Carol Steiker

Thurgood Marshall is revered as a titan of the U.S. Civil Rights Movement, the architect of the landmark court case that ended legal segregation in America’s public schools, and the first African-American Supreme Court justice. Yet for five of his former law clerks gathered Wednesday at Harvard Law School (HLS), he was more than that. For Mark Tushnet, William Nelson Cromwell Professor of Law, Marshall was a messenger of hope and courage to African-Americans who endured the injustices of the Jim Crow South...For Randall Kennedy, Michael R. Klein Professor of Law, who clerked for Marshall in the ’80s, the associate justice was a source of pride, lifting the spirits and the consciousness of black Americans who were treated as second-class citizens...For Martha Minow, former dean of Harvard Law School, Carter Professor of General Jurisprudence, and University Distinguished Service Professor, who also clerked for Marshall, he was the embodiment of a deep commitment to social justice and faith in the power of the rule of law to bring equal rights to all eventually...The panel was moderated by Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, director of the Charles Hamilton Houston Institute for Race & Justice, and professor of history in the Faculty of Arts and Sciences, and Kenneth Mack, the Lawrence D. Biele Professor of Law...“He was a formidable person in all respects,” recalled another former clerk, William Fisher, WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Klein Center for Internet & Society...Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, said she developed a lifelong interest in death penalty law during her clerkship with Marshall.

An op-ed by Carol Steiker and Jordan Steiker. Two terms ago in Glossip v. Gross, Justice Stephen Breyer, dissenting from the Supreme Court’s rejection of a lethal-injection challenge, set forth a comprehensive case against the American death penalty, calling for the court to revisit the question of its basic constitutionality. Over the past 40 years, several justices have questioned the constitutional viability of the death penalty, but Breyer’s dissent seemed more significant because it came at a time when the death penalty appeared newly vulnerable.

An op-ed by Carol Steiker. Death is the ultimate punishment a state can impose. Because of the death penalty’s severity and finality, its implementation should never be rushed or done without full due process of the law. Yet Missouri will do exactly that if it proceeds with the execution of Mark Christeson on January 31. Intervention from the U.S. Supreme Court is now needed to prevent a grave miscarriage of justice. The federal courts have truncated due process by ordering unreasonably expedited briefing and hearing schedules, solely for the purpose of maintaining an execution date that was set at the State’s request while appeals were already pending. No court has ever fully considered the merits of Mr. Christeson’s important underlying constitutional claims, and no court has ever provided him with counsel free of conflicts of interest to raise those claims.

In the last twenty years, capital punishment has fallen out of favor in the United States. Death sentences have dropped from 315 a year in the mid-1990s to 49 in 2015. Executions have declined from 98 in 1999 to 28 in 2015. The number of states with the death penalty has fallen to 31. And polls indicate that opposition to capital punishment (fueled in part by DNA evidence of wrongful convictions, a dramatic drop in crime rates, and the isolation of the United States among western democracies in retaining the death penalty) is rising. Carol Steiker (a professor of law at Harvard University) and Jordan Steiker (a professor of law at the University of Texas) believe that the death penalty deserves to die. In Courting Death, the authors trace the judicial history of capital punishment, starting with the Supreme Court’s declaration that the death penalty is capricious and arbitrary in Furman v. Georgia in 1972, and its decision to lift its de facto moratorium four years later in Gregg v. Georgia. And the Steikers deliver an extraordinarily well-documented, forceful and ferocious assault on state and federal administration of capital punishment since then. Courting Death is, almost certainly, the best book on this subject.

An op-ed by Carol Steiker and Jordan Steiker. Even as the United States remains the only Western democracy that executes its citizens, the Supreme Court has exempted certain categories of our most vulnerable individuals from execution, including those with intellectual disability. Texas, however, routinely fails to enforce this protection. An upcoming case gives the court the opportunity to bring Texas in line with constitutional requirements.

An op-ed by Carol Steiker and Jordan Steiker. California’s decision on Nov. 8 to reject Proposition 62 came as no surprise to those of us who study capital punishment. No jurisdiction in human history has ever permanently abolished the death penalty via plebiscite. The reason is simple: referenda ask voters to respond at the level of symbolism, and voters rarely resist abstract appeals to “law and order.” If citizens confront the death penalty in concrete context, however, they’re willing to end it.

Few people have had a more tumultuous 18 months than Nebraska’s ten death-row inmates. In May 2015 the Nebraska legislature voted to abolish capital punishment, which would have converted their sentences to life imprisonment. The governor, Pete Ricketts, vetoed the legislation but was overridden. He then poured $400,000 of his family’s money into financing a referendum to reinstate the death penalty, which appeared on the ballot on November 8th and passed with 61% of Nebraskans’ support. The proposition was one of three pro-death-penalty measures on state ballots. Two passed with ample margins, and prospects for the third look promising...Carol Steiker, a professor at Harvard Law School and co-author of a new book entitled “Courting Death: The Supreme Court and Capital Punishment”, says people rarely take the time to understand ballot initiatives (one voter in Palo Alto says it took him hours to educate himself about the 17 measures on California’s ballot). A better bellwether of what will happen to the death penalty, Ms Steiker says, is sentencing. In 1996, 315 convicts were given death sentences. In 2015 only 49 were. This suggests that prosecutors, jurors and judges have all grown warier of capital punishment.

...In 2009, the American Law Institute—the most prestigious organization in the country engaged in improving the law—removed the death penalty from the options it had long recognized that states could choose from to punish a convicted murderer...The genesis of that change was the strong sentiment among the institute’s membership to formally oppose capital punishment. Lance Liebman, then its director, turned to the sister-and-brother team of Carol S. Steiker ’82, J.D. ’86, RI ’11, and Jordan M. Steiker, J.D. ’88, for counsel. They were “the most influential legal scholars in the death penalty community,” wrote criminal-justice scholar Evan J. Mandery in his book A Wild Justice...In the past seven years, the report has played a quiet yet decisive role in helping shift debate among scholars and policymakers about the death penalty. The focus has moved from whether the penalty is just, which cannot be answered empirically, to an emphasis on whether states apply it fairly and consistently, which can. The Steikers’ approach shaped the policy of America’s most respected legal organization. With its imprimatur, their report has influenced decisions of people who shape American law.

...the Gazette asked scholars from across Harvard to reflect on the leadership of our 44th president: what they most admired, what was disappointing, and what most surprised them...Carol Steiker: Most admire: The Affordable Care Act was a signal achievement — seemingly impossible at the outset but now the law of the land and making a huge difference in the lives of millions. The ACA will be remembered as one of Obama’s most important legacies. Disappointing: Obama did not make criminal justice reform a major priority, and his administration has made only modest contributions to addressing this area of gross injustice and shameful waste of capital, both financial and human. Surprising: I would not have predicted the utter impasse that Obama has reached with Congress, in which both ordinary legislation and the Senate’s confirmation of Supreme Court nominees have ground to halt, despite the president’s efforts to seek bipartisan solutions.

Twenty states and the District of Columbia have abolished capital punishment. Four more have imposed a moratorium on executions. ... A new geography of capital punishment is taking shape, with just 2 percent of the nation’s counties now accounting for a majority of the people sitting on death row. ... “Racism is the historical force that has most deeply marked the American death pen­alty,” says Carol Steiker, a Harvard law professor and an author of the forthcoming book “Courting Death: The Supreme Court and Capital Punishment From Colonial Days to the Present.”

...During the controversy, [Bryan] Stevenson visited the University of Texas Law School, in Austin, for a conference on the relationship between the death penalty and lynching. Jordan Steiker, the professor who convened the meeting, told me, “In one sense, the death penalty is clearly a substitute for lynching. One of the main justifications for the use of the death penalty, especially in the South, was that it served to avoid lynching. The number of people executed rises tremendously at the end of the lynching era. And there’s still incredible overlap between places that had lynching and places that continue to use the death penalty.” Drawing on the work of such noted legal scholars as David Garland and Franklin Zimring, Steiker and his sister Carol, a professor at Harvard Law School, have written a forthcoming book, “Courting Death: The Supreme Court and Capital Punishment,” which explores the links between lynching and state-sponsored executions. The Steikers write, “The practice of lynching constituted ‘a form of unofficial capital punishment’ that in its heyday was even more common than the official kind.”