Law Commons^™

A Case For Abolition: Analyzing The Death Penalty In The United States, Abigail E. Nick

Senior Theses and Projects

This thesis delves into the multifaceted debate surrounding the death penalty in the United States, exploring its constitutionality, morality, and implications for the justice system. Drawing from legal, philosophical, and empirical analyses, it argues against the continued practice of capital punishment, contending that it violates fundamental human rights, inhibits rehabilitation efforts, and fails to align with evolving societal norms. The discussion navigates through historical contexts, international perspectives, and philosophical theories of punishment, examining the right to life, methods of punishment, and evolving standards of decency. It underscores the tension between retributive justice and the protection of human rights, highlighting the …

Racial Bias Within Capital Punishment: Instructional Comprehension, Marcus Gadsden

Honors Projects

This dissertation examines the existence of racial bias within capital punishment. Since colonial times discriminatory death sentencing has impacted racial minorities, and despite living in a post-colonial epoch, the United States Justice system continues to produce alarming racial disparities. Consequently, both law reviews and social science journals indicate that race remains a significant factor in criminal trials. So, to what extent does racial bias influence capital punishment trials? Given that it does exist, how can it be alleviated? Through a statistical/qualitative analysis of psychological studies, Supreme Court cases, and jury instructions, this dissertation suggests that implicit cognitive bias continues to …

Justice On Trial: A Multifaceted Analysis Of Capital Punishment, Abby Long

Honors Theses

There is an ongoing debate surrounding the criminal justice system, focusing specifically on the controversial topic of capital punishment. Highlighting a startling statistic—one in nine death row inmates being exonerated— a pivotal question arises of what factors influence sentencing outcomes? Seven variables, number of sentences, income of offender, region of sentencing, race of offender, gender of offender, and political affiliation of sentencing state, are considered to understand the variations in sentencing outcomes and assess the fairness of the current judicial process. Using an OLS regression analysis of data from all 50 U.S. states, the paper seeks to better understand capital …

Mitigation Reports In Capital Cases: Legal And Ethical Issues, Russell Stetler, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The mitigation investigation that is essential in every capital case requires a multidisciplinary team. The duty to conduct this investigation is clearly established federal law, as well as an ethical obligation of counsel. The mitigation evidence that is uncovered is of vital importance to the rights of the individual accused of a capital offense, but also to reliable outcomes since all decisionmakers—including prosecutors, jurors, and judges—need the most complete and accurate picture of the person facing the punishment of last resort. This Article discusses some of the unique legal and ethical issues affecting the documentation of this investigation. The Authors …

Death After Dobbs: Addressing The Viability Of Capital Punishment For Abortion, Melanie Kalmanson

William & Mary Journal of Race, Gender, and Social Justice

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that deeply conservative states will seek to criminalize abortion and impose extremely harsh sentences for such crimes, up to and including death. This Article addresses that reality. Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics. After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the …

Essays On Public Policy, Justin Craig Heflin

Graduate Theses, Dissertations, and Problem Reports

The first chapter examines the impact of Red Flag Laws on homicide rates and suicide rates. Red Flag Laws seek to implement gun control measures by allowing the removal of firearms from individuals who pose a danger to themselves or others. Using a two-way fixed effects (TWFE) difference-in-differences (DiD) estimations, I demonstrate a negative and plausibly causal relationship between a state implementing a Red Flag Law and homicide rates. While there is also a reduction in suicide rates, I am unable to make causal claims. This study is the first to empirically examine Red Flag Laws, with an eye towards …

Redefining Tribal Sovereignty To Expand Native Jurisdiction Over The Death Penalty, Olivia Louthen

Senior Theses and Projects

Using Lezmond Mitchell’s case as an example, this thesis will explore the ways in which the federal government should redefine tribal sovereignty to expand Native jurisdiction over the death penalty. For centuries, the U.S. has undermined the cultural beliefs and authority of tribal governments by legally and illegally executing Native Americans. Most recently, the Trump administration executed Lezmond Mitchell, completely disregarding the Navajo Nation’s opposition to the death penalty. According to federal law, the government must receive tribal consent to seek out a death sentence against a Native defendant who is accused of committing an intra-tribal crime in Indian country. …

Fulfilling Porter's Promise, Danielle Allyn

William & Mary Journal of Race, Gender, and Social Justice

Despite the Porter court’s reference to a “long tradition of according leniency to veterans,” in the criminal legal system, veterans are overrepresented on death rows across America, including Georgia’s. Most of these veterans come to death row with experiences of marginalization due to other aspects of their identity, such as race or mental disability.

This Article examines the cases of six men executed in Georgia, each with a history of military service, and each with experiences of disenfranchisement based on race and/or mental disability. At trial, each confronted legal risks that disproportionately place Black people and people with mental disabilities …

Petitions From The Grave: Why Federal Executions Are A Violation Of The Suspension Clause, Taran Wessells

William & Mary Bill of Rights Journal

This Note will address the intersection of wrongful convictions, the federal death penalty, and habeas corpus to conclude that the federal death penalty is an unconstitutional violation of the Suspension Clause of the United States Constitution. Part I of this Note will establish that Congress may not suspend the writ of habeas corpus outside of wartime. Then, Part II will show that wrongfully convicted prisoners therefore have a constitutional right to a habeas petition if they discover new, exonerating evidence. Part III will argue that because executed prisoners cannot file a habeas petition for release, executing wrongfully convicted prisoners is …

Capital Punishment And The Bifurcated Trial System, Alexandra Michalak

Grawemeyer Colloquium Papers

Capital punishment is a long-debated issue in United States public policy, with arguments ranging from complete abolition of the penalty to continuing the punishment in states that wish to do so. Regardless of evolving public opinion, numerous landmark Supreme Court cases have ruled capital punishment as constitutional under the Eighth Amendment, which outlaws cruel and unusual punishment. In Furman v. Georgia (1972), the court ruled in a 5-4 decision that certain applications of the death penalty were unconstitutional, vacating the current processes of capital punishment. After this decision, Georgia then adopted the bifurcated trial system to attempt to practice capital …

The Two Percent: How Florida’S Capital Punishment System Defies The Eighth Amendment, Sofia Perla

FIU Law Review

No abstract provided.

Steps Toward Abolishing Capital Punishment: Incrementalism In The American Death Penalty, Melanie Kalmanson

William & Mary Bill of Rights Journal

While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia, has aided the Court in gradually narrowing capital punishment, as a …

The Eighth Amendment Power To Discriminate, Kathryn E. Miller

Washington Law Review

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.1 After decades of attempting to eliminate the requirement, conservative justices …

The Injustice Of The Death Penalty, Neal Devins, Roy Brasfield Herron

Neal E. Devins

No abstract provided.

Virginia's Capital Jurors, Stephen P. Garvey, Paul Marcus

Paul Marcus

No abstract provided.

Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus

Paul Marcus

No abstract provided.

Capital Punishment In The United States, And Beyond, Paul Marcus

Paul Marcus

This article explores the controversial topic of capital punishment, with a particular focus on its longstanding application in the United States. The use of the death penalty in the US has been the subject of much criticism both domestically and internationally. The numerous concerns addressed in this article relate to the morality of the punishment, its effectiveness, the uneven application of the penalty, and procedural problems. The US Supreme Court has confirmed the constitutionality of capital punishment while striking down particular uses of the death penalty. The US is not, however, alone in executing convicted defendants. Capital punishment is still …

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone

Linda A. Malone

Mentally ill individuals are being housed in prisons and jails throughout the country. Due to decreased funding and overpopulation of correctional facilities, individuals with pre-existing illnesses, as well as others who develop illnesses, are in severe need of mental health services and punished for their ailments through the use of solitary confinement, long prison sentences, and lack of care. The stress created by such conditions is amplified for mentally ill prisoners who are awaiting execution or the dismissal of their death row sentences. These individuals must show that they are competent to stand trial, exhibit the mental state required for …

The Death Knell For The Death Penalty And The Significance Of Global Realism To Its Abolition From Glossip V. Gross To Brumfield V. Cain, Linda A. Malone

Linda A. Malone

The Supreme Court’s jurisprudence regarding the death penalty, whether or not cruel, has most certainly been unusual in the annals of criminal punishment. In the short span of four years, the Court foreclosed and then reopened this form of punishment in Furman v. Georgia and Gregg v. Georgia. One year later the Court would categorically exclude the punishment for the rape of an adult. Five years later the Court would again preclude the punishment, for any defendant convicted of felony-murder who did not participate or share in the homicidal act or intent. In 1986 the Court would struggle with …

From Breard To Atkins To Malvo: Legal Incompetency And Human Rights Norms On The Fringes Of The Death Penalty, Linda A. Malone

Linda A. Malone

No abstract provided.

2014 Bill Of Rights Journal Symposium: Atkins On The Ground, Paul Marcus, Jeffrey Bellin, Caroline Everington, Marc Tassé, John H. Blume

Jeffrey Bellin

Atkins v. Virginia A Dozen Years Later: A Report Card

In 2002 the United States Supreme Court overturned decades-long precedent, holding that the execution of defendants with intellectual and developmental disabilities violated the Eighth Amendment prohibition on cruel and unusual punishment.

This symposium discusses and evaluates the decision in Atkins v. Virginia, including its effects and application in practice, from both legal and psychological points of view.

The Death Penalty For Child Rape: Why Texas May Help Louisiana, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

The Diffusion Of Responsibilty In Capital Clemency, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

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

Adam M. Gershowitz

No abstract provided.

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Adam M. Gershowitz

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Post-Trial Pleas Bargaining In Capital Cases: Using Conditional Commutations To Remove Weak Cases From Death Row, Adam M. Gershowitz

Adam M. Gershowitz

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal …

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Judge's Ill-Timed Ruling Invites Irrationality In Public's Views About Capital Punishment, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.

Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz

Adam M. Gershowitz

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on …