Carol Steiker

Today the long-awaited federal trial over Oklahoma’s execution protocols and drug cocktail will begin. Following the United States Supreme Court’s twisted rulings in Baze v. Rees in 2008 and Glossip v. Gross (2015), a crucial issue in the Oklahoma case will be whether death row inmates and their lawyers can identify a readily available method of execution that would be preferable to the state’s current method. According to Harvard Law Professor Carol Steiker the essential meaning of Baze and Glossip is best summarized as follows: “We the Supreme Court have held the death penalty to be constitutional so there has to be a way to carry it out. If defendants don’t like the method used by the state, those defendants have to point to another readily available method to execute them.”

...Yet they and others affected by the attack that killed three people and wounded 264 more disagree about whether convicted bomber Dzhokhar Tsarnaev should be executed - a question the U.S. Supreme Court will consider on Wednesday when the justices hear the U.S. government's bid to reinstate his death sentence. ...Politically, Harvard Law Professor Carol Steiker says, "the position that Joe Biden took on the death penalty is not a super popular one."

A committee created by the California state legislature to study the state’s penal code and propose improvements in the law has recommended that California repeal its death penalty and expeditiously reduce the size of its death row. At the conclusion of a virtual meeting on May 14, 2021, the California Committee on Revision of the Penal Code (CRPC) unanimously voted to recommend that the state abolish the death penalty. It was the first ever policy vote on the death penalty by the Committee, which was established by an act of the state legislature in 2019...In March 2021 the Committee heard presentations from death-penalty scholars Carol Steiker and Jordan Steiker, siblings who respectively teach at Harvard Law School and University of Texas at Austin School of Law, Elisabeth Semel, the director of UC Berkeley’s Death Penalty Clinic, and UCLA Law professor Sherod Thaxton, among others, on constitutional issues and issues of innocence, costs, racial and geographic bias, and mental health related to capital punishment. It also received submissions from the California District Attorneys Association, the Prosecutors Alliance of California, the California Innocence Coalition, and the Office of the State Public Defender.

The US Supreme Court said Monday it will consider restoring the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, granting a petition by the Trump administration and creating a dilemma for President Biden, who has pledged to seek an end to federal executions. The high court’s decision to review the case, likely in the fall, evoked painful memories of the deadly terrorist attack and renewed the wrenching debate over whether Tsarnaev should be put to death...In taking up the case, the Supreme Court could affirm the appellate court ruling, which ordered a new trial to determine whether Tsarnaev, 27, will be put to death or spend the rest of his life in prison, or reinstate the original death sentence. “The judges always have the same two options: affirm or reverse,” Carol S. Steiker, a Harvard Law professor who co-directs the law school’s Criminal Justice Policy Program, wrote in an e-mail. “They could affirm the Court of Appeals, in which case the order for a new sentencing trial would stand. Or they could reverse, in which case, Tsarnaev’s death sentence would remain undisturbed.” Steiker, the co-author of “Courting Death: The Supreme Court and Capital Punishment,” said federal prosecutors could abandon the Trump administration request and concede in court papers that the Appeals Court ruling was correct. Biden could also commute Tsarnaev’s death sentence, which would render any ruling by the Supreme Court moot.

