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Full-Text Articles in Law

Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler Jan 2019

Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler

All Faculty Scholarship

This article explores how the death penalty and the indefinite nature of death row in the United States creates a constant threat of death, which can violate the United Nations Convention Against Torture’s prohibitions on death threats.


Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh Apr 2018

Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh

Department of Justice Studies Faculty Scholarship and Creative Works

Virtual life sentences are sentences with a term of years that exceed an individual’s natural life expectancy. This exploratory study is one of the first to collect data that establish the existence, prevalence, and scope of virtual life sentences in state prisons in the United States. Initial data reveal that more than 31,000 people in 26 states are serving virtual life sentences for violent and nonviolent offenses, and suggest racial disparities in the distribution of these sentences. This study also presents potential policy implications and suggestions for future research.


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 ...


The Death Penalty As Incapacitation, Marah S. Mcleod Jan 2018

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators ...


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 ...


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.


Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

Faculty Scholarship at Penn Law

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to ...


Humane Proposals For Swift And Painless Death, Bryce Buchmann Mar 2016

Humane Proposals For Swift And Painless Death, Bryce Buchmann

Law Student Publications

This comment will provide reasons why lethal injection is not the appropriate method of execution in the United States, discuss factors that should be considered in selecting a method of execution and conclude that several alternative methods of punishment are preferable to lethal injection. Part I of this comment will detail the history of lethal injection in the United States and the issues associated with the practice. Part II examines how the government determines which method of execution is appropriate. Finally, Part III provides proposals for more humane punishment and concludes the comment.


Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky Jan 2016

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.


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 Twilight Zone: Perspectives From A Man On Death Row, Leah Stiegler Jan 2015

The Twilight Zone: Perspectives From A Man On Death Row, Leah Stiegler

Law Student Publications

This interview was conducted through a series of written correspondences between Gerald Dean Cruz and Leah Stiegler, the Allen Chair Editor for Volume 49 of the University of Richmond Law Review. This exchange was reproduced, in excerpts, for the sole purpose of giving readers a rare glimpse into the perspective of a death row inmate.


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.


Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass Jan 2015

Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass

Law Faculty Publications

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia's death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.


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..


On The Argument That Execution Protocol Reform Is Biomedical Research, Paul J. Litton Jan 2015

On The Argument That Execution Protocol Reform Is Biomedical Research, Paul J. Litton

Faculty Publications

Regardless of whether the Supreme Court rightly upheld Oklahoma’s execution protocol in Glossip, Oklahoma officials had inadequate reason to choose midazolam as the anesthetizing agent in its procedure. Their decision is one example illustrating Seema Shah’s point that death penalty states are engaged in “poorly designed experimentation that is not based on evidence.” Shah argues that “an important factor” causing the high rate of botched executions is that lethal injection reform is a type of human subjects research that is going unregulated. Shah argues that research requirements, such as informed consent and IRB review, are necessary to render ...


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.


Advocacy As An Exercise In Virtue: Lawyering, Bad Facts, And Furman's High-Stakes Dilemma, Linda H. Edwards Jan 2015

Advocacy As An Exercise In Virtue: Lawyering, Bad Facts, And Furman's High-Stakes Dilemma, Linda H. Edwards

Scholarly Works

Two of the conversations benefitting most from Jack Sammons's scholarship are conversations about legal rhetoric and about virtue ethics. Legal rhetoric is the study of the conventions of legal argument, specifically, the art of identifying and evaluating the best available means of persuasion and implementing those means effectively in light of audience, purpose, and occasion. Virtue ethics approaches moral reflection by asking what sort of person a particular moral choice encourages the actor to become. It focuses on consequences to the moral agent herself rather than directly focusing on consequences to others. The goal is to become a virtuous ...


Death, Desuetude, And Original Meaning, John F. Stinneford Nov 2014

Death, Desuetude, And Original Meaning, John F. Stinneford

UF Law Faculty Publications

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to ...


Getting Jurors To Awesome, Cortney E. Lollar Jan 2014

Getting Jurors To Awesome, Cortney E. Lollar

Law Faculty Scholarly Articles

A 2011 American Bar Association report on the death penalty in Kentucky revealed that a shocking two-thirds of the 78 people sentenced to death in Kentucky since reinstatement of the death penalty in 1976 have had their sentences overturned on appeal. Kentucky’s reversal rate is more than twice the national average, with a 31% reversal rate in capital cases and almost four times the 17% national reversal rate in all other case types. With a sentence as irreversible as death, troubling does not begin to describe the depth of concern many experience when viewing such a startling statistic.

A ...


Murder, Minority Victims, And Mercy, Aya Gruber Jan 2014

Murder, Minority Victims, And Mercy, Aya Gruber

Articles

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the ...


