In a recent dissenting opinion in a death penalty case written by U.S. Supreme Court Justice John Paul Stevens and joined by Justice Stephen Breyer, Stevens cited a New York University Review of Law & Social Change article by then-student Jeremy Root ’02, at the time an executive editor of the journal.

Root’s article, “Cruel and Unusual Punishment: A Reconsideration of the Lackey Claim,” addresses the typically long delay between a capital sentence and the actual execution of a prisoner. Stevens’s dissent was in Johnson v. Bredesen, an application for a stay of execution and petition for a writ of certiorari for a Tennessee man convicted of a triple homicide in 1981. At issue was whether spending nearly three decades on death row before execution constitutes cruel and unusual punishment under the Eighth Amendment. Stevens, arguing it did, cited Root’s article as a source of statistical evidence of error rates in capital trials. The justice had raised the same Eighth Amendment concerns in his dissent from Lackey v. Texas, the 1995 Supreme Court opinion that provided the basis for Root’s article.

Now a business litigation associate at Stinson Morrison Hecker in Jefferson City, Missouri, Root called the citation of his article “a real honor.” Root noted that Stevens’s opinion “starts to grapple with some of the procedural complexities that plague this [cruel and unusual punishment] claim, which is an issue that I gave significant attention to in my article. I’d like to hope that he read those parts as well and enjoyed those parts, but it’s impossible to attribute motives to the justice on that.”

Root continues to devote attention to the Eighth Amendment’s application to the lengthy delays experienced by death-row inmates. Since 2004, he has had a part in representing a prisoner in Georgia who has been awaiting execution for 30 years, with the appeal based on the cruel-and-unusual claim. Root credited Stevens’s Lackey dissent with “breath[ing] life into this claim.... I still believe that the claim draws on a lot of values that are cherished in our constitutional system, but so far very few courts have been willing to grant relief on that basis.”

Posted on December 11, 2009