Law Commons^™

An Empirical Evaluation Of The Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, And Geographic Disparities?, John J. Donohue

John Donohue

This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973–2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and …

The Death Penalty’S “Finely Tuned Depravity Calibrators” Fairness Follies Of Fairness Phonies Fixated On Criminals Instead Of Crimes, Lester Jackson

LESTER JACKSON

It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.” In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving. Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.” It is argued here that this assumption is indefensible both in theory and in practice. As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.” Right and wrong are not determined in the same …

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Timothy Brown

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

Race And The Death Penalty: An Empirical Assessment Of First Degree Murder Convictions In Tennessee After Gregg V. Georgia, John M. Scheb Ii, Hemant K. Sharma, David J. Houston, Kristin Wagers

John M Scheb II

We analyze over 1,000 first-degree murder convictions in the state of Tennessee from 1977 through 2007 to determine if either “race-of-defendant” or “race-of-victim” effects are present when it comes to the application of capital punishment. We control for numerous factors related to the demographics of offender and victim, as well as the circumstances of the crime itself and the availability of evidence. Our primary findings note that prosecutors are more likely to seek a death sentence when a victim is white, but we also find that juries are not affected by the race of the victim. We also find no …

The Constitutional Right Not To Kill, Mark L. Rienzi

Mark L Rienzi

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.

The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the …

Missouri's Ring Tone: Jury Sentencing Rights In Death Penalty Cases, Jacqueline M. Whipple

Jacqueline M. Whipple

This Law Summary concerns recent developments in criminal law and the death penalty. It includes the national and state-specific legal background behind criminal defendants' rights regarding jury sentencing, and the latest interpretation and application of the U.S. Supreme Court's holding in Ring v. Arizona by the Missouri Supreme Court.

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 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 …

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.

Proportionality And Prosecutorial Discretion: Challenges To The Constitutionality Of Georgia’S Death Penalty Laws And Procedures Amidst The Deficiencies Of The State’S Mandatory Appellate Review Structure, Kristen M. Nugent

Kristen Nugent

Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects …

“Why Rebottle The Genie?”: Capitalizing On Closure In Death Penalty Proceedings, Jody L. Madeira

Jody L Madeira

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant’s constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what …

Fact Suppression And The Subversion Of Capital Punishment: What Death Penalty Foes On The Supreme Court And In The Media Do Not Want The Public To Know, Lester --- Jackson

LESTER JACKSON

The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon …

Kennedy And The Tail Of Minos, Richard Broughton

Richard Broughton

In Dante’s Inferno, the damned appeared before Minos, who judged the gravity of their sins and assigned their souls to their respective circles of Hell by wrapping his tail around his body. In this paper, I examine whether, in light of its decision in Kennedy v. Louisiana and its methodology for reviewing categorical exemptions from the death penalty, the Supreme Court has problematically assumed for itself the role of a kind of contemporary constitutional Minos, at least in the realm of capital punishment. First, I argue, Kennedy is a case about comparative resulting harms among violent crimes. The Kennedy dissent …

Contempt For The Rights Of Man: The Role Of Prosecutorial Misconduct In Virginia Capital Cases, Fay F. Spence

Fay F Spence

From reinstatement of the death penalty in Virginia in 1977, until January 2001, 132 Virginia defendants have been sentenced to death. Approximately 70% of the federal post-conviction proceedings in these cases allege some form of prosecutorial misconduct. This article discusses the appellate and post-conviction treatment of the prosecutorial misconduct allegations in each of these cases. Three cases were actually reversed because of misconduct. Courts recognized prosecutorial misconduct in another 14 cases, but held it to be “harmless error.” In 32 of the cases, the courts refused to address the allegations of misconduct, finding the issue to be “procedurally defaulted.” In …

Should Commission Of A Contemporaneous Arson, Burglary, Kidnapping, Rape Or Robbery Be Sufficient To Make A Murderer Eligible For A Death Sentence?--An Empirical And Normative Analysis, David Mccord

David McCord

This Article addresses one of the most important issues in capital punishment law—should commission of a contemporaneous felony suffice for death-eligibility? While almost every death penalty jurisdiction includes commission of a contemporaneous arson, burglary, kidnapping, rape, or robbery as a factor that will make a defendant death-eligible, in recent years blue-ribbon panels in Illinois and Massachusetts have advocated elimination of contemporaneous felonies as death penalty aggravators. These panels made their recommendations without significant empirical analysis. This Article undertakes that analysis through an extensive empirical study (over four years in the making) of over 1100 death-eligible murder cases from a two-year …

Competency For Execution: The Implications Of A Communicative Model Of Retribution, Pamela A. Wilkins

Pamela A Wilkins

In Panetti v. Quarterman, ___ U.S. ___, 127 S. Ct. 2842 (2007), the United States Supreme Court opined that executions of mentally incompetent inmates lack retributive value and, for that reason, violate the Eighth Amendment. To date, however, the Court has failed to articulate a theory of retribution that makes sense of the ban on executing the incompetent. Importantly, the purely desert-based view of retribution that is the focus of most of the Court’s Eighth Amendment jurisprudence cannot account for the ban. This article attempts to articulate a theory of retribution that accounts for the Eighth Amendment ban and then …

When It's So Hard To Relate: Can Legal Systems Mitigate The Trauma Of Victim-Offender Relationships?, Jody L. Madeira

Jody L Madeira

This article argues that, in the aftermath of violent crime, a relationship that is both negative and involuntary can form between crime victims and offenders. This relationship fetters the victim to the crime and the criminal, rendering it difficult to recover from the transgression. To illustrate how such a relationship may form and what consequences it may have for victims, this article uses the Oklahoma City bombing as a case study, documenting through the use of original interviews an involuntary relationship in which victims’ family members and survivors perceived they were tethered to Timothy McVeigh. This perceived relationship with McVeigh …

Death Is Unconstitutional: How Capital Punishment, Eric A. Engle

Eric A. Engle

Argues that capital punishment is unconstitutional as a violation of natural law because the punishment is disproportional, uncertain, and irrevocable.

The Road Not Considered, Robert Blecker

robert blecker

“The Road Not Considered” suggests a morally refined death penalty statute as an alternative to abolition or keeping New Jersey’s presently flawed legislation.

Introduction To Morality, Justice And The Law, M. Katherine B. Darmer

M. Katherine B. Darmer

MORALITY, JUSTICE AND THE LAW is a co-edited volume pulling together selections on theories of the moral underpinnings of law, morality and lawyering (including the religious lawyering movement), civil disobedience, capital punishment and immigration. The book was published by Prometheus Books in 2007.

In Search Of Clemency Procedures We Can Live With: What Process Is Due In Capital Clemency Proceedings After Ohio Adult Parole Authority V. Woodard?, Brian S. Clarke

Brian S. Clarke

The United States Supreme Court has denied certiorari for the final time. All state and federal appeals have been exhausted. The execution date has been set. There is only one thing that can save the death row inmate from the ultimate punishment: the proverbial call from the governor and a grant of executive clemency.

This scene, although a veritable Hollywood cliche, is being played out in prisons across America with increasing frequency. As of July 1, 1998, there were 3,474 men and women on death row in America. In 1996, with the passage of the Anti-Terrorism and Effective Death Penalty …