Law Commons^™

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone

Linda A. Malone

Mentally ill individuals are being housed in prisons and jails throughout the country. Due to decreased funding and overpopulation of correctional facilities, individuals with pre-existing illnesses, as well as others who develop illnesses, are in severe need of mental health services and punished for their ailments through the use of solitary confinement, long prison sentences, and lack of care. The stress created by such conditions is amplified for mentally ill prisoners who are awaiting execution or the dismissal of their death row sentences. These individuals must show that they are competent to stand trial, exhibit the mental state required for …

The Diffusion Of Responsibilty In Capital Clemency, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Statewide Capital Punishment: The Case For Eliminating Counties’ Role In The Death Penalty, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Adam M. Gershowitz

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 …

Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Post-Trial Pleas Bargaining In Capital Cases: Using Conditional Commutations To Remove Weak Cases From Death Row, Adam M. Gershowitz

Adam M. Gershowitz

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal …

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Judge's Ill-Timed Ruling Invites Irrationality In Public's Views About Capital Punishment, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz

Adam M. Gershowitz

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on …

Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

An Ntsb For Capital Punishment, Adam M. Gershowitz

Adam M. Gershowitz

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 …

Capital Murder Symposium: Policy Panel, Davison M. Douglas, Richard Dieter

Davison M. Douglas

This symposium looked at capital murder prosecutions, mainly in Virginia, from both a practice standpoint and a policy standpoint. This is the final session, the Policy Panel that addressed if and when the death penalty should be imposed..

Duties Of Capital Trial Counsel Under The California “Death Penalty Reform And Savings Act Of 2016”, Robert M. Sanger

Robert M. Sanger

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 …

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 …

The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott Howe

Scott W. Howe

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. The deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, …

Repudiating The Narrowing Rule In Capital Sentencing, Scott W. Howe

Scott W. Howe

This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The article urges that the Supreme Court should renounce a largely empty mandate known as the “narrowing” rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it …

Promulgating Proportionality, William W. Berry Iii

William W Berry III

Two lines of cases have dominated the Supreme Court’s Eighth Amendment death penalty jurisprudence: the Furman-Gregg line of cases emphasizes the need to adopt rules to eliminate the arbitrariness inherent in unguided capital sentencing by juries, while the Woodson-Lockett line of cases emphasizes the opposite concern - the need for juries to make individualized sentencing determinations - highlighting the inadequacy of rules. At first glance, these competing aims create some internal tension, if not outright conflict. In his concurrence in Walton v. Arizona, Justice Scalia argued that this conflict was irreconcilable: “[t]he latter requirement [individualized factual determinations] quite obviously destroys …