Law Commons^™

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.

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.

Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger

Robert M. Sanger

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Lies, Damn Lies, And Batson Challenges: The Right To Use Statistical Evidence To Prove Racial Bias, Graham R. Cronogue

University of Miami Race & Social Justice Law Review

This Article provides two principal contributions to the study of wrongful convictions. First, it fills a gap in the literature by clarifying the scope of a capital defendant’s constitutional right to use statistics when attacking a wrongful conviction caused by racial bias in jury selection. In doing so, the Article not only examines the content of the Court’s jurisprudence but it also explores the historical “arc” toward greater evidentiary protections. This arc has been guided primarily by the realization that prior narrower solutions have been ineffective at combating racially-motivated peremptory strikes. The Article will also place modern statistical evidence in …

Rubbing The Rabbit's Foot: Gallows Superstitions And Public Healthcare In England During The Eighteenth And Nineteenth Centuries, Roberta M. Harding

Law Faculty Scholarly Articles

Superstitions possess an ancient pedigree. With the passage of time thematic superstitions developed; for example, some solely addressed the public’s health care needs. In fact, as far back as the fifth century many English subjects believed magical spells and jewels had curative properties. Law was another context that generated a body of superstitions. Capital punishment was one area that generated many superstitions. In fact, so many that a specific category was established: gallows superstitions. With hanging as the primary method of execution in England for centuries, this group of superstitions became a relatively large one. By merging the health care …

Dueling Decisions: The Wrongful Death Clock Clangs Twice On The Same Day, Stacey Ann Lannert

Missouri Law Review

Part II of this Note provides the facts and holding in Boland. Part III presents the legal background of Boland, discusses both the statutory and common law origins of wrongful death causes of action, and explores Missouri’s unique history of wrongful death statutory interpretation. Part IV analyzes the rationale of the Boland court’s return to the strict interpretation standard of days past. Finally, Part V discusses the ramifications of the court's decision and explores why the court should have acknowledged wrongful death claims that ascended from common law.

No Clean Hands In A Dirty Business: Firing Squads And The Euphemism Of "Evolving Standards Of Decency", Alexander Vey

Vanderbilt Law Review

"If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all." Judge Kozinski of the Ninth Circuit Court of Appeals laid down this challenge to reform the "inherently flawed" use of lethal injection in carrying out the death penalty. Justice Sotomayor recently voiced similar concerns, stating, "[W]e deserve to know the price of our collective comfort before we blindly allow a State to make condemned inmates pay it in our names." These judges' reasoning should underlie any discussion of the death penalty: can we, as …

The Effect Of Attitudes Towards The Death Penalty On Forensic Clinical Judgments Of Competency For Execution, Eugenia Garcia-Dubus

Dissertations, Theses, and Capstone Projects

Capital punishment has been a part of the American Justice System since colonial times. A brief historical overview reveals a general tendency towards the imposition of restrictions on who is eligible for the death penalty (DP). In a series of decisions, the Supreme Court has held that the execution of an incompetent inmate is unconstitutional, but the topic is controversial among mental health professionals. The likelihood of clinician attitudes towards the DP affecting judgments of competency for execution (CFE) is discussed in the context of existing literature. The vagueness of the current CFE standard is thought to contribute to this …

The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno

University of Michigan Journal of Law Reform

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …

Retention And Reform In Japanese Capital Punishment, David T. Johnson

University of Michigan Journal of Law Reform

This Article focuses on the failure of abolition and of death penalty reform in Japan in order to illustrate contingencies in the trajectory of capital punishment in the modern world. Part I describes three facts about postwar Japan that help explain why it retains capital punishment today: a missed opportunity for abolition during the American occupation of the country after World War II; the long-term rule of a conservative political party; and economic and geopolitical power that has enabled the country to resist the influence of international norms. Part II describes a few ways in which Japanese capital punishment has …

"Outsmarting" Death By Putting Capital Punishment On Life Support: The Need For Uniform State Evaulations Of The Intellectually Disabled In The Wake Of Hall V. Florida, Taylor B. Dougherty

Brooklyn Law Review

While the Supreme Court has yet to hold capital punishment per se unconstitutional, the Court has exempted certain groups of individuals from being eligible for capital punishment, due to concerns about the protection against cruel and unusual punishment provided for in the 8th Amendment. One such group is individuals who are intellectually disabled (the term which replaced the long-used mental retardation). But in exempting such individuals from capital punishment in its decision in Atkins v. Virginia, the Court left it to the states to establish metrics for determining which defendants are in fact intellectually disabled so as to warrant …

Death Row, Calls For Indifference, And Redemption Of The Soul, Corinna Barrett Lain

Law Faculty Publications

In this Response, I first engage with McLeod’s article, summarizing its key claims and endorsing its call for legislative action, while disagreeing at times with the analytical moves it makes along the way. I then turn to two questions that the article inspired. One stems from comments in the constitutional, academic, and public discourse calling for indifference to the way we treat the condemned in light of the way they treated their victims. Given the depravity of the crimes the condemned have committed, why should we care about the conditions under which they are housed on death row? The other …

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 …

The Incremental Retributive Impact Of A Death Sentence Over Life Without Parole, Michael L. Radelet

University of Michigan Journal of Law Reform

In this paper, the author takes a closer look at retribution, which is the primary justification for the death penalty today in the United States and the main component of the additional punishment imposed by the death penalty over and above life imprisonment without parole (LWOP). While all criminal punishments, to varying degrees, punish both the inmate and his or her family, this paper argues that the death penalty’s added punishment over LWOP often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added impact …

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

Journal Articles

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 …

Are Intellectually Disabled Individuals Still At Risk Of Capital Punishment After Hall V. Florida? The Need For A Totality-Of-The-Evidence Test To Protect Human Rights In Determining Intellectual Disability, Ruthie Stevens

Oklahoma Law Review

No abstract provided.

Evolving Standards Of Decency: The Intersection Of Death Penalty Theory And Supreme Court Jurisprudence, Rachel S. Sullivan

Senior Independent Study Theses

The American death penalty must be abolished in order to establish a more just system of punishment. This thesis examines the arguments of eight political theorists and their connections with five essential Supreme Court cases on capital punishment in order to determine the Court's theoretical view of the American death penalty. This theoretical view is that justices who affirm the constitutionality of capital punishment use philosophical theories, while justices who critique capital punishment rely upon context-dependent analyses. If the Court ever rules that capital punishment is unconstitutional in all circumstances, these latter theories will be dispositive.

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Eighth Amendment's Lost Jurors: Death Qualification And Evolving Standards Of Decency, Aliza Plener Cover

Articles

The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This Article presents a quantitative study of …

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 …

The Meaning Of "Meaningful Appellate Review" In Capital Cases: Lessons From California, Steven Shatz

Steven F. Shatz