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Articles 91 - 120 of 936
Full-Text Articles in Law
What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey
What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey
Stephen P. Garvey
Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of …
Aggravation And Mitigation In Capital Cases: What Do Jurors Think?, Stephen P. Garvey
Aggravation And Mitigation In Capital Cases: What Do Jurors Think?, Stephen P. Garvey
Stephen P. Garvey
The Capital Jury Project in South Carolina interviewed jurors who sat in forty-one capital murder cases. The Project asked jurors a range of questions relating to crime, the defendant, the victim, the victim's family, the jurors' deliberations, the conduct of counsel, and background characteristics of the jurors. In this essay, Professor Stephen P. Garvey presents and examines data from the Project relating to the importance jurors attach to various aggravating and mitigating factors. The results suggest that jurors have a discernible moral compass. According to the data, jurors found especially brutal killings, killings with child victims, future dangerousness, and lack …
Lifting The Veil On Punishment, Stephen P. Garvey
Lifting The Veil On Punishment, Stephen P. Garvey
Stephen P. Garvey
When the state punishes a person, it treats him as it ordinarily should not. It takes away his property, throws him in prison, or otherwise interferes with his liberty. Theories of punishment try to explain why such harsh treatment is nonetheless morally permissible, if not morally obligatory. Such theories often seem to take for granted that the state in question is an upright one. Among other things, the states in which we live fail, one might reasonably believe, to distribute wealth and power fairly among their citizens. Nor are the criminal justice systems they superintend flawless, not least of which …
The Deadly Paradox Of Capital Jurors, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
The Deadly Paradox Of Capital Jurors, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
Stephen P. Garvey
We examine support for the death penalty among a unique group of respondents: one hundred and eighty-seven citizens who actually served as jurors on capital trials in South Carolina. Capital jurors support the death penalty as much as, if not more than, members of the general public. Yet capital jurors, like poll respondents, harbor doubts about the penalty's fairness. Moreover, jurors--black jurors and Southern Baptists in particular--are ready to abandon their support for the death penalty when the alternative to death is life imprisonment without the possibility of parole, especially when combined with a requirement of restitution. Support for the …
Questions Of Mercy, Stephen P. Garvey
Questions Of Mercy, Stephen P. Garvey
Stephen P. Garvey
My aim in this brief introduction is to organize the Symposium articles around two questions, recognizing that doing so means ignoring other important questions to which the articles attend. I also aim to paint in broad strokes, thus also ignoring much of the argumentative subtlety and nuance contained in the articles. With those caveats on the table, the questions are these: First, does mercy have any legitimate role to play in the administration of the criminal law of a liberal state? Second, if mercy does have some such role to play, for what reasons, or upon what grounds, can mercy …
Juror First Votes In Criminal Trials, Stephen P. Garvey, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman, Martin T. Wells
Juror First Votes In Criminal Trials, Stephen P. Garvey, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman, Martin T. Wells
Stephen P. Garvey
Our analysis of the voting behavior of over 3,000 jurors in felony cases tried in Los Angeles, Maricopa County, the District of Columbia, and the Bronx reveals that only in D.C. does a juror's race appear to relate to how he or she votes. African-American jurors in D.C. appear more apt to vote not guilty on the jury's first ballot in cases involving minority defendants charged with drug offenses. We find no evidence, however, that this effect survives into the jury's final verdict.
Freeing Prisoners' Labor, Stephen P. Garvey
Freeing Prisoners' Labor, Stephen P. Garvey
Stephen P. Garvey
Although labor was central to the internal life of the early penitentiary, it has virtually vanished from today's prison. In this article, Professor Garvey proposes making labor once again a key part of the prison regime. During the decades surrounding the turn of the century, organized labor and business successfully lobbied for protectionist state and federal legislation that prohibited private firms from contracting for prison labor and selling prison-made goods on the open market. This legislation abolished the old "contract" system of prison labor and replaced it with the "state-use" system. Under the state-use system, inmates work only for the …
Escape From Cruel And Unusual Punishment: A Theory Of Constitutional Necessity, Cynthia R. Farina
Escape From Cruel And Unusual Punishment: A Theory Of Constitutional Necessity, Cynthia R. Farina
Cynthia R. Farina
The inmate who escapes from a federal or state prison and seeks to introduce evidence of unconstitutionally cruel and unusual confinement conditions to defend her action is barred by the well-established rule that prison conditions alone, no matter how intolerable or inhumane, neither justify nor excuse escape. If she attempts to use the defense of necessity—a limited exception to this rule—the prisoner will be required to show that a specific, imminent threat of death or serious injury prompt her escape. Evidence of prolonged or repeated deprivation and mistreatment sufficient to prove a violation of the eighth amendment may not be …
Why Is Torture Different And How Different Is It?, Sherry F. Colb
Why Is Torture Different And How Different Is It?, Sherry F. Colb
Sherry Colb
Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To borrow from the Supreme Court's death penalty jurisprudence, most people agree that torture is "different. " Under the Eighth Amendment, the fact that death is different does not rule out its application; it simply alters the relevant procedural and substantive standards. By contrast, many …
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb
Sherry Colb
No abstract provided.
Insane Fear: The Discriminatory Category Of "Mentally Ill And Dangerous", Sherry F. Colb
Insane Fear: The Discriminatory Category Of "Mentally Ill And Dangerous", Sherry F. Colb
Sherry Colb
This article considers the constitutional and moral implications of the distinction the law draws between different classes of dangerous people, depending upon their status as mentally ill or mentally well. Those who are mentally well benefit from the right to freedom from incarceration unless and until they commit a crime. By contrast, dangerous people who are mentally ill are subject to potentially indefinite "civil" preemptive confinement. In a relatively recent case, Kansas v. Hendricks, the United States Supreme Court upheld the post-prison civil confinement of Leroy Hendricks, a man who had served prison time after pleading guilty to child molestation. …
Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb
Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb
Sherry Colb
No abstract provided.
Freedom From Incarceration: Why Is This Right Different From All Other Rights?, Sherry F. Colb
Freedom From Incarceration: Why Is This Right Different From All Other Rights?, Sherry F. Colb
Sherry Colb
American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamental often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendment. In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right. She demonstrates that at present conduct that is not itself constitutionally protected may serve as the basis for imprisonment even …
Some Thoughts On The Conduct/Status Distinction, Sherry F. Colb
Some Thoughts On The Conduct/Status Distinction, Sherry F. Colb
Sherry Colb
No abstract provided.
The Arrest Experiments: A Feminist Critique, Cynthia Grant Bowman
The Arrest Experiments: A Feminist Critique, Cynthia Grant Bowman
Cynthia Grant Bowman
No abstract provided.
Wife Murder In Chicago: 1910-1930, Cynthia Grant Bowman, Ben Altman
Wife Murder In Chicago: 1910-1930, Cynthia Grant Bowman, Ben Altman
Cynthia Grant Bowman
No abstract provided.
Domestic Violence: Does The African Context Demand A Different Approach?, Cynthia Grant Bowman
Domestic Violence: Does The African Context Demand A Different Approach?, Cynthia Grant Bowman
Cynthia Grant Bowman
No abstract provided.
What Should The Courts Do About Memories Of Sexual Abuse? Toward A Balanced Approach, Cynthia Grant Bowman, Elizabeth Mertz
What Should The Courts Do About Memories Of Sexual Abuse? Toward A Balanced Approach, Cynthia Grant Bowman, Elizabeth Mertz
Cynthia Grant Bowman
No abstract provided.
Praxis And Pedagogy: Domestic Violence, Cynthia Grant Bowman, Eden Kusmiersky
Praxis And Pedagogy: Domestic Violence, Cynthia Grant Bowman, Eden Kusmiersky
Cynthia Grant Bowman
No abstract provided.
Domestic Violence And The Politics Of Privacy, By Kristin A. Kelly [Book Review], Cynthia Grant Bowman
Domestic Violence And The Politics Of Privacy, By Kristin A. Kelly [Book Review], Cynthia Grant Bowman
Cynthia Grant Bowman
No abstract provided.
Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume
Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume
John H. Blume
No abstract provided.
The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume
The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume
John H. Blume
No abstract provided.
Reliability Matters: Reassociating Bagley Materiality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher Seeds
Reliability Matters: Reassociating Bagley Materiality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher Seeds
John H. Blume
No abstract provided.
Twenty-Five Years Of Death: A Report Of The Cornell Death Penalty Project On The "Modern" Era Of Capital Punishment In South Carolina, John H. Blume
Twenty-Five Years Of Death: A Report Of The Cornell Death Penalty Project On The "Modern" Era Of Capital Punishment In South Carolina, John H. Blume
John H. Blume
In 1972, the United States Supreme Court determined that the death penalty, as then administered in this country, violated the Eighth Amendment's prohibition against cruel and unusual punishment. Many states, including South Carolina, scurried to enact new, "improved" capital punishment statutes which would satisfy the Supreme Court's rather vague mandate. In 1976, the High Court approved some of the new laws, and the American death penalty was back in business. After a wrong turn or two, including a statutory scheme which did not pass constitutional muster, the South Carolina General Assembly passed the current death penalty statute in 1977. The …
Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases - Lessons From The Front, John H. Blume, Emily C. Paavola
Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases - Lessons From The Front, John H. Blume, Emily C. Paavola
John H. Blume
The use of neuroimaging in capital cases has become increasingly common. An informal survey of cases produced over one hundred opinions from reported decisions alone discussing the use of computed tomography (CT) scanning, magnetic resonance imaging (MRI), functional MRI, positron emission tomography (PET) scans, single-photon emission computed tomography (SPECT) scans, and similar technology in capital cases. This article gives practical advice to defense counsel considering the use of neuroimaging in a capital case. We discuss how, in the right case, this technology can be a valuable investigative tool used to produce an important component of a successful mitigation story. However, …
Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson
Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson
John H. Blume
Professors John H. Blume and Sheri Lynn Johnson explore the occurrences of religious imagery and argument invoked by both prosecutors and defense attorneys in capital cases. Such invocation of religious imagery and argument by attorneys is not surprising, considering that the jurors who hear such arguments are making life and death decisions, and advocates, absent regulation, will resort to such emotionally compelling arguments. Also surveying judicial responses to such arguments in courts, Professors Blume and Johnson gauge the level of tolerance for such arguments in specific jurisdictions. Presenting proposed rules for prosecutors and defense counsel who wish to employ religious …
"It's Like Deja Vu All Over Again": Williams V. Taylor, Wiggins V. Smith, Rompilla V. Beard And A (Partial) Return To The Guidelines Approach To The Effective Assistance Of Counsel, John H. Blume, Stacey D. Neumann
"It's Like Deja Vu All Over Again": Williams V. Taylor, Wiggins V. Smith, Rompilla V. Beard And A (Partial) Return To The Guidelines Approach To The Effective Assistance Of Counsel, John H. Blume, Stacey D. Neumann
John H. Blume
Shoddy lawyering in capital cases is well documented. Many defendants facing the death penalty end up on death row not because of the heinousness of the crime they committed but rather because of the poor quality of trial counsel's performance. Despite the acknowledgment of sometimes shockingly poor representation by academics, litigators and even judges, most post-conviction claims of ineffective assistance of counsel are unsuccessful. Why? The legal standard for adjudicating these allegations which the Court adopted in Strickland v. Washington, which requires a defendant to demonstrate that his lawyer's performance was outside the "wide range of competent assistance" and that …
Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola
Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola
John H. Blume
On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …
Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson
Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson
John H. Blume
In federal habeas corpus proceedings, Earl Matthews, an African American, South Carolina death row inmate, alleged that his death sentence was the result of invidious racial discrimination that violated the Equal Protection Clause of the Fourteenth Amendment. To support his contention, Matthews presented statistical evidence showing that in Charleston County, where a jury convicted him and sentenced him to death, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white person than for any other racial combination of victims and defendants, and also that such a Black defendant was more …
Sentencing The Mentally Retarded To Death: An Eighth Amendment Analysis, John H. Blume, David Bruck
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 …