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Repudiating Death, William W. Berry Iii
Repudiating Death, William W. Berry Iii
William W Berry III
In recent years, three Supreme Court justices, Powell, Blackmun, and Stevens, have all called for the abolition of the death penalty, repudiating their prior approval of the use of capital punishment. This article conceptualizes these reversals not as normative shifts on the morality of capital punishment, but instead as shifts in the justices' views concerning their own need to exercise judicial restraint towards the states with respect to the death penalty. Two separate decisions comprise their abandonment of judicial restraint. First, Powell, Blackmun, and Stevens all acquiesce to the decision of the Court to use the Eighth Amendment to regulate …
Promulgating Proportionality, William W. Berry Iii
Promulgating Proportionality, William W. Berry Iii
William W Berry III
Two lines of cases have dominated the Supreme Court’s Eighth Amendment death penalty jurisprudence: the Furman-Gregg line of cases emphasizes the need to adopt rules to eliminate the arbitrariness inherent in unguided capital sentencing by juries, while the Woodson-Lockett line of cases emphasizes the opposite concern - the need for juries to make individualized sentencing determinations - highlighting the inadequacy of rules. At first glance, these competing aims create some internal tension, if not outright conflict. In his concurrence in Walton v. Arizona, Justice Scalia argued that this conflict was irreconcilable: “[t]he latter requirement [individualized factual determinations] quite obviously destroys …
Ending Death By Dangerousness, William W. Berry Iii
Ending Death By Dangerousness, William W. Berry Iii
William W Berry III
The use of the death penalty (both in number of new death sentences and actual executions) has been steadily decreasing in the past decade. This decrease has largely been attributed to two phenomena: (1) the continued discovery of individuals on death row who are actually innocent of the crimes they committed and (2) the increasing use of life without parole as a sentencing alternative to the death penalty. Abolitionists have successfully seized upon the first of these in raising continuing doubts about the use of the death penalty. This article proposes a deeper exploration of the second, the availability of …