Law Commons^™

Racial Discrimination In Jury Selection: The Urgent Need For Sixth Amendment Protections For Black Capital Defendants, Claire Austin

Marquette Benefits and Social Welfare Law Review

In the U.S., death row is made up of a disproportionate number of black persons. In capital trials, black defendants often face all white juries. The deep-rooted racial discrimination in the justice system impacts jury selection because prosecutors use peremptory strikes to remove black jurors from the jury panel. As the law stands today, the Sixth Amendment guarantee of an impartial jury made up of a fair representation of the jury applies only to the pool of jurors called in for jury service, not those who are actually selected to hear the case.

This comment analyzes the Supreme Court decision, …

The Court And Capital Punishment On Different Paths: Abolition In Waiting, Carol S. Steiker, Jordan M. Steiker

Washington and Lee Journal of Civil Rights and Social Justice

The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past …

The Gross Injustices Of Capital Punishment: A Torturous Practice And Justice Thurgood Marshall’S Astute Appraisal Of The Death Penalty’S Cruelty, Discriminatory Use, And Unconstitutionality, John D. Bessler

Washington and Lee Journal of Civil Rights and Social Justice

Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. …

Severe Mental Illness And The Death Penalty: A Menu Of Legislative Options, Richard J. Bonnie

Washington and Lee Journal of Civil Rights and Social Justice

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders. The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006. This brief article focuses primarily on diminished responsibility at the time …

Does The Death Penalty Still Matter: Reflections Of A Death Row Lawyer, David I. Bruck

Washington and Lee Journal of Civil Rights and Social Justice

This talk was given by Professor David Bruck for the Frances Lewis Law Center at Washington and Lee University School of Law, April, 2002. It is a follow-up to “Does the Death Penalty Matter?,” given by Professor Bruck as the 1990 Ralph E. Shikes Lecture at Harvard Law School.

Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle

Washington and Lee Journal of Civil Rights and Social Justice

Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, …

Revisiting The Ox-Bow Incident: The Almost Forgotten Western Classic About The Lynching Of Three Innocent Men Is As Relevant As Ever, Marc Bookman

Washington and Lee Journal of Civil Rights and Social Justice

The concept of lynching, several hundred years old and unclear in its origins, has never really left the lexicon. The word itself, however, has taken on different meanings over the years, from a mob’s taking the law into its own hands, to an organized utilization of racial violence as a means of societal control and intimidation; and finally to the more casual and defensive use of the word (“high tech lynching”) by current Supreme Court justices Thomas and Kavanaugh and others after being questioned about their past behaviors. Many academics have opined that the modern system of capital punishment is …

"Only To Have A Say In The Way He Dies": Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Scholarly Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

The Problematic Nature Of Execution By Lethal Injection In The United States And People’S Republic Of China, Franchesca Fanucchi

Themis: Research Journal of Justice Studies and Forensic Science

The United States and the People’s Republic of China perceive the death penalty as a fundamental feature of the criminal justice system. Lethal injection procedures provide these countries with the humane disguise necessary to preserve capital punishment in an environment of evolving societal standards. However, this essay examines the highly problematic nature of execution by lethal injection due to numerous medical, procedural, and bureaucratic concerns often concealed from the public and press. The low-visibility nature of lethal injection in the United States and China has become troublesome, especially since it prevents public, academic, and medical evaluation on the procedure's humaneness …

The Political Development Of Capital Punishment In The Modern Moroccan State, Mia Barr

Independent Study Project (ISP) Collection

The modern Moroccan state seen today is very young. Having only been independent from France since 1956, the country has spent the last sixty-four years crafting its post-colonial statehood. What has emerged is a hybrid political system with powers split, however unequally, between the King and his inner circle, known as the makhzen, and the Parliament. Not only is the monarchy constitutional—meaning that its legitimacy is literally written into the primary governing document of Morocco, which had its last referendum in 2011—but it is also self-sustaining and self-legitimizing, for the monarchy uses its constitutional powers to grant itself further powers …

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

Navigating The Moral Minefields Of Human Rights Advocacy In The Global South, Sandra L. Babcock

Cornell Law Faculty Publications

Human rights advocacy in foreign countries raises complex ethical, moral, and political questions. Legal scholars have challenged the legitimacy and accountability of international human rights activists that impose foreign agendas on local partners in the Global South. Development economists have raised related concerns about the impact of foreign assistance on government accountability. In this article, I use narrative storytelling techniques to illustrate the fraught strategic judgments and moral choices that permeate human rights advocacy. These narratives are drawn from my international human rights clinic’s twelve-year engagement in justice reform work in Malawi, where my students and I have been instrumental …

Outlier: Iran And Its Use Of The Death Penalty, Ahmed Shaheed, Faraz Sanei

Faculty Scholarship

For several years now the right to life has been under heavy assault in the Islamic Republic of Iran. The country has followed a familiar but troubling pattern regarding the use of the death penalty. It has consistently ranked second in the world in the number of executions carried out (behind China), and first in executions per capita. More recently, the upward trend in executions that began in 2010-11 has reached alarming levels not seen in more than two decades. In 2015, alone, human rights organisations tracking the number of executions in Iran documented at least 966 executions, with over …

How Strong Is Public Support For The Death Penalty In Singapore?, Wing-Cheong Chan, Ern Ser Tan, Jack Tsen-Ta Lee, Braema Mathi

Research Collection Yong Pung How School Of Law

Singapore is well known internationally for its uncompromising stance towards law and order and its use of the death penalty in particular for murder and drug trafficking. Until 2012, it was one of the few countries in the world where the death penalty was mandatory for persons convicted of these two crimes. The law was amended in 2012 to give a judge the choice to impose the death penalty or life imprisonment (with caning) for non-intentional murder and drug trafficking in some situations. What do Singaporeans think of the use of the death penalty in their own country? This article …

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …

Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod

Marah McLeod

This Article addresses the substantive question, "Does the death penalty require death row?" and the procedural question, "Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent …

Nuclear Weapons, Lethal Injection, And American Catholics: Faith Confronting American Civil Religion, Thomas L. Shaffer

Thomas L. Shaffer

But, still, honor is important among us. "He was an honorable man" is still a moving thing to say, at a (man's) funeral. The notion, and the liturgy that invokes the notion, show us believers that civil religion has a hold on us, and that we need a place where we can sit down together and think things out.2 6 This argument of mine needs to get beneath simple contrasts between biblical faith and civil religion. We believers need to reason together, plopped down as we are in the middle of the present. We believers include naval officers and lawyers …

Humane Proposals For Swift And Painless Death, Bryce Buchmann

Law Student Publications

This comment will provide reasons why lethal injection is not the appropriate method of execution in the United States, discuss factors that should be considered in selecting a method of execution and conclude that several alternative methods of punishment are preferable to lethal injection. Part I of this comment will detail the history of lethal injection in the United States and the issues associated with the practice. Part II examines how the government determines which method of execution is appropriate. Finally, Part III provides proposals for more humane punishment and concludes the comment.

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod

Journal Articles

This Article addresses the substantive question, "Does the death penalty require death row?" and the procedural question, "Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent …

Executing On An Empty Tank: Protecting The Supply Of Lethal Injection Drugs From Public Records Requests, Ira K. Rushing

Ira K Rushing

With the US Supreme Court holding the death penalty and lethal injection as Constitutional, there has been a new strategy for condemned prisoners. Using public information requests to discover the identities of the suppliers of lethal injection drugs and others in ancillary roles, the media has broad range to publish this information. This has led to many suppliers and compounding pharmacies to withhold supplies of the drugs to states using them in executions. This paper lays out a history of the death penalty in Mississippi that has gotten us to this point. It then attempts to provide persuasive arguments on …

Applying The Death Penalty To Crimes Of Genocide, Jens David Ohlin

Jens David Ohlin

No abstract provided.

Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali

Touro Law Review

No abstract provided.

Federal Appeals Court Spares Mentally Ill Man From Execution -- For Now, Lauren Carasik

Media Presence

No abstract provided.

European Court Of Human Rights - Extradition - Inhuman Or Degrading Treatment Or Punishment, Soering Case, 161 Eur. Ct. H.R. (Ser. A) (1989), David L. Gappa

Georgia Journal of International & Comparative Law

No abstract provided.

The Relevance Of Customary International Norms To The Death Penalty In The United States, Joan Fitzpatrick

Georgia Journal of International & Comparative Law

No abstract provided.

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

The European Union And The Abolition Of The Death Penalty, Christian Behrmann, Jon Yorke

Pace International Law Review Online Companion

The European Union has become a leading regional force in the progress towards a world free of state sanctioned judicial killing in the form of the death penalty. This article investigates how the EU has evolved its abolitionist position. It analyzes the development of the region’s internal policy beginning in the European Parliament, to the rejection of the punishment being mandated as a Treaty provision, which evolves into an integral component of the external human rights project. The EU has now formulated technical bilateral and multilateral initiatives to promote abolition worldwide. This is most clearly evidenced in the EU playing …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …