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Articles 1 - 9 of 9
Full-Text Articles in Law
Analyzing A Pretrial Detainee's § 1983 Claims Under The Deliberate Indifference Standard Amounts To Punishment Of The Detainee, Leslie B. Elkins
Analyzing A Pretrial Detainee's § 1983 Claims Under The Deliberate Indifference Standard Amounts To Punishment Of The Detainee, Leslie B. Elkins
Seventh Circuit Review
While the Eighth Amendment holds that a convicted inmate may be punished if that punishment is not “cruel and unusual,” due process requires that a pretrial detainee not be punished at all. In 1979, the Supreme Court declared that the rights of a pretrial detainee are “at least as great” as those afforded a convicted prisoner. The Seventh Circuit’s recent decision Klebanowski v. Sheahan illustrates the modern trend of using the same “deliberate indifference” standard used to analyze convicted prisoners’ § 1983 claims when analyzing pretrial detainees’ § 1983 claims. By scrutinizing the way modern courts assess pretrial detainees’ § …
Federal Courts As Constitutional Laboratories: The Rat's Point Of View, Maureen N. Armour
Federal Courts As Constitutional Laboratories: The Rat's Point Of View, Maureen N. Armour
Maureen N Armour
This article examines the operation of the lower federal courts as constitutional laboratories where problems related to implementing the Supreme Court's problematic constitutional decisions are routinely addressed. By using the methodology of a detailed case study of Eighth Amendment litigation the author provides critical insights into the workings of the federal trial courts and three judge appellate panels and insights into the applied phenomenology of ajudicative discretion, the moving force of this judicial laboratory. The article also examines the problematic nature of the Supreme Court's constitutional decisions, their textual openness, doctrinal malleability,and prudential "errors," and how this effects the institutional …
Beyond A Conceivable Doubt: The Quest For A Fair And Constitutional Standard Of Proof In Death Penalty Cases, Robert M. Hardaway
Beyond A Conceivable Doubt: The Quest For A Fair And Constitutional Standard Of Proof In Death Penalty Cases, Robert M. Hardaway
Sturm College of Law: Faculty Scholarship
The death penalty remains the most contentious issue in criminal law jurisprudence, and continues to be challenged on both constitutional and moral grounds. What is most remarkable about American death penalty jurisprudence is that it has traditionally focused on purely technical and procedural aspects of the imposition of the death penalty, despite the fact that the most vulnerable plank in the arsenal of death penalty defenders is evidence that innocent people have been, and will continue to be, executed. Perhaps no legal principle is more difficult to explain to the layman or first-year law student than that of all the …
Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker
Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker
Roozbeh (Rudy) B. Baker
The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries. The Article shall begin by briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada. The Article will next present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing and contrast this to the Canadian s. 12 approach to …
Social Science And The Evolving Standards Of Death Penalty Law, Samuel R. Gross, Phoebe C. Ellsworth
Social Science And The Evolving Standards Of Death Penalty Law, Samuel R. Gross, Phoebe C. Ellsworth
Book Chapters
Unlike many of the topics covered in this book, death penalty litigation involves a wide variety of empirical issues. The Eighth Amendment of the U.S. Constitution provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." But what is a "cruel and unusual punishment?" It could be a punishment that is morally unacceptable to the American people, like cutting off noses or hands. Following the other clauses of the amendment, it could be a punishment that is excessive, in that a lesser penalty would achieve the same ends. For example, if a …
The Abolitionist's Dilemma: Establishing The Standards Of Decency For The Evolving Standards Of Decency, Dwight Aarons
The Abolitionist's Dilemma: Establishing The Standards Of Decency For The Evolving Standards Of Decency, Dwight Aarons
College of Law Faculty Scholarship
The evolving standard of decency test is at the heart of the constitutional regulation of the death penalty. From 1976 through 1989 the U.S. Supreme Court generally relied on six-factors to define the substantive limits of death eligibility. But in Atkins v. Virginia (2002) and Roper v. Simmons (2005) the Court seemed to change course. The precedential value of Atkins and Roper will depend on the Roberts Court's adherence to precedent. Nonetheless, the Court has some work to do to ensure that the evolving standard of decency test has meaningful content and enduring use.Baze v. Rees, the pending challenge to …
Introduction: Symposium: The Lethal Injection Debate: Law And Science, Deborah W. Denno
Introduction: Symposium: The Lethal Injection Debate: Law And Science, Deborah W. Denno
Faculty Scholarship
No abstract provided.
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
All Faculty Scholarship
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child …
Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt
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 …