Law Commons^™

The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

Richard Daniel Klein

No abstract provided.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

The Mandatory Death Penalty And A Sparsely Worded Constitution, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

It was not unexpected that the Singapore Court of Appeal would reaffirm the constitutionality of the mandatory death penalty for certain forms of drug trafficking in Yong Vui Kong v Public Prosecutor [2010] 3 S.L.R 489. ... The appellant made submissions based on Articles 9(1) and 12(1) of the Constitution, which respectively guarantee rights to life and personal liberty, and to equality before the law and equal protection of the law. This note examines aspects of the Article 9(1) arguments.

Statement Of David E. Aaronson In Support Of Hb 1075 To Repeal The Death Penalty, David Aaronson

David Aaronson

No abstract provided.

Testimony In Support Of Connecticut Senate Bill 1035 And House Bill 6425, Abolishing The Death Penalty (2011), John J. Donohue

John Donohue

In 1975, Isaac Ehrlich launched the modern econometric evaluation of the impact of the death penalty on the prevalence of murder with a controversial paper that concluded that each execution would lead to eight fewer homicides (Ehrlich 1975). A year later, the Supreme Court cited Ehrlich’s work in issuing an opinion ending the execution moratorium that had started with the 1972 decision in Furman v. Georgia. Today it is widely recognized that Ehrlich's national time-series methodology is too unreliable to be published in any economics journal.

Over the last few years, a number of highly technical papers have purported to …

Chivalry Is Not Dead: Murder, Gender, And The Death Penalty, Steven Shatz, Naomi Shatz

Steven F. Shatz

An Analysis Of Thirty-Five Years Of Rape Reform: A Frustrating Search For Fundamental Fairness, Richard Klein

Richard Daniel Klein

This article will analyze the most significant changes in the manner in which individuals who are charged with the crime of rape are prosecuted for that offense. In the last thirty-five years, there has been a steady erosion of the due process rights of those accused of rape.

Original Habeas Redux, Lee Kovarsky

Lee Kovarsky

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …

Practicing Proportionality, William W. Berry Iii

William W Berry III

At the heart of the Eighth Amendment’s “cruel and unusual” punishment clause are two concepts of proportionality—absolute and relative. Absolute proportionality (“cruel”) asks whether the sentence is commensurate with the state’s purposes of punishment. Relative proportionality (“unusual”), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets limits on punishment based on the relationship between the punishment and the intended punitive goal; relative proportionality sets limits on punishment based on the sentencing outcomes in similar cases. In recent years, the United States Supreme Court has utilized the concept of absolute proportionality to …

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein

Richard Daniel Klein

No abstract provided.

Death Penalty Cases Impose Singular Burden, Judith L. Ritter, Ross Kleinstuber

Judith L Ritter

No abstract provided.

Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Michael L Perlin

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.

What …

Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky

Lee Kovarsky

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …

Murder Most Foul: The Death Penalty And The Disadvantaged, Abdaal M. Akhtar

Abdaal M Akhtar

The paper explores how the death penalty is intrinsically unfair in the way it is administered, as it provides ample scope for judges and juries to enforce their own biases and prejudices, racial or otherwise.

Killing Capital Punishment In New Jersey: The First State In Modern History To Repeal Its Death Penalty Statute, Robert Martin

Robert J. Martin

This article examines how opponents of the death penalty were successful in lobbying and eventually achieving statutory repeal of New Jersey’s death penalty statute in December 2007. The primary goal of the article is to offer inspiration and guidance for similar efforts in the thirty-five states that still authorize capital punishment. In reviewing lessons learned from New Jersey, the article demonstrates that abolition proved both difficult and doubtful. Led by a small group of organizers and sympathetic legislators, the advocates of abolition faced multiple challenges. The article focuses special attention on their key strategic decisions: pursuit of both legislation and …

The Death Penalty In Delaware: An Empirical Study, John H. Blume, Theodore Eisenberg, Sheri Johnson, Valerie P. Hans

Valerie P. Hans

This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the …

Furman's Mythical Mandate, Scott Howe

Scott W. Howe

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that the …

Impeachment Calls And Death Threats: Assessing Criticisms Of The Death Penalty Jurisprudence Of Justices Kennedy And O’Connor, Susan Raeker-Jordan

Susan Raeker-Jordan

No abstract provided.

Parsing Personal Predilections: A Fresh Look At The Supreme Court’S Cruel And Unusual Death Penalty Jurisprudence, Susan Raeker-Jordan

Susan Raeker-Jordan

No abstract provided.

The Futile Quest For Racial Neutrality In Capital Selection And The Eighth Amendment Argument For Abolition Based On Unconscious Racial Discrimination, Scott W. Howe

Scott W. Howe

This article begins by discussing the characteristics of current capital-sentencing systems that make racial discrimination in capital selection uncontrollable. It also summarizes the social-science evidence that white-victim bias widely plagues capital selection. The article then develops the two central arguments suggested by its title. First, it provides a detailed explanation of why proposals for federal regulatory reform cannot succeed in achieving racial neutrality in capital selection. Second, it provides a theory to explain why unconscious racial discrimination in capital selection violates the Eighth Amendment and, given the futility of federal regulatory remedies, justifies abolition.

Men Of A Thousand Days: Death-Sentenced Inmates At Utah State Prison, Sandra Mcgunigall-Smith

Sandy McGunigall-Smith

Studies of the pains of confinement and coping techniques have ignored the experiences of death-sentenced inmates, particularly those in the USA housed under the punitive regimes of supermax facilities. This research is a qualitative, mini-longitudinal study carried out between 1997 and 2001 which examines the particular pains of confinement for inmates in the supermax facility of Utah State Prison and how they coped with life under the sentence of death. The findings suggest that these inmates experienced different pains and utilized different coping techniques than those described in prison literature.

The Right To Effective Assistance Of Capital Postconviction Counsel: Constitutional Implications Of Statutory Grants Of Capital Counsel, Celestine Richards Mcconville

Celestine Richards McConville

The problem of incompetent counsel in capital cases is hardly a secret. Much of the attention, however, has focused on incompetent capital trial counsel. This article, by contrast, addresses the problem of incompetent capital counsel at the state and federal postconviction levels. Like the trial and direct review phases, the capital postconviction phase is critical to an accurate and reliable determination of guilt and death-eligibility. Thus, competent counsel is just as necessary during capital postconviction proceedings as it is during capital trial and direct review proceedings.

The Supreme Court, however, has made clear that there is no constitutional right to …

Some Contrarian Concerns About Law, Psychology, And Public Policy, Donald Bersoff

Donald N. Bersoff

No abstract provided.

The Troubling Influence Of Equality In Constitutional Criminal Procedure: From Brown To Miranda, Furman And Beyond, Scott Howe

Scott W. Howe

This article identifies and critiques a theory of the criminal clauses revealed in Supreme Court decisions after Brown v. Board of Education. As the title implies, the article contends that the Court has often gone astray in constructing these clauses by focusing on equality. The article contends that the criminal clauses are better understood as discrete protections of individual liberty than as reflecting a unified theory or separate theories about equality. The article proposes a reformulation of doctrine in varied realms of constitutional criminal procedure, including police interrogation, capital sentencing and administrative searches and seizures.

The Failed Case For Eighth Amendment Regulation Of The Capital-Sentencing Trial, Scott W. Howe

Scott W. Howe

This article explores Eighth Amendment theories that might justify the effort by the Supreme Court to regulate capital-sentencing trials but explains why they are problematic. The Court typically has asserted that the aim of its capital-sentencing doctrine is to achieve nonarbitrariness or consistency in the use of the death penalty. However, the article shows why the Court's regulatorty efforts have not served that goal, why that goal is unachievable, and, ultimately, why that goal does not comport with the mandate of the Eighth Amendment. The article contends that the better view is that the Eighth Amendment limits the use of …

A Pro-Death, Self-Fulfilling Constitutional Construct: The Supreme Court’S Evolving Standard Of Decency For The Death Penalty, Susan Raeker-Jordan

Susan Raeker-Jordan

Reassessing The Individualization Mandate In Capital Sentencing: Darrow's Defense Of Leopold And Loeb, Scott W. Howe

Scott W. Howe

This article begins by recounting the story of Clarence Darrow's defense of Leopold and Loeb in 1924. The account is based heavily on a recently republished trial transcript. The Leopold and Loeb trial captured world-wide attention and, even today, continues to engender interest and controversy. It was apparently the first instance of an elaborate psychological defense offered in mitigation to avoid the death penalty for defendants who conceded their guilt of a horrendous murder. Darrow's summation in the case is also considered one of the most spectacular examples in history of legal advocacy.

After describing Darrow's extrordinary defense at length, …