Death penalty scholar Lee Kovarsky might instead be working as a screenwriter or film director if not for the timing of an economic downturn.
Growing up in Houston, alongside a love of the Astros, Kovarsky was a huge movie fan. After earning undergraduate degrees in Political Science and Economics from Yale University, he was working at a startup. “I’d always wanted to take the money I made from the startup I was working for and go to film school,” Kovarsky says. But the economic downturn in the early 2000s erased the value of his stock options, so he turned to law school.
And, as is now clear, he did so very successfully. Kovarsky earned his J.D. from the University of Virginia School of Law, where he was an articles editor for the Virginia Law Review. After law school, he clerked for the Honorable Jerry E. Smith on the U.S. Court of Appeals for the Fifth Circuit, then worked for several years as an appellate practitioner before beginning his academic career with a three-year appointment as an acting assistant professor at New York University School of Law. He joined Texas Law in the summer of 2020, after a decade at the University of Maryland. That was also the year he was elected to the American Law Institute.
Today, Kovarsky, who holds the Bryant Smith Chair in Law, is a leading scholar of the death penalty and habeas corpus. It’s a responsibility he doesn’t take lightly. “In my experience, people who deal with the death penalty—even for people who work on those cases and do not oppose it—don’t do so with vigor and enjoyment,” he says. “It’s something they have to do in order to do their jobs, whether they’re prosecutors, executioners, judges, or other correctional officials, or priests, pastors, or other religious officials.” His teaching and writing also focus on civil and criminal procedure, criminal justice, federal jurisdiction, and conflicts of law.
Currently, Kovarsky is working on the second edition of his casebook on habeas corpus, co-authored with Professor Brandon L. Garrett at Duke Law, for publication in the spring, as well as a monograph tentatively entitled “Execution Time,” which considers the delay between the time that a death sentence is announced and when the execution occurs. He’s also the co-host and organizer along with Professor Jennifer Laurin of the Texas Law Review’s annual symposium coming in late January 2024 and focused on the topic of mercy.
Kovarsky spoke to us about his path to the law, the weight of death penalty cases, and his forthcoming research papers.
Can you describe your route from working at a startup to attending law school?
Growing up in Houston, I never really planned to go to law school. After college, I was working as a data modeler at a startup called iBalls, which was one of the very early companies that used cookies to track consumer behavior, model it, and optimize ad serving based on it. I wanted to enroll in film school with the money, just based on a general love of movies and a desire to take some startup money and go do something in an area I really loved, even if it didn’t involve handsome remuneration.
But I lost all my money in the stock market downturn of the early 2000s: I had a bunch of stock options and when they ultimately vested, they were worthless. I didn’t know what I was going to do, but I needed to do something. So, I applied to law school. There were certainly points in my life where I thought I was going to be a lawyer. Everybody always told me I should be a lawyer because how much I argue. But that wasn’t really a life path, until I found myself without other clear options.
Going to film school ended up not feeling viable at that point in my life. So, I took the LSAT.
When you moved into law, how did you determine your focus?
I can retrofit a story about why I was always destined to do the intense work that I do in the death penalty space. And I do think I have a bio that plausibly tells that story, but the truth is just that I fell into it.
How did that happen?
I went to clerk on the Fifth Circuit where there are a lot of death penalty cases, and I hated working on them. I began to experience the sense that anybody who touches the death penalty institution in the United States, in no matter what capacity, is corrupted by it.
No matter what side you’re on—or what you’re doing with respect to an execution—I think most people come away from it feeling worse.
It’s not a professional experience that brings a tremendous amount of joy. It’s very heavy. That’s what I mean by corrupting—it corrupts professional enjoyment and value. And I began to sense that when I clerked on the Fifth Circuit. Something felt depressing and ugly about being involved in this process from any angle. Now, it’s clear, in retrospect, why I felt that way: Because I have a set of moral priors about the death penalty that made me feel that way when I did work that touched on the death penalty but that wasn’t advocacy. Maybe folks without those priors don’t feel that way. To be fair, there are probably some people who really feel they’re vindicating the interest of victims, and that they do enjoy it. So, I don’t want to pretend like I represent a group of people whose moral priors are very different than mine. But, for me, I just feel like the institution is an unpleasant one to administer.
So having that experience, you then left the Fifth Circuit.
I had loans, and I went to go work at a firm.