It was a presidential election befitting the past four years, unprecedented and contentious...The Gazette asked scholars and analysts across the University to reflect on lessons learned in a variety of areas...Tomiko Brown-Nagin: “This election crystalized American promise and American peril. Fifty-five years after passage of the Voting Rights Act and 100 years after ratification of the 19th Amendment, the fundamental right to vote — the essence of a democracy —remains ferociously contested and deeply cherished. Turnout was extraordinary! An estimated 67 percent of eligible voters cast ballots — almost 160 million people — the greatest number in more than 100 years...At the same time, we witnessed a concerted effort to suppress the vote, to intimidate voters, and to delegitimize legally cast votes.” ... Sandy Levinson: “What we learned was that the uncertainty of this election is entirely a function of the crazy way that Americans elect their president, which is through the Electoral College. This means, for example, that [President] Trump gets nine electoral votes for carrying the two Dakotas plus Wyoming, which collectively have only about 200,000 more residents than New Mexico, which contributed only five votes. What remains an ‘interesting’ question, if one is an academic, is why Americans persist with such a truly dysfunctional system of presidential election.” ... Carol Steiker: “What I have learned in this election is that despite, or perhaps because of, the anger and divisiveness that have marked this political season, it is possible to substantially shift the needle on popular political engagement. We are seeing levels of voter turnout in this election not seen in more than a century, since William Howard Taft defeated William Jennings Bryan in 1908.” ... Kenneth Mack: “What I have learned from this election so far is both a lot and a little. Historians typically look at elections as vehicles for possible political, economic, or social change. Certainly in the run-up to this year’s election we’ve seen some things change significantly. We have the first woman of color on a major party ticket (who now seems poised to become vice president), Black candidates seeming to run competitively statewide in several Southern states, and efforts to suppress minority voting of a kind we haven’t seen in decades.” ... Yochai Benkler: “ The right-wing propaganda feedback loop, anchored in Fox News and talk radio and supported by online media, has played two critical roles in the election. The first, and most foundational, is that throughout the presidency of Donald Trump it offered an alternative reality, in which the president was a strong, effective leader hounded by an alliance of Democrats who hate America and Deep State operatives bent on reversing the victory of Trump, the authentic voice of the people.”

For three long months in 2015, victims and their families were forced to endure the trial of Boston Marathon bomber Dzhokhar Tsarnaev, an emotionally devastating proceeding that concluded with an unremorseful Tsarnaev being sentenced to death for his role in a plot that left three dead and wounded hundreds. Now, they might have to do it all over again. From the moment last week that a federal appeals court vacated Tsarnaev’s death penalty sentence, citing issues with jury selection in the case, the prospect of enduring a second trial has hung over a city that had hoped to put this brutal episode behind it...Even as the death penalty has recently fallen out of favor with Americans, the Trump administration has made no secret of its support for capital punishment. After nearly two decades without a federal execution, Attorney General William Barr has ordered three executions to be carried out in the last month alone. And already, Trump has made it clear what he expects from the Tsarnaev case moving forward. “Death penalty!” he said on Twitter over the weekend, in response to news of the appellate ruling. “He killed and badly wounded many. Justice!” “This administration clearly has very much an agenda around capital punishment,” said Carol Steiker, a law professor at Harvard Law School. “They have made capital punishment an issue in an election year because they’re playing by the 1960s, ’70s, ’80s playbook — the tough-on-crime playbook that brought Richard Nixon into office.” “It’s just hard not to see that as political,” she added. “And if that’s right, you would expect them to really pound on the table with this one, because of all the emotion that’s raised by the heinousness of this crime.”

Dehlia Umunna remembered seeing the fear. “His eyes were dark,” Umunna recalled. “And he was close to tears. And he looked at me and said, ‘Will I be going to jail and will I be going to jail for a very long time?’” “He was shaking,” she said. “I looked over at his mom and his mom was shaking. She was nervous. She was holding the hands of her 13-year-old boy.” Umunna, a clinical professor of law at Harvard Law School and deputy director of the Criminal Justice Institute, subsequently learned that the boy, who suffered from bipolar disorder and ADHD, had been surreptitiously videotaped playing video games in his living room wearing only his underwear. By the time he arrived at school the next day, the video had been posted online, where it had been seen by 300 of his peers, who proceeded to tease him. Frustrated and angry, he was heard to say, “I understand why the Parkland shooter did what he did.” ...“And as I looked over the case, I said to myself, this is exactly what [Prof.] Martha [Minow]’s book talks about,” she recalled. “This is a prime example of where we should nudge the courts and the decision-makers to exercise forgiveness.”...Umunna’s comments came during a panel discussion of “When Should Law Forgive?”, a new book by Martha Minow, 300th Anniversary University Professor and former dean of HLS. The book explores the complicated intersection of the law, justice, and forgiveness, asking whether the law should encourage people to forgive, and when courts, public officials, and specific laws should forgive. In addition to Umunna and Minow, panelists included Carol Steiker ’86, the Henry J. Friendly Professor of Law and co-director of the Criminal Justice Policy Program; Toby Merrill ’11, an HLS lecturer on law and director of the Project on Predatory Student Lending; and Homi K. Bhabha