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When It's So Hard To Relate: Can The Legal System Mitigate The Trauma Of Victim-Offender Relationships?, Jody L. Madeira

Articles by Maurer Faculty

This article argues that, in the aftermath of violent crime, a relationship that is both negative and involuntary can form between crime victims and offenders. This relationship fetters the victim to the crime and the criminal, rendering it difficult to recover from the transgression. To illustrate how such a relationship may form and what consequences it may have for victims, this article uses the Oklahoma City bombing as a case study, documenting through the use of original interviews an involuntary relationship in which victims' family members and survivors perceived they were tethered to Timothy McVeigh. This perceived relationship with McVeigh …

American Oresteia: Herbert Wechsler, The Model Penal Code, And The Uses Of Revenge, Anders Walker

All Faculty Scholarship

The American Law Institute recently revised the Model Penal Code's sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the "blameworthiness" of offenders, and the "harms done to crime victims." Already, detractors have criticized this move, arguing that it replaces the Code's original commitment to rehabilitation with a more punitive attention to retribution. Yet, missing from such calumny is an awareness of retribution's subtle yet significant role in both the drafting and enactment of the first Model Penal Code (MPC). This article recovers that role by focusing on the retributive views of its first …

United States V. Burns: Canada's Extraterritorial Extension Of Canadian Law And Creation Of A Canadian "Safe Haven" In Capital Extradition Cases, Andrea Cortland

University of Miami Inter-American Law Review

No abstract provided.

Petition For Rehearing, Kennedy V. Louisiana, No. 07-343 (U.S. July 21, 2008), Viet D. Dinh, Neal K. Katyal

U.S. Supreme Court Briefs

No abstract provided.

When Life Depends On It: Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Sean O'Brien

Faculty Works

The Supplementary Guidelines for the Mitigation Function of Capital Defense Teams are the culmination of three years of work coordinated by the Public Interest Litigation Clinic (PILC) and the University of Missouri-Kansas City School of Law in cooperation with seasoned capital litigators and mitigation specialists across the United States. This article describes the Supplementary Guidelines and the process by which they were researched and developed. Part I describes the Supplementary Guidelines and the process by which they were researched and developed. Part II describes the reasons for undertaking this project. Part III describes the process of investigating, researching and drafting …

Cultural Competency In Capital Mitigation, Christopher Seeds, Scharlette Holdman

Cornell Law Faculty Publications

Cultural factors so pervasively influence the interactions of the client with other people - including all of those with whom he comes into contact at significant times in his life (e.g. in educational, medical, and correctional institutions), those surrounding him in the community in which he develops, and, critically, the members of the defense team - that it is imperative for the defense team to have the talents necessary to conduct a mitigation investigation that is culturally competent. The investigation must recognize and surmount an array of barriers, overt and subtle, to obtaining information from people of variegated backgrounds. As …

The Abolitionist’S Dilemma: Establishing The Standards For The Evolving Standards Of Decency, Dwight Aarons

The University of New Hampshire Law Review

[Excerpt] “For those who believe that the death penalty should be declared unconstitutional and that the U.S. Supreme Court is the institution that should make that declaration, these are interesting times. On one hand, the Rehnquist Court, which had previously not been a reliable friend of criminal defendants, in 2002, ruled that it was unconstitutional to execute mentally retarded defendants, and in 2005 it came to the same conclusion as to defendants who committed a capital crime before his or her eighteenth birthday. On the other hand, close scrutiny of these opinions evidences that the Court all but casts aside …

The Emerging Death Penalty Jurisprudence Of The Roberts Court, Kenneth C. Haas

The University of New Hampshire Law Review

[Excerpt] “In 1976, four years after finding the nation’s death penalty laws to be constitutionally flawed, the U.S. Supreme Court established the parameters of modern American death penalty jurisprudence. Since then the Court has gone through several phases. The Court proceeded cautiously from 1977 to 1982, limiting the death penalty to those who committed murder in a manner deemed especially heinous and despicable by judges and juries, requiring even-handedness and consistency in capital sentencing, and insisting that sentencing authorities examine the individual characteristics of each offender and the particular circumstances of his crime. From 1983 to 2001, however, the Court …

Death Is Unconstitutional: How Capital Punishment Became Illegal In America—A Future History, Jur. Eric Engle Ph.D.

The University of New Hampshire Law Review

[Excerpt] “A constitution is an organic fact of every state: it is a part of the being of the state. People, like the state, also have a constitution—a character. Just as people change over time, so do states. But just as there are natural limits on what people can or cannot become, so there are natural limits on what the state can and cannot fairly do. No man, nor any group of men, ex ante may justly take the life of another person, though perhaps their killing may be excused (or forgiven) ex post.”

"The death of Death would surely …

Death And Harmless Error: A Rhetorical Response To Judging Innocence, Colin Starger

All Faculty Scholarship

Professor Garrett’s impressive empirical analysis of the first 200 post conviction DNA exonerations in the United States (“Garrett Study”) has the potential to affect contemporary debates surrounding our nation’s criminal justice system. This Response explores this potential by harnessing the Study’s data in support of arguments for and against a contested doctrinal proposition — that guilt-based harmless error rules should never apply in death penalty appeals. My analysis starts with the premise that the Study’s real world impact will necessarily depend on how jurists, politicians, and scholars extrapolate the explanatory power of the data beyond the 200 cases themselves. While …

Beyond A Conceivable Doubt: The Quest For A Fair And Constitutional Standard Of Proof In Death Penalty Cases, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

The death penalty remains the most contentious issue in criminal law jurisprudence, and continues to be challenged on both constitutional and moral grounds. What is most remarkable about American death penalty jurisprudence is that it has traditionally focused on purely technical and procedural aspects of the imposition of the death penalty, despite the fact that the most vulnerable plank in the arsenal of death penalty defenders is evidence that innocent people have been, and will continue to be, executed. Perhaps no legal principle is more difficult to explain to the layman or first-year law student than that of all the …

Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases

Hofstra Law Review

No abstract provided.

The People Decide: The Effect Of The Introduction Of The Quasi-Jury System (Saiban-In Seido) On The Death Penalty In Japan, Leah Ambler

Northwestern Journal of Human Rights

The Japanese people will soon decide the fate of criminal defendants for the first time in over 50 years. Under the Lay Assessor Act beginning in May, 2009, randomly selected members of the Japanese public will preside over criminal trials alongside professional judges and be responsible for determining both verdicts and sentences. 's retention of the death penalty means that members of the public will ultimately have to decide whether a person lives or dies.

This article examines the potential impact of the new lay assessor system, or saiban-in seido, on capital punishment in , and considers whether it may …

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

Articles

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …

Social Science And The Evolving Standards Of Death Penalty Law, Samuel R. Gross, Phoebe C. Ellsworth

Book Chapters

Unlike many of the topics covered in this book, death penalty litigation involves a wide variety of empirical issues. The Eighth Amendment of the U.S. Constitution provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." But what is a "cruel and unusual punishment?" It could be a punishment that is morally unacceptable to the American people, like cutting off noses or hands. Following the other clauses of the amendment, it could be a punishment that is excessive, in that a lesser penalty would achieve the same ends. For example, if a …

The Death Of Death-Qualification, G. Ben Cohen, Robert J. Smith

Case Western Reserve Law Review

No abstract provided.

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

Vanderbilt Law School Faculty Publications

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 habeas …

Time On Florida's Death Row: A Theory Of "Benign Neglect", Angela Willis

Electronic Theses and Dissertations

This thesis attempts to identify and explain what influences the length of time an inmate spends on Florida's death row. A systematic random sample of 33 Florida death row inmates was drawn from the Florida Department of Corrections death row roster and the Florida Commission on Capital Cases inmate roster. Documented for each death row inmate was how long he spent on Florida's death row navigating the various stages and steps in Florida's post-conviction capital punishment process. The data show that petitions to the state trial courts and appeals to the Florida Supreme Court take the longest time in Florida's …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Journal Articles

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

All Faculty Scholarship

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …

Studying The Death Penalty In Tennessee, Dwight Aarons

Scholarly Works

No abstract provided.

"It's Like Deja Vu All Over Again": Williams V. Taylor, Wiggins V. Smith, Rompilla V. Beard And A (Partial) Return To The Guidelines Approach To The Effective Assistance Of Counsel, John H. Blume, Stacey D. Neumann

Cornell Law Faculty Publications

Shoddy lawyering in capital cases is well documented. Many defendants facing the death penalty end up on death row not because of the heinousness of the crime they committed but rather because of the poor quality of trial counsel's performance. Despite the acknowledgment of sometimes shockingly poor representation by academics, litigators and even judges, most post-conviction claims of ineffective assistance of counsel are unsuccessful. Why? The legal standard for adjudicating these allegations which the Court adopted in Strickland v. Washington, which requires a defendant to demonstrate that his lawyer's performance was outside the "wide range of competent assistance" and that …

Presumed Guilty: Innocence And The Death Penalty, Sean O'Brien

Faculty Works

DNA has really changed the way that defense lawyers and prosecutors think about wrongful convictions and about the criminal justice process. But it has not changed it enough.

There are two distinct sets of prisoners who have been declared innocent and released from prison. One consists of DNA exonerees that was developed through the efforts of the innocence projects. The other consists of people who have been on death row who have been exonerated. Only relatively few of the death row exonerations were accomplished with DNA technology. This article examines both lists and discusses a few lessons that we are …

Categorical Exclusions From Capital Punishment: How Many Wrongs Make A Right?, Dora W. Klein

Faculty Articles

The two categorical exclusions of age and mental capacity will impact not only those offenders who are excluded from the death penalty, but also those offenders who remain subject to this punishment. The Supreme Court’s decisions in Roper v. Simmons and Atkins v. Virginia raise the issue that a capital-punishment-limiting decision possesses wrongs of its own. Both decisions limit the death penalty—Roper excludes from this punishment offenders who committed their crimes before they were eighteen years old and Atkins excludes offenders who are mentally retarded. But in both cases, the Supreme Court overstated the uniformity and universality of traits associated …

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Missouri Law Review

This Article argues that because prosecutors have discretion to seek the death penalty and too many cases, they lack the incentive to police themselves and choose carefully. Put simply, because there are too few legal constraints - and virtually no political constraints - on the sheer number of cases in which prosecutors can pursue the death penalty, the Government is not under sufficient pressure to limit its use of capital punishment to only the most heinous cases. As a result, two things happen. First, the death penalty is sought and meted out in some cases, which though terrible, are no …

Furman Fundamentals, Corinna Barrett Lain

Law Faculty Publications

For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …

But Can It Be Fixed? A Look At Constitutional Challenges To Lethal Injection Executions, Ellen Kreitzberg, David Richter

Faculty Publications

This article argues that California's Procedure 770 as currently implemented is unconstitutional. Judge Fogel, after an exhaustive review of evidence from all parties,agrees. Although Judge Fogel believes that the lethal injection system, while broken "can be fixed," we argue that lethal injection, as a method of execution, is always unconstitutional because the procedures employed in its administration can never ensure against unnecessary risk of pain to the inmate. We also argue that the California legislature must step in to publicly review lethal injection executions and to investigate the conduct of the California Department of Corrections and Rehabilitation (CDCR) in the …

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 …

Representing Capital Clients And The Elusive Quest For "Meaningful Access To Justice", Glenda G. Grace

Hofstra Law Review

No abstract provided.