My second week there, I get a phone call from this guy who wants the firm to take a pro bono death case. I’d known him my whole life—Jim Marcus, who now runs our Capital Punishment Clinic with Raoul Schonemann. Jim’s dad was my dad’s boss. And Jim got the firm to take a death case and I started working on a bunch of death cases. I got this vibe from the firm, “If you ever want to be a partner, you’ve got to stop doing so much pro bono.” I was like, “It’s funny you mention that because I don’t really want to be a partner.” I left and parked all my cases at a death penalty nonprofit, which I then affiliated with.
Four years went by, and I was the most senior litigator at the death penalty nonprofit. I ran the litigation group there for a while. It’s since become my life’s work. It’s a unique space, in that I think it’s very hard to write institutionally astute scholarship about it without having spent a lot of time in the trenches and still be there, because things are so much different than they were 15 years ago.
That’s the long arc of it all. The more narrative story I could tell is that I got into a lot of trouble as a kid. I’ve always been fascinated with transgression and the responses thereto. A few moments in my life break a little bit differently, and I’m on the wrong side of this whole criminal law equation. We grow up and mature, and that drove an academic interest in it, too.
To do the defense side work, you need to have a pretty acute sense of human frailty and imperfection. I think it’s hard to acquire that sense of frailty and imperfection unless you yourself are imperfect and have made a whole bunch of mistakes in your life.
That’s important for people to consider. Relatedly, what does your role as co-director of the Capital Punishment Center entail?
Jordan Steiker and I co-direct. Our curricular offerings include clinical and non-clinical classes.
We also have external-facing programming—conferences and speakers. Every other year, we have a big conference and speakers come in. Professor Stephen B. Bright, who’s a very famous death penalty lawyer, is coming this year on Nov. 15. Last year, we had a conference on death row incarceration.
Turning to research, can you describe your forthcoming papers in the Virginia Law Review and Harvard Law Review?
The Virginia Law Review paper is called “Suffering Before Execution.” Basically, everybody thinks that pre-execution confinement is punishment, and they analyze it that way: “Is the punishment justified?” My argument is, “Actually no, that experience is not conceptually punishment. It’s a form of administrative detention that’s meant to incapacitate, so that the state can ultimately impose the punishment, which is the execution.” If you conceptualize that experience as incapacitating as opposed to punishing detention, then the set of constraints on how the state can neglect or mistreat you are very different than if you conceive of that experience as punishment.
The Harvard Law Review paper is called “The New Negative Habeas Equity,” and it takes on a developing thread of Supreme Court opinion writing that suggests federal courts have freestanding discretion to deny habeas relief to claimants who have otherwise proven their detention to be unlawful— Brown v. Davenport and Shinn v. Ramirez. I argue that, no, in fact, federal judges do not have freestanding discretion to do that.
On the topic of habeas corpus, how does that area connect with your work on the death penalty?
Those things are related. Habeas corpus litigation is the procedural mechanism by which a lot of people who are on death row will challenge their sentences, convictions, and therefore their executions. So, one is substance and the other procedure. They’re intertwined.
Habeas corpus means “produce the body.” The reason why it’s so revered as a part of Anglo-American law, is that if you’re in any custody, a judge can issue habeas and force the person holding you in custody to bring you forward, so the judge can decide whether your custody is legal. The idea is you can’t be imprisoned unlawfully because there’s always habeas corpus where a judge can force the person holding you in custody to show up in court and explain why he’s holding you.
I grew up as a lawyer doing habeas corpus litigation and death penalty cases. As I transitioned to academia, I wrote extensively about those two things, which touch on a lot of conceptual questions that often fascinate legal academics of certain stripes: the way powers are separated in the federal government and the way the states and the federal government share power, the power of the state to criminalize behavior, the degree to which judgments are final versus being willing to reopen them and reconsider the issues that were supposed to be finally resolved, and so forth. It’s not entirely surprising that somebody with those particular areas of interest became taken with academic life.
The other piece of your work involves teaching. Do you see it as part of a larger whole?
Students learn better when classes aren’t all legal abstractions, and my work on 50-something death penalty cases allows me to bring details that are simultaneously vivid and morbid, but that—I suspect—enhance the learning process. And because I’ve written about this material for so long, I’ve developed intuitive ways to structure both courses and individual class periods.
Do you also feel you gain something from teaching?
If I’m being honest, the thing I enjoy most about teaching is just being around young people. To be in a classroom full of law students is to surround oneself with the optimism and determination of youth. These are fully realized moral agents, yet most of them aren’t yet dispirited by the struggle and failure and loss that we all experience as we age. These are brave young people who aren’t afraid to learn from their mistakes, which makes me more willing to learn from my own. All of this is to say that there’s something about teaching that’s selfish, at least for me. I’m not Peter Pan or anything, but teaching makes me feel younger.