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Full-Text Articles in Law

The Unwavering Movement: Integrating Reason Into British Penal Code 1730-1823, Rebecca M. Good Dec 2019

The Unwavering Movement: Integrating Reason Into British Penal Code 1730-1823, Rebecca M. Good

International ResearchScape Journal

Between the early 16th and 18th centuries, English attitude towards crime and correction were based on the strong held belief that faith and religion were the only cure to immorality. Lawmakers began to threaten citizens with capital punishment for menial crimes such as petty theft and begging. Resulting of a moral panic, lawmakers turned to the deterrence to dissuade citizens from partaking in criminal activity. The list of crimes punishable by death in England rose from 50 offenses in 1688 to over 220 in 1815. This article explains the origins of the Bloody Code and how Enlightenment-Era thought ...


A Comparative Study On Death Penalty Statutes And Their Effects On Certain Minority Groups In Light Of Furman V. Georgia, Analise Nuxoll Jun 2019

A Comparative Study On Death Penalty Statutes And Their Effects On Certain Minority Groups In Light Of Furman V. Georgia, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

Part One of this comment will address the recent history of the death penalty in the United States, focusing on Furman v. Georgia, which placed a four-year moratorium on the death penalty in 1972. Part Two examines which states still have death penalty statutes and the reasons for choosing the selected states for further analysis. Part Two also addresses the difference between facial and as-applied attacks on the state statutes and the reason for analyzing the statutes under as applied unconstitutionality. Part Three explains the thought behind choosing to examine the death penalty’s effect on racial minorities, low socio-economic ...


Discretionary Life Sentences For Juveniles: Resolving The Split Between The Virginia Supreme Court And The Fourth Circuit, Daniel M. Coble May 2019

Discretionary Life Sentences For Juveniles: Resolving The Split Between The Virginia Supreme Court And The Fourth Circuit, Daniel M. Coble

Washington and Lee Law Review Online

At the age of 17, Donte Lamar Jones shot and killed a store clerk as she laid down on the floor during a robbery. He was spared the death penalty by agreeing instead to die in prison at the end of his life. Two years later in Virginia, 12 individuals were murdered for doing nothing more than being in the wrong place at the wrong time. Those individuals were killed by Lee Malvo and John Muhammad, better known as the “D.C. Snipers.” While John Muhammad was given the death penalty for his heinous crimes, Lee Malvo, who was 17 ...


The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett Jan 2019

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected ...


An Examination Of The Death Penalty, Alexandra N. Kremer Dec 2018

An Examination Of The Death Penalty, Alexandra N. Kremer

The Downtown Review

The death penalty, or capital punishment, is the use of execution through hanging, beheading, drowning, gas chambers, lethal injection, and electrocution among others in response to a crime. This has spurred much debate on whether it should be used for reasons such as ethics, revenge, economics, effectiveness as a deterrent, and constitutionality. Capital punishment has roots that date back to the 18th century B.C., but, as of 2016, has been abolished in law or practice by more than two thirds of the world’s countries and several states within the United States. Here, the arguments for and against ...


Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard May 2018

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.


Dissecting The Aba Texas Capital Punishment Assessment Report Of 2013: Death And Texas, A Surprising Improvement, Patrick S. Metze Feb 2018

Dissecting The Aba Texas Capital Punishment Assessment Report Of 2013: Death And Texas, A Surprising Improvement, Patrick S. Metze

Akron Law Review

Professor Metze dissects the American Bar Association report, September 2013, entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report—An Analysis of Texas’s Death Penalty Laws, Procedures and Practices. This Report was produced by the ABA’s Section of Individual Rights and Responsibilities, specifically the Death Penalty Due Process Review Project, which identified 12 inadequacies in the Texas Capital Punishment System, recommended changes, and evaluated compliance. Now, four years and two legislative sessions later, this Article explores what Texas has done in the interim to improve its death penalty process. Incredibly, the ...


Equal Protection Under The Carceral State, Aya Gruber Jan 2018

Equal Protection Under The Carceral State, Aya Gruber

Articles

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety ...


Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz Jan 2018

Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz

Cornell Law Faculty Publications

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present ...


The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman Nov 2017

The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman

Sheri Lynn Johnson

Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's ...


Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann Nov 2017

Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann

John H. Blume

Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American death ...


Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca Apr 2017

Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca

Nevada Law Journal Forum

Nevada is amongst the minority of states without statewide criminal procedure rules. Statewide rules are important because they promote fairness, regularity, and transparency regardless of where in the state a criminal case is being adjudicated and who it is being adjudicated in front of. This report intends to compare the varying states’ criminal procedure rules, to provide Nevada’s legal community with an awareness of how rules can be structured, what rules are included, and how rules interact with statutes and other court rules. If Nevada chooses to follow in the path of the forty-seven states and develop statewide criminal ...


If It Walks Like Systematic Exclusion And Quacks Like Systematic Exclusion: Follow-Up On Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997-2014, Ann M. Eisenberg, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume Apr 2017

If It Walks Like Systematic Exclusion And Quacks Like Systematic Exclusion: Follow-Up On Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997-2014, Ann M. Eisenberg, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Cornell Law Faculty Publications

This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases.

The study and the article it builds on add to decades of empirical research exploring the impacts (or ...


The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman Apr 2017

The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman

Cornell Law Faculty Publications

Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's ...


Examining Jurors: Applying Conversation Analysis To Voir Dire In Capital Cases, A First Look, Barbara O'Brien, Catherine M. Grosso, Abijah P. Taylor Jan 2017

Examining Jurors: Applying Conversation Analysis To Voir Dire In Capital Cases, A First Look, Barbara O'Brien, Catherine M. Grosso, Abijah P. Taylor

Journal of Criminal Law and Criminology

Scholarship about racial disparities in jury selection is extensive, but the data about how parties examine potential jurors in actual trials is limited. This study of jury selection for 792 potential jurors across twelve randomly selected North Carolina capital cases uses conversation analysis to examine the process that produces decisions about who serves on juries. To examine how race influences conversations in voir dire, we adapted the Roter Interaction Analysis System, a widely used framework for understanding the dynamics of patient–clinician communication during clinical encounters, to the legal setting for the first time. This method allows us to document ...


Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp Jan 2017

Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp

Journal of Criminal Law and Criminology

This Article examines 4,668 Oklahoma homicide cases with an identified suspect that occurred during a twenty-three year period between January 1, 1990, and December 31, 2012. Among these, we identified 153 cases that ended with a death sentence. Overall we found that while the defendant’s race did not correlate with a death sentence, there was a strong correlation with the race of the victim, with cases with white victims significantly more likely to end with a death sentence than cases with non-white victims. Homicides with female victims were also more likely to result in a death sentence than ...


When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume Nov 2016

When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Cornell Law Faculty Publications

The neuroscience of empathy provides one more reason to believe that the decision to sentence another human being to death is inevitably an arbitrary one, and one that cannot be divorced from either race or caprice. While we can tinker with aspects of capital trials that exacerbate caprice and discrimination stemming from empathy, we cannot alter basic neural responses to the pain of others and therefore cannot rationalize (in either sense of the word) empathic responses.


Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger Aug 2016

Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger

Robert M. Sanger

Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed. The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if  California’s system was in need of the same reforms.  The study concluded that over ninety-two percent of the same reforms were needed in California. In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead ...


Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead Aug 2016

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over ...


Criminal Justice And (A) Catholic Conscience, Leo E. Strine Jr. Jan 2016

Criminal Justice And (A) Catholic Conscience, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

This article is one person's reflections on how an important influence on his own sense of moral values -- Jesus Christ -- affects his thinking about his own approach to his role as a public official in a secular society, using the vital topic of criminal justice as a focal point. This article draws several important lessons from Christ's teachings about the concept of the other that are relevant to issues of criminal justice. Using Catholicism as a framework, this article addresses, among other things, capital punishment and denying the opportunity for redemption; the problem of racial disparities in the ...


Death Row, Calls For Indifference, And Redemption Of The Soul, Corinna Barrett Lain Jan 2016

Death Row, Calls For Indifference, And Redemption Of The Soul, Corinna Barrett Lain

Law Faculty Publications

In this Response, I first engage with McLeod’s article, summarizing its key claims and endorsing its call for legislative action, while disagreeing at times with the analytical moves it makes along the way. I then turn to two questions that the article inspired. One stems from comments in the constitutional, academic, and public discourse calling for indifference to the way we treat the condemned in light of the way they treated their victims. Given the depravity of the crimes the condemned have committed, why should we care about the conditions under which they are housed on death row? The ...


Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann Jan 2016

Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann

Cornell Law Faculty Publications

Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American death ...


The Death Penalty And The Fifth Amendment, Joseph Blocher Jan 2016

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to ...


The Meaning Of "Meaningful Appellate Review" In Capital Cases: Lessons From California, Steven Shatz Dec 2015

The Meaning Of "Meaningful Appellate Review" In Capital Cases: Lessons From California, Steven Shatz

Steven F. Shatz

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness. The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences. In recent years, a number of scholars have addressed the genuine ...


Too Young For The Death Penalty: An Empirical Examination Of Community Conscience And The Juvenile Death Penalty From The Perspective Of Capital Jurors, William J. Bowers, Benjamin Fleury-Steiner, Valerie P. Hans, Michael E. Antonio Jun 2015

Too Young For The Death Penalty: An Empirical Examination Of Community Conscience And The Juvenile Death Penalty From The Perspective Of Capital Jurors, William J. Bowers, Benjamin Fleury-Steiner, Valerie P. Hans, Michael E. Antonio

Valerie P. Hans

As our analysis of jury decisionmaking in juvenile capital trials was nearing completion, the Missouri Supreme Court declared the juvenile death penalty unconstitutional in Simmons v. Roper. The court held that the execution of persons younger than eighteen years of age at the time of their crime violates the Eighth and Fourteenth Amendments to the United States Constitution. This decision patently rejected the U.S. Supreme Court's ruling in Stanford v. Kentucky, which permitted the execution of sixteen- and seventeen-year-olds. In deciding Simmons, the Missouri Supreme Court applied the U.S. Supreme Court's reasoning in Atkins v. Virginia ...


Capital Jurors As The Litmus Test Of Community Conscience For The Juvenile Death Penalty, Michael E. Antonio, Benjamin Fleury-Steiner, Valerie P. Hans, William J. Bowers Jun 2015

Capital Jurors As The Litmus Test Of Community Conscience For The Juvenile Death Penalty, Michael E. Antonio, Benjamin Fleury-Steiner, Valerie P. Hans, William J. Bowers

Valerie P. Hans

This fall, the United States Supreme Court will consider the constitutionality of the juvenile death penalty in Simmons v. Roper. The Eighth Amendment issue before the Court in Simmons will be whether the juvenile death penalty accords with the conscience of the community. This article presents evidence that bears directly on the conscience of the community in juvenile capital cases as revealed through extensive in-depth interviews with jurors who made the critical life-or-death decision in such cases. The data come from the Capital Jury Project, a national study of the exercise of sentencing discretion in capital cases conducted with the ...


The Aba Guidelines And The Norms Of Capital Defense Representation, Russell Stetler, W. Bradley Wendel Feb 2015

The Aba Guidelines And The Norms Of Capital Defense Representation, Russell Stetler, W. Bradley Wendel

W. Bradley Wendel

The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”), as revised in 2003, continue to stand as the single most authoritative summary of the prevailing professional norms in the realm of capital defense practice. Hundreds of court opinions have cited the Guidelines. They have been particularly useful in helping courts to assess the investigation and presentation of mitigating evidence in death penalty cases. This Article will discuss how these Guidelines have come to reflect prevailing professional norms in this critical area of capital defense practice and how that practice has developed in the ...


A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth Jan 2015

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

Law Student Publications

Since the founding of Jamestown Colony in 1607, few topics in American life and culture have generated as much controversy, both in terms of persistence and volatility, as the death penalty. Foreign policy, economic recessions, and social movements come to the forefront of national discussion in their own respective ebbs and flows. Capital punishment, however, has been a staple of the American criminal justice system since the early inhabiting of the continent, and has remained a permanent vehicle through which we can enact retribution on the most heinous criminal offenders in our society, ridding ourselves of the worst among us.


Making Sure We Are Getting It Right: Repairing "The Machinery Of Death" By Narrowing Capital Eligibility, Ann E. Reid Jan 2015

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

Law Student Publications

This comment argues that, starting with the framework of the federal system, there is a way to reconcile modern concerns about the death penalty with society's need for leverage over those criminals who truly are the worst of the worst-those who present grave threats to society even after incarceration. This reconciliation can be achieved by amending the Federal Death Penalty Act to require prosecutors to establish one additional element before they can secure a capital conviction: future dangerousness of the defendant in prison..


A Shot In The Dark: Why Virginia Should Adopt The Firing Squad As Its Primary Method Of Execution, P. Thomas Distanislao, Iii Jan 2015

A Shot In The Dark: Why Virginia Should Adopt The Firing Squad As Its Primary Method Of Execution, P. Thomas Distanislao, Iii

Law Student Publications

This comment recommends that Virginia cease its use of lethal injection because of its high botch rates and growing impracticability due to drug shortages. Instead, the Commonwealth should use the firing squad as a more effective means of execution, thereby leading the nation in a transition towards a more efficient and reliable method.