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Full-Text Articles in Law

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber Jan 2021

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber

Articles

10th Annual David H. Bodiker Lecture on Criminal Justice delivered on Wed., Oct. 21, 2020 at Ohio State University Moritz College of Law.


Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit Jan 2020

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Articles

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies ...


Equal Protection Under The Carceral State, Aya Gruber Jan 2018

Equal Protection Under The Carceral State, Aya Gruber

Articles

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety ...


What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross Jan 2017

What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross

Articles

False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report ...


Murder, Minority Victims, And Mercy, Aya Gruber Jan 2014

Murder, Minority Victims, And Mercy, Aya Gruber

Articles

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the ...


Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy Jan 2014

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

Articles

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to ...


David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross Jan 2012

David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross

Articles

The first major empirical challenge to racial discrimination in the use of the death penalty in the United States was presented in federal court in the case of William L. Maxwell, who was sentenced to death in Arkansas in 1962 for the crime of rape.1 It was based on a landmark study by Marvin Wolfgang, a distinguished criminologist who had collected data on some 3000 rape convictions from 1945 through 1965 in selected counties across eleven southern states.2 He found that black men who were convicted of rape were seven times more likely to be sentenced to death ...


Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey Jan 2011

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Articles

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay ...


Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien Jan 2008

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 ...


Pope John Paul Ii, Vatican Ii, And Capital Punishment, Howard Bromberg Jan 2007

Pope John Paul Ii, Vatican Ii, And Capital Punishment, Howard Bromberg

Articles

Part I of this Article describe s Pope John Paul II’s teaching on capital punishment as based on the Scriptures and expressed in Evangelium Vitae and the Catechism. Part II examines the authority with which this doctrine was issued. Part III suggests that this teaching represents the “traditional teaching of the Church,” although a “more perfect expression” of that teaching than has heretofore been recognized. Parts IV and V indicate why the papacy of John Paul II-—“this time, in which God in His hidden design has entrusted to me... very close to the year 2000”-—was ripe for ...


Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey Jan 2006

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

Articles

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 ...


Souter Passant, Scalia Rampant: Combat In The Marsh, Samuel R. Gross Jan 2006

Souter Passant, Scalia Rampant: Combat In The Marsh, Samuel R. Gross

Articles

Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas.


What They Say At The End: Capital Victims' Families And The Press, Samuel R. Gross, Daniel J. Matheson Jan 2003

What They Say At The End: Capital Victims' Families And The Press, Samuel R. Gross, Daniel J. Matheson

Articles

Perhaps the most common complaint by American crime victims and their families is that they are ignored-by the police, by the prosecutors, by the courts and by the press. However true that may be for capital cases in general, there is at least one consistent exception: the great majority of newspaper accounts of executions include at least some description of the reactions of the victims' families and of any surviving victims. It seems to have become an item on the checklist, part of the "who, what, where, when, why, and how" of execution stories. When no family members are available ...


The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey Jan 2002

The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey

Articles

Norms urging prosecutors to seek justice by playing a quasi-judicial role and striving for fairness to defendants are often assumed to have deep historical roots. Yet, in fact, such a conception of the prosecutor's role is relatively new. Based on archival research on the papers of the New York County District Attorney's Office, "The Discretionary Power of 'Public' Prosecutors in Historical Perspective" explores the meaning of the word "public" as it applied to prosecutors in the nineteenth century. This article shows that, in the early days of public prosecution, district attorneys were expected to maximize convictions and leave ...


Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross Jan 1999

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.


Update: American Public Opinion On The Death Penalty - It's Getting Personal (Symposium: How The Death Penalty Works: Empirical Studies Of The Modern Capital Sentencing System), Samuel R. Gross Jan 1998

Update: American Public Opinion On The Death Penalty - It's Getting Personal (Symposium: How The Death Penalty Works: Empirical Studies Of The Modern Capital Sentencing System), Samuel R. Gross

Articles

Americans' views on capital punishment have stabilized. In 1994, when Professor Phoebe Ellsworth and I published a review of research on death penalty attitudes in the United States,' we began by noting that "support for the death penalty [is] at a near record high."'2 That finding, like most of the others we reported, has not changed. Nonetheless, it is interesting to pause and review the data on public opinion on the death penalty that have accumulated over the past several years. Stability is less dramatic than change but it may be equally important, and there is some news to ...


Mitigation, Mercy, And Delay: The Moral Politics Of Death Penalty Abolitionists, Anthony V. Alfieri Jan 1996

Mitigation, Mercy, And Delay: The Moral Politics Of Death Penalty Abolitionists, Anthony V. Alfieri

Articles

No abstract provided.


Reply To Daniel Polsby (Symposium: The New York Death Penalty In Context), Samuel R. Gross Jan 1996

Reply To Daniel Polsby (Symposium: The New York Death Penalty In Context), Samuel R. Gross

Articles

I'd like to offer a few words in response to Professor Polsby's articulate, forceful and amusing essay in favor of capital punishment.


The Romance Of Revenge: An Alternative History Of Jeffrey Dahmer's Trial, Samuel R. Gross Jan 1995

The Romance Of Revenge: An Alternative History Of Jeffrey Dahmer's Trial, Samuel R. Gross

Articles

On Feb. 17, 1992, Jeffrey Dahmer was sentenced to fifteen consecutive terms of life imprisonment for killing and dismembering fifteen young men and boys. Dahmer had been arrested six months earlier, on July 22, 1991. On Jan. 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on Jan. 30. The jury heard two weeks of horrifying testimony about murder, mutilation and necrophilia; they deliberated for five hours before finding that Dahmer was sane when he committed thos crimes. After ...


Hardening Of The Attitudes: Americans' Views On The Death Penalty, Phoebe C. Ellsworth, Samuel R. Gross Jan 1994

Hardening Of The Attitudes: Americans' Views On The Death Penalty, Phoebe C. Ellsworth, Samuel R. Gross

Articles

American support for the death penalty has steadily increased since 1966, when opponents outnumbered supporters, and now in the mid-1990s is at a near record high. Research over the last 20 years has tended to confirm the hypothesis that most people’s death penalty attitudes (pro or con) are based on emotion rather than information or rational argument. People feel strongly about the death penalty, know little about it, and feel no need to know more. Factual information (e.g., about deterrence and discrimination) is generally irrelevant to people’s attitudes, and they are aware that this is so. Support ...


The Case Of The Speluncean Explorers: Contemporary Proceedings, Naomi R. Kahn, John O. Calmore, Mary I. Coombs, Dwight L. Greene, Geofrey C. Miller, Jeremy Paul, Laura W. Stein Jan 1993

The Case Of The Speluncean Explorers: Contemporary Proceedings, Naomi R. Kahn, John O. Calmore, Mary I. Coombs, Dwight L. Greene, Geofrey C. Miller, Jeremy Paul, Laura W. Stein

Articles

No abstract provided.


The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross Jan 1993

The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross

Articles

On February 17, 1992, Jeffrey Dahmer was sentenced to 15 consecutive terms of life imprisonment for killing and dismembering 15 young men and boys (Associated Press 1992a). Dahmer had been arrested six months earlier, on July 22, 1991. On January 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on January 30. The jury heard two weeks of testimony about murder, mutilation and necrophilia; they deliberated for 5 hours before finding that Dahmer was sane when he committed these ...


The Lockett Paradox: Reconciling Guided Discretion And Unguided Mitigation In Capital Sentencing, Scott E. Sundby Jan 1991

The Lockett Paradox: Reconciling Guided Discretion And Unguided Mitigation In Capital Sentencing, Scott E. Sundby

Articles

No abstract provided.


The Reincarnation Of The Death Penalty: Is It Possible?, Yale Kamisar Jan 1973

The Reincarnation Of The Death Penalty: Is It Possible?, Yale Kamisar

Articles

Fifty years ago Clarence Darrow, probably the greatest criminal defense lawyer in American history and a leading opponent of capital punishment, observed: The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. Some states have abolished and then reinstated it; some have enjoyed capital punishment for long periods of time and finally prohibited the use of it. The reasons why it cannot be settled are plain. There is first of all no agreement as to the objects of punishment. Next there is no way to ...


Societal Concepts Of Criminal Liability For Homicide In Medieval England, Thomas A. Green Jan 1972

Societal Concepts Of Criminal Liability For Homicide In Medieval England, Thomas A. Green

Articles

THE early history of English criminal law lies hidden behind the laconic formulas of the rolls and law books. The rules of the law, as expounded by the judges, have been the subject of many studies; but their practical application in the courts, where the jury of the community was the final and unbridled arbiter, remains a mystery: in short, we know little of the social mores regarding crime and crimi- nals. This study represents an attempt to delineate one major aspect of these societal attitudes. Its thesis is that from late Anglo-Saxon times to the end of the middle ...


The Courts Of Judea, Jerome C. Knowlton Jan 1894

The Courts Of Judea, Jerome C. Knowlton

Articles

The study of Jewish jurisprudence has become interesting during the past ten years through the efforts of some painstaking scholars, who have not been burdened with any particular dogma, but have been actuated by a true Christian spirit. They have been close students of those portions of the Talmud which throw light on the jurisprudence of the Jews.