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Full-Text Articles in Law

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas Dec 2013

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on ...


Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate Aug 2013

Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate

Law Faculty Publications

This book review discusses Richard A. Stack's book, Grave Injustice, which illustrates the flaws in America's use of capital punishment. "Simply put, the death penalty is shown to be a massive policy failure diminishing the legitimacy of the criminal justice system in the world's leading democracy. Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension. This dimension is always at the center of crime and punishment and, most hauntingly, at the center of the American death penalty and ...


Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain Jul 2013

Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain

Law Faculty Publications

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives?

Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment).

So why weren’t the states executing? We tend to hear about innocence claims, trench ...


Data Underlying "Living Death: Ambivalence, Delay, And Capital Punishment", Marianne Wesson, Amy Kingston, Jocelyn Jenks, Laura Mcnabb, Lauren Seger, Genet Tekeste, Edwin Hurwitz Feb 2013

Data Underlying "Living Death: Ambivalence, Delay, And Capital Punishment", Marianne Wesson, Amy Kingston, Jocelyn Jenks, Laura Mcnabb, Lauren Seger, Genet Tekeste, Edwin Hurwitz

Research Data

The documents here archived contain data compilations researched and recorded by me and my research assistants in connection with the article by Marianne "Mimi" Wesson, Living Death: Ambivalence, Delay, and Capital Punishment (Feb. 20, 2013), https://ssrn.com/abstract=2221597.

Our research investigated four study jurisdictions: Arizona, Louisiana, Nevada, and Ohio. The data falls into two categories: analyses of reported appellate cases during designated periods in those jurisdictions; and investigations of the subsequent careers of every individual who resided on death row in one of our jurisdictions in April of 1995. The article further explains the impetus for these investigations ...


The Virtues Of Thinking Small, Corinna Barrett Lain Jan 2013

The Virtues Of Thinking Small, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should "think small," examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.


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 ...


Death And Rehabilitation, Meghan J. Ryan Jan 2013

Death And Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that ...


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 ...