Law Commons^™

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 …

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Faculty Publications

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

An Ntsb For Capital Punishment, Adam M. Gershowitz

Faculty Publications

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and …

The Appropriate Standard Of Proof For Determining Intellectual Disability In Capital Cases: How High Is Too High?, Timothy Saviello

Timothy Saviello

This paper takes a comprehensive look at how intellectual disability is diagnosed and proven in court, and applies the reasoning in the recent Supreme Court decision in Hall v. Florida to the determination of the appropriate standard of proof when capital defendants raise intellectual disability, concluding that preponderance of the evidence is the only standard of proof which adequately protects intellectually disabled capital defendants from unconstitutional execution.

In Atkins v. Virginia the Supreme Court held that the Eighth Amendment’s prohibition of cruel and unusual punishment prevented the execution of a criminal defendant suffering from intellectual disability. Because the Court in …

Forgetting Furman: Arbitrary Death Penalty Sentencing Schemes Across The Nation, Sarah A. Mourer

William & Mary Bill of Rights Journal

No abstract provided.

Death By Irrelevance: The Unconstitutionality Of Virginia’S Continued Exclusion Of Prison Conditions Evidence To Assess The Future Dangerousness Of Capital Defendants, Andrew Lindsey

William & Mary Bill of Rights Journal

This Note argues that Virginia statutory and case law requiring the exclusion of prison conditions evidence in capital trials where the jury must determine defendants’ future dangerousness is unconstitutional. In Part I, I present certain portions of a hypothetical capital trial in Virginia to introduce readers to the concepts of prison conditions evidence and future dangerousness, and why they are important to capital defendants. In Part II, I trace the development of the constitutional right that is violated by the exclusion of this evidence, as well as how Virginia has come to justify its exclusionary stance based on a flawed …

The Federal Death Penalty And The Constitutionality Of Capital Punishment, Scott W. Howe

Scott W. Howe

The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. The explanation for its importance lies with its role in resolving the permissible uses of the death penalty under the Eighth Amendment. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Constitution. In rejecting capital punishment for retarded offenders, juvenile offenders and child rapists, the Court in …