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Discretionary Life Sentences For Juveniles: Resolving The Split Between The Virginia Supreme Court And The Fourth Circuit, Daniel M. Coble May 2019

Discretionary Life Sentences For Juveniles: Resolving The Split Between The Virginia Supreme Court And The Fourth Circuit, Daniel M. Coble

Washington and Lee Law Review Online

At the age of 17, Donte Lamar Jones shot and killed a store clerk as she laid down on the floor during a robbery. He was spared the death penalty by agreeing instead to die in prison at the end of his life. Two years later in Virginia, 12 individuals were murdered for doing nothing more than being in the wrong place at the wrong time. Those individuals were killed by Lee Malvo and John Muhammad, better known as the “D.C. Snipers.” While John Muhammad was given the death penalty for his heinous crimes, Lee Malvo, who was 17 ...


Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez Mar 2019

Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez

Duke Journal of Constitutional Law & Public Policy Sidebar

Once again, the Supreme Court of the United States has an opportunity to determine the extent to which death-row inmates can bring as-applied challenges to the states’ method of execution and prevent possible botched executions. In Bucklew v. Precythe, the Court will confront the assumptions that the execution team is equipped to handle any execution and that the procedure will go as planned. Additionally, the Court will determine whether the standard articulated in Glossip v. Gross, which requires inmates asserting facial challenges to the states’ method of execution to plead a readily available alternative method of execution, further extends to ...


The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett Jan 2019

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected ...


An Examination Of The Death Penalty, Alexandra N. Kremer Dec 2018

An Examination Of The Death Penalty, Alexandra N. Kremer

The Downtown Review

The death penalty, or capital punishment, is the use of execution through hanging, beheading, drowning, gas chambers, lethal injection, and electrocution among others in response to a crime. This has spurred much debate on whether it should be used for reasons such as ethics, revenge, economics, effectiveness as a deterrent, and constitutionality. Capital punishment has roots that date back to the 18th century B.C., but, as of 2016, has been abolished in law or practice by more than two thirds of the world’s countries and several states within the United States. Here, the arguments for and against ...


Lockett Symposium: Lockett As It Was, Is Now, And Ever Shall Should Be, Karen A. Steele Nov 2018

Lockett Symposium: Lockett As It Was, Is Now, And Ever Shall Should Be, Karen A. Steele

ConLawNOW

Lockett made clear what was constitutionally unacceptable in capital sentencing statutes (limiting the range of mitigating factors to be considered) while affirmatively heralding the significance and breadth of mitigating factors unique to the defendant that must be affirmatively and independently considered by jurors, courts and counsel; the inverse correlation between mitigating factors and disproportionate sentencing; and the interrelationship between mitigating factors and narrowing—all in an effort to provide a “meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not.” The threatened and actual use of “double-edged ...


Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry Oct 2018

Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry

Suzanna Sherry

This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state court convictions and sentences. But almost 20 percent of federal habeas petitions filed by noncapital state prisoners do not challenge state court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal ...


Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman Oct 2018

Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman

ConLawNOW

In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year after Bullock ...


Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard May 2018

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.


All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes Apr 2018

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.


Dissecting The Aba Texas Capital Punishment Assessment Report Of 2013: Death And Texas, A Surprising Improvement, Patrick S. Metze Feb 2018

Dissecting The Aba Texas Capital Punishment Assessment Report Of 2013: Death And Texas, A Surprising Improvement, Patrick S. Metze

Akron Law Review

Professor Metze dissects the American Bar Association report, September 2013, entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report—An Analysis of Texas’s Death Penalty Laws, Procedures and Practices. This Report was produced by the ABA’s Section of Individual Rights and Responsibilities, specifically the Death Penalty Due Process Review Project, which identified 12 inadequacies in the Texas Capital Punishment System, recommended changes, and evaluated compliance. Now, four years and two legislative sessions later, this Article explores what Texas has done in the interim to improve its death penalty process. Incredibly, the ...


The Abolitionist Movement Comes Of Age: From Capital Punishment As A Lawful Sanction To A Peremptory, International Law Norm Barring Executions, John D. Bessler Jan 2018

The Abolitionist Movement Comes Of Age: From Capital Punishment As A Lawful Sanction To A Peremptory, International Law Norm Barring Executions, John D. Bessler

All Faculty Scholarship

The anti-death penalty movement is rooted in the Enlightenment, dating back to the publication of the Italian philosopher Cesare Beccaria’s treatise, Dei delitti e delle pene (1764). That book, later translated into English as An Essay on Crimes and Punishments (1767), has inspired anti-death penalty advocacy for more than 250 years. This Article traces the development of the abolitionist movement since Beccaria’s time. In particular, it highlights how the debate over capital punishment has shifted from one focused primarily on the severity of monarchical punishments, to deterrence, to one framed by the concept of universal human rights, including ...


The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones Jan 2018

The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones

Journal of Criminal Law and Criminology

The United States has experienced a significant decline in the death penalty during the first part of the twenty-first century, as death sentences, executions, public support, and states with capital punishment all have declined. Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause. Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states. This Article puts these efforts by Republican lawmakers into historical context and explains the conservative case against ...


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 ...


Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq Jan 2018

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 ...


The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman Nov 2017

The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman

Sheri Lynn Johnson

Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's ...


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 Nov 2017

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

John H. Blume

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 ...


Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan Nov 2017

Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan

Maine Law Review

The now well-known case of Atkins v. Virginia decided that the execution of those with mental retardation constituted cruel and unusual punishment under the Eighth Amendment. The more recent case of Roper v. Simmons decided that execution of those who were under the age of eighteen when they committed their crimes also constituted cruel and unusual punishment. Both decisions changed the law that had existed since 1989, when the Court held in Penry v. Lynaugh and Stanford v. Kentucky that executions of members of both classes were not unconstitutional. Writing for the Court in Atkins v. Virginia, Justice Stevens was ...


A Comparative Study Of The Jewish And The United States Constitutional Law Of Capital Punishment, Steven Davidoff Oct 2017

A Comparative Study Of The Jewish And The United States Constitutional Law Of Capital Punishment, Steven Davidoff

Steven Davidoff Solomon

The Jewish view on the death penalty is that it should exist but it should never be used .... [lI]t is Governor Pataki's job to ensure :order. But he must remember that as a leader he must exhibit attributes of both the father and the mother. Governor Pataki is a nice man. But if he acts on the death penalty, he will be the leader of a bloody government


The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani Sep 2017

The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani

Washington and Lee Law Review Online

In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s ...


The Death Penalty And Justice Scalia's Lines, J. Richard Broughton Jul 2017

The Death Penalty And Justice Scalia's Lines, J. Richard Broughton

Akron Law Review

In Justice Scalia’s lone dissenting opinion in Morrison v. Olson, he lamented that, after the Court had upheld a law that he believed violated the separation of powers, “there are now no lines.” Lines were of critical importance to Justice Scalia – in law and in life – and informed much of his work on criminal law issues (Morrison, after all, was a case about the nature of federal prosecutorial authority). In the area of capital punishment, in particular, Justice Scalia saw clear lines that the Court should not cross. He believed that the Constitution contemplates the existence of a death ...


The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton Jun 2017

The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton

Jamin Raskin

No abstract provided.


Eliminating Discrimination In Administering The Death Penalty: The Need For The Racial Justice Act, Erwin Chemerinsky Jun 2017

Eliminating Discrimination In Administering The Death Penalty: The Need For The Racial Justice Act, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


An Indigent Criminal Defendant Is Entitled To “An Expert Of His Own”, Fredrick E. Vars May 2017

An Indigent Criminal Defendant Is Entitled To “An Expert Of His Own”, Fredrick E. Vars

Washington and Lee Law Review Online

The Supreme Court recently heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.


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 ...


The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman Apr 2017

The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman

Cornell Law Faculty Publications

Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's ...


Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca Apr 2017

Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca

Nevada Law Journal Forum

Nevada is amongst the minority of states without statewide criminal procedure rules. Statewide rules are important because they promote fairness, regularity, and transparency regardless of where in the state a criminal case is being adjudicated and who it is being adjudicated in front of. This report intends to compare the varying states’ criminal procedure rules, to provide Nevada’s legal community with an awareness of how rules can be structured, what rules are included, and how rules interact with statutes and other court rules. If Nevada chooses to follow in the path of the forty-seven states and develop statewide criminal ...


Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod Mar 2017

Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod

Marah McLeod

This Article addresses the substantive question, "Does the death penalty require death row?" and the procedural question, "Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent ...


The Quality Of Mercy, Paul Rosenzweig Feb 2017

The Quality Of Mercy, Paul Rosenzweig

Washington and Lee Law Review Online

No abstract provided.


The Inequality Of America‘S Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John D. Bessler Jan 2017

The Inequality Of America‘S Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John D. Bessler

Washington and Lee Law Review Online

No abstract provided.


A Right To Know How You'll Die: A First Amendment Challenge To State Secrecy Statutes Regarding Lethal Injection Drugs, Kelly A. Mennemeier Jan 2017

A Right To Know How You'll Die: A First Amendment Challenge To State Secrecy Statutes Regarding Lethal Injection Drugs, Kelly A. Mennemeier

Journal of Criminal Law and Criminology

In the years since 2008, when the Supreme Court upheld the constitutionality of a commonly used lethal injection protocol in Baze v. Rees, states have shifted away from the approved protocol and turned towards new drugs, drug protocols, and drug sources to carry out state-sponsored executions by lethal injection. Even as states have shifted to new, untested protocols and less-regulated sources than they used in pre-Baze years, state legislatures have enacted and amended secrecy statutes that hide information about the drug protocols and sources of lethal injection drugs from the press, the public, and condemned prisoners. Meanwhile, a number ...