Law Commons^™

"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon

Articles & Chapters

One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.

It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. …

When Police Volunteer To Kill, Alexandra L. Klein

Scholarly Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible--and probable--method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the consequences …

"Only To Have A Say In The Way He Dies": Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Scholarly Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

Can Delaying An Execution Due To Covid-19 Amount To Unconstitutional Discrimination?, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

This note discusses the case of Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809 (CA); [2021] 4 SLR 698 (HC) and its implications for equality law in Singapore.

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

Scholarly Works

No abstract provided.

Sister Helen Prejean And The Death Penalty: Decades Of Fighting Capital Punishment, University Marketing And Communications, Helen Prejean

DePaul Download

Sister Helen Prejean has dedicated her life to opposing the death penalty after she witnessed an execution in her home state of Louisiana. Her efforts have sparked a national dialogue on capital punishment and she has helped shape the Catholic Church’s position on the topic. In 2011, she donated her personal archives to the university to help the DePaul community continue to learn from her work. On this episode of DePaul Download, Sister Helen talks about life’s work and what keeps her going.

Supreme Court Clerks And The Death Penalty, Matthew Tokson

Utah Law Faculty Scholarship

This Essay is part of GW's Supreme Court Clerks at 100 symposium.

The Supreme Court is involved, directly or otherwise, with virtually every execution carried out in the United States. Most executions are appealed to the Court, and inmates commonly request a stay of execution a few days or hours before their scheduled death. The clerks review these requests and recommend a ruling.

A few days after I arrived at the Court, I got my first death penalty assignment. As the date drew near, the defendant asked the Court to stay his execution. I opened his file and began to …

Nondelegating Death, Alexandra L. Klein

Scholarly Articles

Most states’ method of execution statutes afford broad discretion to executive agencies to create execution protocols. Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s nondelegation and separation of powers doctrines. State courts routinely use the nondelegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts. Despite its uncertain status, the nondelegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of nondelegation. It analyzes state court decisions upholding broad legislative delegations to …

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 …

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme is unconstitutional if it …

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.

Outlier: Iran And Its Use Of The Death Penalty, Ahmed Shaheed, Faraz Sanei

Faculty Scholarship

For several years now the right to life has been under heavy assault in the Islamic Republic of Iran. The country has followed a familiar but troubling pattern regarding the use of the death penalty. It has consistently ranked second in the world in the number of executions carried out (behind China), and first in executions per capita. More recently, the upward trend in executions that began in 2010-11 has reached alarming levels not seen in more than two decades. In 2015, alone, human rights organisations tracking the number of executions in Iran documented at least 966 executions, with over …

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.

Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq

Cornell Law Faculty Publications

When is a normative question a question of law rather than a question offact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court's seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law …

Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz

Cornell Law Faculty Publications

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data …

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 …

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

Articles

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 …

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 …

Brief Of The National Association Of Criminal Defense Lawyers, Et Al As Amici Curiae Supporting Petitioner, Mcwilliams V. Dunn (U.S. March 6, 2017) (No. 16-5294)., Janet Moore

Faculty Articles and Other Publications

We submit this brief to make three important points. First, Ake itself clearly and unambiguously held as a matter of due process that indigent capital defendants must be provided with independent expert assistance upon a reasonable showing of need. The Court was unanimous on this point and swept aside aging precedent that had held provision of neutral assistance was adequate.

Second, Ake was hardly a revolutionary decision. As the Court noted, many states already provided expert assistance. In the first six years after Ake, numerous states explicitly held independent expert assistance must be provided upon an adequate showing of need. …

Brief Of The National Association For Public Defense, Et Al As Amici Curiae Supporting Petitioner, Christeson V. Roper (U.S. January 30, 2017) (No. 16-7730)., Janet Moore

Faculty Articles and Other Publications

This case involves federal courts doubling down on the effective denial of counsel to a severely mentally impaired capital habeas petitioner on the eve of his execution, thereby preventing the full and fair litigation of an issue that demands this Court’s attention: the role played by a petitioner’s mental impairment in determining whether equitable tolling applies to the statute of limitations for filing a habeas petition. This Court should grant the petition to address whether the denial of adequate funding in this case constituted a constructive denial of the right to counsel required by the capital representation statute, 18 U.S.C. …

Following Finality: Why Capital Punishment Is Collapsing Under Its Own Weight, Corinna Barrett Lain

Law Faculty Publications

Death is different, the adage goes - different in its severity and different in its finality. Death, in its finality, is more than just a punishment. Death is the end of our existence as we know it. It is final in an existential way.

Because death is final in an existential way, the Supreme Court has held that special care is due when the penalty is imposed. We need to get it right. My claim in this chapter is that the constitutional regulation designed to implement that care has led to a series of cascading effects that threaten the …

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

Articles

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 …

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Johnson V. Kelley, Bruce Green

Amicus Briefs

No abstract provided.

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

All Faculty Scholarship

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 legislative …

Brief Of The Roderick & Solange Macarthur Justice Center, Et Al As Amici Curiae Supporting Petitioner, Christeson V. Roper (8th Cir. August 19, 2016) (No. 16- 02730)., Janet Moore

Faculty Articles and Other Publications

This case involves a district court’s patent disregard for a deeply mentally impaired defendant’s right to meaningful representation in capital federal habeas proceedings. By funding only 6% of defense counsel’s request for necessary expert and other resources, the District Court violated the constitution, ignored federal statutory mandates, flouted the Supreme Court’s remand order, blocked counsel’s ability to satisfy professional and ethical obligations, publicly disclosed contents of previously protected information about defense strategy, and set a very dangerous precedent for our justice system.

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

Faculty Scholarship

No abstract provided.