Law Commons^™

The Death Penalty As Delineated By The Old Testament: From Adam And Eve To Cain And Abel To Noah And The Flood To Abraham And Sodom To Moses And The Ten Commandments, Biblical Passages Trace The Roots For How Modern Society Deals With The Execution Of Killers, Robert Blecker

Other Publications

No abstract provided.

The Merciful Capital Juror, Theodore Eisenberg, Stephen P. Garvey

Cornell Law Faculty Publications

We examine the role of mercy in capital sentencing along three dimensions. We first explain why mercy is a philosophically problematic virtue, and second, why it presently holds an ambiguous status within constitutional doctrine. Finally, we draw on interviews with jurors who served on capital cases in order better to understand how the behavior of merciful jurors compares to the behavior of their less merciful counterparts. Among other things, we find that merciful jurors tend to be better educated and to attend religious services regularly. We also find that merciful jurors are, as one might reasonably expect, more apt to …

Killing The Willing: "Volunteers," Suicide And Competency, John H. Blume

Cornell Law Faculty Publications

Of the 822 executions, in the modern era of capital punishment, 106 involved volunteers, or inmates who chose to waive their appeals and permit the death sentence to be carried out. The debate about volunteers, although intense, has primarily been polemic. Those who wish to curtail a death row inmate’s ability to waive his appeals refer to volunteer cases as nothing more than “state assisted suicide;” advocates of permitting inmates to choose execution reject the suicide label, instead focusing on respect for a death row inmate’s right to choose whether to accept his punishment.

This article takes a different approach. …

Who Has The Body? The Paths To Habeas Corpus Reform, Cary H. Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The purpose of this article is to place the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 within a political and historical framework that describes the effort by the Supreme Court and various interested parties to restrict prisoners’ access to the federal courts by way of habeas corpus. Of principal concern here is how an act of terrorism against the United States provides an opportunity for Congress to restrict death row prisoners from obtaining habeas corpus review. Along with an analysis of Supreme Court decisions, three attempts to limit federal habeas corpus review for state prisoners from the late …

Courts Juries: Provide The State And The Accused With The Same Number Of Peremptory Challenges In Misdemeanor, Felony, And Death Penalty Cases And In Challenging Alternative Jurors; Provide The Manner In Which Peremptory Challenges Are Made; Change The Size Of The Jury Panel In Felony And Death Penalty Cases; Provide The State With An Equal Number Of Additional Peremptory Challenges In Trials For Jointly Indicted Defendants; Provide An Exemption From Jury Duty For A Primary Caregiver Of A Child Who Is Four Years Of Age Or Younger; Provide An Exemption From Jury Duty For A Primary Teacher Of Children In A Home Study Program; And For Other Purposes, Jonathan Poole

Georgia State University Law Review

In 2004, the Georgia General Assembly considered a bill designed to exempt home-school teachers and certain primary caregivers from jury duty. The Senate amended the bill to provide the State and the accused with an equal number of preemptory challenges in death penalty, felony, and misdemeanor cases.

Implicit Racial Attitudes Of Death Penalty Lawyers, Theodore Eisenberg, Sheri Lynn Johnson

Cornell Law Faculty Publications

Defense attorneys commonly suspect that the defendant's race plays a role in prosecutors' decisions to seek the death penalty, especially when the victim of the crime was white. When the defendant is convicted of the crime and sentenced to death, it is equally common for such attorneys to question the racial attitudes of the jury. These suspicions are not merely partisan conjectures; ample historical, statistical, and anecdotal evidence supports the inference that race matters in capital cases. Even the General Accounting Office of the United States concludes as much. Despite McCleskey v. Kemp, in which the United States Supreme Court …

The Death Penalty And Due Process In Biblical Law, Richard H. Hiers

UF Law Faculty Publications

The first part of this article reviews biblical texts that have been (or could plausibly be) read as condemning or repudiating capital punishment. The next, and necessarily more detailed and extensive part, discusses the many texts that explicitly call for, or illustrate application of the death penalty. This section also describes the different prescribed methods for executing offenders, identifies the persons assigned responsibility for carrying out executions, and examines biblical rationales for capital punishment A third part describes a variety of biblical provisions that, using modern legal terminology, may be said to afford certain due process procedures and protections. The …

