Law Commons^™

Getting To Know You: An Expanded Approach To Capital Jury Selection, Samuel P. Newton

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The Colorado Method of capital jury selection is a widely embraced strategy defense attorneys use to select jurors during voir dire, in which attorneys rank each juror exclusively on the likelihood that the juror will vote for death. The method could benefit from some expansion. Not all defense lawyers have access to Colorado-Method-based training. In innocence cases, defense lawyers should soften discussions of punishment prior to guilt since this tactic predisposes juries to vote for death. Nor do jurors' views or positions on the death penalty guarantee their eventual votes. While capital juries are already inclined to give death sentences …

Narrowing Death Eligibility In Idaho: An Empirical And Constitutional Analysis, Aliza Plener Cover

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No abstract provided.

The Eighth Amendment Power To Discriminate, Kathryn E. Miller

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For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.' After decades of attempting to eliminate the requirement, conservative justices …

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

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This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies …

Could The Pope's Call To End The Death Penalty Keep Catholics Off Juries?, Aliza Plener Cover

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No abstract provided.

The Pope And The Capital Juror, Aliza Plener Cover

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In a significant change to Catholic Church doctrine, Pope Francis recently declared that capital punishment is impermissible under all circumstances. Counterintuitively, the Pope’s pronouncement might make capital punishment less popular but more prevalent in the United States. This Essay anticipates this possible dynamic and, in so doing, explores how “death qualification” of capital juries can insulate the administration of the death penalty when community morality evolves away from capital punishment.

Arbiters Of Decency: A Study Of Legislators' Eighth Amendment Role, Aliza Plener Cover

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Within Eighth Amendment doctrine, legislators are arbiters of contemporary values. The United States Supreme Court looks closely to state and federal death penalty legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative debates preceding the recent passage of bills abolishing the death penalty in Connecticut, Illinois, and Nebraska. We categorized all statements according to their position …

Remedial Reading: Evaluating Federal Courts’ Application Of The Prejudice Standard In Capital Sentences From “Weighing” And “Non-Weighing” States, Sarah Gerwig-Moore

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On March 31, 2016, the State of Georgia executed my client, Joshua Bishop. Until the time of his execution, several successive legal teams challenged his conviction and sentence through the usual channels: direct appeal, state habeas corpus proceedings, and federal habeas corpus proceedings. The last hearing on the merits of his case was before a panel of the United States Court of Appeals for the Eleventh Circuit, which accepts appeals from death penalty cases out of Georgia, Florida, and Alabama. In a lengthy opinion describing the many mitigating circumstances present in Mr. Bishop’s case, the Eleventh Circuit denied relief. This …

What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross

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False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but …

Eighth Amendment's Lost Jurors: Death Qualification And Evolving Standards Of Decency, Aliza Plener Cover

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The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This Article presents a quantitative study of …

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty's Unraveling, Scott E. Sundby

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No abstract provided.

Cold Comfort Food: A Systematic Examination Of The Rituals And Rights Of The Last Meal, Sarah Gerwig-Moore

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Last meals are a resilient ritual accompanying executions in the United States. Yet states vary considerably in the ways they administer last meals. This paper explores the recent decision in Texas to abolish the tradition altogether. It seeks to understand, through consultation of historical and contemporary sources, what the ritual signifies. We then go on to analyze execution procedures in all 35 of the states that allowed executions in 2010, and show that last meal allowances are paradoxically at their most expansive in states traditionally associated with high rates of capital punishment (Texas now being the exception to that rule.) …

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

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The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby

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No abstract provided.

The Death Penalty And The Mentally Ill: A Selected And Annotated Bibliography, Jean Mattimoe

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The United States Supreme Court over the last decade has selectively whittled away at the scope and availability of the death penalty by exempting certain groups from execution under the Eighth Amendment. In 2002 the court ruled that executing mentally retarded criminals violates the Constitution's ban on cruel and unusual punishment. In 2005 the court ruled that the Constitution forbids the execution of individuals who were under the age of 18 when they committed their crimes. Currently there is an active debate on whether to extend the categorical exemptions created by the Court to the mentally ill. At the forefront …

David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross

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The first major empirical challenge to racial discrimination in the use of the death penalty in the United States was presented in federal court in the case of William L. Maxwell, who was sentenced to death in Arkansas in 1962 for the crime of rape.1 It was based on a landmark study by Marvin Wolfgang, a distinguished criminologist who had collected data on some 3000 rape convictions from 1945 through 1965 in selected counties across eleven southern states.2 He found that black men who were convicted of rape were seven times more likely to be sentenced to death than white …

Rethinking Categorical Prohibitions On Capital Punishment: How The Current Test Fails Mentally Ill Offenders And What To Do About It, Pamela A. Wilkins

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My aim in this short Article is both specific and general. Specifically, I examine whether the Eighth Amendment should be held to prohibit imposition of death sentences upon offenders with severe mental illnesses, as is the case with mentally retarded and juvenile offenders. More generally, and perhaps more importantly, I examine the current Eighth Amendment test for categorical prohibitions, find it wanting, and propose a different test that, at least in my view, more neatly captures what the Eighth Amendment is intended to accomplish.

I believe the key to an Eighth Amendment analysis of categorical prohibitions lies in two dilemmas …

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

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In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …

Pope John Paul Ii, Vatican Ii, And Capital Punishment, Howard Bromberg

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Part I of this Article describe s Pope John Paul II’s teaching on capital punishment as based on the Scriptures and expressed in Evangelium Vitae and the Catechism. Part II examines the authority with which this doctrine was issued. Part III suggests that this teaching represents the “traditional teaching of the Church,” although a “more perfect expression” of that teaching than has heretofore been recognized. Parts IV and V indicate why the papacy of John Paul II-—“this time, in which God in His hidden design has entrusted to me... very close to the year 2000”-—was ripe for this explicit articulation …

Souter Passant, Scalia Rampant: Combat In The Marsh, Samuel R. Gross

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Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas.

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

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In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

Preventing The Execution Of The Innocent: Testimony Before The Senate Judiciary Committee, Barry C. Scheck

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No abstract provided.

Rethinking The Penalty Phase, Kyron Huigens

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This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation …

Living With The Death Penalty, Samuel R. Gross

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The debate over the death penalty in the United States - such as it is - is framed in terms of criminal justice policy. The issues are the same ones we consider when the question is the length of prison sentence for a drug crime: Does the defendant deserve the penalty? Is it cost effective by comparison to other available sanctions? Will it deter others from committing the crimes for which he was convicted? Can we impose this punishment fairly? Can we make sure that innocent people are not condemned?

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

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In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

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One of the longstanding complaints against the death penalty is that it "distort[s] the course of the criminal law."' Capital prosecutions are expensive and complicated; they draw sensational attention from the press; they are litigated-before, during, and after trial-at greater length and depth than other felonies; they generate more intense emotions, for and against; they last longer and live in memory. There is no dispute about these effects, only about their significance. To opponents of the death penalty, they range from minor to severe faults; to proponents, from tolerable costs to major virtues. ntil recently, however, the conviction of innocent …

Capital Jury And Absolution: The Intersection Of Trial Strategy Remorse And The Death Penalty, Scott E. Sundby

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No abstract provided.

Update: American Public Opinion On The Death Penalty - It's Getting Personal (Symposium: How The Death Penalty Works: Empirical Studies Of The Modern Capital Sentencing System), Samuel R. Gross

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Americans' views on capital punishment have stabilized. In 1994, when Professor Phoebe Ellsworth and I published a review of research on death penalty attitudes in the United States,' we began by noting that "support for the death penalty [is] at a near record high."'2 That finding, like most of the others we reported, has not changed. Nonetheless, it is interesting to pause and review the data on public opinion on the death penalty that have accumulated over the past several years. Stability is less dramatic than change but it may be equally important, and there is some news to report. …

Mitigation, Mercy, And Delay: The Moral Politics Of Death Penalty Abolitionists, Anthony V. Alfieri

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No abstract provided.

The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross

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As the Supreme Court has said, time and again, death is different: It is "different in kind from any other punishment imposed under our system of criminal justice;"1 it "differs more from life imprisonment than a 100-year sentence differs from one of only a year or two;"' 2 and so forth. Traditionally, this observation has justified special procedural protections for capital defendants. Justice Harlan put it nicely nearly forty years ago: "I do not concede that whatever process is 'due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital …