REF2021 18_ICS_A: INFLUENCING LEGAL PRACTICE AND REFORM IN THE UNITED STATES

Description of impact

The Centre for American Legal Studies (CALS) influences legal practice and reform in the United States (US). Our research has: (1) enhanced legal representation in US capital cases through underpinning both our contributions to amicus curiae briefs submitted to US courts, and teaching for Amicus’ US Death Penalty Training Programme; (2) informed the resolution of state and federal litigation through being independently referenced as authority by US judges, lawyers, and civil society; and (3) increased the awareness of stakeholders in domestic (Arizona) and international (United Nations) settings about necessary law reform regarding capital punishment, climate change, and compassionate release.

Details of Impact
Enhanced Legal Representation



We use our research expertise to inform amicus curiae briefs filed in US capital cases. We have been involved in four briefs post-2014, addressing justice system recognition of foetal alcohol spectrum disorder, the constitutionality of capital punishment, and procedural fairness [S01]. Yorke’s work on Linda Carty’s case, as a member of the UK Foreign, Commonwealth and Development Office’s (FCDO) Expert Group on the Death Penalty and Pro Bono Lawyer’s Panel, demonstrates the significance of this work. Carty has been on Texas’ death row for 18+ years. In 2014, Yorke formed a drafting team for Her Majesty’s Government (HMG) to file an amicus curiae brief in support of Carty’s case (promoting her rights to a fair trial) to the Texas Court of Criminal Appeals (TCCA). The TCCA subsequently gave a “significant” and “rare” judgment in the case, with its grounds for remanding Carty’s execution and its order for the reconsideration of her case “consistent with” arguments raised by Yorke [S02]. In 2018, Yorke led HMG’s brief to the United States Supreme Court (USSC), submitting (as in R02) that the right to a fair trial under international law requires a cumulative error review to determine the fairness of Carty’s proceedings. Yorke’s work has been described as “instrumental in the UK government’s efforts” to highlight important human rights issues to the USSC [S03].



We also support Amicus, a charity that helps provide legal representation in US capital cases, including through coordinating volunteer placements in the UK and US (30+/year) and pro bono case-workers (800+). To ready volunteers to be of “maximum, immediate use” to US offices and to train caseworkers, Amicus runs a Death Penalty Training Programme (DPTP), which is CPD-accredited by the Solicitors Regulation Authority and Bar Standards Board. The BCU team has supported the DPTP “for over a decade… utilizing their research expertise to deliver innovative sessions” on capital punishment and international law (Yorke & Storey), the infrastructure of the American legal system (Di Gioia), and forensic science and wrongful conviction (Cooper). Between 2014 and July 2020, “The BCU team … reached over 2000 participants”, with Amicus’ Director describing them as “key contributors” to Amicus’ mission, undertaking work that “makes a difference...” [S04].



Informing Litigation



US judges, lawyers and civil society cite our research as authority to inform litigation. In rejecting a challenge to Kentucky’s clemency procedures, the Kentucky Supreme Court referenced R04 when finding no state “provides the adjudication-like process Appellants contend is due” and “Kentucky’s reliance on the Governor” for clemency decisions was not unique. In considering if defence counsel was ineffective for failing to find and present a firearms expert, the Tennessee Supreme Court referenced R03 when stating forensic science had “faced criticism” and was associated with wrongful conviction. Lawyers have repeatedly referenced – in appellant briefs and memorandums of law – R03’s account of firearms evidence limitations when making firearms evidence-related challenges in state and federal courts. R03’s finding that courts commonly rely on precedent to admit criticised forensic evidence has also been referenced by amici non-profit organisations representing indigent defendants, in support of their argument that courts are abdicating their gate-keeping role to ensure jurors only receive reliable evidence [S05].



Increasing Awareness about necessary Law Reform



Arizona has a “very narrow” compassionate release procedure. Only if permitted by their sentencing statute (which is rare) and medically certified to be within four months of death, can prisoners apply to Arizona’s Board of Executive Clemency (BOEC) for compassionate release based on ‘imminent danger of death.’ Concerned, a contract attorney for the Arizona Justice Project, sought Cooper’s expertise in evaluating US state clemency procedures, asking if Arizona’s approach could be compared to that of other states. Funded by a BCU Small Development Grant, they “Harness[ed] Dr Cooper’s research methods” to undertake a Pilot Study of US compassionate release procedures.

They then successfully applied for a Leverhulme Trust and British Academy Grant to scale-up the study [S06]. In 2018, multi-stakeholder panels in New York and Arizona discussed Cooper’s study report [S07]. For the Co-Chair of the Arizona Attorneys for Criminal Justice’s Legislative and Policy Committee, the report confirmed Arizona “lag[ged] way behind” and was “extremely helpful” for reform efforts, so they asked Cooper to model legislation for Arizona [S08]. Cooper’s model proposes a broader medical parole procedure that takes account of serious medical problems, public safety, medical appropriateness, cost, and human dignity [S07]. The model is a “way forward” at a time when Arizona is “looking for ways” to decarcerate and “show mercy for those most deserving…” and would allow the “most vulnerable to die with dignity” [S06]. Shared across “charitable organizations, public-policy think tanks, research… organizations, faith groups, lobbyists and more” the model is “rais[ing] awareness … and significantly advancing [Arizona] reform efforts...” [S08]. This led to the model becoming a Bill (SB1478) sponsored by Arizona law-makers [S07]. Cooper’s research “no doubt….opened a path for stakeholders to discuss the need for such change in Arizona…” [S06].



Our research also increases awareness about the need for law reform internationally. The Office of the United Nations High Commissioner for Human Rights (OHCHR) repeatedly cited R06 in its Summary of Stakeholders’ Submissions on the United States of America in relation to the US 2020 Universal Periodic Review [S09]. In its report, the OHCHR cited R06 to: (1) support Women's International League for Peace and Freedom et al statements that US energy policy mostly focuses on fossil fuels, that oil and gas industries benefited from favourable taxation, and that the US should reinstate the Paris Agreement (per R05); (2) the American Civil Liberties Union’s submission that capital punishment is declining in the US; and (3) Amnesty International’s concern that executions have taken place in cases involving “serious doubts about the proceedings…” Here, the OHCHR specifically referenced to the accounts given of Linda Carty’s proceedings in R02 and R06. With 139 stakeholder submissions, the OHCHR’s citations to the BCU team’s stakeholder report are noteworthy. The OHCHR’s report is compiled for the UN Human Rights Council and is reviewed by the US government, UN member states, and civil society. Notably, in December 2020, the Report of the Working Group on the Universal Periodic Review reported UN member states’ formal recommendations to the US, at its review on November 9, 2020, included that the US abolish capital punishment and reinstate the Paris Agreement [S010].

Impact date	2014 → 2020
Category of impact	Societal impacts, Public Policy or Services impacts