Law Commons^™

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein

Richard Daniel Klein

No abstract provided.

Hope And Betrayal On Death Row, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Exoneration And Wrongful Condemnations: Expanding The Zone Of Perceived Injustice In Death Penalty Cases, Craig Haney

Golden Gate University Law Review

In this article I argue that despite the very serious nature and surprisingly large number of these kinds of exonerations, revelations about factually innocent death-sentenced prisoners represent only the most dramatic, visible tip of a much larger problem that is submerged throughout our nation's system of death sentencing. That is, many of the very same flaws and factors that have given rise to these highly publicized wrongful convictions also produce a more common kind of miscarriage of justice in capital cases. I refer to death sentences that are meted out to defendants who, although they may be factually guilty of …

Death Penalty Cases Impose Singular Burden, Judith L. Ritter, Ross Kleinstuber

Judith L Ritter

No abstract provided.

Kids Are Different, Stephen St.Vincent

Michigan Law Review First Impressions

The Supreme Court recently handed down its decision in Graham v. Florida. The case involved a juvenile, Graham, who was sentenced to life in prison after being convicted as an adult of a nonhomicidal crime. The offense, a home invasion robbery, was his second; the first was attempted robbery. Due to Florida's abolition of parole, the judge's imposition of a life sentence meant that Graham was constructively sentenced to life without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional under the Eighth Amendment. Somewhat surprisingly, the Supreme Court invalidated Graham's sentence by a 6-3 majority. By a …

Death And Texas: The Unevolved Model Of Decency, Patrick Metze

Patrick Metze

Professor Metze takes a critical look at Texas‟s substantive capital murder statute, Texas Penal Code § 19.03, the current state of the law, the available constitutional history of each paragraph, the Texas Legislature's expansive growth of death eligible crimes, and the Court of Criminal Appeals' complicity in this development, arguing that the statute has become violative of due process as unconstitutionally vague in its application, returning Texas capital jurisprudence to its genesis, exposing virtually all that commit murder in Texas to a system that once again has become arbitrary, capricious, and discriminatory in its application to minorities and in particular …

The Impact Of Civilian Aggravating Factors On The Military Death Penalty (1984-2005): Another Chapter In The Resistance Of The Armed Forces To The Civilianization Of Military Justice, Catherine M. Grosso, David C. Baldus, George Woodworth

University of Michigan Journal of Law Reform

In 1984, the U.S. Armed Forces amended its capital punishment system for death eligible murder to bring it into compliance with Furman v. Georgia. Those amendments were modeled after death penalty legislation prevailing in over thirty states. After a brief period between 1986 and 1990, the charging decisions of commanders and the conviction and sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently. Since 1990, a member of the armed forces accused of a killing a commissioned officer or murder with a …

Blameworthiness And Dangerousness: An Analysis Of Violent Female Capital Offenders In The United States And China, Courtney Lahaie

Graduate Research Symposium (GCUA) (2010 - 2017)

The United States and China represent two of the leading nations that retain the death penalty in both law and practice. Research suggests that judges’ sentencing decisions are based primarily on two factors, blameworthiness and dangerousness. Studies involving gender and sentencing in capital punishment cases tend to provide inconsistent findings. The current study uses case narratives to examine the direct and conjunctive effects of various factors on the sentencing decisions of violent female capital offenders in the United States and China. The findings suggest that the concepts of blameworthiness and dangerousness are distinctly defined in the United States and China. …

When Lightning Strikes Back: South Carolina's Return To The Unconstitutional Standardless Capital Sentencing Regime Of The Pre-Furman Era, John H. Blume, Sheri Johnson, Emily C. Paavola, Keir M. Weyble

Cornell Law Faculty Publications

No abstract provided.

Mental Retardation As A Bar To The Death Penalty: Who Bears The Burden Of Proof, James Gerard Eftink

Missouri Law Review

In holding that the execution of mentally retarded offenders is cruel and unusual punishment,' the instant court followed the current trend of other states. Even before the Supreme Court of the United States rendered its decision in Atkins, state legislatures around the country, including the Missouri legislature, had enacted laws prohibiting the execution of mentally retarded offenders.' Also, the Supreme Court of Missouri's holding that a defendant bears the burden of proving his mental retardation is consistent with the position taken by the vast majority of states. However, the court rendered its holding in the absence of any legislation placing …

Lethal Discrimination, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Waiting To Die, Dying To Live, Caycie D. Bradford

Caycie D Bradford

This paper focuses on the effects of the new syndrome occurring in our prison systems known as the death row phenomenon. This paper takes a look at the effects of international policy regarding the death penalty on the United States in the wake of this phenomenon.

The Facts About Ring V. Arizona And The Jury's Role In Capital Sentencing, Sam Kamin, Justin Marceau

Sam Kamin

When it was decided in 2002, Ring v. Arizona appeared to be a watershed in the way capital sentences are handed out in the United States: it overturned several states’ death penalty statutes and appeared to imperil many more. Ring announced that the rule of Apprendi v. New Jersey applied to capital sentencing and required that any fact necessary to the imposition of the death penalty be proven to a jury and beyond a reasonable doubt. Yet eight years after the case was decided, it is not clear what, if anything, Ring in fact demands of the states. Determining exactly …

Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Michael L Perlin

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.

What …

The Death Penalty: Developments In Caribbean Jurisprudence, Anthony Gifford

International Journal of Legal Information

The presentation analyzes death penalty developments in the Caribbean jurisprudence. The discussion of a series of court decisions leads to the opinion that it is not right for the State to “end the life of a human being.” It questions death penalty as punishment for crime versus “the capacity of individuals for redemption and rehabilitation."

Book Review - When Brute Force Fails: How To Have Less Crime And Less Punishment, John J. Donohue

John Donohue

Two of the most dramatic social phenomena of the last half century in the United States are the substantial rise in crime that occurred during the 1960s and the equally dramatic drop in crime that began roughly contemporaneously with the advent of the Clinton Administration. The good news is that we have improved things from the violent and crime-filled days of the late 1980s and early 1990s; the bad news is that we have increased our prison population immensely in the effort. We may now be enjoying the return to the crime levels of the early 1960s, but we also …

Statewide Capital Punishment: The Case For Eliminating Counties' Role In The Death Penalty, Adam M. Gershowitz

Vanderbilt Law Review

The State of Texas is known as the capital of capital punishment.' But is that reputation deserved? In a way, yes. Texas sends more people to death row than any other state, and it executes them far faster. However, in another way, it is incorrect to suggest that "the State" of Texas is a prolific user of capital punishment. Death penalty cases are prosecuted by counties, not the state, and a majority of Texas's counties have never imposed the death penalty. In fact, only a handful of Texas's 254 counties regularly seek the death penalty. Many other states have a …

Original Habeas Redux, Lee B. Kovarsky

Lee Kovarsky

In "Original Habeas Redux," I map the modern dimensions of the Supreme Court’s most exotic jurisdiction—the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction. Scrambling to understand how the authority has evolved since its …

In Search Of A Theory Of Deference: The Eighth Amendment, Democratic Pedigree, And Constitutional Decisionmaking, Eric Berger

Eric Berger

The Supreme Court’s recent Eighth Amendment death penalty case law is in disarray, and the confusion is symptomatic of a larger problem in constitutional doctrine. In Baze v. Rees and Kennedy v. Louisiana, the Court approached the challenged state policies with vastly different levels of deference. Though the Court purported to apply longstanding Eighth Amendment tests in both cases, Baze was highly deferential to state policy, and Kennedy was not deferential at all. Remarkably, neither the Court nor legal scholars have acknowledged, let alone justified, these contrasting approaches. This article proposes a theory of deference to address this discrepancy. Courts …

Some Reflections On Conservative Politics And The Limits Of The Criminal Sanction, Richard Broughton

Richard Broughton

This Article, written for the Charleston School of Law’s recent symposium on Crime & Punishment, briefly addresses the significance of popular forces and conservative political thought in an American criminal justice regime that has become too broad in its scope and sometimes unnecessarily harsh in its treatment of certain offenders. Although conservatives can plausibly embrace some judicially-enforceable limits on the criminal law, a conservative view of structural constitutional considerations would still constrain the judiciary’s authority to undermine popular decision-making as to criminal law and punishment. This Article cites the Supreme Court’s disparate approach to capital and non-capital proportionality issues under …

More Different Than Life, Less Different Than Death, William W. Berry Iii

William W Berry III

The Supreme Court has traditionally divided its application of the Eighth Amendment into two categories, capital and non-capital cases, based on the longstanding notion that “death- is-different.” In the recent case of Graham v. Florida, however, the Supreme Court applied its “evolving standards of decency” standard, heretofore reserved for capital cases, to a non-capital case in holding that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. The dissenting justices argued that this decision marked the end of the Court’s “death-is-different” jurisprudence. This article argues, however, that the decision instead creates the opportunity …

What's Messing With Texas Death Sentences?, David Mccord

David McCord

This article empirically examines the decline in death sentences in Texas over about the last decade.

Death Ineligibility And Habeas Corpus, Lee B. Kovarsky

Faculty Scholarship

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …

Lessons Learned From The Evolution Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

In the discussion that follows, I explore the evolution of the "evolving standards" doctrine to make a point about its legitimacy and Supreme Court decisionmaking under the Cruel and Unusual Punishments Clause more generally. In Part I, I trace the origins of the doctrine to its present state. In Part II, I turn to lessons learned from the evolution of "evolving standards," questioning the textual defense of the doctrine and the constraining power of law itself. I conclude that while the "evolving standards" doctrine is problematic, it is not the crux of the problem. Supreme Court decisionmaking in the death …

Limiting Death: Maryland’S New Death Penalty Law, Michael Millemann

Maryland Law Review

In this Article, I describe and analyze the State of Maryland's 2009 death penalty law. This law adds three new death-eligibility criteria to the pre-existing law. These new evidentiary criteria supplement the pre-existing substantive death-eligibility criteria. As a result, Maryland now has one of the most restrictive death penalties in the country.

Does The Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel And Unusual, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional. Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice. The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. While …

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

All Faculty Scholarship

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 the …

Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky

Lee Kovarsky

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …