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Bad Nature, Bad Nurture, And Testimony Regarding Maoa And Slc6a4 Genotyping In Murder Trials, Nita A. Farahany, William Bernet, Cindy L. Vnencak-Jones, Stephen A. Montgomery

Faculty Scholarship

Recent research—in which subjects were studied longitudinally from childhood until adulthood—has started to clarify how a child’s environment and genetic makeup interact to create a violent adolescent or adult. For example, male subjects who were born with a particular allele of the monoamine oxidase A gene and also were maltreated as children had a much greater likelihood of manifesting violent antisocial behavior as adolescents and adults. Also, individuals who were born with particular alleles of the serotonin transporter gene and also experienced multiple stressful life events were more likely to manifest serious depression and suicidality. This research raises the question …

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

Journal Articles

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 …

Death Penalty Knowledge, Opinion, And Revenge: A Test Of The Marshall Hypotheses In A Time Of Flux, Gavin Lee

Electronic Theses and Dissertations

This thesis tests the three hypotheses derived from the written opinion of Justice Thurgood Marshall in Furman v Georgia in 1972. Subjects completed questionnaires at the beginning and the end of the fall 2006 semester. Experimental group subjects were enrolled in a death penalty class, while control group subjects were enrolled in another criminal justice class. The death penalty class was the experimental stimulus. Findings provided strong support for the first and third hypotheses, i.e., subjects were generally lacking in death penalty knowledge before the experimental stimulus, and death penalty proponents who scored "high" on a retribution index did not …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

Medellin, Norm Portals, And The Horizontal Integration Of International Human Rights, Margaret E. Mcguinness

Notre Dame Law Review

No abstract provided.

The Use Of Religion In Death Penalty Sentencing Trials, Monica Miller, Brian H. Bornstein

Department of Psychology: Faculty Publications

Both prosecutors and defense attorneys have presented religious appeals and testimony about a defendant’s religious activities in order to influence capital jurors’ sentencing. Courts that have objected to this use of religion fear that religion will improperly influence jurors’ decisions and interfere with their ability to weigh aggravators and mitigators. This study investigated the effects of both prosecution and defense appeals. Prosecution appeals did not affect verdict decisions; however, use of religion by the defense affected both verdicts and the weighing of aggravators and mitigators. These results could be due to differences in perceived sincerity and remorse that are conveyed …

Victim Impact Evidence In Federal Capital Trials, Wayne A. Logan

Scholarly Publications

Fifteen years ago, in Payne v. Tennessee, the Supreme Court lifted its prohibition on the admission of victim impact evidence (VIE) in the penalty phase of capital trials. According to the Court, admitting evidence on the personal traits of individual murder victims and the toll associated with their killings at once properly allowed the government to show the “uniqueness” of victims, thus counterbalancing defendants’ largely unfettered right to adduce mitigation evidence, and permitted the sentencing authority to under-stand the “specific harm” caused by the murder. In the wake of Payne, Congress authorized use of VIE as a nonstatutory …

Litigating Salvation: Race, Religion And Innocence In The Karla Faye Tucker And Gary Graham Cases, Melynda J. Price

Law Faculty Scholarly Articles

The cases of Karla Faye Tucker and Gary Graham represent two examples of the renewed public debate about the death penalty in the State of Texas, and how religion and race affect that debate. This article explores how the Tucker and Graham cases represent opposing possibilities for understanding contemporary narratives of the death penalty. Though the juxtaposition of these two cases is not completely symmetrical, if viewed as a kaleidoscope—a complex set of factors filtered through the shifting identities of the person who is at the center of the immediate case—the hidden operations of race and religion can be examined. …

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Law and Contemporary Problems

In 1994, convicted murderer Stephen Mobley became a cause celebre when he appealed his death sentence before the Georgia Supreme Court in the case of Mobley v. State. Denno describes the potential implications arising from the high-profile case of Stephen Mobley. He sought to introduce a then-cutting-edge theory that violence could be based on a genetic or neurochemical abnormality as mitigating evidence during capital sentencing.

Is Capital Punishment Immoral Even If It Does Deter Murder?, Thomas Kleven

ExpressO

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Writing About The Death Penalty, Douglas Hay

Articles & Book Chapters

A retrospective look at 'Property, Authority, and the Criminal Law' (1975), Douglas Hay's analysis of eighteenth-century English criminal law, by the author, responding to comments by John Beattie, Jim Phillips, and James Muir in a symposium 'thirty years after'. It includes an analysis of recent scholarship on capital punishment and the use of executive pardons in the eighteenth century.

Inconsistent Methods For The Adjudication Of Alleged Mentally Retarded Individuals: A Comparison Of Ohio's And Georgia's Post-Atkins Frameworks For Determining Mental Retardation, Scott R. Poe

Cleveland State Law Review

This Note compares Ohio's and Georgia's post-Atkins frameworks for determining mental retardation. Ohio's framework offers a fairer application of Atkins and should serve as a guide for a national legal standard for use by state trial courts to determine mental retardation. Specifically, Ohio's use of preponderance of the evidence is a more appropriate standard of proof for determining mental retardation because it better reaches the overall goal in Atkins. Allowing the judge to make the mental retardation determination protects the alleged mentally retarded defendant from potential jury bias. Because Ohio's and Georgia's definitions of mental retardation are substantially similar and …

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

University of Colorado Law Review

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one-and even extended it to abandoned women who killed their unfaithful …

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

Articles

No abstract provided.

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

Publications

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …

Race, Gender, Region And Death Sentencing In Colorado, 1980-1999, Stephanie Hindson, Hillary Potter, Michael L. Radelet

University of Colorado Law Review

This paper examines the administration of the death penalty in Colorado. We first identify all cases (n=21) in which defendants were sentenced to death in Colorado, 1972-2005, and all cases (n=10) in which the death penalty was sought, 1980-1999. We then compare the race and gender of all homicide victims with the race and gender of victims in the 110 death penalty cases. Overall, we find that the death penalty is most likely to be sought for homicides with white female victims, and that the probability of death being sought is 4.2 times higher for those who kill whites than …

Swilling Hemlock: The Legal Ethics Of Defending A Client Who Wishes To Volunteer For Execution, J. C. Oleson

Washington and Lee Law Review

No abstract provided.

Is Capital Punishment Immoral Even If It Deters Murder, Thomas Kleven

Santa Clara Law Review

No abstract provided.

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Faculty Scholarship

Unwarranted constraints on the admissibility of genetics evidence in death penalty cases can undercut some defendants' efforts to fight their executions. For example, genetics evidence can help validate some traditionally accepted mitigating factors (such as certain psychiatric or behavioral disorders) that can otherwise be difficult for defendants to prove. By imposing unreasonable limitations on genetics arguments, the criminal justice system may be undermining the very principles and progressive thinking the cap on genetics evidence was originally intended to achieve. Part II of this article briefly reviews the facts and legal arguments in Mobley v. State. Part III addresses the primary …

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …

Less Is Better: Justice Stevens And The Narrowed Death Penalty, James S. Liebman, Lawrence C. Marshall

Faculty Scholarship

In a recent speech to the American Bar Association, Justice John Paul Stevens "issued an unusually stinging criticism of capital punishment." Although he "stopped short of calling for an end to the death penalty," Justice Stevens catalogued a number of its "'serious flaws,'" including several procedures that the full Court has reviewed and upheld over his dissent – selecting capital jurors in a manner that excludes those with qualms about the death penalty, permitting elected state judges to second-guess jurors when they decline to impose the death penalty, permitting states to premise death verdicts on "victim impact statements," tolerating sub-par …

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 …

The Chair, The Needle, And The Damage Done: What The Electric Chair And The Rebirth Of The Method-Of-Execution Challenge Could Mean For The Future Of The Eighth Amendment, Timothy S. Kearns

Cornell Journal of Law and Public Policy

No abstract provided.

The Effect Of Knowledge Gain On Capital Punishment: A Partial Test Of The Marshall Hypothesis, Alexander Able Savon

USF Tampa Graduate Theses and Dissertations

Justice Thurgood Marshall proposed a three-pronged postulate in his dissent in1972 in the Furman v. Georgia (408 U.S. 238) Supreme Court case. The American public is generally uninformed when it comes to the death penalty, and given information a "great mass of citizens" would be against it, unless their underlying beliefs were rootedin retribution (Furman v. Georgia, p. 363). These statements subsequently came to be known as the Marshall Hypothesis, and were deemed testable by researchers.

This study examines the influence on death penalty opinion as a consequence of participating in a college class on the death penalty. …

Killing The Willing: "Volunteers," Suicide And Competency, John H. Blume

Michigan Law Review

When my client Robert South decided to waive his appeals so that his death sentence could be carried out, I understood why he might make that choice. Robert had a brain tumor that could not be surgically removed. Though not fatal, the tumor disrupted his sleep/wake cycle and had other negative physical consequences, including severe headaches, for his daily existence. He also had chronic post-traumatic stress disorder ("PTSD"), resulting from a profound history of childhood physical, emotional and sexual abuse. Robert suffered from daily recurrent flashbacks of the abuse. He had been on death row for almost a decade, and …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

Prosecuting Saddam: The Coalition Provisional Authority And The Evolution Of The Iraqi Special Tribunal, Tom Parker

Cornell International Law Journal

No abstract provided.

Substantive Appellate Review In Capital Cases, Joseph L. Hoffmann

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

The Impact Of Victim-Offender Familial Relationships On Capital Sentencing Outcomes, Katharine D. Evans

USF Tampa Graduate Theses and Dissertations

This study is an investigation of whether familial relationships among offenders and their victims affect capital sentencing. Using a sample of capital cases from North Carolina restricted to familial homicides, logistic regression models are used while controlling for legal and extra-legal factors that influence decision outcomes. Such models of capital sentencing are developed to (1) determine whether familial-victim cases have unique correlates; and (2) whether there are variations in the effects of these correlates across gender. Contradictory to these hypotheses, results suggest that acquaintance and stranger relationships are less likely to receive a capital outcome when compared to familial relationships. …