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Full-Text Articles in Law

Nondelegating Death, Alexandra L. Klein Jan 2020

Nondelegating Death, Alexandra L. Klein

Scholarly Articles

Most states’ method of execution statutes afford broad discretion to executive agencies to create execution protocols. Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s nondelegation and separation of powers doctrines. State courts routinely use the nondelegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts. Despite its uncertain status, the nondelegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of nondelegation. It analyzes state court decisions upholding broad legislative ...


Criminal Justice And (A) Catholic Conscience, Leo E. Strine Jr. Jan 2016

Criminal Justice And (A) Catholic Conscience, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

This article is one person's reflections on how an important influence on his own sense of moral values -- Jesus Christ -- affects his thinking about his own approach to his role as a public official in a secular society, using the vital topic of criminal justice as a focal point. This article draws several important lessons from Christ's teachings about the concept of the other that are relevant to issues of criminal justice. Using Catholicism as a framework, this article addresses, among other things, capital punishment and denying the opportunity for redemption; the problem of racial disparities in the ...


Three Essays In Criminal Justice, Bernard E. Harcourt Jan 2015

Three Essays In Criminal Justice, Bernard E. Harcourt

Faculty Scholarship

How could the New York Times call the grand jury’s decision to no bill the indictment against officer Darren Wilson in Ferguson, Missouri, a “verdict”? How could federal appellate judges call it a “procedural shortcut” when a state judge, in a death penalty case, signs the state attorney general’s proposed judicial opinion without even striking the word “proposed” or reviewing the full opinion? What do these incidents tell us about contemporary criminal justice? These essays explore these puzzles. The first, “Verdict and Illusion,” begins to sketch the role of illusions in justice. The second, “A Singe Voice of ...


Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown Jan 2014

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates ...


Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler Jan 2014

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

All Faculty Scholarship

This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.


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 ...


The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler Jan 2013

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

All Faculty Scholarship

This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional ...


Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt Jan 2013

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics – these ricochets and reflections on Beccaria’s treatise reveal multiple ...


Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler Oct 2012

Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler

All Faculty Scholarship

This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The ...


Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard Apr 2012

Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard

All Faculty Scholarship

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held that ...


The American Historical Review (April 2012) (Reviewing David Garland, Peculiar Institution: America’S Death Penalty In An Age Of Abolition, John Bessler Apr 2012

The American Historical Review (April 2012) (Reviewing David Garland, Peculiar Institution: America’S Death Penalty In An Age Of Abolition, John Bessler

All Faculty Scholarship

No abstract provided.


And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard Mar 2011

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution ...


Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin Jan 2010

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

Faculty Scholarship at Penn Law

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding ...


Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler Oct 2009

Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler

All Faculty Scholarship

In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's ...


Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson Jan 2009

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson

Faculty Scholarship

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 1996-97 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast,has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in ...


Death And Harmless Error: A Rhetorical Response To Judging Innocence, Colin Starger Feb 2008

Death And Harmless Error: A Rhetorical Response To Judging Innocence, Colin Starger

All Faculty Scholarship

Professor Garrett’s impressive empirical analysis of the first 200 post conviction DNA exonerations in the United States (“Garrett Study”) has the potential to affect contemporary debates surrounding our nation’s criminal justice system. This Response explores this potential by harnessing the Study’s data in support of arguments for and against a contested doctrinal proposition — that guilt-based harmless error rules should never apply in death penalty appeals. My analysis starts with the premise that the Study’s real world impact will necessarily depend on how jurists, politicians, and scholars extrapolate the explanatory power of the data beyond the 200 ...


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 ...


Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt Jan 2008

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and customary international ...


Without Limitation: 'Groundhog Day' For Incompetent Defendants, J. Amy Dillard Jul 2007

Without Limitation: 'Groundhog Day' For Incompetent Defendants, J. Amy Dillard

All Faculty Scholarship

This Article offers a brief overview of the standards for determining competency to stand trial. After examining the seminal case of Jackson v. Indiana, which held that the indefinite pre-trial detention of incompetent defendants violates due process, this Article argues that Virginia Code § 19.2-169.3, like statutes in twenty other states, violates a defendant's right to substantive due process, including the right to be free from forcible medication. This Article proposes legislation that will make the process constitutional, while addressing the concerns about the release of dangerous individuals held by the prosecutors and the community.


The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich Mar 2005

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 pendulum may ...


The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler Mar 2004

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

All Faculty Scholarship

This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by strangulation ...


Injustice Casts Shadow On History Of State Executions, John Bessler Dec 2003

Injustice Casts Shadow On History Of State Executions, John Bessler

All Faculty Scholarship

This article, published in the StarTribune of Minneapolis, discusses the history of lynchings and executions in the State of Minnesota. It specifically discusses miscarriages of justice that have taken place in Minnesota, along with highlighting other problems associated with capital punishment.


Review Of The Hanging Of Ephraim Wheeler : A Story Of Rape, Incest, And Justice In Early America, Michael F. Russo May 2003

Review Of The Hanging Of Ephraim Wheeler : A Story Of Rape, Incest, And Justice In Early America, Michael F. Russo

Faculty Publications

No abstract provided.


Amusing Monsters, Anthony P. Farley Mar 2002

Amusing Monsters, Anthony P. Farley

Boston College Law School Faculty Papers

In this review of Austin Sarat’s important book When the State Kills: Capital Punishment and the American Condition, the reviewer invokes Thomas Hobbes’ Leviathan to inform our understanding of the killing state. Because capital punishment is carried out pursuant to the democratic processes, the execution involves us all, done as it is in our name. Those committed to the end of the killing state, and to the end of the violent hierarchies that allow the killing state to exist, will find Surat’s book “a valuable articulation of a committed and responsible approach to the problems of our time.”


America’S Death Penalty: Just Another Form Of Violence, John Bessler Jan 2002

America’S Death Penalty: Just Another Form Of Violence, John Bessler

All Faculty Scholarship

The author in this piece reflects on the death penalty in the U.S. in the aftermath of the 9/11 terrorist attacks. The writer goes on to argue that capital punishment is, in and of itself, a form of violence. Also discussed in the article are the gradual removal of executions from public view, issues of deterrence and violent crime, and the author's preference for life-without-possibility-of-parole sentences.


Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich Apr 2001

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt ...


Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross Jan 2001

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

Articles

In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the ...


The “Midnight Assassination Law” And Minnesota’S Anti-Death Penalty Movement, John Bessler Jan 1996

The “Midnight Assassination Law” And Minnesota’S Anti-Death Penalty Movement, John Bessler

All Faculty Scholarship

This article traces the history of Minnesota's anti-death penalty movement and the 1889 Minnesota law - dubbed by contemporaries as the "midnight assassination law" - requiring private, nighttime executions. That law, authored by Minnesota legislator John Day Smith, restricted the number of execution spectators, prohibited newspapers from printing any execution details, and provided that only the fact of the execution could be lawfully printed. Also commonly referred to as the "John Day Smith law," this Minnesota statute was challenged as being unconstitutional by Minnesota newspapers after those newspapers printed details of a botched hanging and were charged with violating the law ...


The Executioners Sing, Joseph L. Hoffmann Jan 1995

The Executioners Sing, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.


Murder, Capital Punishment, And Deterrence: A Review Of The Evidence And An Examination Of Police Killings., William C. Bailey, Ruth Peterson Jul 1994

Murder, Capital Punishment, And Deterrence: A Review Of The Evidence And An Examination Of Police Killings., William C. Bailey, Ruth Peterson

Sociology & Criminology Faculty Publications

This paper reviews and assesses the empirical literature on murder, capital punishment, and deterrence. There is a large body of evidence regarding these issues, with studies yielding a rather consistent pattern of nondeterrence. However, most investigations are limited because they rely upon the general homicide rate as the criterion variable, although both legally and theoretically, different types of murder may be differentially subject to deterrence. As an example of how deterrence investigations may benefit from examining different types of homicide, we conduct a monthly time-series analysis of the possible deterrent effect of the provision for capital punishment, levels of execution ...