The Hanging Judge By Michael A. Ponsor -- A Book Review: Capital Punishment -- Is The Death Penalty Worth The Price?, Beth D. Cohen, Pat K. Newcombe Jan 2014

The Hanging Judge By Michael A. Ponsor -- A Book Review: Capital Punishment -- Is The Death Penalty Worth The Price?, Beth D. Cohen, Pat K. Newcombe

Faculty Scholarship

In 2000-2001, Judge Ponsor presided over the first death penalty case in Massachusetts in nearly 50 years, United States v. Gilbert. Gilbert’s trial marked only the third time that a federal capital case had gone to trial in a state without the death penalty. According to Ponsor, he felt a particularly heavy responsibility to ensure that both the government and the defense got a fair trial. In fact, in 2001, after the conclusion of the trial, Ponsor did something somewhat unusual for a judge; he wrote a lengthy editorial about the death penalty. He wrote: “[t]he simple question ...


The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty's Unraveling, Scott E. Sundby Jan 2014

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

Articles

No abstract provided.


Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate Aug 2013

Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate

Law Faculty Publications

This book review discusses Richard A. Stack's book, Grave Injustice, which illustrates the flaws in America's use of capital punishment. "Simply put, the death penalty is shown to be a massive policy failure diminishing the legitimacy of the criminal justice system in the world's leading democracy. Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension. This dimension is always at the center of crime and punishment and, most hauntingly, at the center of the American death penalty and ...


Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain Jul 2013

Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain

Law Faculty Publications

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives?

Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment).

So why weren’t the states executing? We tend to hear about innocence claims, trench ...


Physician Participation In Executions, The Morality Of Capital Punishment, And The Practical Implications Of Their Relationship, Paul J. Litton Apr 2013

Physician Participation In Executions, The Morality Of Capital Punishment, And The Practical Implications Of Their Relationship, Paul J. Litton

Faculty Publications

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections. In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation.


Data Underlying "Living Death: Ambivalence, Delay, And Capital Punishment", Marianne Wesson, Amy Kingston, Jocelyn Jenks, Laura Mcnabb, Lauren Seger, Genet Tekeste, Edwin Hurwitz Feb 2013

Data Underlying "Living Death: Ambivalence, Delay, And Capital Punishment", Marianne Wesson, Amy Kingston, Jocelyn Jenks, Laura Mcnabb, Lauren Seger, Genet Tekeste, Edwin Hurwitz

Research Data

The documents here archived contain data compilations researched and recorded by me and my research assistants in connection with the article by Marianne "Mimi" Wesson, Living Death: Ambivalence, Delay, and Capital Punishment (Feb. 20, 2013), https://ssrn.com/abstract=2221597.

Our research investigated four study jurisdictions: Arizona, Louisiana, Nevada, and Ohio. The data falls into two categories: analyses of reported appellate cases during designated periods in those jurisdictions; and investigations of the subsequent careers of every individual who resided on death row in one of our jurisdictions in April of 1995. The article further explains the impetus for these investigations ...


The Virtues Of Thinking Small, Corinna Barrett Lain Jan 2013

The Virtues Of Thinking Small, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should "think small," examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.


Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume Dec 2012

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

Cornell Law Faculty Publications

No abstract provided.


The Legal Significance Of The Psychological Ability To Appreciate The “Other”, Paul F. Rothstein Nov 2012

The Legal Significance Of The Psychological Ability To Appreciate The “Other”, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Recently the U.S. Supreme Court, citing neurological and psychological studies, held that because juveniles are deficient in appreciating consequences to others, they should never be given the death penalty. The author found, in his years as a legal scholar, educator, and practitioner, that “appreciating the ‘other’”--putting oneself in the position of others---is critical to law and the study of law in more than the obvious ways.

The author became aware of empirical studies and psychological experiments demonstrating that children below a certain age have trouble seeing things from another’s vantage point, and found that the facility to ...


Racial Discrimination In The Administration Of The Death Penalty: The Experience Of The United States Armed Forces (1984-2005), David C. Baldus, Catherine M. Grosso, George Woodworth, Richard Newell Jan 2012

Racial Discrimination In The Administration Of The Death Penalty: The Experience Of The United States Armed Forces (1984-2005), David C. Baldus, Catherine M. Grosso, George Woodworth, Richard Newell

Faculty Publications

This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n=105) during that time period.

Over the last thirty years, studies of state death-penalty systems have documented three types of evidence of racial disparities in the treatment of similarly situated death-eligible offenders. The most common disparity or “race effect” is that capital charging and sentencing decisions are applied more punitively in cases involving one or more white victims than they are in ...