Summerlin V. Stewart And Ring Retroactivity, Tonya G. Newman

Chicago-Kent Law Review

The Sixth Amendment guarantees criminal defendants a trial before a jury. Until the Supreme Court decided Ring v. Arizona, however, nine states wholly or partially surrendered a portion of the jury's role to a sentencing judge. Specifically, those states allowed sentencing judges to make factual determinations regarding sentencing considerations by which capital defendants became eligible for the death penalty. The Ring Court halted the use of sentencing considerations to erode the jury's fundamental role in preserving accuracy and fairness of criminal proceedings, holding that the Sixth Amendment requires that a jury make factual findings on all elements, including sentencing …

Capital Jurors As The Litmus Test Of Community Conscience For The Juvenile Death Penalty, Michael E. Antonio, Benjamin Fleury-Steiner, Valerie P. Hans, William J. Bowers

Cornell Law Faculty Publications

This fall, the United States Supreme Court will consider the constitutionality of the juvenile death penalty in Simmons v. Roper. The Eighth Amendment issue before the Court in Simmons will be whether the juvenile death penalty accords with the conscience of the community. This article presents evidence that bears directly on the conscience of the community in juvenile capital cases as revealed through extensive in-depth interviews with jurors who made the critical life-or-death decision in such cases. The data come from the Capital Jury Project, a national study of the exercise of sentencing discretion in capital cases conducted with …

Too Young For The Death Penalty: An Empirical Examination Of Community Conscience And The Juvenile Death Penalty From The Perspective Of Capital Jurors, William J. Bowers, Benjamin Fleury-Steiner, Valerie P. Hans, Michael E. Antonio

Cornell Law Faculty Publications

As our analysis of jury decisionmaking in juvenile capital trials was nearing completion, the Missouri Supreme Court declared the juvenile death penalty unconstitutional in Simmons v. Roper. The court held that the execution of persons younger than eighteen years of age at the time of their crime violates the Eighth and Fourteenth Amendments to the United States Constitution. This decision patently rejected the U.S. Supreme Court's ruling in Stanford v. Kentucky, which permitted the execution of sixteen- and seventeen-year-olds. In deciding Simmons, the Missouri Supreme Court applied the U.S. Supreme Court's reasoning in Atkins v. Virginia to …

Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey

Cornell Law Faculty Publications

Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an …

Prosecutorial Misconduct In Capital Cases In The Commonwealth Of Kentucky: A Research Study 1976-2000, Roberta M. Harding, Bankole Thompson

Law Faculty Scholarly Articles

The prosecutor wields tremendous power within the American criminal justice system. When that power is misused-particularly in capital cases-tremendous injustices are perpetrated. Yet, occurrences of prosecutorial misconduct seem to occur with distressing regularity. An exhaustive study covering appeals from 1973-95 revealed that two-thirds of overturned death penalties in the United States resulted from overzealous police and prosecutors who withheld exculpatory evidence. Our study covered 55 Kentucky cases from 1976-2000 and found evidence of prosecutorial misconduct in nearly one-half of them, often with several instances per case.

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

All Faculty Scholarship

This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …

Explaining Death Row's Population And Racial Composition, John H. Blume, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

Twenty-three years of murder and death sentence data show how murder demographics help explain death row populations. Nevada and Oklahoma are the most death-prone states; Texas's death sentence rate is below the national mean. Accounting for the race of murderers establishes that black representation on death row is lower than black representation in the population of murder offenders. This disproportion results from reluctance to seek or impose death in black defendant-black victim cases, which more than offsets eagerness to seek and impose death in black defendant-white victim cases. Death sentence rates in black defendant-white victim cases far exceed those in …

Naming The Dragon: Litigating Race Issues During A Death Penalty Trial, Andrea D. Lyon

Andrea D. Lyon

The issue of racial disparity in the administration of the death penalty is a persistent theme in modern capital jurisprudence. Starting with Furman v. Georgia and continuing on to McCleskey v. Zant courts have struggled to come to grips with this issue. This article does not attempt to explore all of the legal ramifications of race and the death penalty, nor does it speak to its political import. Rather, it tackles some of the practical problems facing a capital defense attorney in the courtroom by providing a brief overview of motions practice in this arena by using a federal capital …

Measures Necessary To Ensure: The Icj's Provisional Measures Order In Avena And Other Mexican Nationals, Robert D. Sloane

Faculty Scholarship

This article analyzes the provisional measures order of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals, the first provisional measures order issued by the ICJ after its decision in LaGrand holding that such orders have binding effect. After reviewing the background to Mexico's action, the article focuses on Avena's place in the Court's provisional measures jurisprudence, its international legal significance, its potential effects, if any, on the ICJ's perceived institutional legitimacy and authority, and its legal and political consequences for the United States. In particular, the article examines the domestic legal implications of the Court's order …

Not To Decide Is To Decide: The U.S. Supreme Court's Thirty-Year Struggle With One Case About Competency To Waive Death Penalty Appeals, Phyllis L. Crocker

Law Faculty Articles and Essays

In 1995, the U.S. Supreme Court dismissed Rees v. Peyton, a case that had been on its docket since 1965. Rees was a death penalty case in which the petitioner sought to withdraw his petition for writ of certiorari so that he could be executed. The Court stayed the proceedings after Rees was found incompetent to waive his appeal, but the Court did not dismiss the case until after Rees died of natural causes. Rees pended in the Court during the terms of three Chief Justices. Even though the Court underwent major changes in personnel and philosophy during those years, …

Sattazahn V. Pennsylvania: Double Jeopardy And The Definition Of "Acquittal" In Capital-Sentencing Proceedings, Matthew G. Howells

University of Richmond Law Review

No abstract provided.

Comment, Time For A Legislative Change: Florida's Stagnant Standard Governing Mental Competency For Execution, Elizabeth Chamblee Burch

Scholarly Works

No abstract provided.

The Death Penalty--An Obstacle To The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …

Does Capital Punishment Have A Future? : A Resource Guide For Teachers, David L. Hudson Jr.

Law Faculty Scholarship

The resource guide is intended to help teachers lead students through an exploration of the application of capital punishment in the United States. It offers substantive information about landmark U.S. Supreme Court cases affirming the constitutionality of the dearth penalty, establishing limits for its imposition, and setting legal procedures for judicial review. It explores the philosophical arguments for and against the death penalty, the social context for the death penalty debate, and current international perspectives. Understanding capital punishment and the issues it raises for the American legal system is necessary for students to become fully functioning citizens in a constitutional …

Justice By Geography And Race: The Administration Of The Death Penalty In Maryland, 1978-1999, Raymond Paternoster, Robert Brame, Sarah Bacon, Andrew Ditchfield

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Futile Quest For Racial Neutrality In Capital Selection And The Eighth Amendment Argument For Abolition Based On Unconscious Racial Discrimination, Scott W. Howe

Scott W. Howe

This article begins by discussing the characteristics of current capital-sentencing systems that make racial discrimination in capital selection uncontrollable. It also summarizes the social-science evidence that white-victim bias widely plagues capital selection. The article then develops the two central arguments suggested by its title. First, it provides a detailed explanation of why proposals for federal regulatory reform cannot succeed in achieving racial neutrality in capital selection. Second, it provides a theory to explain why unconscious racial discrimination in capital selection violates the Eighth Amendment and, given the futility of federal regulatory remedies, justifies abolition.

Men Of A Thousand Days: Death-Sentenced Inmates At Utah State Prison, Sandra Mcgunigall-Smith

Sandy McGunigall-Smith

Studies of the pains of confinement and coping techniques have ignored the experiences of death-sentenced inmates, particularly those in the USA housed under the punitive regimes of supermax facilities. This research is a qualitative, mini-longitudinal study carried out between 1997 and 2001 which examines the particular pains of confinement for inmates in the supermax facility of Utah State Prison and how they coped with life under the sentence of death. The findings suggest that these inmates experienced different pains and utilized different coping techniques than those described in prison literature.