Digital Commons Network^™

The History And Future Of Capital Punishment In The United States, Robert A. Stein

San Diego Law Review

It is a great pleasure to be with you today to deliver the 2016 Nathaniel Nathanson Lecture. I am delighted to join the many distinguished jurists and scholars that have delivered this Lecture in prior years. Early in his career, Professor Nathanson clerked for Justice Louis Brandeis and served the Securities and Exchange Commission in its formative days. Professor Nathanson is deservedly viewed as one of the architects of modern administrative law. His work, Administrative Discretion in the Interpretation of Statutes,was monumental in the field of administrative law. Professor Nathanson was the first scholar to identify a “principle of limited …

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, Emily M. Steiner

University of Baltimore Law Review

While weighing whether or not to turn himself in for murder and surrender to prison, a 23-year-old law student questions the high premium placed on imprisonment as a rehabilitative measure. After finally submitting to imprisonment, however, Rodion Raskolnikov comes to understand the value of atoning for his crimes and how his punishment correlates with societal justice. The balance struck between an appropriate amount of suffering and society’s need for justice is at the heart of Raskolnikov’s character development.

Despite Raskolnikov’s imprisonment and accompanying character transformation, one important question remains unanswered by Fyodor Dostoevsky’s novel: at what point does a punishment …

Cruel Techniques, Unusual Secrets, William W. Berry, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol. An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.

Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with …

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

Scholarly Works

In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly …

Trans-Lating The Eighth Amendment Standard: The First Circuit's Denial Of A Transgender Prisoner's Constitutional Right To Medical Treatment, Bethany L. Edmondson

Georgia Law Review

In December of 2014, the First Circuit Court of Appeals
held, en banc, that the Massachusetts Department of
Corrections was not constitutionally obligated to provide
Michelle Kosilek, a transgender prisoner, with sexual
reassignment surgery. Kosilek sued the prison, arguing
that her Eighth Amendment rights against cruel and
unusual punishment were violated. The First Circuit held
that Kosilek did not have a serious medical need, due to
the prison's alternative treatment, and that the prison was
not deliberately indifferent to that need. This Note argues
that the First Circuit erred in applying the "serious
medical need" prong of the cruel and …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Hurst V. Florida’S Ha’P’Orth Of Tar: The Need To Revisit Caldwell, Clemons, And Proffitt, Craig Trocino, Chance Meyer

University of Miami Law Review

In Hurst v. Florida, the Supreme Court held Florida’s death penalty scheme violated the Sixth Amendment because judges, rather than juries, found sentencing facts necessary to impose death. That Sixth Amendment ruling has implications for Florida’s Eighth Amendment jurisprudence.

Under the Eighth Amendment rule of Caldwell v. Mississippi, capital juries must appreciate their responsibility for death sentencing. Yet, Florida has instructed juries that their fact-findings merely support sentencing recommendations, while leaving the ultimate sentencing decision to a judge. Because Hurst clarifies that the Sixth Amendment requires juries to find the operative set of facts on which sentences are …

The Death Knell For The Death Penalty: Judge Carney's Order To Kill Capital Punishment Rings Loud Enough To Reach The Supreme Court, Alyssa Hughes

Loyola of Los Angeles Law Review

No abstract provided.

The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno

University of Michigan Journal of Law Reform

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …

The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler

All Faculty Scholarship

We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …

The Constitutionality Of Lengthy Term-Of-Years Sentences For Juvenile Non-Homicide Offenders, Rebecca Lowry

St. John's Law Review

(Excerpt)

Part I discusses the development of the Court's ' kids are different" decisions. Part II argues that the rationale behind Graham applies not only to life-without-parole sentences but also to lengthy term-of-years sentences for juvenile non-homicide offenders. Part III suggests a constitutional mandate as to when states must provide a meaningful opportunity for release and explores other legislative action states can employ to comply with Graham.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Newsroom: Nason '05 Cited By U.S. Supreme Court, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Challenge And Dilemma Of Charting A Course To Constitutionally Protect The Severely Mentally Ill Capital Defendant From The Death Penalty, Lyn Entzeroth

Akron Law Review

This article examines these issues in the context of an important and emerging constitutional challenge to the death penalty: whether the death penalty can be imposed on capital defendants who suffer from severe mental illness at the time of the commission of their crimes. The American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance for the Mentally Ill all endorse a death penalty exemption for the severely mentally ill. Recent law review articles suggest that such an exemption may even be compelled by the Supreme Court’s decisions in Roper v. Simmons and Atkins v. …

Cruel And Unusual Before And After 2012: Miller V. Alabama Must Apply Retroactively, Tracy A. Rhodes

Maryland Law Review

No abstract provided.

Judge Levine: A Survey Of His Most Influential Court Of Appeals Decisions - 1993-2002, Jean D'Alessandro

Touro Law Review

No abstract provided.

Lethal Injections: States Medicalize Execution, Joel B. Zivot

University of Richmond Law Review

No abstract provided.

The Executioner's Dilemmas, Eric Berger

University of Richmond Law Review

No abstract provided.

Making Sure We Are Getting It Right: Repairing "The Machinery Of Death" By Narrowing Capital Eligibility, Ann E. Reid

University of Richmond Law Review

No abstract provided.

Trending@Rwu Law: Professor Emily Sack's Post: More Death Penalty Puzzles Highlighted By New Supreme Court Case, Emily Sack

Law School Blogs

No abstract provided.

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

The Implications Of Incorporating The Eighth Amendment Prohibition On Excessive Bail, Scott Howe

Scott W. Howe

In its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.

I …

Of Atkins And Men: Deviations From Clinical Definitions Of Mental Retardation In Death Penalty Cases, John H. Blume, Sheri Johnson, Christopher W. Seeds

Sheri Lynn Johnson

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical …

Sentencing The Mentally Retarded To Death: An Eighth Amendment Analysis, John H. Blume, David Bruck

John H. Blume

Today, on death rows across the United States, sit a number of men with the minds of children. These people are mentally retarded. Typical of these individuals is Limmie Arthur, who currently is imprisoned at Central Correctional Institution in Columbia, South Carolina. Although Arthur is twenty-eight years old, all the mental health professionals who have evaluated him, including employees of the South Carolina Department of Corrections, agree he has the mental capacity of approximately a 10-year-old child. Arthur was convicted and sentenced to death for the murder of a neighbor. At his first trial, his court appointed attorneys did not …

Of Atkins And Men: Deviations From Clinical Definitions Of Mental Retardation In Death Penalty Cases, John H. Blume, Sheri Johnson, Christopher W. Seeds

John H. Blume

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical …

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

John F. Stinneford

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.” This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, Franklin Zimring …

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …