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Full-Text Articles in Law

Execution Methods In A Nutshell, Deborah W. Denno Jan 2018

Execution Methods In A Nutshell, Deborah W. Denno

Faculty Scholarship

No abstract provided.


Johnson V. Kelley, Bruce Green Nov 2016

Johnson V. Kelley, Bruce Green

Amicus Briefs

No abstract provided.


Lethal Injection Chaos Post-Baze, Deborah W. Denno Jan 2014

Lethal Injection Chaos Post-Baze, Deborah W. Denno

Faculty Scholarship

In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky’s lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal injection protocols. My unprecedented study of over 300 cases citing Baze reveals that such modifications have occurred with alarming frequency. Moreover, even as states purportedly rely on the Baze opinion, they have changed their lethal injection protocols in inconsistent ways that bear little …


What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno Jan 2013

What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno

Faculty Scholarship

This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from …


Combat Veterans, Mental Health Issues, And The Death Penalty: Addressing The Impact Of Post-Traumatic Stress Disorder And Traumatic Brain Injury, Anthony E. Giardino Jan 2009

Combat Veterans, Mental Health Issues, And The Death Penalty: Addressing The Impact Of Post-Traumatic Stress Disorder And Traumatic Brain Injury, Anthony E. Giardino

Fordham Law Review

More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation’s criminal justice system. This Essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, …


To Act Or Not To Act: Will New York's Defeated Death Penalty Be Resurrected? , Diana N. Huffman Jan 2008

To Act Or Not To Act: Will New York's Defeated Death Penalty Be Resurrected? , Diana N. Huffman

Fordham Urban Law Journal

Capital punishment has always been a topic of controversy in the United States. The debate about the death penalty, its value as a way to permanently incapacitate society's most dangerous criminals and its effectiveness as a deterrent to violent crime, has increased. This phenomenon is particularly visible in New York State, where, in 2004, the New York Court of Appeals struck down the State's death penalty statute as invalid under the New York Constitution. This Note describes the evolution of New York's 1995 death penalty statute, analyzing the way in which the state legislature could respond to the statute's unconstitutionality, …


The Lethal Injection Quandary: How Medicine Has Dismantled The Death Penalty, Deborah W. Denno Jan 2007

The Lethal Injection Quandary: How Medicine Has Dismantled The Death Penalty, Deborah W. Denno

Fordham Law Review

On February 20, 2006, Michael Morales was hours away from execution in California when two anesthesiologists declined to participate in his lethal injection procedure, thereby halting all state executions. The events brought to the surface the long-running schism between law and medicine, raising the question of whether any beneficial connection between the professions ever existed in the execution context. History shows it seldom did. Decades of botched executions prove it. This Article examines how states ended up with such constitutionally vulnerable lethal injection procedures, suggesting that physician participation in executions, though looked upon with disdain, is more prevalent--and perhaps more …


Is The Death Of The Death Penalty Near? The Impact Of Atkins And Roper On The Future Of Capital Punishment For Mentally Ill Defendants, Helen Shin Jan 2007

Is The Death Of The Death Penalty Near? The Impact Of Atkins And Roper On The Future Of Capital Punishment For Mentally Ill Defendants, Helen Shin

Fordham Law Review

In recent years, the U.S. Supreme Court has created two categorical exemptions to the death penalty. In Atkins v. Virginia, the Court exempted mentally retarded offenders. Three years later, in Roper v. Simmons, the Court extended the protection to juveniles. Based on these cases, the practices of foreign countries, and the opinions of professional organizations with relevant expertise, legal scholars speculate that the Court may, in the future, categorically exclude severely mentally ill offenders from the death penalty. This Note examines the feasibility of such an exemption for the mentally ill and considers its possible repercussions.


Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno Jan 2006

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Faculty Scholarship

Unwarranted constraints on the admissibility of genetics evidence in death penalty cases can undercut some defendants' efforts to fight their executions. For example, genetics evidence can help validate some traditionally accepted mitigating factors (such as certain psychiatric or behavioral disorders) that can otherwise be difficult for defendants to prove. By imposing unreasonable limitations on genetics arguments, the criminal justice system may be undermining the very principles and progressive thinking the cap on genetics evidence was originally intended to achieve. Part II of this article briefly reviews the facts and legal arguments in Mobley v. State. Part III addresses the primary …


Rare & Inconsistent: The Death Penalty For Women, Victor L. Streib Jan 2006

Rare & Inconsistent: The Death Penalty For Women, Victor L. Streib

Fordham Urban Law Journal

Previous studies of the national landscape around the death penalty for women have identified and analyzed past themes and issues.22 This Article brings the analysis current through 2005, beginning with a reprise of the conversations about gender bias and disparity in the death penalty system. It appears that female offenders have always been treated differently from male offenders in the death penalty system, sometimes for reasons that are easily justifiable but too often simply because of sex bias. The next section of this Article explores the current death penalty era, identifying those women who have been sentenced to death, those …


When Legislatures Delegate Death: The Troubling Paradox Behind State Uses Of Electocution And Lethal Injection And What It Says About Us, Deborah W. Denno Jan 2002

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses Of Electocution And Lethal Injection And What It Says About Us, Deborah W. Denno

Faculty Scholarship

This article discusses the paradoxical motivations and problems behind legislative changes from one method of execution to the next, and particularly moves from electrocution to lethal injection. This article first examines the constitutionality of electrocution, contending that a modern Eighth Amendment analysis of a range of factors, such as legislative trends toward lethal injection, indicates that electrocution is cruel and unusual. It then provides an Eighth Amendment review of lethal injection, demonstrating that injection also involves unnecessary pain, the risk of such pain, and a loss of dignity. The article next presents the author's study of the most current protocols …


Plea Bargaining In The Shadow Of Death, Joseph L. Hoffmann, Marcy L. Kahn, Steven W. Fisher Jan 2001

Plea Bargaining In The Shadow Of Death, Joseph L. Hoffmann, Marcy L. Kahn, Steven W. Fisher

Fordham Law Review

No abstract provided.


Adieu To Electrocution, Deborah W. Denno Jan 2000

Adieu To Electrocution, Deborah W. Denno

Faculty Scholarship

This Article contends that there is no moral or legal reason to retain electrocution, particularly because other execution methods are available. It is clear that at some point soon, electrocution will no longer exist in this country and, as a result, throughout the world. By eliminating this perplexing vestige, the other problems with the death penalty may appear all that more offensive.


Human Rights And Human Wrongs: Is The United States Death Penalty System Inconsistent With International Human Rights Law, Warren Allmand, Stephen B. Bright, Rubin "Hurricane" Carter, Dorean Marguerite Koenig, William A. Schabas, W. L. Seriti Jan 1999

Human Rights And Human Wrongs: Is The United States Death Penalty System Inconsistent With International Human Rights Law, Warren Allmand, Stephen B. Bright, Rubin "Hurricane" Carter, Dorean Marguerite Koenig, William A. Schabas, W. L. Seriti

Fordham Law Review

No abstract provided.


The Federal Death Penalty: History And Some Thoughts About The Department Of Justice's Role, Rory K. Little Jan 1999

The Federal Death Penalty: History And Some Thoughts About The Department Of Justice's Role, Rory K. Little

Fordham Urban Law Journal

This Article provides a detailed exegesis and evaluation of the federal death penalty, including its 209-year history, recent developments in federal death penalty case law, and the process for national administration of the federal death penalty implemented by Attorney General Janet Reno in 1995. Part I of the article presents the history of the federal death penalty, the recent statutes and relevant case law, and the DOJ's procedures for administering federal death penalty prosecutions. It also describes the 1988 and 1994 statutory procedures for imposing the federal death penalty, and briefly reviews some of the case law leading to, and …


A District Attorney's Decision Whether To Seek The Death Penalty: Toward An Improved Process, Jonathan Demay Jan 1999

A District Attorney's Decision Whether To Seek The Death Penalty: Toward An Improved Process, Jonathan Demay

Fordham Urban Law Journal

The most important variable affecting whether a defendant will be subject to the death penalty is often the particular ideology of the district attorney of a respective county. More subtle forms of arbitrariness, such as bias based upon race, gender and class, also pervade the process. Arguing that the dangers inherent in the present situation justify the imposition of controls over the exercise of prosecutorial discretion in the decision whether to seek the death penalty, Part I presents the nature and scope of prosecutorial discretion judicial review of that discretion and the influence that individual prosecutors can have in the …


The Relevance Of "Execution Impact" Testimony As Evidence Of Capital Defendants' Character, Darcy F. Katzin Jan 1998

The Relevance Of "Execution Impact" Testimony As Evidence Of Capital Defendants' Character, Darcy F. Katzin

Fordham Law Review

No abstract provided.


Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields Jan 1998

Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields

Fordham Urban Law Journal

New York State's death penalty statute is constitutionally flawed in many respects. It violates the state and federal prohibition against cruel and unusual punishment and provides unrestricted prosecutorial discretion to pursue the death penalty. This standardless and unfettered discretion creates the risk of arbitrary or discriminatory application of capital punishment.


Concepts Of Culpability And Deathworthiness: Differentiating Between Guilt And Punishment In Death Penalty Cases, Phyllis L. Crocker Jan 1997

Concepts Of Culpability And Deathworthiness: Differentiating Between Guilt And Punishment In Death Penalty Cases, Phyllis L. Crocker

Fordham Law Review

No abstract provided.


Getting To Death: Are Executions Constitutional?, Deborah W. Denno Jan 1997

Getting To Death: Are Executions Constitutional?, Deborah W. Denno

Faculty Scholarship

This Article addresses the question of when a method of executing a capital defendant amounts to cruel and unusual punishment under the Eighth Amendment. This Article contends that execution methods cases, while reaching the right result, fail to provide a sufficiently comprehensive Eighth Amendment standard for determining the constitutionality of any execution method. The Article proposes a test that better comports with the Court's Eighth Amendment case law and more appropriately considers scientific determinations of excessive pain. To apply this test, the Article studies each state's legislative changes in execution methods during the Twentieth Century as well as accounts of …


Prosecutorial Discretion And The Death Penalty: Creating A Committee To Decide Whether To Seek The Death Penalty, John A. Horowitz Jan 1997

Prosecutorial Discretion And The Death Penalty: Creating A Committee To Decide Whether To Seek The Death Penalty, John A. Horowitz

Fordham Law Review

No abstract provided.


Constitution Notwithstanding: The Political Illegitimacy Of The Death Penalty In American Democracy, Stephen H. Jupiter Jan 1996

Constitution Notwithstanding: The Political Illegitimacy Of The Death Penalty In American Democracy, Stephen H. Jupiter

Fordham Urban Law Journal

This Comment argues that the death penalty is inconsistent with underlying principles of American democracy and is thus illegitimate as a matter of political philosophy, despite its conceded constitutionality. It analyzes the Supreme Court's idiosyncratic treatment of challenges to capital punishment on grounds of due process, equal protection and cruel and unusual punishment, demonstrating the unreliability of such challenges. It examines in detail the death penalty's political implications for the American system of democracy and why those implications render capital punishment illegitimate in our society. It discusses the role of the political process in the abolition of the death penalty. …


Are Executions In New York Inevitable?, Ronald J. Tabak Jan 1995

Are Executions In New York Inevitable?, Ronald J. Tabak

Fordham Urban Law Journal

This article is an edited trascription of a program considering whether executions in New York State are inevitable. Shortly after the program a law was enacted to this effect, however, Mr. Tabak argues that the law is so badly flawed that it may not survive judicial scrutiny. Present on the panel were Barbara Paul Robinson, John Cardinal O'Connor, Dean John Feerick, Archibald Murray, Thomas McDermott, Lee Grant, Cessie Alfonso and George Kendall.


Testing Penry And Its Progeny , Deborah W. Denno Oct 1994

Testing Penry And Its Progeny , Deborah W. Denno

Faculty Scholarship

In Penry v. Lynaugh, the United States Supreme Court held that the Texas death penalty statute was applied unconstitutionally because the trial court gave no instructions allowing the jury to “consider and give effect to” the defendant's mitigating evidence of organic brain damage, moderate retardation, and disadvantaged background. The Court considered these mitigating factors relevant because of society's steadfast belief in the lesser culpability of defendants whose criminal acts are due to a disadvantaged background, or to emotional and mental disorders. The jury must have full consideration of such evidence in order to give its “reasoned moral response” to the …


Is Electrocution An Unconstitutional Method Of Execution? The Engineering Of Death Over The Century, Deborah W. Denno Jan 1994

Is Electrocution An Unconstitutional Method Of Execution? The Engineering Of Death Over The Century, Deborah W. Denno

Faculty Scholarship

This Article provides the Eighth Amendment analysis of electrocution that the courts thus far have not approached. The analysis has two parts. The first inquires whether, according to available scientific evidence, electrocution amounts to cruel and unusual punishment even if it is administered as planned. The second inquires whether, in light of the frequency with which electrocutions are botched, continuing the practice amounts to cruel and unusual punishment even if the properly administered electrocution would not.


Politics And The Death Penalty: Can Rational Discourse And Due Process Survive The Perceived Political Pressure?, Norman Redlich Jan 1994

Politics And The Death Penalty: Can Rational Discourse And Due Process Survive The Perceived Political Pressure?, Norman Redlich

Fordham Urban Law Journal

This article is a transcript from a program sponsored by the American Bar Association Section of Individual Rights and Responsibilities entitled, “Politics and the Death Penalty: Can Rational Discourse and Due Process Survive the Perceived Political Pressure?” In it, Norman Redlich, former Dean of New York University Law School, James Coleman, Shabata Sundiata Waglini, Attorney General Ernest Preate, Jr., Bryan Stevenson, Executive Director of the Alabama Capital Representation Resource Center, journalist Nat Hentoff, New York State Assemblywoman Susan John, and Chief Justice Exum of the North Carolina Supreme Court discuss the issue of the death penalty in America. Redlich discusses …


Commentary, Ronald J. Tabak Jan 1994

Commentary, Ronald J. Tabak

Fordham Urban Law Journal

Ronald J. Tabak, Chair of the Committee on the Death Penalty for the American Bar Association's Section of Individual Rights and Responsibilities, discusses the Section's purpose in organizing Forhdam University School of Law's panel discussion on "Politics and the Death Penalty." The goal was to illuminate the variety of effects of a widespread perception that the belief of legislators, governors, prosecutors, judges, clemency boards, political candidates and others that the public is overwhelmingly in support of capital punishment. The Section aimed to bring together knowledgeable people from a variety of perspectives to discuss (a) how the capital punishment system and …


The Constitution And Capital Sentencing: Pursuing Justice And Equality, Scott W. Howe Jan 1992

The Constitution And Capital Sentencing: Pursuing Justice And Equality, Scott W. Howe

Fordham Law Review

Equal Justice and The Death Penalty: A Legal and Empirical Analysis. By David C. Baldus, George Woodworth and Charles Pulaski, Jr. Boston: Northeastern University Press. 1990. Pp. Vii, 689. $65.00


Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green Jan 1992

Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green

Faculty Scholarship

Charles Bell, Donald Paradis, and Shirley Tyler were tried in different states for murder. Each was convicted and sentenced to death. Charles Bell was represented at trial by a recent law school graduate who had never before tried a criminal case to completion. Donald Paradis's lawyer had passed the bar exam six months earlier, had never previously represented a criminal accused, and had not elected courses in criminal law, criminal procedure, or trial advocacy while in law school. Shirley Tyler's trial lawyer was also a member of the bar for only a few months. He had defended one previous assault …


"Death Is Different" And Other Twists Of Fate, Deborah W. Denno Jan 1992

"Death Is Different" And Other Twists Of Fate, Deborah W. Denno

Faculty Scholarship

Professor Welsh White's book, The Death Penalty in the Nineties, reviews those United States Supreme Court decisions and developments that have occurred in the four years since the publication of his earlier book, The Death Penalty in the Eighties. In The Nineties, White claims that these recent developments, which have significantly limited capital defendants' habeas corpus appeals, are likely to increase both the rate and the geographical reach of executions which, in the past, have occurred mostly in the South. After discussing some of the analytical and methodological shortcomings of The Nineties, this review will focus on The Nineties' most …