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The Death Penalty As Incapacitation, Marah S. Mcleod

Marah McLeod

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga

Joseph Isanga

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias …

The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton

Jamin Raskin

No abstract provided.

Duties Of Capital Trial Counsel Under The California “Death Penalty Reform And Savings Act Of 2016”, Robert M. Sanger

Robert M. Sanger

The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton

Jamin Raskin

No abstract provided.

Death, Desuetude, And Original Meaning, John F. Stinneford

John F. Stinneford

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield

Alan E Garfield

No abstract provided.

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court's Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily C. Paavola

Sheri Lynn Johnson

This article examines empirically the capital cases decided by the lower courts since the United States Supreme Court created the categorical ban against the execution of persons with intellectual disability twelve years ago in the Atkins decision.

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court's Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily C. Paavola

John H. Blume

This article examines empirically the capital cases decided by the lower courts since the United States Supreme Court created the categorical ban against the execution of persons with intellectual disability twelve years ago in the Atkins decision.

Pondering The Death Penalty, Even For The Boston Bomber, Alan E. Garfield

Alan E Garfield

No abstract provided.

Iq, Intelligence Testing, Ethnic Adjustments And Atkins, Robert M. Sanger

Robert M. Sanger

When Lightning Strikes Back: South Carolina's Return To The Unconstitutional Standardless Capital Sentencing Regime Of The Pre-Furman Era, John H. Blume, Sheri Johnson, Emily C. Paavola, Keir M. Weyble

Sheri Lynn Johnson

No abstract provided.

When Lightning Strikes Back: South Carolina's Return To The Unconstitutional Standardless Capital Sentencing Regime Of The Pre-Furman Era, John H. Blume, Sheri Johnson, Emily C. Paavola, Keir M. Weyble

John H. Blume

No abstract provided.

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

John F. Stinneford

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Infusing The Meaning Of “Cruel And Unusual” Through The Digital Public Sphere: How The Internet Can Change The Debate On The Morality Of Capital Punishment, Adam A. Marshall

Adam A Marshall

In this paper, I suggest new strategies that abolitionists should adopt in the debate over the morality of the death penalty. As the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”, advocates for abolishing the death penalty should develop strategies based on the moral theories of Adam Smith to leverage the power of the internet and ensure all citizens feel the effects of the death penalty in order to stimulate debate over its morality. By examining these concepts through the case of Troy Davis, we can see how the …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Stephen F. Smith

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

A Criminal Quartet: The Supreme Court's Resolution Of Four Critical Issues In The Criminal Justice System, Richard Klein

Richard Daniel Klein

No abstract provided.

Fifteen Years And Death: Double Jeopardy, Multiple Punishments, And Extended Stays On Death Row, Michael J. Johnson

Michael P. Johnson

Fifteen Years and Death is a Note that considers a completely novel application of the Double Jeopardy Clause to excessive time on death row. Traditionally, death penalty opponents have attacked the now fifteen-year average wait time on death row as a violation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but this argument has fallen flat time and time again as courts have been reluctant to find merely living in prison to be “cruel” or “unusual.” Most courts do admit, however, that such time on death row does constitute some sort of punishment. As originally imagined, the Double …

Criminal Wrongs And Constitutional Rights: A View From India, Shubhankar Dam

Shubhankar Dam

This essay offers an overview of how ideas of constitutionalism, rule of law and fundamental rights contributed to the development of criminal law in India. Various courts, and the Supreme Court in particular, have summoned these broad constitutional concepts to understand, interpret and develop criminal law doctrines. But they are also drawing on these concepts to increasingly address “structural” issues of the criminal justice system - the very apparatus responsible for implementing the doctrines.

Empathy For Psychopaths: Using Fmri Brain Scans To Plea For Leniency In Death Penalty Cases, Kimberly D. Phillips

Kimberly D Phillips

The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton

Ira P. Robbins

No abstract provided.

Death Ineligibility And Habeas Corpus, Lee B. Kovarsky

Lee Kovarsky

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …

Constitutional Concerns About Capital Punishment: The Death Penalty Statute In New York State, Richard Klein

Richard Daniel Klein

No abstract provided.

The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

Richard Daniel Klein

No abstract provided.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

The Mandatory Death Penalty And A Sparsely Worded Constitution, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

It was not unexpected that the Singapore Court of Appeal would reaffirm the constitutionality of the mandatory death penalty for certain forms of drug trafficking in Yong Vui Kong v Public Prosecutor [2010] 3 S.L.R 489. ... The appellant made submissions based on Articles 9(1) and 12(1) of the Constitution, which respectively guarantee rights to life and personal liberty, and to equality before the law and equal protection of the law. This note examines aspects of the Article 9(1) arguments.

Original Habeas Redux, Lee Kovarsky

Lee Kovarsky

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …