Law Commons^™

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

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.

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.

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

A Modest Proposal: The Federal Government Should Use Firing Squads To Execute Federal Death Row Inmates, Stephanie Moran

University of Miami Law Review

The Eighth Amendment prohibits cruel and unusual punishment in the criminal justice system. As the federal government looks to reinstate the death penalty, this Note argues that it should include firing squad as an option for carrying out executions. While firing squads may shock the senses, this Note argues that they are in fact the only way to comport with the requirements of the Eighth Amendment.

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.

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 …

Criminal Justice And (A) Catholic Conscience, Leo E. Strine Jr.

All Faculty Scholarship

This article is one person's reflections on how an important influence on his own sense of moral values -- Jesus Christ -- affects his thinking about his own approach to his role as a public official in a secular society, using the vital topic of criminal justice as a focal point. This article draws several important lessons from Christ's teachings about the concept of the other that are relevant to issues of criminal justice. Using Catholicism as a framework, this article addresses, among other things, capital punishment and denying the opportunity for redemption; the problem of racial disparities in the …

Future Dangerousness In Capital Cases: Always "At Issue", John H. Blume, Stephen P. Garvey, Sheri Lynn Johnson

Sheri Lynn Johnson

Under Simmons v. South Carolina, a capital defendant who, if not sentenced to death, will remain in prison with no chance of parole is constitutionally entitled to an instruction informing the jury of the fact, but only if the prosecution engages in conduct that places the defendant's future dangerousness "at issue." Based on data collected from interviews with South Carolina capital jurors, Professors Blume, Garvey and Johnson argue that future dangerousness is on the minds of most capital jurors, and is thus "at issue" in virtually all capital trials, regardless of the prosecution's conduct. Accordingly, the authors argue that the …

Future Dangerousness In Capital Cases: Always "At Issue", John H. Blume, Stephen P. Garvey, Sheri Lynn Johnson

Stephen P. Garvey

Under Simmons v. South Carolina, a capital defendant who, if not sentenced to death, will remain in prison with no chance of parole is constitutionally entitled to an instruction informing the jury of the fact, but only if the prosecution engages in conduct that places the defendant's future dangerousness "at issue." Based on data collected from interviews with South Carolina capital jurors, Professors Blume, Garvey and Johnson argue that future dangerousness is on the minds of most capital jurors, and is thus "at issue" in virtually all capital trials, regardless of the prosecution's conduct. Accordingly, the authors argue that the …

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

Stephen P. Garvey

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 …

Twenty-Five Years Of Death: A Report Of The Cornell Death Penalty Project On The "Modern" Era Of Capital Punishment In South Carolina, John H. Blume

John H. Blume

In 1972, the United States Supreme Court determined that the death penalty, as then administered in this country, violated the Eighth Amendment's prohibition against cruel and unusual punishment. Many states, including South Carolina, scurried to enact new, "improved" capital punishment statutes which would satisfy the Supreme Court's rather vague mandate. In 1976, the High Court approved some of the new laws, and the American death penalty was back in business. After a wrong turn or two, including a statutory scheme which did not pass constitutional muster, the South Carolina General Assembly passed the current death penalty statute in 1977. The …

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

John H. Blume

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 …

Future Dangerousness In Capital Cases: Always "At Issue", John H. Blume, Stephen P. Garvey, Sheri Lynn Johnson

John H. Blume

Under Simmons v. South Carolina, a capital defendant who, if not sentenced to death, will remain in prison with no chance of parole is constitutionally entitled to an instruction informing the jury of the fact, but only if the prosecution engages in conduct that places the defendant's future dangerousness "at issue." Based on data collected from interviews with South Carolina capital jurors, Professors Blume, Garvey and Johnson argue that future dangerousness is on the minds of most capital jurors, and is thus "at issue" in virtually all capital trials, regardless of the prosecution's conduct. Accordingly, the authors argue that the …

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

Thompson V. Oklahoma: Debating The Constitutionality Of Juvenile Executions, Susan M. Simmons

Pepperdine Law Review

No abstract provided.

History Repeats Itself: The Post-Furman Return To Arbitrariness In Capital Punishment, Lindsey S. Vann

University of Richmond Law Review

Part I of this comment provides a brief review of Furmanandthe circumstances leading to the decision. Part II discusses thefactors indicating current arbitrariness and other recurring factors surrounding the American death penalty. Part III examines the development of the Cruel and Unusual Punishments Clause since Furman. Finally, Part IV discusses how the Supreme Court should apply its contemporary Eighth Amendment doctrine to the current circumstances surrounding the imposition of the death penalty.

