemeanor convictions and tickets they can’t pay, and we just tend to not pay as much attention to them. There are special professional standards for capital defense lawyers in capital cases. There’s a special branch of constitutional law that I’ve already discussed that applies in capital cases. We tend to fund attorneys in capital cases in ways that we don't fund attorneys in non-capital cases. And of course, there’s media attention lavished on capital litigation that's not lavished on non-capital prisoners. So all those things work together to really enhance the scrutiny in capital cases in a way that it’s not enhanced in non-capital cases.
…
The reality is, a lot of the phenomena that cause things to go wrong in capital cases that produce false convictions [and] wrongful executions are also the same phenomena that produce wrongful convictions in non-capital cases. Junk science, coerced confessions, jailhouse snitch testimony, cross-racial eyewitness identification: these are all things that show up in the capital cases, but also cause enormous amounts of problems in the non-capital cases. …, The fact that we catch them more and tend to protect against them a little bit more aggressively in capital cases doesn't mean that they’re not hugely dangerous to the integrity of the criminal justice system on the non-capital side as well. What’s ironic about all of this is that, notwithstanding the enhanced scrutiny that we give to capital cases, it’s still not close to being capable of ensuring fairness. People have different ideas about what it means to be fair. My intuitive definition is we treat similar cases in similar ways, and so it’s sort of an equality-bound rationale, and we just don’t do that. Whether a particular person gets the death penalty, even assuming they did the killing for which they’re on trial, is just, almost completely arbitrary. Number one, what state are you in? Number two, within that state, what county are you in? Number three, did you kill a white victim, or did you kill a black victim? Because every single piece of empirical data we know is that you’re much, much more likely to get the death penalty if you kill a white victim than if you kill a black one. Are you a sympathetic defendant? Do you come from a structurally disadvantaged group? Do you have people outside of court capable of advocating for you effectively? Can you pay for counsel? All of these things tend to exacerbate inequalities in the way we implement the death penalty, and if we’re not treating similar cases in similar ways, then, to me, we’re not being fair.

HULR: That was a particularly informative discussion on the complexities of fairness and how it manifests itself in these types of cases. I’m specifically interested in this next question, as we wanted to ask you what you would argue is the strongest defense for maintaining the death penalty? Are you able to identify specific scholars who promote that defense, and how would you best refute those kinds of arguments?

Professor Kovarsky: I think the best defense of the death penalty is something called a retributivist defense. I don’t think it’s a particularly good defense, so I’ll explain a little bit about what it is, and then why I think it’s probably the best defense, and it’s really to the exclusion of this, because the other justifications are so bad. They’ve been trying to prove a deterrent effect for longer than I’ve been alive. The first big study arguing there was a deterrent effect that was done with sophisticated multivariate regression in 1976 was debunked by the National Academy of Sciences, a couple of years later as methodologically flawed [5]. Over and over again, as they’ve undertaken these studies, they’ve been unable to prove a statistically significant deterrent effect. And it’s really tricky to do those studies. When people are contemplating homicidal offending, they’re not like “oh, let me do a cost-benefit analysis of what the state’s punishment will be,” especially when the next most severe punishment is life in prison. In terms of incapacitation, by the time a lot of these people are executed, they’re old. You’re not disabling somebody who would otherwise be killing somebody in prison. A lot of the work that's been done on integrating people who are on death row into the mainline prison population has shown that they’re actually not more dangerous than other folks who have been convicted of serious crimes. So I don’t really buy incapacitation as a rationale. And so, what’s left is this idea of retributivism, which is a theory of justice, the idea that, well, you give somebody a harsh punishment, you impose state sanctioned suffering because they deserve it, not because it produces good consequences in the real world or any of those things, but because, in order to be a free society that honors the individuality of, people making choices, we have to give people what they deserve when they transgress. I don't find that particularly persuasive. … It’s more that I find it more persuasive than I find incapacitation or deterrence.

HULR: Okay, moving on a little bit more to scholarship, and you’ve already touched on this, so feel free to make this as brief as you'd like, but in your research, what patterns or inequities have emerged regarding how capital punishment is applied?

