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Full-Text Articles in Law and Race
Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price
Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price
Michigan Journal of Race and Law
Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …
Choosing Those Who Will Die: The Effect Of Race, Gender, And Law In Prosecutorial Decision To Seek The Death Penalty In Durham County, North Carolina, Isaac Unah
Michigan Journal of Race and Law
District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in …
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Michigan Law Review
What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …
Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross
Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross
Articles
In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
Michigan Law Review
The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Michigan Law Review
This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …