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Articles 1 - 30 of 31
Full-Text Articles in Law
The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman
The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman
Sheri Lynn Johnson
Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's skin …
Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann
Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann
John H. Blume
Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American …
Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan
Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan
Maine Law Review
The now well-known case of Atkins v. Virginia decided that the execution of those with mental retardation constituted cruel and unusual punishment under the Eighth Amendment. The more recent case of Roper v. Simmons decided that execution of those who were under the age of eighteen when they committed their crimes also constituted cruel and unusual punishment. Both decisions changed the law that had existed since 1989, when the Court held in Penry v. Lynaugh and Stanford v. Kentucky that executions of members of both classes were not unconstitutional. Writing for the Court in Atkins v. Virginia, Justice Stevens was …
How Would You Like To Die? Glossip V. Gross Deals Blow To Abolitionists, Brenda I. Rowe
How Would You Like To Die? Glossip V. Gross Deals Blow To Abolitionists, Brenda I. Rowe
Criminology and Criminal Justice Faculty Publications
After capital punishment opponents’ pressure on drug suppliers reduced the lethal injection drug supply, Oklahoma began using midazolam, resulting in botched executions. Condemned inmates sought to stop use of this lethal injection protocol. In Glossip v. Gross, the U.S. Supreme Court found inmates failed to establish such protocols entail a substantial risk of severe pain compared to available alternatives, undermining the supply side attack strategy and leaving inmates facing the possibility of an unnecessarily painful execution. This article places the Glossip decision within the context of method of execution jurisprudence and discusses implications for the ongoing battle over capital …
A Comparative Study Of The Jewish And The United States Constitutional Law Of Capital Punishment, Steven Davidoff
A Comparative Study Of The Jewish And The United States Constitutional Law Of Capital Punishment, Steven Davidoff
Steven Davidoff Solomon
The Jewish view on the death penalty is that it should exist but it should never be used .... [lI]t is Governor Pataki's job to ensure :order. But he must remember that as a leader he must exhibit attributes of both the father and the mother. Governor Pataki is a nice man. But if he acts on the death penalty, he will be the leader of a bloody government
The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani
The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani
Washington and Lee Law Review Online
In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s roots in slavery, …
The Death Penalty And Justice Scalia's Lines, J. Richard Broughton
The Death Penalty And Justice Scalia's Lines, J. Richard Broughton
Akron Law Review
In Justice Scalia’s lone dissenting opinion in Morrison v. Olson, he lamented that, after the Court had upheld a law that he believed violated the separation of powers, “there are now no lines.” Lines were of critical importance to Justice Scalia – in law and in life – and informed much of his work on criminal law issues (Morrison, after all, was a case about the nature of federal prosecutorial authority). In the area of capital punishment, in particular, Justice Scalia saw clear lines that the Court should not cross. He believed that the Constitution contemplates the …
The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton
The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton
Jamin Raskin
No abstract provided.
Eliminating Discrimination In Administering The Death Penalty: The Need For The Racial Justice Act, Erwin Chemerinsky
Eliminating Discrimination In Administering The Death Penalty: The Need For The Racial Justice Act, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
An Indigent Criminal Defendant Is Entitled To “An Expert Of His Own”, Fredrick E. Vars
An Indigent Criminal Defendant Is Entitled To “An Expert Of His Own”, Fredrick E. Vars
Washington and Lee Law Review Online
The Supreme Court recently heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.
The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman
The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman
Cornell Law Faculty Publications
Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's skin …
If It Walks Like Systematic Exclusion And Quacks Like Systematic Exclusion: Follow-Up On Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997-2014, Ann M. Eisenberg, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume
If It Walks Like Systematic Exclusion And Quacks Like Systematic Exclusion: Follow-Up On Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997-2014, Ann M. Eisenberg, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume
Cornell Law Faculty Publications
This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases.
The study and the article it builds on add to decades of empirical research exploring the impacts (or …
An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall
An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall
Vanderbilt Law School Faculty Publications
In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove …
Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca
Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca
Nevada Law Journal Forum
Nevada is amongst the minority of states without statewide criminal procedure rules. Statewide rules are important because they promote fairness, regularity, and transparency regardless of where in the state a criminal case is being adjudicated and who it is being adjudicated in front of. This report intends to compare the varying states’ criminal procedure rules, to provide Nevada’s legal community with an awareness of how rules can be structured, what rules are included, and how rules interact with statutes and other court rules. If Nevada chooses to follow in the path of the forty-seven states and develop statewide criminal procedure …
Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod
Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod
Marah McLeod
This Article addresses the substantive question, "Does the death penalty require death row?" and the procedural question, "Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent …
The Quality Of Mercy, Paul Rosenzweig
The Quality Of Mercy, Paul Rosenzweig
Washington and Lee Law Review Online
No abstract provided.
The Inequality Of America‘S Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John D. Bessler
The Inequality Of America‘S Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John D. Bessler
Washington and Lee Law Review Online
No abstract provided.
The Italian Enlightenment And The American Revolution: Cesare Beccaria's Forgotten Influence On American Law, John Bessler
The Italian Enlightenment And The American Revolution: Cesare Beccaria's Forgotten Influence On American Law, John Bessler
All Faculty Scholarship
The influence of the Italian Enlightenment—the Illuminismo—on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents—George Washington, John Adams, Thomas Jefferson and James Madison—were inspired by Beccaria’s treatise and, in some cases, read …
The Law Of Abolition, Kevin M. Barry
The Law Of Abolition, Kevin M. Barry
Journal of Criminal Law and Criminology
Three themes have characterized death penalty abolition throughout the Western world: a sustained period of de facto abolition; an understanding of those in government that the death penalty implicates human rights; and a willingness of those in government to defy popular support for the death penalty. The first two themes are present in the U.S.; what remains is for the U.S. Supreme Court to manifest a willingness to act against the weight of public opinion and to live up to history’s demands.
When the Supreme Court abolishes the death penalty, it will be traveling a well-worn road. This Essay gathers, …
The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai
The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai
Journal of Criminal Law and Criminology
American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …
Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp
Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp
Journal of Criminal Law and Criminology
This Article examines 4,668 Oklahoma homicide cases with an identified suspect that occurred during a twenty-three year period between January 1, 1990, and December 31, 2012. Among these, we identified 153 cases that ended with a death sentence. Overall we found that while the defendant’s race did not correlate with a death sentence, there was a strong correlation with the race of the victim, with cases with white victims significantly more likely to end with a death sentence than cases with non-white victims. Homicides with female victims were also more likely to result in a death sentence than other cases. …
Reforming The Death Penalty In Egypt: An Islamic Law Perspective, Gaber Mohamed
Reforming The Death Penalty In Egypt: An Islamic Law Perspective, Gaber Mohamed
Maurer Theses and Dissertations
The main goal of this thesis is to reform the imposition of the death penalty in the Egyptian legal system through the tools and theories of Islamic law. This subject will be discussed in three main chapters: The first chapter will be a survey of the current application of the death penalty in the Egyptian legal system, including the death penalty’s history, laws, courts, appeals, legal procedures, and general comments on the current application of the penalty. The second chapter will be about the death penalty in Islamic law – including the sources of Islamic law, the crimes that merit …
Criminal Deterrence: A Review Of The Literature, Aaron Chalfin, Justin Mccrary
Criminal Deterrence: A Review Of The Literature, Aaron Chalfin, Justin Mccrary
Faculty Scholarship
We review economics research regarding the effect of police, punishments, and work on crime, with a particular focus on papers from the last twenty years. Evidence in favor of deterrence effects is mixed. While there is considerable evidence that crime is responsive to police and to the existence of attractive legitimate labor-market opportunities, there is far less evidence that crime responds to the severity of criminal sanctions. We discuss fruitful directions for future work and implications for public policy.
What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross
What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross
Articles
False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but …
A Right To Know How You'll Die: A First Amendment Challenge To State Secrecy Statutes Regarding Lethal Injection Drugs, Kelly A. Mennemeier
A Right To Know How You'll Die: A First Amendment Challenge To State Secrecy Statutes Regarding Lethal Injection Drugs, Kelly A. Mennemeier
Journal of Criminal Law and Criminology
In the years since 2008, when the Supreme Court upheld the constitutionality of a commonly used lethal injection protocol in Baze v. Rees, states have shifted away from the approved protocol and turned towards new drugs, drug protocols, and drug sources to carry out state-sponsored executions by lethal injection. Even as states have shifted to new, untested protocols and less-regulated sources than they used in pre-Baze years, state legislatures have enacted and amended secrecy statutes that hide information about the drug protocols and sources of lethal injection drugs from the press, the public, and condemned prisoners. Meanwhile, a …
A Culture That Is Hard To Defend: Extralegal Factors In Federal Death Penalty Cases, Jon B. Gould, Kenneth S. Leon
A Culture That Is Hard To Defend: Extralegal Factors In Federal Death Penalty Cases, Jon B. Gould, Kenneth S. Leon
Journal of Criminal Law and Criminology
Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence. Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory. This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence. Using frequentist and Bayesian methods—supplemented with expert interviews—we empirically …
Examining Jurors: Applying Conversation Analysis To Voir Dire In Capital Cases, A First Look, Barbara O'Brien, Catherine M. Grosso, Abijah P. Taylor
Examining Jurors: Applying Conversation Analysis To Voir Dire In Capital Cases, A First Look, Barbara O'Brien, Catherine M. Grosso, Abijah P. Taylor
Journal of Criminal Law and Criminology
Scholarship about racial disparities in jury selection is extensive, but the data about how parties examine potential jurors in actual trials is limited. This study of jury selection for 792 potential jurors across twelve randomly selected North Carolina capital cases uses conversation analysis to examine the process that produces decisions about who serves on juries. To examine how race influences conversations in voir dire, we adapted the Roter Interaction Analysis System, a widely used framework for understanding the dynamics of patient–clinician communication during clinical encounters, to the legal setting for the first time. This method allows us to document the …
The Rhetoric Of Abolition: Continuity And Change In The Struggle Against America's Death Penalty, 1900-2010, Austin Sarat, Robert Kermes, Haley Cambra, Adelyn Curran, Margaret Kiley, Keshav Pant
The Rhetoric Of Abolition: Continuity And Change In The Struggle Against America's Death Penalty, 1900-2010, Austin Sarat, Robert Kermes, Haley Cambra, Adelyn Curran, Margaret Kiley, Keshav Pant
Journal of Criminal Law and Criminology
This article seeks to understand when, how, and where the framing of arguments against capital punishment has changed. While others have focused exclusively on the national level, we studied the framing of abolitionist arguments in three American states: Connecticut, Kansas, and Texas. Each is located in a different region of the country, and each has its own distinctive death penalty history. We studied the framing of arguments against the death penalty from 1900 to 2010. Our study suggests that the rhetorical reframing of the campaign against capital punishment that has occurred at the national level has had deep resonance at …
The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai
The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai
Faculty Scholarship
American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …
Capital Jurors In An Era Of Death Penalty Decline, Brandon L. Garrett, Daniel Krauss, Nicholas Scurich
Capital Jurors In An Era Of Death Penalty Decline, Brandon L. Garrett, Daniel Krauss, Nicholas Scurich
Faculty Scholarship
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty. We conducted surveys of persons reporting for jury duty at …