Law Commons^™

Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster

Faculty Scholarship

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber

Publications

10th Annual David H. Bodiker Lecture on Criminal Justice delivered on Wed., Oct. 21, 2020 at Ohio State University Moritz College of Law.

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Articles

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 …

Race-Of-Victim Disparities And The "Level Up" Problem, Aya Gruber

Publications

No abstract provided.

Equal Protection Under The Carceral State, Aya Gruber

Publications

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 …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Officiating Removal, Leah Litman

Articles

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien

Faculty Works

Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …

Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard

All Faculty Scholarship

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held …

The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar

Faculty Scholarship

No abstract provided.

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

Articles

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 …

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson

Cornell Law Faculty Publications

The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to …

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …

Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler

All Faculty Scholarship

In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's abolition. It then discusses …

Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene

Faculty Scholarship

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …

Capitalizing Adolescence: Juvenile Offenders On Death Row, Mary Berkheiser

Scholarly Works

Taking as its sample group the 2005 population of seventy-two juvenile offenders on death row, this article examines the roles of peer influence and group offending in the murders committed by those now awaiting execution. Based on that examination, the article suggests certain reforms in the capital trials of juveniles. To set the stage, the article first marshals the evidence supporting the “group crime” theory of youth violence and then discusses the critical role of peers in adolescent development and group offending of a violent crime.

Injustice Casts Shadow On History Of State Executions, John Bessler

All Faculty Scholarship

This article, published in the StarTribune of Minneapolis, discusses the history of lynchings and executions in the State of Minnesota. It specifically discusses miscarriages of justice that have taken place in Minnesota, along with highlighting other problems associated with capital punishment.

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

Articles

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 …

Still Unfair, Still Arbitrary - But Do We Care?, Samuel R. Gross

Other Publications

Welcome. It is a pleasure to see everybody at this bright and cheery hour of the morning. My assignment is to try to give an overview of the status of the death penalty in America at the beginning of the twenty-first century. I will try to put that in the context of how the death penalty was viewed thirty years ago, or more, and maybe that will tell us something about how the death penalty will be viewed thirty or forty years from now.

The Imposition Of The Death Penalty In The United States Of America: Does It Comply With International Norms?, Beverly Mcqueary Smith

Scholarly Works

No abstract provided.

“Endgame”: Competency And The Execution Of Condemned Inmates—A Proposal To Satisfy The Eighth Amendment's Prohibition Against The Infliction Of Cruel And Unusual Punishment, Roberta M. Harding

Law Faculty Scholarly Articles

The first section of this Article provides a brief historical overview of the proscription against executing the incompetent and the proffered rationales. This section also examines key factors contributing to the increase in the number of mentally dysfunctional condemned inmates. Then the Article explores the traditional competency-to-execute model that remains in use. This analysis will include a discussion of specific issues, such as: the term used to describe the requisite mental affliction, how that term is defined in order to identify who may ultimately benefit from the rule in Ford v. Wainwright, what standard is appropriate to determine whether …