Human Rights at Home Blog

New Article: Advancing Human Rights Education in the United States: A Call for Action in the Public Education System

Conroy, Shannon M., Advancing Human Rights Education in the United States: A Call for Action in the Public Education System, Immigration & Human Rights Law Review: Vol. 5, Iss. 2, Article 4 (2024). Abstract below:

Human rights education is education about, through, and for human rights. In 2004, the United Nations General Assembly implemented the World Programme for Human Rights Education. The World Programme provides global coordination for human rights education and promotes a common understanding of human rights education. Over the last twenty years, the United States failed to implement either federal or state human rights education programs. This article examines the academic and international discussion about human rights education for students in the United States, and argues for the need for stronger human rights education in public primary, secondary, and higher education institutions in this country.

New Article: Protesters’ legal rights are up for debate

Danielle Braff, Protesters’ legal  rights are up for debate, ABAJournal (May, 2024)

With protests continuing to unfold across the country, the legal society turns their spotlight to reemphasize what rights these demonstrators do and do not have.

The First Amendment offers broad protection to freedom of association and expression as long as the forum is in a public space, says Irina Tsukerman, a national security and human rights lawyer and president of Scarab Rising, a geopolitical risk strategic advisory in New York. This amendment also protects so-called “hate speech,” unless the hate speech is directly threatening violence or if it incites criminal activity. States also have individual hate speech laws, but under the First Amendment overall, you can’t be prosecuted for your beliefs.

This article further explores the complexities surrounding the rights of protesters in the United States, especially in light of recent demonstrations on various issues like police brutality and pro-Palestinian activism. It highlights the balance between free speech, protected under the First Amendment, and actions that may cross into harassment or incitement of violence.

Read the full article here.

New Article: False Promises of Protection: Town of Castle Rock v. Gonzales and The Supreme Court’s Failure to Protect Human Rights

Kylie Rhoton, False Promises of Protection: Town of Castle Rock v. Gonzales and The Supreme Court’s Failure to Protect Human Rights, Immigration & Human Rights Law Review: Vol. 5, Iss. 1 (2024). Excerpt below.

Speaking in front of the Inter-American Court of Human Rights, Jessica Gonzales highlighted her struggle to get answers and justice after her abusive ex-husband’s murder of her three daughters. The United States’ justice system brought her no recourse. She was first failed by her local police department and then by the highest court of the United States which refused to recognize that Gonzales had any Due Process entitlement to having her restraining order enforced against her abusive ex-husband. Jessica Gonzales’ struggle encapsulates the United States’ systemic and continuous failure in adequately addressing the human rights issue that is domestic violence.

New Article: Making the World Safer and Fairer in Pandemics

Gostin, Lawrence O. and Klock, Kevin A. and Finch, Alexandra, Making the World Safer and Fairer in Pandemics (December 22, 2023). Abstract below.

Global health has long been characterized by injustice, with certain populations marginalized and made vulnerable by social, economic, and health disparities within and among countries. The pandemic only amplified inequalities. In response to it, the World Health Organization and the United Nations have embarked on transformative normative and financial reforms that could reimagine pandemic prevention, preparedness, and response (PPPR). These reforms include a new strategy to sustainably finance the WHO, a UN political declaration on PPPR, a fundamental revision to the International Health Regulations, and negotiation of a new, legally binding pandemic agreement (popularly called the “Pandemic Treaty”). We revisit the cavernous shortcomings of the global Covid-19 response, explain potentially transformative legal reforms and the ethical values that underpin them, and propose actionable solutions to advance both health and justice.

2023 University of Arkansas Law Review symposium on “Children at Work.”

The University of Arkansas Law Review invites authors to submit proposals for papers for its 2023 symposium on “Children at Work.”

In recent months, the U.S. Department of Labor has reported a substantial increase in serious child labor law violations. A New York Times expose uncovered migrant children working in U.S. workplaces, including those that produce Fritos and Fruit of the Loom products. Yet, during this same period, numerous states have introduced or enacted laws to weaken longstanding child labor protections. Meanwhile, laws strengthening child labor laws or enhancing penalties for violations have been proposed in Congress and enacted in Arkansas.

This symposium will explore topics related to child labor in and beyond the United States and may include:

• What is known about trends in where children are working, how much they work, and why they work? 
• At what age is it appropriate for children to work? What limitations should there be and who should set them?
• What are the causes of increased child labor violations? What is the history of child labor and child labor law? How does it compare to other countries?
• What is the role of the state in protecting children? What are unique challenges in enforcing child labor laws and securing the rights of children? Do current laws and enforcement strategies fall short? If so, how might they be improved?
• To the extent that children are employees, what are the implications for unions and organizing strategies? How do and should children participate in unions and organizing? Does the National Labor Relations Act adequately address the prospect of minor union members?
• What is the relationship between immigration policy and child labor? What issues face immigrant children at work? What about the relationship between human trafficking and child labor? How should concerns about child labor trafficking shape federal and state policy?
• What unique risks do children face in the workplace? What are the benefits of appropriate work by children? What is the relationship between work and educational and other outcomes?

The University of Arkansas Law Review invites authors exploring these and related issues to submit proposals for papers. Selected authors will be invited to present their research at the Law Review’s annual Symposium, which will be held at the University of Arkansas Law School in Fayetteville on Friday, October 13, 2023. If you accept an invitation, the Law Review will provide transportation and accommodation in Fayetteville. Following the Symposium, proposals will be developed into approximately forty-page papers, which will be due by January 5, 2024. Once completed, we plan to publish the papers in Volume 77 of the Law Review.

Proposals should be submitted to the Symposium Editor, John Hudson  ([email protected]) and Professor Annie Smith ([email protected]) with the subject line “Children at Work” by August 1, 2023. Decisions will be communicated by August 7, 2023. Should you have any questions, please contact John and Professor Smith at the above listed emails.

New Article: Colonizing Queerness

Jeremiah Ho, Colonizing Queerness, University of Colorado Law Review (forthcoming 2023). Abstract below.

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives continually privilege white heteropatriarchal structures that dominate over non-normative sexualities.

Through covert demands upon queer identities to assimilate with the status quo, such settler colonialist motivations are visible in the way Supreme Court gay rights advancements have facilitated a conditional but normative path to mainstream citizenship for queer identities. By employing concepts from critical race theory, queer studies, and settler colonial theory, this Article illuminates on how the Court’s cases are indeed part of American settler colonialism’s sexuality project and answers why such legal advancements always appear monumental, but ultimately remain in the control of a discriminatory status quo. Only if queer legal advancements are accompanied by essential shifts from the normative structures of white settler heteropatriarchy will such victories live up to their liberatory claims. Otherwise, such apparent progress will continually attempt to marginalize—indeed, colonize—queerness.

New Article: Advancing Global Human Rights Locally

Julia Spiegel, Advancing Global Human Rights Locally, Just Security (May 16, 2023). Excerpt below.

International human rights are often viewed as the prerogative of the federal government. But that’s not the law, nor the reality. While U.S. states and localities may not enter into binding agreements with other nations or act contrary to federal law or policy according to legal precedent, U.S. states and localities can – and do – engage in a wide range of human rights policy making. Those policies can complement or fill a void in federal action in important ways.

Consider Russia’s war on Ukraine and the ensuing human rights catastrophe. In the immediate aftermath, several U.S. states issued Executive Orders to amplify, and in some cases build upon, federal sanctions targeting the Russian regime for its violations of human rights and international law. Taken together, these orders – issued by California, Colorado, New Jersey, New York, Ohio, Utah, Vermont – terminated or banned contracts with entities doing business in Russia, prohibited purchases of certain Russian goods, required reporting by government contractors of actions they have taken in response to the war, and called for divestment of public pension funds.

The new wave of human rights is local. U.S. state and local leaders can employ swift and wide-ranging tools to advance progress on human rights locally and globally. And more of them should.

New Article: Afghan Allies in Limbo: The U.S. Immigration Response

Lindsay M. Harris, Afghan Allies in Limbo: The U.S. Immigration Response, Howard Law Journal, Vol. 66, No. 3, (2023). Abstract below.

After the fall of Kabul in August 2021, the U.S. government airlifted an estimated 120,000 people to safety from Afghanistan. An airlift of this scale was unprecedented, but also woefully inadequate as a solution to the Afghan humanitarian crisis. This article analyzes the U.S. immigration response to the Afghan humanitarian crisis following the Taliban takeover.

While the U.S. granted humanitarian parole for two years to approximately 76,000 individuals permitting them to enter the United States, along with creating a new category of priority for refugee processing for Afghans, the government and Congress to date have failed to follow through on logical and stable pathways to permanent immigration status for our Afghan allies.

The U.S. has failed the Afghans airlifted to the United States by failing to pass an Afghan Adjustment Act and forcing Afghans through the dysfunctional and delayed Special Immigrant Visa (SIV) process or the backlogged and re-traumatizing asylum system. Similarly, the government’s handling of the estimated 66,000 humanitarian parole applications filed on behalf of Afghans still trapped in Afghanistan or in the region has been nothing short of abysmal. Approval rates plummeted after the end of August 2021 and the U.S. government took in over $25 million in fees for applications that have since languished for now close to a year.

In contrast, the U.S. created an innovative and expeditious process for the reception of Ukrainian refugees – eliminating hurdles and barriers still in place for Afghans and facilitating the admission of over 150,000 Ukrainians into the United States. Months later, the U.S. created a special process for humanitarian parole for Venezuelans, and then later Cubans, Nicaraguans, and Haitians. This article situates the disparate treatment of Afghans and Ukrainians as one of the latest episodes in the long history of racism in the creation, execution, and implementation of immigration policy in the United States. The stark contrast in treatment for Ukrainians and Afghans underscores the need for an end to biased decision-making and to truly welcome those fleeing violence and conflict with a principled and impartial immigration system, grounded in humanitarian principles.

New Edition of Human Rights Advocacy in the United States

There is a new edition of Human Rights Advocacy in the United States available from West Academic Publishing. The Third Edition (2023) of Martha F. Davis, Johanna Kalb, Risa E. Kaufman and Rachel Lopez's wonderful textbook is now available.

From the editors:

This pedagogically innovative book is the only law school casebook focused on human rights advocacy in the United States. It illuminates a range of both emerging challenges and persistent theoretical and doctrinal issues while equipping students to thoughtfully engage human rights law and strategies in their own practice of law. Readings and case studies expose students to the history, tactics, and critiques of the U.S. human rights movement as well as the legal and practical challenges of human rights implementation in the United States. Skills exercises introduce practice-oriented approaches to integrating human rights in U.S. based advocacy, including through engagement with international treaty bodies, regional mechanisms, U.S. courts, and policymakers. Additionally, the appendices provide the text of relevant human rights treaties.

Appropriate for both introductory and advanced seminars, as well as clinical and other experiential offerings, the materials engage students on a remarkable range of human rights issues, including climate change, reproductive justice, immigration, the rights of Indigenous peoples, racially discriminatory policing, and the human right to housing. Chapters also explore fundamental issues of federalism, sovereignty, judicial review, and legal ethics.

New Article: Moral Imperative—Legal Requirement: Why Law Schools Should Require Poverty Law and International Human Rights

Eric J. Boos, Moral Imperative - Legal Requirement: Why Law Schools Should Require Poverty Law and International Human Rights, 19 U. St. Thomas L.J. 63 (2023). Abstract below.

This paper argues that the growing undercurrent of discontent in this nation, which has manifested in increasing levels of civil unrest, violence, crime, mass shootings, and political chaos, is symptomatic of the ever-increasing disparity in wealth that political philosophers, sociologists, economists such as Alan Greenspan, and politicians such as Bernie Sanders, have warned against. This paper further argues that this disparity is, in large measure, facilitated by the legal establishment. Lawyers are at the heart of the global financial crisis, the restructuring of the criminal justice system as a “for-profit” enterprise, the 900+ police shootings since 2014, the $2 billion of property confiscated under civil forfeiture rules, the mass incarceration policies, the recent environmental scandals, the protection of monopolies in agribusiness, pharmaceuticals, and telecommunications, the dysfunctional system of immigration and deportation, and the deplorable and racially biased legal processes for capital crimes and the death penalty. Unfortunately, the response to the increasing levels of discontent has been a predictable increase in policing tactics, legalistic controls, political fearmongering, social vitriol, and intolerance against targeted populations. Society is ripping apart at the seams, and the response has been a fascist-like clampdown—a trajectory first predicted by Mortimer Adler in 1938. Citing the deplorable state of higher education, Adler averred that America would become the next great fascist state in the World. This paper applies Adler’s critique of higher education to America’s law schools and argues that what is needed to change the trajectory is a different approach to legal education. The justification for a restructuring of American legal education is rooted in the fact that lawyers have a special obligation under the Constitution of the United States to achieve justice and to vitiate the tendency of economic and social stratification that occurs in society. The restructuring would ideally include a comprehensive overhaul of the curriculum so that each course addresses the issue of justice (in the Platonic sense and in the sense our Founders used it), but at a minimum it should require courses in Poverty Law (because of our deplorable track record in that area) and International Human Rights (because we live in a global society and justice is a universal goal).

New Article: Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters

Raina Hasan, Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters, 31 J. L. & Pol'y 177 (February 2023). Abstract below.

In 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ Guiding Principles on Internal Displacement.

In order to actualize IDPs’ right to return and resettle, the U.S. should also establish IDPs’ right to affordable housing when natural disasters force people to leave behind their homes and communities. To effectively enforce such rights, the federal government should provide more affordable housing, invest in making the existing affordable housing stock and new affordable housing developments climate resilient, and collect accurate data on IDPs to provide adequate disaster relief, taking special care not to exacerbate gentrification and surveillance concerns. Codifying the rights of IDPs would go a long way in remedying larger systemic issues such as the racial wealth gap and rampant housing insecurity, ultimately furthering environmental justice.

New Article: Refugeehood Reconsidered: the Central American Migration Crisis

Macedo, Stephen, Refugeehood Reconsidered: the Central American Migration Crisis (Jan. 18, 2023). Abstract below.

“Who is a refugee?” This essay explores the lively debate on this question in ethics, political theory, and international law. The world now has more refugees than any time since World War II, and there may be no area of public policy in advanced Western states more fraught with deep moral and practical dilemmas. Are state persecution and alienage necessary conditions of refugeehood or is mortal peril sufficient, whatever its cause? The essay describes the various moral grounds relevant to claims for refugeehood, including general humanitarian duties, obligations arising from past and ongoing relations and commitments under international law, and the existence of the state system itself. Particular attention is paid to the Central American migration crisis, and the question of reparative obligations on the part of the U.S. arising from climate change and past state policies that have unjustly harmed sending countries. Further complicating the question of what we ought to do, even for progressive policymakers, is the looming threat of right-wing populist backlash.

New Article:The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice

Gabriel “Jack” Chin and Anna Ratner, The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice, 20 Asian American Law Journal 17 (2022). Abstract below.

For nearly a century, California law embodied a rabid anti-Asian policy, which included school segregation, discriminatory law enforcement, a prohibition on marriage with Whites, denial of voting rights, and imposition of many other hardships. The Alien Land Law was a California innovation, copied in over a dozen other states. The Alien Land Law, targeting Japanese but applying to Chinese, Koreans, South Asians, and others, denied the right to own land to noncitizens who were racially ineligible to naturalize, that is, who were not White or Black. After World War II, California’s policy abruptly reversed. Years before Brown v. Board of Education, California courts became leaders in ending Jim Crow. In 1951, the California legislature voluntarily voted to pay reparations to people whose land had been escheated under the Alien Land Law. This article describes the enactment and effect of the reparations laws. It also describes the surprisingly benevolent treatment by courts of lawsuits undoing the secret trusts and other arrangements for land ownership intended to evade the Alien Land Law. But ultimately, the Alien Land Law precedent may be melancholy. California has not paid reparations to other groups who also have conclusive claims of mistreatment. Reparations in part were driven by geopolitical concerns arising from the Cold War and the hot war in Korea. In addition, anti-Asian immigration policy had succeeded in halting Japanese and other Asian immigration to the United States. Accordingly, one explanation for this remarkable act was that there was room for generosity to a handful of landowners with no concern that the overall racial arrangement might be compromised.

New Article: Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?

Penelope Andrews, A Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?, 66 N.Y.L. Sch. L. Rev 359 (2022). Abstract below.

In this article I suggest that President Joe Biden issue an executive order to establish a Commission on Recognition and Reconstruction (CRR) to comprehensively confront the ongoing challenges to racial justice. I envisage the CRR as an adjunct to, and not a replacement for, the several measures currently being undertaken in law and policy to address these challenges. I imagine the CRR providing a national focus on the many ways that public and private institutions have responded to this current moment of racial distress, while also highlighting the obstacles and omissions toward the attainment of racial justice. The proposed CRR would then establish goals to be measurable in the short-, medium-, and long-term.

New Article: Foreword: Centering Intersectionality in Human Rights Discourse

Johanna Bond, Foreword: Centering Intersectionality in Human Rights Discourse, 79 Wash. & Lee L. Rev. 953 (2022). Abstract below.

In the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between women and men) and intra-group differences (i.e., differences in the experiences of discrimination and rights violations between white women and women of color).

New Article: Human Rights and Lawyer's Oaths

Lauren E. Bartlett, Human Rights and Lawyer’s Oaths, 36 Geo. J. Legal Ethics ____ (2023). Abstract below.

Each lawyer in the United States must take an oath to be licensed to practice law. The first time a lawyer takes this oath is usually a momentous occasion in their career, marked by ceremony and celebration. Yet, many lawyer’s oaths today are unremarkable and irrelevant to modern law practice at best, and at worst, inappropriate, discriminatory, and obsolete. Drawing on a fifty-state survey of lawyer’s oaths in the United States, this article argues that it is past time to update lawyer’s oaths in the United States and suggests drawing on human rights to make lawyer’s oaths more accessible and impactful.

New Article: Mobilizing Universalism - The Origins of Human Rights

Catherine B. Duryea, Mobilizing Universalism: The Origins of Human Rights, Berkeley J. of Int’l L. Vol. 40, Iss. 1, Art. 3. (August 2022). Abstract Below.

Human rights law claims to be universal, setting rights apart from paradigms based on shared religion, culture, or nationality. This claim of universality was a significant factor in the proliferation of human rights NGOs in the 1970s and remains an important source of legitimacy. The universality of human rights has been challenged and contested since they were first discussed at the United Nations (UN). Today, much of the debate centers around the origins of human rights-particularly whether they arose out of Western traditions or whether they have more global roots. For too long, discussions about universality have ignored the practice of human rights in the Global South, particularly in Arab countries. Instead of searching for evidence of universality in the halls of the UN, this Article looks at how activists mobilized and produced universality through their work. Archival sources and interviews show that the turn to human rights in the Arab world was rooted in the politics of the 1970s but relied on the concept of universality as embodied in the foundational human rights documents of the 1940s and 1960s. Activists used these documents to advance conceptions of human rights that were compatible with several distinct political visions. Their work supports the claim that human rights can be universal, not because rights exist outside of politics or have diverse origins, but because they were constantly reinvented to support a range of different, sometimes contradictory, political goals.

New Article: (G)local Intersectionality

Martha F. Davis, (G)local Intersectionality, 79 Wash. & Lee L. Rev. 1021 (2022). Abstract below.

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of Racial Discrimination.

This “relocalization” phenomenon—which brings intersectionality back to its roots in domestic law—is visible in many parts of the world. In Europe, cities in Spain proactively integrate intersectional approaches into their local human rights regimes. Outside of Europe, Montréal applies an intersectional analysis under its Charter of Rights and Responsibilities, a local governance document grounded in the values of fundamental human rights and dignity. Human rights cities like Gwangju, Korea, embrace intersectionality as a programmatic imperative. In the United States, San Francisco, Pittsburgh, Los Angeles, and Cincinnati, among others, incorporated intersectional approaches to nondiscrimination in the wake of adopting local CEDAWs.

The relocalization process is not always straightforward. Challenges include the difficulties of reconciling local intersectional approaches with national laws that may not recognize intersectionality, and developing indicators tailored to local experiences. On the other hand, local adoption of intersectionality opens up robust possibilities for participation in communities’ legal and political processes, which many local governments emphasize.

New Publication: ABA Human Rights Magazine: Economics of Voting Rights

American Bar Association Section of Civil Rights and Social Justice, Human Rights Magazine: Economics of Voting Rights, Vol. 48, No. 1 (October 2022). Excerpt from introduction and featured articles below.

Introduction

Juan R. Thomas - “My theme as chair of the ABA Section of Civil Rights and Social Justice for the 2022–23 bar year is economic justice. I believe that a civil rights agenda without an economic agenda is like clapping with one hand. As the 2022 midterm election approaches, it is particularly timely to focus our attention on the economics of voting rights and the role money plays in our body politic. I want to sincerely thank the authors of this edition of Human Rights magazine for helping me realize my vision of economic justice in the context of voting rights.”

Featured Articles

• How Inequality Impacts Voting Behavior by Cynthia A. Swann and Elizabeth M. Yang
• Human Rights Hero: The Election Worker by Bobbi M. Bittker
• Gender Parity in Election Laws: Past, Present, and Future by Amber Maltbie, Elizabeth M. Yang, Jason Kaune, and Katherine Mirassou
• The Battle to Disenfranchise Indigenous Voters by Robert O. Saunooke
• The Modern Poll Tax: Too Many States Condition the Right to Vote on the Payment of Court Debt by Hon. Lisa Foster

To read more and access other articles in this issue of the ABA’s Human Rights Magazine, click here.

New Article: Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty

Bernadette M. Donovan, Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty, Washington and Lee Journal of Civil Rights and Social Justice, Vol. 29, Issue 1, Fall 2022. Abstract below.

Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.

As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty is not per se unconstitutional, but that the Eighth Amendment constrains its application. In particular, modern death penalty law is concerned with the arbitrary or unusual infliction of the death penalty. Since 2015, the concept of “geographical arbitrariness”—that the death penalty’s localization could render it so random or rare as to be unconstitutional—has gained increased attention.

This Article examines whether and how Virginia’s abolition contributes to the geographical arbitrariness of capital punishment in America. The Article finds that Virginia’s experience demonstrates the geographical arbitrariness of the contemporary death penalty in two important ways. First, this Article examines the localization of capital sentencing within Virginia. Capital sentencing and execution data show that as Virginia’s death penalty declined, the practice was kept alive by a small minority of prosecutors who had an unusual passion for death sentencing. In its latter years, Virginia’s death penalty thus increasingly reflected the unfettered discretion of local decisionmakers. Second, this Article considers how Virginia’s abolition affected the national landscape of the death penalty. The Article concludes that both quantitively and qualitatively, the end of Virginia’s death penalty supports a conclusion that capital punishment has become too arbitrary to be constitutional.