But in addition to Dressler, a distinguished university professor emeritus and law professor at Ohio State University, the class also had a second, unannounced guest: Akron School of Law professor Margery Koosed, who like Dressler has been deeply involved in the ways defendant’s mental states are factored into death penalty cases.

Dresseler’s talk focused on the 2020 Supreme Court case Kahler v. Kansas, when the high court ruled that the state of Kansas did not violate the eighth and 14th amendments to the U.S. Constitution when it limited the ability of a convicted murderer to use the insanity defense.

During the class, Koosed told the class that the state of Ohio pursued a different direction from Kansas by barring the death penalty for people with severe mental illness. She also explained the reasoning behind that decision.

It was the kind of “learning from the pros” moment that Denno has been aiming for with her criminal law lecture series.

“It was really a luxury to have her participation. Koosed is  well known, and I thought, ‘I have two people who are  outstanding talking about his topic,’” said Denno, the Arthur A. McGivney Professor of Law and founding director of Fordham’s Neuroscience and Law Center

Denno has long structured this class around guest speakers; last year the class was visited by the defendant, the defendant’s attorneys, and a juror involved in the 2010 case People v. Kenneth Minor, which revolved around the murder of a motivational speaker and resulted in an overturned conviction based on how the evidence was considered.

This year, the fact that classes are taking place online has vastly expanded the pool of potential speakers and, in the case of Koosed, guests who can also contribute. It also means the classes can be open to the public, which wasn’t feasible last year.

The series, which focuses primarily on issues related to mass incarceration, runs through April 26. On Mar. 15, the class will host Aya Gruber, a professor of law at the University of Colorado School of Law and the author of The Feminist War on Crime, (University of California Press, 2020).

Future guests will include L. Song Richardson, the incoming president of Colorado College, and Judge Jed S. Rakoff of the United States District Court for the Southern District of New York, who will talk on April 5 about his book, Why the Innocent Plead Guilty and the Guilty Go Free (Farrar, Straus and Giroux, 2021).

All guests exemplify the cutting-edge contemporary scholarship on issues of incarceration, science, racial bias and criminal law, Denno said.

“It’s exciting for the students and me to get to hear from people who have just worked on a major enterprise because they’re going to know this area better than anyone. If you’ve written a book, you’ve been living and breathing this topic nonstop,” she said.

Classes generally last three hours and feature an hour-long presentation, a discussion between students, and a discussion with the main speaker. This year, Denno has opened the presentation portion up to the public, with the caveat that in general, outside attendees must be passive observers. Even so, the classes offer a window into the inner workings of the law field.

When Fred Smith Jr., an associate professor of law at Emory University School of Law, joined the class on Feb. 22, he spoke about a follow-up to Abstention in the Time of Ferguson, a 2018 article he published in the Harvard Law Review. His piece challenges the idea that the federal courts should steer clear of interfering with state courts because today many states criminalize poverty. A shift like this is key to ending mass incarceration, Denno said, and student feedback is invaluable to the scholarship addressing it.

“The students add a totally different perspective, and they’re also freer thinkers. In any profession, you get insular, and you’re all speaking the same language, but students aren’t like that,” she said.

Denno noted that Richardson’s duties as incoming president of Colorado College would have made an in-person appearance highly unlikely. Likewise, Gruber and several other speakers are sandwiching their appearances between two classes they’re teaching that day, something that only a virtual format allows.

Raila Brejt, a third-year law student, said the loss of in-person instruction has been offset by the caliber of the speakers in the class.

“What attracted me to this was the way to we get to do a deep dive into these complex topics and hear modern scholars and professors and judges that are grappling with the issues, and seeing it firsthand,” she said.

The hybrid nature of the class—part lecture and part experiential—also translates well to Zoom, said Brejt. As a psychology undergraduate who has a master’s in school counseling, she found parallels in the lectures to two papers she is working on about the Fifth Amendment and food regulations.

“[Professor Denno] facilitates because she also gets us into the material, so we’re talking back and forth with these professors and judges, and we’re talking to them like we’re their peers,” she said.

“What also makes it interesting is normally you teach toward an exam, but here she wants us to grapple with these issues and she wants us to engage with themes, to see common threads in the current problems with our justice system and how to resolve them.”

Workshops are held on Monday afternoons via Zoom. Times will vary.
To attend, contact Deborah Denno at [email protected]

Deborah Denno, the center’s director and the Arthur A. McGivney Professor of Law, recently sat down to talk about her work with the center.

Full transcript below:

Deborah Denno: When we’re talking about future dangerousness, it has to be put into a situation where people can understand why that person appears to be a future danger. It’s not because a juror is necessarily reacting so negatively to this evidence. It’s because it’s been so poorly introduced into court that it’s sort of a gift for the prosecutor.

Patrick Verel: In 2002, the film Minority Report presented a future in which crime has been completely eliminated, thanks to the ability of authorities to predict in advance who will commit a crime. Now, that film was set in the year 2054. Its premise is still fantastical and absurd, but the connection between criminal justice and brain chemistry is not science fiction. In 2015, Fordham established the Neuroscience and Law Center to explore how advances in neuroscience had prompted the legal profession to question long held notions of criminal culpability, free will, thought, behavior, and pain.

Deborah Denno, the center’s founding director and professor of law, recently sat down with us to talk about her work and the center. I’m Patrick Verel, and this is Fordham News. You recently said that you’ve been to conferences where people have said things like when neuroscience gets fully integrated into the court system, which is silly because it’s already in the courts, when would you say that this practice first started?

DD: We don’t know exactly when it first started, but we do know that it started probably in the 80s when some of this modern neuro imaging was starting to come into place. For example, in the John Hinckley case, a PET scan was used then. Hinckley was accused of attempting to assassinate Ronald Reagan. It was a case that captivated the country. A lot of investigation was made of his background, including the fact that this brain may not be the same as a normal brain.

PV: Now, your center is currently studying every criminal case in the United States that has used neuroscience in any capacity, from 1992 to 2012. What have you learned so far?

DD: The first major finding is that we’ve learned that neuro scientific evidence is widely used throughout the criminal justice system. The second kind of finding is this evidence is mostly used by defense attorneys, and most of these cases are death penalty cases. I think they’re death penalty cases because the stakes are so high. People don’t plead guilty as much. They go to trial. The trials last a long time. There’s a lot of money spent. Many of these people in these death penalty cases are brain damaged, or have all sorts of problems.

The arguments are made to mitigate a case down from death to someone … something where somebody wouldn’t be executed, but it’s also used for all sorts of defenses, including insanity, diminished capacity, et cetera. The third major finding is that a disproportionate number of lawyers who don’t use neuro scientific evidence are found to be incompetent because of that. In other words, courts expect attorneys today to use neuro scientific evidence, to introduce it into court when it’s relevant, and to do it correctly.

PV: We’ve reached a point basically where it’s not only is it being used, but it’s if you don’t use it, it’s considered improper.

DD: That’s right. If you don’t use it, it’s considered improper. I wanted to emphasize that it’s very hard to find somebody incompetent. Probably less than 1% of all attorneys are ever get that kind of disqualification. In my data set, I’ve found situations where up to 20% of attorneys are found to be incompetent for not introducing this evidence. That’s a really extraordinary result.

PV: Any sense of how successful this is used in defense cases?

DD: It’s hard to determine how successful it is because there’s so many things going on in these cases. That said, because attorneys fight so much to get this evidence into court, I think they believe that it certainly has a strong chance of being successful. I’ve certainly seen a lot of cases where it seems to be very influential on judges.

PV: You talk a lot about using it in defense cases when it comes to the death penalty. Can you talk a little bit about when it’s used by the prosecutor?

DD: So I included in my database cases in which victims had brain injuries. I have cases in which defendants have brain injuries, and the arguments are used by defense attorneys; but there are about a third of my sample are cases in which victims have some kind of brain injury because they’ve been injured by a defendant. That’s introduced into court to suggest that the defendant intended to do what they did, or to suggest that the defendant is a very violent and dangerous person.

A lot of the cases in which victim neuro scientific evidence is analyzed is almost always cases involving children, and a lot of those cases are shaken baby cases. In these cases, prosecutors have been immensely successful until relatively recently using that kind of argument.

PV: In my introduction, I talked about the film, Minority Report, and this whole idea in this fantastical future setting about being able to predict how people will act, whether or not they will commit crimes. I feel like this is the area where that would really come into play. It sounds like there have been instances, especially when it comes to using it as a defense, where this might become an issue. Can you talk a little bit about that? You mentioned Hinckley in particular.

DD: Yeah, Hinckley in particular, because Hinckley was … a CAT scan was used to suggest that he had a certain kind of brain damage that may have rendered him particularly impulsive or susceptible to acting out in the way that he did, or make him more violent. Some of the new technology that people hear about, they’re used in court yet. So for example, people at Harvard who can measure or distinguish between true and false memories in a brain. The way they do that is they test subjects with lists of words. You have to memorize 20 words, and you think ‘candy’ was in the list, but when you’re repeating back, you say ‘chocolate’ instead. That’s going to be a false memory, and they can tell the difference between a true and a false memory.

That said, those people wouldn’t testify in court. They don’t think their science is ready. It’s one to thing to say someone’s brain damaged, and their brain damage looks like some … is on the level of a schizophrenic, or … it’s a type of brain damage that would suggest this person is very impulsive. It’s an entirely different thing to say they’re talking about a false memory based on our scan of them, or … our technique, the P300 response indicates they were actually at the scene of the crime. That’s something that would overwhelm a jury so much. It would have so much weight. It could be considered, at least in legal terms, more prejudicial than probative.

PV: I want to go back to the part where you talked a little bit about neuroscience being used in defense cases, and specifically how there’s sort of an ethical quandary involved in using it as a defense. If you are a defense lawyer, and you claim that your client did X, Y, Z, because something was going on in their brain that wasn’t working right, … I’m being colloquial, obviously, here.

DD: Right, right.

PV: That opens you up to the possibility that if they’re that damaged, that they might not be able to be released back into society.

DD: Well, that’s right. I mean this is a concern that you see in court cases. It’s one of the biggest explanations that attorneys have for not introducing this evidence. In other words, they’re saying it was a defense strategy not to introduce evidence of brain damage because I was concerned that the jury might react very negatively, and think this person is going to be a future danger, and just hurt again. It is an ethical consideration.

That said, at least my research or my analysis of the cases I have would suggest if you’re going to err, you should probably err on the side of admitting it to a jury because it seems to have quite a mitigating impact. We have seen evidence of that in particular cases, where juries are questioned. They’ll say that they thought it was a valid explanation for why somebody did what they did.

PV: Yeah. Have there been a lot of cases where juries have said, ‘Okay, well we buy that defense that your brain damage caused you to commit this crime, but at the same time, this is proof that you’re too dangerous to be let go.’

DD: I have found cases, and I have cases in my data set where prosecution, at least, is arguing that the defendant is going to be a future danger. It’s this double edge sword issue that comes up. The defense attorney introduces the evidence, and the prosecution uses that evidence to suggest that the defendant is going to be a future danger. Whether that affects juries, it’s really hard to tell cause and effect, because again, this happens so much in cases where there’s a lot of violence; and maybe that’s what’s overwhelming the jury.

That said, I did want to emphasize that in a lot of those cases, they happen because the defense hasn’t been doing a very good job. In other words, they introduce the neuro scientific evidence. They use an expert, but that expert is the one who blurted out something to the effect, ‘This person may commit a crime again.’ In these cases, the defenses actually made a mistake, or their expert has been very sloppy. The prosecution jumps on a comment like that in an effort to use it against the defendant.

PV: Yikes.

DD: Yeah.

PV: That’s not a good defense lawyer.

DD: It’s not. I’ve seen a lot of really bad defense lawyers. There’s going to be one thread throughout all these cases is some of these attorneys are doing a really bad job. I have one case where the judge literally steps in and says, ‘This attorney is hurting their client. They’re doing their client more harm than good.’ I’ve encountered cases where defense attorneys use experts in situations where that expert has told the attorney, ‘Don’t put me on the stand. I’m going to hurt your client inadvertently.’ The attorney puts them on the stand anyway.

When we’re talking about future dangerousness, it has to be put into a situation where people can understand why that person appears to be a future danger. It’s not because that jurors necessarily react so negatively to this evidence. It’s because it’s been so poorly introduced into court that it’s sort of a gift for the prosecutor to make a future dangerousness argument.

PV: So we basically, all of this needs to be taken with a giant grain of salt, it sounds like.

DD: A giant grain of salt, and with a reminder that attorneys really have to do their homework if they’re going to be working with this evidence, and arguing on behalf of defendants. I think one thing to emphasize is maybe the ‘Minority Report’ scenario is … There’s some sense of reality to that. I see us getting to that. We can already … scientists are already starting to try to measure what’s going on in people’s heads, in terms of whether somebody intends to do something. The science is there already. It’s not … sufficiently sophisticated or refined to introduce into the courtroom, but we know some day it will be.

With every passing year, this neuro scientific evidence gets more precise. A number of people in this area have said that within 10 years, it may be already at the level precision of DNA evidence, where if somebody has a certain kind of brain damage, we’ll know much better or have a much better explanation of what that involves.

PV: One thing I’ve heard is that there’s a kind of growing understanding of how in early life, when you’re a child, that if you are exposed to an unhealthy environment, if you are not given good nutrition, and you’re surrounded by violence, that, that can have an effect on your brain development in ways that will never change back.

DD: Absolutely. I think a key message to take away from this, the introduction of neuro scientific evidence into the courtroom, is this evidence helps us most in trying to assess the effects of the environment on somebody’s behavior, more than anything internal going on, necessarily. In other words, I think a big concern with neuroscience is it’s going to make people look very different from one another in terms of their brain capacity. When in fact, what I think it really does is show us how powerful a bad environment can be, and what we should do, and that we as a society could do a much better job in cleaning it up.

PV: Yeah, so … I mean we’ll never get past … I mean obviously there’s going to be people who are saying, ‘Well, some people are just beyond hope. They’re just naturally evil.’ Other people will say, ‘Well, maybe that’s true, but let’s also take a look at where they came from, and who they were surrounded by, and how they came to that point.’

DD: Absolutely. I really don’t like the word ‘evil.’ I think it-

PV: That’s not a court term, is it?

DD: Well, except I’ve heard an awful lot of judges use it. Yeah, so …

PV: Not a technical term.

DD: It’s not a technical term. When I’ve heard a number of judges use it, and I always say look, this is really much more of a … actually, it’s much more of a religious term, isn’t it? Or, something along those lines, but it’s certainly widely used, and something that would be used by a juror. I think with the introduction of neuro scientific evidence and the more we learn about human behavior, maybe we as a society, or we as jurors would be less likely to use a term like someone was evil, as opposed to someone has substantial amount of brain damage, and they were widely influenced by their environment.

Photos by Bruce Gilbert

Six distinguished faculty members were honored on March 13 for their achievements in securing externally funded research grants at the third annual Sponsored Research Day on the Rose Hill campus.

The University Research Council and Office of Research presented the Outstanding Externally Funded Research Awards (OEFRA) to recognize the high quality and impact of the honorees’ sponsored research within the last three years and how their work has enhanced Fordham’s reputation—both nationally and globally.

Faculty were honored in five separate categories and were given awards by Jonathan Crystal, Ph.D., interim provost, associate vice president, and associate chief academic officer.

Humanities: George Demacopoulos, Ph.D., professor of theology and the Father John Meyendorff & Patterson Family Chair of Orthodox Christian Studies, and Aristotle Papanikolaou, Ph.D., professor of theology and the Archbishop Demetrios Chair in Orthodox Theology and Culture

Demacopoulos and Papanikolaou, co-directors of Fordham’s Orthodox Christian Studies Center, shared the award for the Humanities category. Demacopoulos has received awards totaling $928,000 in the past three years, while Papanikolaou has received a total of $888,000. Last April, they secured two grants totaling $610,000 that will be used to fund a multiyear research project devoted toward the issue of human rights.

Interdisciplinary Research: Su-Je Cho, Ph.D., Associate Professor of Childhood Special Education at the Graduate School of Education.

Cho, an expert in the field of special education, has received two external grants totaling more than $2.7 million from the U.S. Department of Education and other foundations in the past three years. Her interdisciplinary project will produce approximately 40 professionals in special education and school psychology, which are the greatest shortage areas in the field of education.

Junior Faculty Research: Sarit Kattan Gribetz, Ph.D., Assistant Professor of Theology

Gribetz has received six external grants totaling $55,000 from the prestigious National Endowment for Humanities and other foundations in the past three years. Her research focuses on the history of time in antiquity and the important role that religious traditions and practices have played in the history of time. In 2017, she received the Manfred Lautenschlaeger Award for Theological Promise, alongside nine other young scholars, from the University of Heidelberg in Germany.

Sciences: Steven Franks, Ph.D., Professor in Biological Sciences

Franks has received five grants totaling more than $5.3 million from the National Science Foundation in the past three years. The results of the studies funded by these grants have been published in 17 peer-reviewed scientific publications since 2016. The papers, which are in high impact journals such as Evolution, Molecular Ecology, and American Journal of Botany, have been widely cited. His work has helped to advance our understanding of responses of plant populations to climate change and the genetic basis of these responses.

Social Sciences: Janna Heyman, Ph.D., Professor of Social Service and Endowed Chair of the Henry C. Ravazzin Center on Aging and Intergenerational Studies at the Graduate School of Social Service

Heyman, who is also director of Fordham’s Children & Families Institute center, has received 10 grants totaling more than $3 million from a variety of external foundations in the past three years. Last year, she co-edited, along with Graduate School of Social Service Associate Dean Elaine Congress, D.S.W, Health and Social Work: Practice, Policy and Research (Springer, 2018). She has taught social work research, advanced research, and social welfare policy courses in Fordham’s master of social work program, as well as policy implementation in the doctoral social work program.

Organized by the Office of Research and the University Research Council and sponsored by the University Research Compliance Council and the Office of Sponsored Programs, the daylong event featuring a keynote speech by Denise Clark, Ph.D., Associate Vice President for Research Administration, University of Maryland at College Park.

A forum of science researchers featured Thomas Daniels, Ph.D., director of the Louis Calder Center, Deborah Denno, Ph.D, director of the Neuroscience and Law Center, Silvia Finnemann, Ph.D., director of the Center for Cancer, Genetic Diseases, and Gene Regulation, J.D. Lewis, director of the Urban Ecology Center, Amy Roy, Ph.D., director of the Pediatric Emotion Regulation Lab, and Falguni Sen, Ph.D., director of the Global Healthcare Innovation Management Center.

Panelists shared their considerable insights into how neuroscience is reshaping actions police, lawyers, and judges take when interacting with individuals suffering serious mental health disorders, how neuroscience is reconfiguring the law’s approach to concussion and malingering, and other groundbreaking research occurring in the field.

In her welcome remarks, Neuroscience and Law Center Founding Director Deborah W. Denno told conference participants that the event epitomized the rapid development of the shared pursuits of legal and medical professionals to create a more just criminal justice system, and the center’s unique position as a hub for scholars, researchers, practicing lawyers, and judges. Notably, the center is home to the most comprehensive legal database of its kind on neuroscience use in the courtroom.

“Fordham’s Neuroscience and Law Center takes an interdisciplinary and evidence-based approach to studying how neuroscience is being used in the legal system and the real world to assess its impact on current decision-making, as well as to anticipate how this information should be used in the future,” Denno explained. In the near future, the center intends to expand its research into how neuroscience intersects and impacts with civil and corporate law, she noted.

Denno later outlined her research on 800 criminal cases that have addressed neuroscience evidence over a two-decade period during the day’s second panel, “Creating Groundbreaking Research on Neuroscience and Law.” Moderated by Fordham Law Professor Bruce Green, the panel also featured the insights of the Hon. Bernice B. Donald of the United States Court of Appeals for the Sixth Circuit who discussed implicit bias in the criminal justice system. In addition, Arielle Baskin-Sommers presented her latest research on psychopathy and Tom Tyler discussed the implications of adolescent brain development for both the criminal justice system and for schools. Baskin-Sommers and Tyler are both in the Department of Psychology at Yale University.

The opening panel featured presentations by New York County District Attorney Cyrus R. Vance Jr. and New York City Police Department Deputy Commissioner Susan Herman, both of whom detailed how their respective agencies are responding to the needs of individuals with mental illness. Fordham Law Professor James Kainen moderated the panel.

Vance noted that 56 percent of state prisoners nationwide and 60 percent of jail inmates have some mental health problem, adding that often the criminal justice system sends these people to prison without “being responsible enough” to pay for their mental health support in prison, to ensure an increased likelihood of success when they are released.

“Mental illness is a big problem in terms of bringing people into our system, and if we want healthy communities and healthy families, we’re going to have to invest money at the local level,” Vance said, emphasizing that local investment is particularly important in 2018 because the federal government is pulling back its support for these programs.

To this end, the New York County District Attorney’s Office is investing $250 million over the next five years into crime prevention strategies, including youth hubs that will provide services to neighborhoods that those neighborhoods specifically requested. Neighborhood residents will provide the services, Vance added.

The New York Police Department is opening new community health diversion centers in Manhattan and the Bronx this year, Herman shared, to provide support for individuals with mental illness. A police officer must accompany the individual—who has either committed a low-level violation or police believe has a mental health or substance abuse problem—to the diversion center, Herman said.

Neuroscience will eventually be used to predict future violent behavior and recidivism—predictions that could lead down a slippery slope, said Leah G. Pope, director of the Vera Institute of Justice’s Substance Use and Mental Health Program, during comments made during the first panel. On the other hand, neuroscience could also provide “great value” in shedding light on the impact conditions of confinement have on the brain and also rehabilitation possibilities for individuals with serious mental illnesses, Pope continued.

The conference concluded with afternoon panels on “The Challenge of Malingering: Symptoms Real, Imagined, and Pretended,” moderated by Fordham Law Professor Kimani Paul-Emile, and “Reconceptualizing Concussion in Law: The Increasing Influence of Neuroscience,” moderated by Fordham Law Professor Clare Huntington.

—Ray Legendre

A panel, Neuroscience and Sentencing, was convened at the Lincoln Center campus to launch the new Neuroscience and Law Center at Fordham Law School.

Founded by Deborah Denno, PhD, Arthur A. McGivney Professor of Law, the center aims to be a multi-disciplinary, evidence-based center that explores the ways in which the law is being affected by changing notions about criminal culpability, free will, thought, behavior, and pain.

The panel featured:

Justice Elizabeth Bennett, Court of Appeal of British Columbia, Court of Appeal of Yukon, and Court Martial Appeal Court of Canada;

The Honorable Denny Chin, U.S. Court of Appeals for the Second Circuit;

Professor Ruben Gur, Departments of Psychiatry, Radiology, and Neurology, Perelman School of Medicine, University of Pennsylvania;

The Honorable Jed Rakoff, U.S. District Court for the Southern District of New York.

While Bennett delved into theoretical questions for which she said she had no answers, Chin talked about the day-to-day business of law, noting that he had yet to oversee a case that was connected to neuroscience. It will appear in tort cases though, as well as concussion cases involving football and hockey, and right-to-die cases.

In criminal cases, neuroscience will likely show up in sentencing hearings, he said. He was skeptical of its use in predicting future behavior though, and wondered how it would apply to Megan’s Law, a statue targeting pedophiles.

“Can one look at a brain image to see whether these individuals have irresistible impulses, and whether there’s a greater likelihood that they will continue to offend? I’m a little troubled by the concept. Maybe some day, but I don’t think we are there,” he said.

Illuminating some basics of the science, Gur said the term “free will” is not one that neuroscientists use. One can see this when doctors operate on different-functioning areas of the brain in close proximity—for example, an area that stops epileptic seizures that is close to the part of the brain responsible for language.

“There is a certain region where if I put an electrode and pass some current, patient(s) will start talking. [Then] I put it in another area, and they’ll lift their right hand.

“If you ask patients ‘Why did you lift your right hand?’ they’ll say, ‘I sort of felt like it all of the sudden.’ We have a strong sense that we are the agents of our behavior.

“At the same time, the assumption in neuroscience is, ‘If I just triggered the right part of the brain, you’ll be doing whatever I want you to do.’”

And yet it’s not quite that simple, he said, because interactions among brain parts become a factor in behavior as well, especially if one part is injured or if messages are corrupted.

“Neuroscience in the courtroom is not just showing a picture and saying ‘Here, this is what caused the patient to behave,’” he said.

Rakoff recalled Eugenics in the 1920s, lobotomies in the 1940s, and Freudian psychoanalysis in the 1950s as cautionary examples for those who might pounce on neuroscience in the courtroom.

Even though neuroscience today is far superior to those experiments, it can’t, for example, help determine what to do with someone who is a psychopath, he said.

“These are dilemmas that neuroscience doesn’t really solve. At the same time, I must say, it forces judges to look a lot harder at the basic principles underlying our legal system,” he said.

Crime and Punishment, a presentation sponsored by Fordham’s Office of Research, brought together Deborah Denno, Ph.D., the Arthur A. McGivney Professor of Law at Fordham University School of Law, Olena Nikolayenko, Ph.D., assistant professor of political science, and Edgar Tyson, Ph.D., assistant professor of social work in the Graduate School of Social Service.

Story continue below

Edgar Tyson, Olena Nikolayenko, and Deborah Denno, during the question and answer period.
Photo by Patrick Verel

Faculty panelists reported on their recent research around the theme of crime, funded through grants from Fordham.
Tyson detailed the results of his survey of 305 police officers in a Northeastern city. An expert on the use of hip-hop music in social work therapy, Tyson wanted to know if police believed rap artists and their entourages to be more violent than average citizens.

Older officers, he discovered, hold that opinion of both groups, while their younger counterparts less so. This perception is troubling, Tyson said, because a study of 250 rap artists with arrest records revealed that they were less likely to commit a crime after they’d published their first album.

Nikolayenko’s research into hate crime and prosecution in Russia also dwells on misperceptions, in this case in Russia, where she used one court case to illustrate a larger problem involving the prosecution of hate crimes.

In one case, Rasul Mirzaev, a mixed martial artist from the Republic of Dagestan, scuffled with Ivan Agafonov, a native Russian, at a nightclub in Moscow in 2011. Agafonov died as a result. When charges against Mirzaef were downgraded from pre-meditated murder to a lesser charge, there was a backlash by Russian nativists.

“This case reflects the broader trend in Russian society, where the nationalists use these instances of interpersonal conflict between young men to try to frame it as something bigger [and]to provoke anti-migrant sentiments,” she said.

One of the biggest challenges Nikolayenko faced while trying to gather data about the prevalence of hate crimes in Russia are the nation’s laws. One law on the books, she said, allows the police to prosecute anyone as an extremist if the person so much as accuses a police officer of being an “extremist.”

Although official statistics on hate crimes in Russia show they have been dropping since 2007, the trend is more a reflection of under-reporting or misclassification of a hate crime as “hooliganism,” she said, than an actual decrease.
“The focus on hate crimes is important because it can inform our understanding of political stability in the country, and also the challenge of democratization,” she said.

Denno reported on her study of 33 criminal cases between 2007 and 2011, in which  behavioral genetics evidence was introduced by defendants. Alcoholism, substance abuse, and diseases such as schizophrenia are examples of the kinds of evidence that might be used by defense lawyers.

“Criminologists are always interested in what predicts crime and what causes crime, and behavioral genetics evidence is one large facet of that, particularly more recently,” she said.

Denno suggested that not only is much of the controversy surrounding genetics-related evidence unwarranted, but the use of such evidence has been greatly misunderstood. Such evidence, she said, has never been presented as a way to excuse a defendant from having committed the crime; rather, it was used as a way to avoid the death penalty.

Jared Lee Loughner, who pleaded guilty to murder charges for the shooting of Senator Gabrielle Giffords in 2011, is a good example. One way his lawyers kept him from death row was to research his family tree back to the 1800’s and prove his ancestors suffered from schizophrenia.

“When lawyers use behavioral genetics evidence, it’s almost entirely used in the context of a lot of other kinds of factors,” Denno said. “Anyone who does research in these areas would know that behavioral genetics evidence is much more enlightening about what effect environmental factors have on a defendant than anything inherent to that defendant.”

According to some of those who witnessed the execution, Kemmler’s body caught fire from the two massive jolts of electrical current, revolting many in the room and leading George Westinghouse to comment that it would have been more humane to have killed him with an axe.

As a law clerk in 1990, Deborah Denno, Ph.D., the Arthur A. McGivney Professor of Law, was fascinated with the details of the gruesome case as it applied to the Eighth Amendment, known as the cruel and unusual punishment clause. The amendment protects prisoners from punishments characterized as “patently unnecessary,” or “degrading to human dignity.”

“[Kemmler] was basically butchered,” said Denno, who at the time was doing research on the history of the Eighth Amendment. “And I found out that inmate electrocution, in 1990, wasn’t that much different than it was in 1890. That started to bother me and the issue suddenly became huge for me.”

Denno’s research on Kemmler and the nation’s use of electrocution throughout the 20th century led to an article, published in the William and Mary Review of Law in 1994, in which she argued that electrocutions amounted to cruel and unusual punishment. The article, “Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century,” drew the attention of defense attorneys for its detailed research and its application of the Eighth Amendment.

The defense attorneys promptly cited her research in court cases. Within a year of the article’s publication, Denno said, four states changed their methods of execution from electrocution to lethal injection.

Denno thought that her research on the death penalty and the Eighth Amendment had come to a conclusion, but lethal injection, she soon discovered, was not the answer, either.

As the standard method of execution in all but one of the 38 states that have a death penalty, lethal injection typically consists of combining three drugs in sequence to kill a person. First, sodium pentothal is administered to render the inmate unconscious, then pancuronium bromide is injected to paralyze all the muscles. Finally, a dose of potassium chloride stops the heart.

The three-part procedure has the potential to be effective if performed correctly by highly experienced executioners. Denno’s research, however, has uncovered a tangle of irregularities and sloppiness in administering the drugs. The American Medical Association does not sanction doctors taking part in the procedure, so injections are mostly performed by untrained or improperly trained personnel, Denno’s research has found.

And experts have testified that the administration of pancuronium bromide or similar paralyzing drugs can mask whether or not the sodium pentothal has effectively rendered the person unconscious.

Denno, who saw her research gobbled up by lawyers who used it to defend their clients, began testifying as an expert witness.

“The first time I testified in Texas, one of the attorneys said, ‘This barely passes the laugh test,’” Denno said. “To them, it seemed like a joke, and nobody was going to care about the amount of pain inmates go through; after all, we are talking about someone who [might have]just killed and raped a child. But when [my research]started getting into courts, it had an impact attorneys didn’t expect.

“A lot of the death penalty litigation applies a subjective argument, like ‘are jurors biased’ or ‘is there racism in the system,’ which is always hard to prove,” she said. “But my research is largely objective information. We can show that chemicals are given, and that they’re the wrong chemicals, or that they’re given in the wrong amounts, or that the people giving them are not trained. There’s not a lot of room for argument against it.”

In 2002, Denno published an article in the Ohio State Law Journal on the execution protocols in the 38 death penalty states, along with lists and descriptions of botched executions. She quoted directly from eyewitness accounts of executions: “two minutes into the execution. . . the syringe came out, spewing deadly chemicals toward startled witnesses” or “machine used to inject lethal dosage malfunctioned.”

Today, Denno is one of the nation’s leading experts on lethal injection, widely quoted in the press.

“What motivatesme to do academic work on methods of execution is that it may be useful,” she said. “Attorneys are out there managing big dockets of clients, they don’t have the resources to do this but I do.”

The death penalty, Denno said, presents a fundamental quandary for a society as it wrestles with how to find a standard of decency. She would like to see a nationwide moratorium on executions until a commission of experts can establish national standards for administering lethal injections or other methods, one that involves the use of doctors or perhaps trained executioners.

“Lethal injection is not something that is happening in a hospital, it is a punishment that takes place in a prison,” she said. “And almost every aspect of that punishment ensures that there are going to be flaws in the method of execution. Almost every aspect of the procedure—by virtue of it being a punishment—makes it difficult to make humane.

“That is the challenge.”

The name William Kemmler doesn’t ring a bell for most people. Kemmler, a New Yorker, was the first inmate in the nation to be put to death in the electric chair. The year was 1890.

According to some of those who witnessed the execution, Kemmler’s body caught fire from the two massive jolts of electrical current, revolting many in the room and leading George Westinghouse to comment that it would have been more humane to have killed him with an axe.

As a law clerk in 1990, Deborah Denno, Ph.D., the Arthur A. McGivney Professor of Law, was fascinated with the details of the gruesome case as it applied to the Eighth Amendment, known as the cruel and unusual punishment clause. The amendment protects prisoners from punishments characterized as “patently unnecessary,” or “degrading to human dignity.”

“[Kemmler] was basically butchered,” said Denno, who at the time was doing research on the history of the Eighth Amendment. “And I found out that inmate electrocution, in 1990, wasn’t that much different than it was in 1890. That started to bother me and the issue suddenly became huge for me.”

Denno’s research on Kemmler and the nation’s use of electrocution throughout the 20th century led to an article, published in the William and Mary Review of Law in 1994, in which she argued that electrocutions amounted to cruel and unusual punishment. The article, “Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century,” drew the attention of defense attorneys for its detailed research and its application of the Eighth Amendment.

The defense attorneys promptly cited her research in court cases. Within a year of the article’s publication, Denno said, four states changed their methods of execution from electrocution to lethal injection.

Denno thought that her research on the death penalty and the Eighth Amendment had come to a conclusion, but lethal injection, she soon discovered, was not the answer, either.

As the standard method of execution in all but one of the 38 states that have a death penalty, lethal injection typically consists of combining three drugs in sequence to kill a person. First, sodium pentothal is administered to render the inmate unconscious, then pancuronium bromide is injected to paralyze all the muscles. Finally, a dose of potassium chloride stops the heart.

The three-part procedure has the potential to be effective if performed correctly by highly experienced executioners. Denno’s research, however, has uncovered a tangle of irregularities and sloppiness in administering the drugs. The American Medical Association does not sanction doctors taking part in the procedure, so injections are mostly performed by untrained or improperly trained personnel, Denno’s research has found.

And experts have testified that the administration of pancuronium bromide or similar paralyzing drugs can mask whether or not the sodium pentothal has effectively rendered the person unconscious.

Denno, who saw her research gobbled up by lawyers who used it to defend their clients, began testifying as an expert witness.

“The first time I testified in Texas, one of the attorneys said, ‘This barely passes the laugh test,’” Denno said. “To them, it seemed like a joke, and nobody was going to care about the amount of pain inmates go through; after all, we are talking about someone who [might have]just killed and raped a child. But when [my research]started getting into courts, it had an impact attorneys didn’t expect.

“A lot of the death penalty litigation applies a subjective argument, like ‘are jurors biased’ or ‘is there racism in the system,’ which is always hard to prove,” she said. “But my research is largely objective information. We can show that chemicals are given, and that they’re the wrong chemicals, or that they’re given in the wrong amounts, or that the people giving them are not trained. There’s not a lot of room for argument against it.”

In 2002, Denno published an article in the Ohio State Law Journal on the execution protocols in the 38 death penalty states, along with lists and descriptions of botched executions. She quoted directly from eyewitness accounts of executions: “two minutes into the execution. . . the syringe came out, spewing deadly chemicals toward startled witnesses” or “machine used to inject lethal dosage malfunctioned.”

Today, Denno is one of the nation’s leading experts on lethal injection, widely quoted in the press.

“What motivatesme to do academic work on methods of execution is that it may be useful,” she said. “Attorneys are out there managing big dockets of clients, they don’t have the resources to do this but I do.”

The death penalty, Denno said, presents a fundamental quandary for a society as it wrestles with how to find a standard of decency. She would like to see a nationwide moratorium on executions until a commission of experts can establish national standards for administering lethal injections or other methods, one that involves the use of doctors or perhaps trained executioners.

“Lethal injection is not something that is happening in a hospital, it is a punishment that takes place in a prison,” she said. “And almost every aspect of that punishment ensures that there are going to be flaws in the method of execution. Almost every aspect of the procedure—by virtue of it being a punishment—makes it difficult to make humane.

“That is the challenge.”

– Janet Sassi

“Debby Denno is absolutely tireless in her work as a teacher, a scholar, and as an advocate,” said William M. Treanor, dean of the Law School. “She is a truly outstanding lawyer and professor with a commitment to making a real difference in her field. This is a well-deserved recognition for an extraordinary professor.”

Denno, who has taught at the Law School since 1991, is one of the nation’s foremost experts on lethal injection and the death penalty. She is frequently consulted by the news media and her work is often cited by the courts. Her 2002 article, “When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us,” published in the Ohio State Law Journal, was an unprecedented examination of the ways in which states carry out lethal injection.

In addition to Denno, Patricia M. Hynes (LAW ’66) was also recognized among the 50 most influential women lawyers. Hynes is a senior counsel at London-based law firm Allen & Overy. She has served as chair of the Legal Aid Society of New York and was instrumental in negotiating arrangements that saved the organization from bankruptcy in 2004. Hynes is a Fordham Law Centennial Founder and is an officer of the Fordham Law Alumni Association.

The National Law Journal, which last published a list of the most influential women in the law in 1998, selected the attorneys based on “demonstrated power to change the legal landscape, shape public affairs, launch industries and do big things.” Lawyers at law firms, law professors, and in-house counsel were considered; judges and non-practicing lawyers were not eligible for the distinction.