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Cruelty To The Mentally Ill: An Eighth Amendment Challenge To The Abolition Of The Insanity Defense, Stephen M. Leblanc

American University Law Review

This Comment addresses the present gap in insanity-defense laws

created by the defense’s abolition and offers an Eighth Amendment

based remedy. Part I reviews the history and evolution of the insanity

defense in Anglo-American law. It then describes how four states

have statutorily abolished the defense. It concludes with a discussion

of Clark v. Arizona, the Court’s most recent decision on the

constitutionality of the insanity defense. Part II turns to the Eighth

Amendment, examining its historical understanding and the

contemporary evolving-standards-of-decency analysis, through which

the Court assesses the constitutionality of modern-day punishments.

Part II concludes with a discussion of …

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

The Legal, Political, And Social Implications Of The Death Penalty, Hon. William W. Wilkins

University of Richmond Law Review

A recent national poll found that sixty-five percent of Americans favor the death penalty. That's down from eighty percent ten years ago. Moreover, the total favoring the death penalty dropped to fifty percent when those polled were asked to assume that thealternative to the death penalty was life in prison with no chance of parole. And, the number of death sentences imposed in the United States during the last few years has dropped to the lowest level since capital punishment was reinstated thirty years ago. Thus, it would seem that our society's attitude toward capital punishment is changing. What was …

But Can It Be Fixed? A Look At Constitutional Challenges To Lethal Injection Executions, Ellen Kreitzberg, David Richter

Faculty Publications

This article argues that California's Procedure 770 as currently implemented is unconstitutional. Judge Fogel, after an exhaustive review of evidence from all parties,agrees. Although Judge Fogel believes that the lethal injection system, while broken "can be fixed," we argue that lethal injection, as a method of execution, is always unconstitutional because the procedures employed in its administration can never ensure against unnecessary risk of pain to the inmate. We also argue that the California legislature must step in to publicly review lethal injection executions and to investigate the conduct of the California Department of Corrections and Rehabilitation (CDCR) in the …

Does Stare Decisis Apply In The Eighth Amendment Death Penalty Context, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Throughout the past few decades, the Supreme Court has steadily chipped away at the death penalty. It was only recently, however, that courts have confronted what role precedent plays in the Eighth Amendment death penalty context. Surprisingly, few scholars have yet explored this important and complicated issue. Precedent in this area is unique because the law of the Eighth Amendment is always changing and the Eighth Amendment has been interpreted to be applied more broadly in the death penalty context. This Article argues that precedent in the Eighth Amendment death penalty context does not apply in the typical fashion. Instead …