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Articles 1 - 29 of 29
Full-Text Articles in Law
Authority, Ignorance, And The Guilty Mind, Stephen P. Garvey
Authority, Ignorance, And The Guilty Mind, Stephen P. Garvey
Stephen P. Garvey
No abstract provided.
Racism, Unreasonable Belief, And Bernhard Goetz, Stephen P. Garvey
Racism, Unreasonable Belief, And Bernhard Goetz, Stephen P. Garvey
Stephen P. Garvey
How should the law respond when one person (D) kills another person (V), who is black, because D believes that V is about to kill him, but D would not have so believed if V had been white? Should D be exonerated on grounds of self-defense? The canonical case raising this question is People v. Goetz. Some commentators argue that norms of equal treatment and anti-discrimination require that D’s claim of self-defense be rejected. I argue that denying D’s claim of self-defense would be at odds with the principle that criminal liability should only be imposed on an actor if …
Restorative Justice, Punishment, And Atonement, Stephen P. Garvey
Restorative Justice, Punishment, And Atonement, Stephen P. Garvey
Stephen P. Garvey
Restorative justice is a way of responding to crime, and according to its proponents, it's a much better way of responding than the way they believe we now respond: through punishment imposed in the name of retributive justice. According to its proponents, restorative justice is better than retributive justice because it restores, or at least tries to restore, the victim; retribution's only aim is to punish the offender. According to restorativists, retribution ignores the victim. I argue here for two claims. First, I argue in Part II that restorative justice cannot have it both ways: it cannot achieve the restoration …
The Moral Emotions Of The Criminal Law, Stephen P. Garvey
The Moral Emotions Of The Criminal Law, Stephen P. Garvey
Stephen P. Garvey
Imagine you have committed a crime. You might experience any number of emotional responses to what you've done, ranging from self-satisfaction to self-disgust. But however you do feel, how should you feel? The question seems especially appropriate for a conference honoring Professor Herbert Morris and celebrating his work, for no one has shed light more on the moral emotions of the criminal law. The line of thought that follows owes Professor Morris a large and obvious debt. So, once again, how should you feel when you have committed a criminal wrong? "Guilty" comes immediately to mind. But guilt is not …
Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey
Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey
Stephen P. Garvey
Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an …
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Stephen P. Garvey
In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study …
When Should A Mistake Of Fact Excuse?, Stephen P. Garvey
When Should A Mistake Of Fact Excuse?, Stephen P. Garvey
Stephen P. Garvey
This symposium contribution advances two claims. First, a mistake (or ignorance) of fact should matter in the criminal law only insofar as it causes an actor to be ignorant of the law. Mistakes of fact should have exculpatory force if and only if they cause ignorance of the law, which ignorance ought to be an excuse to criminal liability. Second, an actor who should otherwise be excused because he is ignorant of the law, which ignorance is in turn the result of some mistake of fact, should not lose that excuse just because the underlying mistake of fact can in …
Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg
Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg
Stephen P. Garvey
The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …
The Emotional Economy Of Capital Sentencing, Stephen P. Garvey
The Emotional Economy Of Capital Sentencing, Stephen P. Garvey
Stephen P. Garvey
You often hear that one reason capital jurors condemn capital defendants is that jurors don't empathize with defendants. And one reason they don't empathize is that the process of capital sentencing is rigged against empathy. Using data from the South Carolina segment of the Capital Jury Project, I try to examine the role emotion plays in capital sentencing. Without entering here all the important and necessary caveats, I find that the self-reported emotional responses jurors have toward capital defendants run the gamut from sympathy and pity at one extreme, to disgust, anger, and fear at the other. What causes these …
Introduction To The Symposium: Religion's Role In The Administration Of The Death Penalty, Stephen P. Garvey
Introduction To The Symposium: Religion's Role In The Administration Of The Death Penalty, Stephen P. Garvey
Stephen P. Garvey
No abstract provided.
Passion's Puzzle, Stephen P. Garvey
Passion's Puzzle, Stephen P. Garvey
Stephen P. Garvey
The puzzle of the provocation defense, otherwise known as the "heat of passion" defense, is to figure out how, if at all, each of the basic elements of the doctrine can be explained in a coherent and normatively attractive fashion. None of the prevailing theories of provocation succeeds in solving this puzzle. These theories either fail to explain one or more of the basic elements of the doctrine, or else end up committing the state to a decidedly illiberal course of action: punishing citizens not only for what they do (for their actions), but for who they are (for their …
But Was He Sorry? The Role Of Remorse In Capital Sentencing, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
But Was He Sorry? The Role Of Remorse In Capital Sentencing, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
Stephen P. Garvey
What role does remorse really play in capital sentencing? We divide this basic question in two. First, what makes jurors come to believe a defendant is remorseful? Second, does a belief in the defendant's remorse affect the jury's final judgment of life or death? Here we present a systematic, empirical analysis that tries to answer these questions. What makes jurors think a defendant is remorseful? Among other things, we find that the more jurors think that the crime is coldblooded, calculated, and depraved and that the defendant is dangerous, the less likely they are to think the defendant is remorseful. …
Jury Responsibility In Capital Sentencing: An Empirical Study, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
Jury Responsibility In Capital Sentencing: An Empirical Study, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
Stephen P. Garvey
The law allows executioners to deny responsibility for what they have done by making it possible for them to believe they have not done it. The law treats members of capital sentencing juries quite differently. It seeks to ensure that they feel responsible for sentencing a defendant to death. This differential treatment rests on a presumed link between a capital sentencer's willingness to accept responsibility for the sentence she imposes and the accuracy and reliability of that sentence. Using interviews of 153 jurors who sat in South Carolina capital cases, this article examines empirically whether capital sentencing jurors assume responsibility …
Forecasting Life And Death: Juror Race, Religion, And Attitude Toward The Death Penalty, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
Forecasting Life And Death: Juror Race, Religion, And Attitude Toward The Death Penalty, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
Stephen P. Garvey
Determining whether race, sex, or other juror characteristics influence how capital case jurors vote is difficult. Jurors tend to vote for death in more egregious cases and for life in less egregious cases no matter what their own characteristics. And a juror's personal characteristics may get lost in the process of deliberation because the final verdict reflects the jury's will, not the individual juror's. Controlling for the facts likely to influence a juror's verdict helps to isolate the influence of a juror's personal characteristics. Examining each juror's first sentencing vote reveals her own judgment before the majority works its will. …
Death-Innocence And The Law Of Habeas Corpus, Stephen P. Garvey
Death-Innocence And The Law Of Habeas Corpus, Stephen P. Garvey
Stephen P. Garvey
The legal space between a sentence of death and the execution chamber is occupied by an intricate network of procedural rules. On average, it currently takes between six and seven years to traverse this space, but this interval is expected to shrink. Federal habeas corpus, an important part of this space, is studded more and more with procedural obstacles that bar the federal courts from entertaining the merits of a defendant's claims. By design, these barriers foreclose federal review in order to protect the state's interests in the finality of its criminal convictions, as well as to display healthy respect …
Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson
Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson
Stephen P. Garvey
Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectively, we have had first-hand experience in hundreds of death cases, in dozens of jurisdictions, extending over more than a third of a century. Our experience has convinced us that capital punishment cannot be administered with the fairness, reliability, and freedom from …
Two Kinds Of Criminal Wrongs, Stephen P. Garvey
Two Kinds Of Criminal Wrongs, Stephen P. Garvey
Stephen P. Garvey
I distinguish two kinds of criminal wrongs. A wrongdoer who acts in defiance of his conscience is guilty of what I call a wicked wrong. A wrongdoer who does not act in defiance of his conscience is guilty of what I call a vicious wrong. The distinction is derived from a conception of immorality typically associated with the Christian tradition. The distinction is important because it determines the moral message a wrongdoer should try to send through the punishment or penance he must endure in order to atone for his wrongdoing.
Virginia's Capital Jurors, Stephen P. Garvey, Paul Marcus
Virginia's Capital Jurors, Stephen P. Garvey, Paul Marcus
Stephen P. Garvey
Next to Texas, no state has executed more capital defendants than Virginia. Moreover, the likelihood of a death sentence actually being carried out is greater in Virginia than it is elsewhere, while the length of time between the imposition of a death sentence and its actual execution is shorter. Virginia has thus earned a reputation among members of the defense bar as being among the worst of the death penalty states. Yet insofar as these facts about Virginia's death penalty relate primarily to the behavior of state and federal appellate courts, they suggest that what makes Virginia's death penalty unique …
Self-Defense And The Mistaken Racist, Stephen P. Garvey
Self-Defense And The Mistaken Racist, Stephen P. Garvey
Stephen P. Garvey
How should the law respond when one person (D) kills another person (V), who is black, because D believes that V is about to kill him, but D would not have so believed if V had been white? Should D be exonerated on grounds of self-defense? Some commentators argue that D's claim of self-defense should be rejected. He should be convicted and punished. I argue, however, that denying D's claim of self-defense would be at odds with the principle that criminal liability and punishment should only be imposed on an actor if he chooses to cause or risk causing a …
Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey
Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey
Stephen P. Garvey
Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture. Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …
The Merciful Capital Juror, Theodore Eisenberg, Stephen P. Garvey
The Merciful Capital Juror, Theodore Eisenberg, Stephen P. Garvey
Stephen P. Garvey
We examine the role of mercy in capital sentencing along three dimensions. We first explain why mercy is a philosophically problematic virtue, and second, why it presently holds an ambiguous status within constitutional doctrine. Finally, we draw on interviews with jurors who served on capital cases in order better to understand how the behavior of merciful jurors compares to the behavior of their less merciful counterparts. Among other things, we find that merciful jurors tend to be better educated and to attend religious services regularly. We also find that merciful jurors are, as one might reasonably expect, more apt to …
Harmless Error In Federal Habeas Corpus After Brecht V. Abrahamson, John H. Blume, Stephen P. Garvey
Harmless Error In Federal Habeas Corpus After Brecht V. Abrahamson, John H. Blume, Stephen P. Garvey
Stephen P. Garvey
The law of habeas corpus has changed again. This time it was the law of harmless error. Before Brecht v. Abrahamson, the courts applied the same harmless error rule on direct appeal and in federal habeas corpus. Under that rule, embraced for constitutional errors in Chapman v. California, a conviction tainted by a constitutional error susceptible to harmless error analysis could be upheld only if the state demonstrated that the error was harmless beyond a reasonable doubt. After Brecht, the venerable Chapman rule still applies to constitutional errors identified and reviewed on direct appeal, but an ostensibly "less onerous" standard …
What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey
What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey
Stephen P. Garvey
Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of …
Aggravation And Mitigation In Capital Cases: What Do Jurors Think?, Stephen P. Garvey
Aggravation And Mitigation In Capital Cases: What Do Jurors Think?, Stephen P. Garvey
Stephen P. Garvey
The Capital Jury Project in South Carolina interviewed jurors who sat in forty-one capital murder cases. The Project asked jurors a range of questions relating to crime, the defendant, the victim, the victim's family, the jurors' deliberations, the conduct of counsel, and background characteristics of the jurors. In this essay, Professor Stephen P. Garvey presents and examines data from the Project relating to the importance jurors attach to various aggravating and mitigating factors. The results suggest that jurors have a discernible moral compass. According to the data, jurors found especially brutal killings, killings with child victims, future dangerousness, and lack …
Lifting The Veil On Punishment, Stephen P. Garvey
Lifting The Veil On Punishment, Stephen P. Garvey
Stephen P. Garvey
When the state punishes a person, it treats him as it ordinarily should not. It takes away his property, throws him in prison, or otherwise interferes with his liberty. Theories of punishment try to explain why such harsh treatment is nonetheless morally permissible, if not morally obligatory. Such theories often seem to take for granted that the state in question is an upright one. Among other things, the states in which we live fail, one might reasonably believe, to distribute wealth and power fairly among their citizens. Nor are the criminal justice systems they superintend flawless, not least of which …
The Deadly Paradox Of Capital Jurors, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
The Deadly Paradox Of Capital Jurors, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells
Stephen P. Garvey
We examine support for the death penalty among a unique group of respondents: one hundred and eighty-seven citizens who actually served as jurors on capital trials in South Carolina. Capital jurors support the death penalty as much as, if not more than, members of the general public. Yet capital jurors, like poll respondents, harbor doubts about the penalty's fairness. Moreover, jurors--black jurors and Southern Baptists in particular--are ready to abandon their support for the death penalty when the alternative to death is life imprisonment without the possibility of parole, especially when combined with a requirement of restitution. Support for the …
Questions Of Mercy, Stephen P. Garvey
Questions Of Mercy, Stephen P. Garvey
Stephen P. Garvey
My aim in this brief introduction is to organize the Symposium articles around two questions, recognizing that doing so means ignoring other important questions to which the articles attend. I also aim to paint in broad strokes, thus also ignoring much of the argumentative subtlety and nuance contained in the articles. With those caveats on the table, the questions are these: First, does mercy have any legitimate role to play in the administration of the criminal law of a liberal state? Second, if mercy does have some such role to play, for what reasons, or upon what grounds, can mercy …
Juror First Votes In Criminal Trials, Stephen P. Garvey, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman, Martin T. Wells
Juror First Votes In Criminal Trials, Stephen P. Garvey, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman, Martin T. Wells
Stephen P. Garvey
Our analysis of the voting behavior of over 3,000 jurors in felony cases tried in Los Angeles, Maricopa County, the District of Columbia, and the Bronx reveals that only in D.C. does a juror's race appear to relate to how he or she votes. African-American jurors in D.C. appear more apt to vote not guilty on the jury's first ballot in cases involving minority defendants charged with drug offenses. We find no evidence, however, that this effect survives into the jury's final verdict.
Freeing Prisoners' Labor, Stephen P. Garvey
Freeing Prisoners' Labor, Stephen P. Garvey
Stephen P. Garvey
Although labor was central to the internal life of the early penitentiary, it has virtually vanished from today's prison. In this article, Professor Garvey proposes making labor once again a key part of the prison regime. During the decades surrounding the turn of the century, organized labor and business successfully lobbied for protectionist state and federal legislation that prohibited private firms from contracting for prison labor and selling prison-made goods on the open market. This legislation abolished the old "contract" system of prison labor and replaced it with the "state-use" system. Under the state-use system, inmates work only for the …