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Full-Text Articles in Law

Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster Jan 2022

Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster

Faculty Scholarship

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman …


Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell Jan 2019

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme is unconstitutional if it …


Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller Jan 2018

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …


Executing Whiteness: Fictional And Nonfictional Accounts Of Capital Punishment In The United States, 1915-1940, Daniel Lachance Jan 2014

Executing Whiteness: Fictional And Nonfictional Accounts Of Capital Punishment In The United States, 1915-1940, Daniel Lachance

Studio for Law and Culture

Over the course of the nineteenth century, elites in the United States increasingly sought to privatize executions and rationalize execution protocols. The source of this change is well known to historians of punishment: a fear that public executions had become unwieldy spectacles drove state actors to move these events into jail yards, at first, and then, with the advent of new technologies, into the interior of centralized prisons that were often far from the county in which the crime had occurred. The centralization of executions and the rationalization of execution protocols reflected and reinforced a more bureaucratic image of the …


Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt Jan 2013

Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In his 1979 lectures at the Collège de France, The Birth of Biopolitics, Michel Foucault discussed and analyzed Gary Becker’s economic theory of crime and punishment, originally published in The Journal of Political Economy in 1968 under the title “Crime and Punishment: An Economic Approach.” In this historic, second encounter at the University of Chicago, Gary Becker responds to Foucault’s lectures and possible critical readings of his writings on crime and punishment, in conversation with Professors François Ewald (who was, at the time in 1979, Foucault’s assistant at the Collège and one of Foucault’s closest interlocutors) and Bernard Harcourt (a …


Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke Jan 2011

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …


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 …


Medellin V. Dretke: Federalism And International Law, Curtis Bradley, Lori Fisler Damrosch, Martin Flaherty Jan 2005

Medellin V. Dretke: Federalism And International Law, Curtis Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This evening, we're going to have, at the very least, a discussion which may blossom into a debate-we will see as the evening progresses. However one characterizes the event, we're here to discuss the Medellin v. Dretke case and, more broadly, we are going to be discussing cutting edge issues of international law, including the operation of self-executing treaties and state legal systems, the weight to be given to judgments of international courts interpreting such treaties, and the duties of state and federal judiciaries in this process, all in the context of death penalty cases. Let me give you a …


A Broken System, Part Ii: Why There Is So Much Error In Capital Cases And What Can Be Done About It, James S. Liebman, Jeffrey A. Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss Jan 2002

A Broken System, Part Ii: Why There Is So Much Error In Capital Cases And What Can Be Done About It, James S. Liebman, Jeffrey A. Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss

Faculty Scholarship

There is growing awareness that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system.

Our June 2000 Report shows how often mistakes occur and how serious it is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors.

Analyses presented for the first time here reveal that 76% of the reversals at the two appeal stages where data are available for study were …


Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman Jan 2002

Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman

Faculty Scholarship

Innocent fatalities are a concern of all social activity with a capacity to kill. This is especially true when the social activity is the death penalty since an innocent person's execution is not simply a tragic collateral consequence of activity with a non-fatal objective. Instead, the taking of life is the goal of the enterprise, and the killing is the intended act of the state.

There is another difference between accidental fatalities in other social activities and those that occur when the capital system miscarries. Typically, the former fatalities are easy to spot and quantify; the latter are not. Precisely …


Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman Jan 2001

Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman

Faculty Scholarship

In late March, a reporter called with news of a pirated copy of Professor Joseph Hoffinann's soon-to-be-published "attack" on our study, A Broken System: Error Rates in Capital Cases, 1973-1995. Did we care to comment? Obtaining our own copy revealed that Professor Hoffmann's fusillade missed its mark (he misstates what we did) and boomeranged (his mischaracterizations of our analysis accurately describe his own). We do care to comment, and Hoffmann and the Indiana Law Journal have graciously let us do so.

Hoffmann's main claim is that we "extrapolated" the 68% rate of reversible error we reported for capital verdicts …


A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West Jan 2000

A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West

Faculty Scholarship

There is a growing bipartisan consensus that flaws in America's death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don't belong there. Others say capital appeals take too long. This report – the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995) – suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught …


Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West Jan 2000

Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

The legal treatment of capital punishment in the United States "rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. This predicate is among "the evolving standards of decency that mark the progress of a maturing society" and determine whether a punishment is "cruel and unusual" in violation of the Constitution. Because "'[f]rom the point of view of the defendant, [death] is different in both its severity …


Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West Jan 2000

Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West

Faculty Scholarship

In Capital Appeals Revisited and The Meaning of Capital Appeals, Barry Latzer and James N.G. Cauthen argue that a study of capital appeals should focus only on overturned findings of guilt, and complain that in A Broken System we examine all overturned capital verdicts. But the question they want studied cannot provide an accurate evaluation of a system of capital punishment. By proposing to count only "conviction" error and not "sentence" error, Latzer and Cauthen ignore that if a death sentence is overturned, the case is no longer capital and the system of capital punishment has failed to achieve its …


Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd Jan 2000

Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd

Faculty Scholarship

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …


Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt Jan 1996

Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt

Faculty Scholarship

Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.

Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme …


Reflections On Felony-Murder, George P. Fletcher Jan 1981

Reflections On Felony-Murder, George P. Fletcher

Faculty Scholarship

Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to …


Two Modes Of Legal Thought, George P. Fletcher Jan 1981

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …