Law Commons^™

The Danger Of Future Dangerousness In Death Penalty Use, Brian Sites

Faculty Scholarship

In spite of thousands of years of science, humankind is distinctly unable to predict the future. And yet, the judicial system is called upon to do just so daily. In bail considerations, judges predict flight risk. In parole hearings, officials contemplate the likelihood of reoffense. And in three states, a defendant convicted of a capital crime will live or die based on what a judge and jury thinks he will do in an unknown future. It has been observed that “what separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …