Law Commons^™

Constitutional Law & Criminal Law - The Eighth Amendment - The Juvenile Death Penalty: A Premature Decision Over Teenage Immaturity? Roper V. Simmons, 543 U.S. 551 (2005)., J. Blake Byrd

University of Arkansas at Little Rock Law Review

The final clause of the Eighth Amendment is the source of this nation's prohibition on unconstitutional punishment. Today, the Supreme Court's evolving-standard on the prohibition on unconstitutional punishment has two steps: The Court (1) looks at objective indicia of societal consensus against a particular practice and (2) ultimately uses its independent judgment to analyze whether the punishment is proportional to the offender's mental state and category of crime. There is tension within the Court, however, because some members believe that the evolving-standards jurisprudence is mistaken, and they fervently reject a proportionality analysis.

The United States has a long history of …

Victim Impact Evidence In Federal Capital Trials, Wayne A. Logan

Scholarly Publications

Fifteen years ago, in Payne v. Tennessee, the Supreme Court lifted its prohibition on the admission of victim impact evidence (VIE) in the penalty phase of capital trials. According to the Court, admitting evidence on the personal traits of individual murder victims and the toll associated with their killings at once properly allowed the government to show the “uniqueness” of victims, thus counterbalancing defendants’ largely unfettered right to adduce mitigation evidence, and permitted the sentencing authority to under-stand the “specific harm” caused by the murder. In the wake of Payne, Congress authorized use of VIE as a nonstatutory …

The Effect Of Race, Gender, And Location On Prosecutorial Decisions To Seek The Death Penalty In South Carolina, Michael J. Songer, Isaac Unah

South Carolina Law Review

No abstract provided.

The Supreme Court Report 2005-06, Julie M. Cheslik, Jamie Landes, Leah Pollema, Michael Shelton

Faculty Works

This article reviews the decisions of the U.S. Supreme Court for the 2005-2006 term focusing on decisions of particular relevance to state and local government. The Court's 2005-06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004-05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his fi rst opinion, the traditional 9-0 opinion of a …

Turning A Blind Eye To Misleading Scientific Testimony: Failure Of Procedural Safeguards In A Capital Case, William C. Thompson

ExpressO

In September 1999, Robin Lovitt was convicted and sentenced to death for the murder of a pool hall manager in Arlington, Virginia. The DNA evidence that was a key part of the government’s case was presented in a misleading and unfair manner. In this case study, we first examine the way in which DNA evidence was misused. We then discuss the failure of the legal system at all levels to recognize and remedy this problem. Our goal is to explain how a system that supposedly leaves no stone unturned in capital trials managed to miss or ignore a crucial problem …

No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King

ExpressO

The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming …

Finding Redemption: How Picking Up The Phone Can Change A Lawyer's Life, Sean O'Brien

Faculty Works

The winner of the 2006 ABA Ross Essay Contest debated with himself whether to take a phone call from a death row inmate scheduled to be executed in 9 hours who turned out to be calling to request help for other prisoners. "As I hung up the phone, I experienced a profound awareness that no matter what each of us had previously done in our lives, at that moment Doyle Williams was a better human being than I. If a death row inmate can find redemption, maybe a lawyer can too."

Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Litigating Salvation: Race, Religion And Innocence In The Karla Faye Tucker And Gary Graham Cases, Melynda J. Price

Law Faculty Scholarly Articles

The cases of Karla Faye Tucker and Gary Graham represent two examples of the renewed public debate about the death penalty in the State of Texas, and how religion and race affect that debate. This article explores how the Tucker and Graham cases represent opposing possibilities for understanding contemporary narratives of the death penalty. Though the juxtaposition of these two cases is not completely symmetrical, if viewed as a kaleidoscope—a complex set of factors filtered through the shifting identities of the person who is at the center of the immediate case—the hidden operations of race and religion can be examined. …

Christ, Christians & Capital Punishment, Mark Osler

ExpressO

Last year, I came to a startling conclusion: That the debate over the death penalty in the United States is largely among Christians, but has ignored the capital sentencing which is at the center of that faith. The result of this epiphany is Christ, Christians & Capital Punishment.

In this article, I argue that the story of Christ parallels modern capital practice in many respects: Christ was turned in by a paid informant (Judas), arrested in a strategic manner, given an arraignment and stood mute, was tried, convicted and sentenced, appealed to two separate sovereigns, and finally was denied a …

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …

Legitimizing Error, Rebecca E. Woodman

Michigan Law Review First Impressions

Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …

A Poster Child For Us (Symposium: The Effects Of Capital Punishment On The Administration Of Justice), Robert Blecker

Articles & Chapters

No abstract provided.

Defending The Life Or Death Case, Andrea D. Lyon

Andrea D. Lyon

Over thirteen years ago I wrote an article about defending a death penalty case ("Defending the Death Penalty Case: What Makes Death Different?" Mercer Law Review, Volume 42, Number 2, Winter 1991). The article was written in part to describe what is involved in taking on an endeavor of this magnitude and in part as an exhortation to my brothers and sisters defending these cases to work hard for their clients. Then, late in 2004, the United States Supreme Court relied on that same article as part of its reasoning to deny relief to a death row inmate whose defense …

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker

Michigan Law Review First Impressions

Over the last decade, the most important events in American death pen-alty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s. Former Illinois Governor George Ryan, a Republi-can, first declared a moratorium on executions in 2000 and eventually commuted all 167 inmates on Illinois’s death row in 2003. The events in Illinois reverberated nationwide. Almost overnight, state legislative agendas shifted from expanding or maintaining the prevailing reach of the death penalty to studying its …

Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien

Michigan Law Review First Impressions

In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on …

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

Scholarly Works

No abstract provided.

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

Scholarly Works

No abstract provided.

Cultural Cognition And Public Policy, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

People disagree about the empirical dimensions of various public policy issues. It's not surprising that people have different beliefs about the deterrent effect of the death penalty, the impact of handgun ownership on crime, the significance of global warming, the public health consequences of promiscuous sex, etc. The mystery concerns the origins of such disagreement. Were either the indeterminacy of scientific evidence or the uneven dissemination of convincing data responsible, we would expect divergent beliefs on such issues to be distributed almost randomly across the population, and beliefs about seemingly unrelated questions (whether, say, the death penalty deters and whether …

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …

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

Publications

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 unfaithful …

Inconsistent Methods For The Adjudication Of Alleged Mentally Retarded Individuals: A Comparison Of Ohio's And Georgia's Post-Atkins Frameworks For Determining Mental Retardation, Scott R. Poe

Cleveland State Law Review

This Note compares Ohio's and Georgia's post-Atkins frameworks for determining mental retardation. Ohio's framework offers a fairer application of Atkins and should serve as a guide for a national legal standard for use by state trial courts to determine mental retardation. Specifically, Ohio's use of preponderance of the evidence is a more appropriate standard of proof for determining mental retardation because it better reaches the overall goal in Atkins. Allowing the judge to make the mental retardation determination protects the alleged mentally retarded defendant from potential jury bias. Because Ohio's and Georgia's definitions of mental retardation are substantially similar and …

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Faculty Scholarship

Unwarranted constraints on the admissibility of genetics evidence in death penalty cases can undercut some defendants' efforts to fight their executions. For example, genetics evidence can help validate some traditionally accepted mitigating factors (such as certain psychiatric or behavioral disorders) that can otherwise be difficult for defendants to prove. By imposing unreasonable limitations on genetics arguments, the criminal justice system may be undermining the very principles and progressive thinking the cap on genetics evidence was originally intended to achieve. Part II of this article briefly reviews the facts and legal arguments in Mobley v. State. Part III addresses the primary …

A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The prosecutor …

Putting The Guesswork Back Into Capital Sentencing, Sean O'Brien

Faculty Works

In 1972, in Furman v. Georgia, the Supreme Court deemed it "incontestable" that a death sentence is cruel and unusual if inflicted "by reason of [the defendant's] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capital crimes. The issue of innocence was barely a footnote in Furman; the Court's concerns focused on …

Rare & Inconsistent: The Death Penalty For Women, Victor L. Streib

Fordham Urban Law Journal

Previous studies of the national landscape around the death penalty for women have identified and analyzed past themes and issues.22 This Article brings the analysis current through 2005, beginning with a reprise of the conversations about gender bias and disparity in the death penalty system. It appears that female offenders have always been treated differently from male offenders in the death penalty system, sometimes for reasons that are easily justifiable but too often simply because of sex bias. The next section of this Article explores the current death penalty era, identifying those women who have been sentenced to death, those …

Tradition & The Abolition Of Capital Punishment For Juvenile Crime, Harry F. Tepker Jr.

Oklahoma Law Review

No abstract provided.

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.

Less Is Better: Justice Stevens And The Narrowed Death Penalty, James S. Liebman, Lawrence C. Marshall

Faculty Scholarship

In a recent speech to the American Bar Association, Justice John Paul Stevens "issued an unusually stinging criticism of capital punishment." Although he "stopped short of calling for an end to the death penalty," Justice Stevens catalogued a number of its "'serious flaws,'" including several procedures that the full Court has reviewed and upheld over his dissent – selecting capital jurors in a manner that excludes those with qualms about the death penalty, permitting elected state judges to second-guess jurors when they decline to impose the death penalty, permitting states to premise death verdicts on "victim impact statements," tolerating sub-par …