Law Commons^™

Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Professors John H. Blume and Sheri Lynn Johnson explore the occurrences of religious imagery and argument invoked by both prosecutors and defense attorneys in capital cases. Such invocation of religious imagery and argument by attorneys is not surprising, considering that the jurors who hear such arguments are making life and death decisions, and advocates, absent regulation, will resort to such emotionally compelling arguments. Also surveying judicial responses to such arguments in courts, Professors Blume and Johnson gauge the level of tolerance for such arguments in specific jurisdictions. Presenting proposed rules for prosecutors and defense counsel who wish to employ religious …

Caring To Death: Health Care Professionals And Capital Punishment, Cary H. Federman, Dave Holmes

Department of Justice Studies Faculty Scholarship and Creative Works

The aim of this article is to describe the role of health care professionals in the capital punishment process. The relationship between the protocol of capital punishment in the United States and the use of health care professionals to carry out that task has been overlooked in the literature on punishment. Yet for some time, the operation of the medical sciences in prison have been `part of a disciplinary strategy' `intrinsic to the development of power relationships'. Many capital punishment statutes require medical personnel to be present at, if not actively involved in, executions. Through analyses of these statutes, show …

The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy

Law and Contemporary Problems

Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in "Strickland" has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. Murphy reviews the right to counsel and discusses the crucial role of counsel in capital cases throughout the trial and appellate processes.

Kids Who Kill: A Critique Of How The American Legal System Deals With Juveniles Who Commit Homicide, Mirah A. Horowitz

Law and Contemporary Problems

Horowitz looks at the reasons why juveniles commit homicides and suggests more effective ways for society to address the problem presented by child killers.

Opining On Death: Witness Sentence Recommendations In Capital Trials, Wayne A. Logan

Scholarly Publications

Despite the Supreme Court's command that capital prosecutions be free of undue arbitrary and capricious influences, the trials themselves are becoming increasingly emotional and personalized. This Article addresses a key outgrowth of this evolution: the increasingly common practice of witnesses opining on whether a defendant should be put to death, despite the Court's apparent prohibition of such testimony. The Article addresses why this practice is likely to continue, and advances several reasons why the Supreme Court should impose an unequivocal bar on sentence opinion, testimony in capital trials.

Fish not, with this melancholy bait,
For this fool gudgeon, this opinion. …

The Emotional Economy Of Capital Sentencing, Stephen P. Garvey

Cornell Law Faculty Publications

You often hear that one reason capital jurors condemn capital defendants is that jurors don't empathize with defendants. And one reason they don't empathize is that the process of capital sentencing is rigged against empathy. Using data from the South Carolina segment of the Capital Jury Project, I try to examine the role emotion plays in capital sentencing.

Without entering here all the important and necessary caveats, I find that the self-reported emotional responses jurors have toward capital defendants run the gamut from sympathy and pity at one extreme, to disgust, anger, and fear at the other. What causes these …

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

Cornell Law Faculty Publications

In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study …

Evolution Of An Eighth Amendment Dichotomy: Substantive And Procedural Protections Within The Cruel And Unusual Punishment Clause In Capital Cases, Kimberly A. Orem

Capital Defense Journal

No abstract provided.

Procedural Default: A De Facto Exception To Civility?, Ashley Flynn

Capital Defense Journal

No abstract provided.

Bridging The Procedural Default Chasm, Matthew K. Mahoney

Capital Defense Journal

No abstract provided.

The Role Of Forgiveness In Capital Murder Cases, Paige Mcthenia

Capital Defense Journal

No abstract provided.

Improving Process In Virginia Capital Cases, Robert H. Robinson, Jr.

Capital Defense Journal

No abstract provided.

The Option Not Taken: A Progressive Report On Chapter 154 Of The Anti-Terrorism And Effective Death Penalty Act, Marianne L. Bell

Cornell Journal of Law and Public Policy

No abstract provided.

Tessie Hutchinson And The American System Of Capital Punishment, Earl F. Martin

Maryland Law Review

No abstract provided.

The Deregulation Of The Death Penalty, Kenneth Williams

Santa Clara Law Review

No abstract provided.

A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West

Faculty Scholarship

There is a growing bipartisan consensus that flaws in America's death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don't belong there. Others say capital appeals take too long. This report – the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995) – suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught …

Still Unfair, Still Arbitrary - But Do We Care?, Samuel R. Gross

Other Publications

Welcome. It is a pleasure to see everybody at this bright and cheery hour of the morning. My assignment is to try to give an overview of the status of the death penalty in America at the beginning of the twenty-first century. I will try to put that in the context of how the death penalty was viewed thirty years ago, or more, and maybe that will tell us something about how the death penalty will be viewed thirty or forty years from now.

Adieu To Electrocution, Deborah W. Denno

Faculty Scholarship

This Article contends that there is no moral or legal reason to retain electrocution, particularly because other execution methods are available. It is clear that at some point soon, electrocution will no longer exist in this country and, as a result, throughout the world. By eliminating this perplexing vestige, the other problems with the death penalty may appear all that more offensive.

Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

The legal treatment of capital punishment in the United States "rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. This predicate is among "the evolving standards of decency that mark the progress of a maturing society" and determine whether a punishment is "cruel and unusual" in violation of the Constitution. Because "'[f]rom the point of view of the defendant, [death] is different in both its severity …

When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson

All Faculty Scholarship

Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have …

Capital Punishment And Religious Arguments: An Intermediate Approach, Samuel J. Levine

Scholarly Works

Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …

Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd

Faculty Scholarship

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …

Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West

Faculty Scholarship

In Capital Appeals Revisited and The Meaning of Capital Appeals, Barry Latzer and James N.G. Cauthen argue that a study of capital appeals should focus only on overturned findings of guilt, and complain that in A Broken System we examine all overturned capital verdicts. But the question they want studied cannot provide an accurate evaluation of a system of capital punishment. By proposing to count only "conviction" error and not "sentence" error, Latzer and Cauthen ignore that if a death sentence is overturned, the case is no longer capital and the system of capital punishment has failed to achieve its …