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

All Faculty Scholarship

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the …

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

Does Stare Decisis Apply In The Eighth Amendment Death Penalty Context, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Throughout the past few decades, the Supreme Court has steadily chipped away at the death penalty. It was only recently, however, that courts have confronted what role precedent plays in the Eighth Amendment death penalty context. Surprisingly, few scholars have yet explored this important and complicated issue. Precedent in this area is unique because the law of the Eighth Amendment is always changing and the Eighth Amendment has been interpreted to be applied more broadly in the death penalty context. This Article argues that precedent in the Eighth Amendment death penalty context does not apply in the typical fashion. Instead …

Christ, Christians & Capital Punishment, Mark Osler

ExpressO

Last year, I came to a startling conclusion: That the debate over the death penalty in the United States is largely among Christians, but has ignored the capital sentencing which is at the center of that faith. The result of this epiphany is Christ, Christians & Capital Punishment.

In this article, I argue that the story of Christ parallels modern capital practice in many respects: Christ was turned in by a paid informant (Judas), arrested in a strategic manner, given an arraignment and stood mute, was tried, convicted and sentenced, appealed to two separate sovereigns, and finally was denied a …

The Death Penalty's Future: Charting The Crosscurrents Of Declining Death Sentences And The Mcveigh Factor, Scott E. Sundby

Articles

No abstract provided.

Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller

Faculty Scholarship

The modem debate on deterrence and capital punishment, now in its fourth decade, was launched by two closely timed events. The first was the 1976 United States Supreme Court decision in Gregg v. Georgia, which restored capital punishment after its brief constitutional ban following Furman v. Georgia in 1972. In 1975, Professor Isaac Ehrlich published an influential article saying that during the 1950s and 1960s, each execution averted eight murders. Although Ehrlich's article was a highly technical study prepared for an audience of economists, its influence went well beyond the economics profession. Ehrlich's work was cited favorably in Gregg …

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Michigan Law Review

Policymakers' false beliefs about capital punishment's universal deterrent effect may have caused many people to die needlessly. If deterrence is capital punishment's purpose then, in the majority of states where executions do not deter crime, executions kill convicts uselessly. Moreover, in the many states where the brutalization effect outweighs the deterrent effect, executions not only kill convicts needlessly but also induce the additional murders of many innocent people. After Part II discusses capital punishment's recent history in the United States, Part III reviews the conflict in recent studies on capital punishment and deterrence. Part IV explores differences in states' applications …

Death Sentence Rates And County Demographics: An Empirical Study, Theodore Eisenberg

Cornell Law Faculty Publications

The number of murders in a state largely determines the size of a state's death row. The more murders, the larger the death row. This fundamental relation yields surprising results, including the newsworthy finding that Texas's death sentencing rate is not unusually high. Recent state-level research also underscores the importance of race in the demography of death row. Death penalty research has long emphasized race's role, and with good reason--a racial hierarchy exists in death sentence rates. Black defendants who murder white victims receive death sentences at the highest rate; white defendants who murder white victims receive death sentences at …

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 …

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 …

Casting New Light On An Old Subject: Death Penalty Abolitionism For A New Millennium (Reviewing Austin Sarat, When The State Kills: Capital Punishment And The American Condition (2001))., Wayne A. Logan

Scholarly Publications

This paper examines recent U.S. efforts to abolish capital punishment, using Austin Sarat's 2001 book "When the State Kills" as the centerpiece of its exploration. The book, rather than mounting a principled "frontal assault" on the death penalty, instead surveys the numerous ways in which capital punishment negatively affects American law, politics, and culture. The paper considers the broader historic significance of this tactical shift and reflects upon the consequences and prospects for its ultimate success.

Twenty-Five Years Of Death: A Report Of The Cornell Death Penalty Project On The "Modern" Era Of Capital Punishment In South Carolina, John H. Blume

Cornell Law Faculty Publications

In 1972, the United States Supreme Court determined that the death penalty, as then administered in this country, violated the Eighth Amendment's prohibition against cruel and unusual punishment. Many states, including South Carolina, scurried to enact new, "improved" capital punishment statutes which would satisfy the Supreme Court's rather vague mandate. In 1976, the High Court approved some of the new laws, and the American death penalty was back in business. After a wrong turn or two, including a statutory scheme which did not pass constitutional muster, the South Carolina General Assembly passed the current death penalty statute in 1977. The …