Professor Kovarsky: So the standout statistical finding started with something called the Baldus study. The Baldus study is the most famous study, probably in the history of criminology, and it was the anchor to the litigation in a case called McCluskey v. Kemp, which is a very famous Supreme Court case. It showed that, controlling for all other variables, if you killed a white victim, you're about 4.3 times as likely to get the death penalty as if you killed a black victim. And there were also rates of defendant effects. You’re about 10% more likely to get the death penalty, all other things being equal, if you’re black than if you’re white [6]. But the race of victim effect tends to swamp the race of defendant effect, and that finding of a really, really thick race of victim effect has been robust across surveys and specifications within studies for generations. The race of the victim effect is the number one variable along which the death penalty is unequally imposed. Still, there are other things that certainly matter. Defendants that look and feel normal and do better than defendants who don’t [7]. Defendants who can draw on a mitigation story from a community that feels familiar to the court and the jury will fare better than a defendant whose mitigation story draws from Vietnam or Honduras, or someplace far away [8]. And so there are these insidious ways that social status creeps into the way that we impose the death penalty. The defining problem for me, in a book that I’m working on, is arbitrariness, but also the delay between the sentence and the execution. Not only do you have some arbitrariness in terms of who gets the death sentence, but there’s extraordinary arbitrariness in terms of who actually gets executed among those who are on death row.

HULR: We wanted to know how your work, and that of the Capital Punishment Center, which you were discussing a little bit earlier, have engaged with or influenced legal reform efforts.

Professor Kovarsky: You know, we’re fighting. I mean, in my academic life, I write books and
articles, and those get cited in places that matter a little bit, and so, those sorts of things have some sort of marginal effect in the way that different states and state and federal judges think about the death penalty. Probably the same is true to even greater effect, from my co-director, Jordan Steiker. That being said, I think the real social impact that the center has is through its clinical work, which helps lots of folks at various phases of the capital punishment sequence, whether they’re defending in a trial or whether they’re litigating a post-conviction claim. There’s a certain amount of broader social awareness that results from the combination of those two efforts, and certainly, we serve as a hub for a capital punishment community, both lawyers and academics, and we teach a generation of death penalty litigators who tend to be defense litigators. But I think that our footprint is much more subtle and indirect and is expressed through those kinds of mechanisms.

HULR: Because this is an ever-evolving subject, we wanted to ask a bit about the future of the death penalty and having so much variation between states. We were wondering, what recent legal developments or state-level trends do you find most significant for the future of capital punishment in Texas?

Professor Kovarsky: In Texas, it used to be that the state courts were incredibly hostile to capital defendants, and we turned to federal courts for a prophylactic kind of protection. The idea was that the federal courts are friends, and the state courts are where we run into trouble. That's very much from the defense perspective, flip-flopped, and so it’s very much like the state, institutional actors that we rely on to try to address some of the more extreme injustices, and the federal courts are just extraordinarily hostile to us. Another development in Texas is that there's now something called the Office of Capital and Forensic Writs, which is a state public post-conviction defender, which basically means that there’s now a public defender who knows what they're doing when a defendant is in a state post-conviction proceeding [9]. That’s hugely important…because, for reasons that are long and complicated, [there’s also] what’s called a ‘state post conviction proceeding,’ where you enforce a lot of really important constitutional rights, including rights to counsel, rights against prosecutor misconduct, etc. For a long time, the lawyers who represented death-sentenced people at that phase weren’t really death penalty specialists, and they were sort of just appointed off a list, and the qualifications for being on that list weren’t really commensurate with the responsibilities that a lawyer undertaking that kind of representation had. But now, with the advent of OCFW, there’s a much thicker specialist footprint, and so the representation of capitalized sentence folks in that phase of the litigation is much stronger. And then the third major statewide development is just that, like Texas, big cities are losing interest in aggressively seeking the death penalty. So Harris County, which has Houston, Dallas County, which has Dallas, Travis County, which has Austin—they’ve all fallen
off a cliff in terms of how often they’re seeking death sentences [10]. But again, the changes aren’t at the level of the court announcing this opinion, or the court announcing that opinion, they’re about very subtle changes to the way institutions closer to the ground are working. I think that’s true, probably not just in Texas, but in other places.

HULR: Our next question is, how do evolving standards of decency, often referenced in Eight Amendment cases, reflect broader cultural or political changes? Please feel free to define your understanding of those standards of decency as well.

Professor Kovarsky: Sure. So you’ve probably heard a lot about the ways in which constitutional interpretation works. Specifically, regarding the fight about whether justices should be anchored to some sort of externally defined meaning, versus whether justices should have fewer external commitments and should be freer to impose preferences. The evolving standards of decency test for certain Eighth Amendment rules is a real site of contestation for that battle. And so, there's an ascendant group of justices that has a super majority now, who think that there must be severe restrictions on evolving standards. But even for those who buy into evolving standards, they think that it should be linked only to the legislative status of a particular punishment practice in the States. Basically, how many states use this particular type of punishment for this particular type of crime, or this particular type of offense? Whereas there are justices that tend to be appointed by Democratic presidents who believe in a more small “c” Catholic approach to evolving standards of decency. That will not only look at the legislative status of the punishment in the States and in state sentencing practices, but will look to other things like philosophy or international practice or professional standards. I tend to prefer a more holistic definition,so my sympathies very much lie with the latter camp. We’re very much “in the desert,” at least in the federal judiciary, which is very much a judiciary shaped by George W. Bush and Donald Trump at this point [11]. By and large, the lower levels of the judiciary, as well as the Supreme Court, buy into the much narrower view of evolving standards. That’s really important, because the evolving standards rule is the vehicle by which courts impose categorical bars on death sentences. So the reason why we can still sentence non-shooters to death is because the Supreme Court has been unwilling to expand the proportionality bar on that. The reason why you can still impose death on people with serious mental illness is because the Supreme Court is reluctant to announce an Eighth Amendment proportionality rule rooted in evolving standards against that type of punishment practice. And so, the long and the short of it is, this sort of methodological commitment that the justices have that runs in favor of a very narrow, evolving standards rule means that they’re not going to be in the business of announcing constitutional prohibitions on capital punishment at all; those days feel long gone, at least for a long time.

HULR: Thank you. In terms of impact, what role do you think law students and scholars play in shaping the next phase of death penalty reform or abolition?

Professor Kovarsky: I’m not sure if the law professor scholars’ publishing scholarship directly influences abolition. I think abolition is very much a social movement, which in some ways is a movement engineered and anchored in the theory of non-legal disciplines. I think that the lawyer's primary contribution is going to be blunting the downside effect of the death penalty in the interim. And you know, I lose a lot of cases. I lose most of my cases. Teaching folks how to lose, how to minimize damage, is important. Loss avoidance is not a very motivating war cry for those who are interested in doing cause layering, but loss avoidance is very much a real and important thing in the world. I also spend a lot of time honestly, going out and talking to conservative groups, because I don’t think it makes much sense for me to talk to people who already are prone to agree with me.So much of our discourse space is siloed now, where people just talk to other people who agree with them. But I actually find that, when I go into hostile spaces, I'm always surprised by how many people grab me over a drink or something and say, “look, I know I clerked for Justice Thomas or I clerked for Justice Scalia, but I just want you to know I'm opposed to the death penalty. I appreciate having the tools to talk about why one should feel that way. And honestly, I think it's going into, for lack of a better word, enemy territory, and doing that sort of exchange of ideas that contributes the most to the loss of avoidance.

HULR: We want to enter into our conclusion and offer some questions for you to provide your final remarks. Looking back, how has your perspective on capital punishment and the criminal legal system evolved over the course of your career?

Professor Kovarsky: We tend to think of the state as a singular entity that’s doing stuff, and when you are with a capital case over the lifespan of it, you realize that there’s no unitary state. It’s just a bunch of different people that work on a case, at a bunch of different times that are loosely organized around the defense of a conviction or a sentence, because they’re role-bound to do that. They often feel no great philosophical commitment to the death penalty. I’m talking about the state-side folks, the prosecutors now, but nonetheless, they just do it because it’s their job, and it’s a little dissonant, it’s a little jarring to deal with something that I think of as such a state evil, or the individual people doing it. I just think about it in terms of “I’m doing my day-to-day job.” And, I don’t hate those people at all; I sympathize with all these lawyers claiming they are just doing their job, or that the case landed on their desk. Nonetheless, that scale of suffering and dehumanization is just beyond imagination. The thing that most sticks with me is just how long these people sit on death row and how absurd it is to have a system set up where you can't be sure you’ve got it right for 20 years, and then you’ve got to execute somebody who committed a crime 25 years ago, and it’s a different person, and it’s an old person, maybe diabetic on a dialysis machine, and you’re executing them as though there’s some grave threat to the community when they can barely walk. It’s so savage [to me], and that’s aside from the extraordinary arbitrariness that goes into it.

HULR: What advice would you offer to students who are interested in pursuing legal work related to Criminal Justice, constitutional law, or even more specifically, capital punishment?

Professor Kovarsky: Run to the fire. Go to a jurisdiction where things are tough. You’ll get the most experience, you’ll help the most, and you’ll be most satisfied with yourself 10 years from now, when you look back on what it is you did and what it is that you contributed to a righteous cause.

HULR: We have reached our final question. If someone were to pick up and read about this interview without much knowledge on these topics at large, what's one thing that you'd want them to take away from the discourse surrounding the death penalty?

Professor Kovarsky: There’s an intractable problem. We can’t do the death penalty accurately or with any institutional integrity, without taking a really long time to do it, but because we have to take a really long time to do it, we’re basically torturing people for 20 years.

HULR: Thank you so much. This has been really insightful and deeply compelling.

Professor Kovarsky: Thank you so much for bringing a new generation of attention to this issue, which is hugely important to me.

Interview conducted by Chloe Goldberg and Paige Cornelius.

Footnotes

[1] Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976).

Furman v Georgia (1972) involved a man who was burglarizing a private home in Georgia. As the man attempted to flee the home, he tripped and fell, causing his gun to accidentally fire, ultimately killing a resident. This man was sentenced to the death penalty. The Supreme Court was evaluating whether the sentence was a practice of cruel and unusual punishment, violating the 8th amendment. A 5-4 majority ruled that the imposition of the death penalty was indeed a violation of the 8th amendment, marking the sentence unconstitutional.

Gregg v Georgia (1976) involved a man who was found guilty of armed robbery and murder. Gregg was initially sentenced to the death penalty, but challenged this sentence as an instance of cruel and unusual punishment. A 7-2 majority ruled that in this particular case, the sentence did not violate the Eighth or Fourteenth Amendment due to the deliberate and intentional nature of the murder. In essence, the death penalty was constitutional when used judiciously and carefully.

[2] Death Penalty Information Center, “History of the Death Penalty,” https://deathpenaltyinfo.org/facts-and-research/background/history-of-the-death-penalty.

[3] Death Penalty Information Center, “Death Penalty Costs,” https://deathpenaltyinfo.org/policy-issues/policy/costs; Death Penalty Information Center, “The 2% Death Penalty: The Geographic Arbitrariness of Capital Punishment in the United States,” https://deathpenaltyinfo.org/stories/the-clustering-of-the-death-penalty.

[4] The Equal Protection Clause falls under the Fourteenth Amendment and is meant to ensure that states apply the law equally to all people. This provision prevents individual states from denying any person “equal protection of the laws,” essentially prohibiting discrimination.

The Sixth Amendment protects the rights of criminal defendants, mandating that all have a right to a speedy and public trial, an impartial jury, and assistance of counsel. Under this amendment, those unable to afford a lawyer are to be granted one by the Court. In capital punishment cases, this amendment becomes incredibly relevant as defendants must have access to effective counsel under such high-stakes circumstances. The expectation for the quality of representation for these cases is far greater.

[5] Isaac Ehrlich, “The Deterrent Effect of Capital Punishment: A Question of Life and Death,” The American Economic Review 65, no. 3 (1975): 397–417, http://www.jstor.org/stable/1804842; CBS News, “Death Penalty Deters Murders, Studies Say,” CBS News, July 11, 2007, https://www.cbsnews.com/news/death-penalty-deters-murders-studies-say.

Isaac Ehrlich published a study titled “The Deterrent Effect of Capital Punishment: A Question of Life and Death” in 1975, arguing that inflicting the death penalty would effectively deter citizens from committing similarly punishable crimes. Indeed, Ehrlich employed multivariate regressions to propose that one execution might prevent seven or eight murders a year (at the time the study was published). Nonetheless, the National Academy of Sciences eventually decided that Ehrlich’s claims were deeply flawed, thus discouraging the use of the study in Supreme Court argumentation

[6] McCleskey v. Kemp, 481 U.S. 279 (1987).

McCleskey v Kemp (1987) involved a black man who was convicted of murdering a police officer in Georgia. McCleskey was sentenced to the death penalty. In light of this sentence, he argued that a statistical study proved that capital punishment in Georgia was largely dependent on the race of the victim and the accused. This study concluded that black defendants who were charged with killing white victims were the most likely to be sentenced to death. In a 5-4 decision, the court ruled that the defendant could not prove that intentional discrimination had explicitly affected the outcome of the particular trial; thus, the case was not a violation of the Eighth or Fourteenth Amendments. Specifically, Justice Powell argued that the study should be presented in legislative spaces rather than in the courts.

[7] David C. Baldus, et al., Equal Justice and the Death Penalty, Northeastern University Press, 1990.

Numerous empirical studies have found that the race of the victim is the strongest and most consistent factor predicting whether a defendant receives the death penalty. The Baldus study, which examined hundreds of Georgia homicide cases, showed that cases with white victims were significantly more likely to result in a death sentence even after controlling for legally relevant variables.

[8] Stephen B. Bright and Patrick J. Keenan, “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases,” Boston University Law Review 75 (1995): 759–779.

Research on capital sentencing shows that jurors respond more favorably to mitigation evidence when a defendant’s background and life history are culturally familiar to them. By contrast, mitigation based on experiences from distant cultures are often misunderstood or discounted, leading to worse sentencing outcomes.

[9] Office of Capital and Forensic Writs. “About the Office.” https://www.ocfw.texas.gov/about;
Texas Government Code §§ 78.051–78.059 (added by Acts 2009, 81st Leg., R.S., ch. 781 (S.B. 1091)); American Bar Association, “State Habeas Representation in Texas: The Creation of the Office of Capital Writs,” ABA Death Penalty Representation Project, 2011.

The Office of Capital and Forensic Writs (OCFW) is a state-funded post-conviction public defender office in Texas created by the Texas Legislature. Its establishment was a response to widespread concerns about the inadequate quality of legal representation in capital post-conviction proceedings, where defendants often relied on under-resourced or inexperienced appointed attorneys. The OCFW is responsible for representing indigent defendants in state habeas corpus proceedings in death penalty cases, ensuring that claims involving ineffective assistance of counsel, prosecutorial misconduct, faulty forensic evidence, and other constitutional violations are properly investigated and litigated.

[10] Death Penalty Information Center, “The 2% Death Penalty: How a Minority of Counties Produce Most Death Sentences,” https://deathpenaltyinfo.org/research/analysis/reports/in-depth/the-2-death-penalty-how-a-minority-of-counties-produce-most-death-cases-at-enormous-costs-to-all.

[11] Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment in America, Harvard University Press, 2016.

By saying “in the desert,” Professor Kovarsky is describing a judicial climate in which the federal courts, especially those shaped by recent Republican administrations, are not receptive to expanding Eighth Amendment protections. Because the Supreme Court now applies a very narrow view of “evolving standards of decency,” there is little realistic prospect that it will recognize new categorical limits on the death penalty.