Law Commons^™

Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill

Articles

Although the most memorable cases from the Supreme Court’s 2021-22 Term were on the civil side of its docket, the Court addressed significant cases on the criminal side involving the Confrontation Clause, capital punishment, double jeopardy, criminal jurisdiction in Indian Country, and important statutory interpretation principles, such as the mens rea presumption and the scope of the rule of lenity. Looking back, the Court’s decisions limiting individuals’ access to remedies for violations of their constitutional criminal procedure rights stand out. Shinn v. Ramirez and Shoop v. Twyford drastically limit the ability of persons incarcerated in state facilities to challenge the …

Disabilities On Death Row: The Ada, Ableism, And Alternatives To The Eighth Amendment, Christopher Hill J.D., Ll.M

Lincoln Memorial University Law Review Archive

In one of the most recent death penalty cases, the Supreme Court of the United States held that the Eighth Amendment to the Constitution’s prohibition against cruel and unusual punishment does not guarantee a painless death and that the execution was constitutional if there was not “superadded” pain, despite the inmate’s disability causing extreme pain when he was required to lie down on a gurney.While the Court used an Eight Amendment analysis to determine whether additional pain triggers further protection for a death row inmate, it may be time to view some cruel and unusual punishment claims under a disability …

Three Observations About The Worst Of The Worst, Virginia-Style, Corinna Barrett Lain

Washington and Lee Law Review Online

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

Bucklew V. Precythe And The Resurgence Of The Method Of Execution Challenge, Hannah York

University of Colorado Law Review Forum

No abstract provided.

The Societal Impact Of Capital Punishment And Its Future Role In Modern Day America, Laurel Lee

Honors Theses

Capital punishment has been a well-established, although extremely controversial, practice throughout American history. It has been the subject of much criticism and debate both nationally and globally, dating back to ancient times. This study intends to research the historical, legal, and social changes of capital punishment in the United States that have occurred since the dawn of the practice in order to detect any trends, and if so, whether these trends allow a realistic prediction of the future of capital punishment. The chronology of capital punishment is first examined in this study in order to indicate that the controversy surrounding …

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Washington and Lee Law Review Online

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states’ modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber

Publications

10th Annual David H. Bodiker Lecture on Criminal Justice delivered on Wed., Oct. 21, 2020 at Ohio State University Moritz College of Law.

A Few Words For The Firing Squad (Editorial), Alexandra L. Klein, Brandon Hasbrouck

Faculty Articles

South Carolina’s governor has signed into law a bill adding the firing squad as one of the methods of execution that a person sentenced to death must choose between if lethal injection drugs are unavailable. This editorial discusses the inherent issues with the bill.

Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan

Touro Law Review

Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …

Memory, Moral Reasoning, And Madison V. Alabama, Elias Feldman

Touro Law Review

No abstract provided.

Meaningless Guarantees: Comment On Mitchell E. Mccloy's “Blind Justice: Virginia's Jury Sentencing Scheme And Impermissible Burdens On A Defendant's Right To A Jury Trial", Alexandra L. Klein

Faculty Articles

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant's penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy's excellent Note provides a compelling illustration of …

Getting To Know You: An Expanded Approach To Capital Jury Selection, Samuel P. Newton

Articles

The Colorado Method of capital jury selection is a widely embraced strategy defense attorneys use to select jurors during voir dire, in which attorneys rank each juror exclusively on the likelihood that the juror will vote for death. The method could benefit from some expansion. Not all defense lawyers have access to Colorado-Method-based training. In innocence cases, defense lawyers should soften discussions of punishment prior to guilt since this tactic predisposes juries to vote for death. Nor do jurors' views or positions on the death penalty guarantee their eventual votes. While capital juries are already inclined to give death sentences …

Narrowing Death Eligibility In Idaho: An Empirical And Constitutional Analysis, Aliza Plener Cover

Articles

No abstract provided.

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Faculty Articles

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states' modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

Courts, Culture, And The Lethal Injection Stalemate, Eric Berger

William & Mary Law Review

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of …

The Eighth Amendment Power To Discriminate, Kathryn E. Miller

Articles

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.' After decades of attempting to eliminate the requirement, conservative justices …

Sister Helen Prejean And The Death Penalty: Decades Of Fighting Capital Punishment, University Marketing And Communications, Helen Prejean

DePaul Download

Sister Helen Prejean has dedicated her life to opposing the death penalty after she witnessed an execution in her home state of Louisiana. Her efforts have sparked a national dialogue on capital punishment and she has helped shape the Catholic Church’s position on the topic. In 2011, she donated her personal archives to the university to help the DePaul community continue to learn from her work. On this episode of DePaul Download, Sister Helen talks about life’s work and what keeps her going.

The Problematic Nature Of Execution By Lethal Injection In The United States And People’S Republic Of China, Franchesca Fanucchi

Themis: Research Journal of Justice Studies and Forensic Science

The United States and the People’s Republic of China perceive the death penalty as a fundamental feature of the criminal justice system. Lethal injection procedures provide these countries with the humane disguise necessary to preserve capital punishment in an environment of evolving societal standards. However, this essay examines the highly problematic nature of execution by lethal injection due to numerous medical, procedural, and bureaucratic concerns often concealed from the public and press. The low-visibility nature of lethal injection in the United States and China has become troublesome, especially since it prevents public, academic, and medical evaluation on the procedure's humaneness …

Evolving Standards Of Decency: A View Of 8th Amendment Jurisprudence And The Death Penalty, Jared Lockhart, Madeline Hill

Brigham Young University Prelaw Review

In July 1997, Kenneth Foster was indicted on capital murder charges

and sentenced to death even though he had only committed robbery.

3 On August 14, 1996, Kenneth Foster and his friends, Mauriceo

Brown, DeWayne Dillard, and Julius Steen, rented a car and

drove to downtown San Antonio, Texas. Later that night, Brown

suggested that the men rob a few people in order to make up for the

money they had lost while partying. After their second robbery that

evening, Foster did not want to continue breaking the law, according

to Dillard’s courtroom testimony four years later. Dismissing

his request, …

Supreme Court Clerks And The Death Penalty, Matthew Tokson

Utah Law Faculty Scholarship

This Essay is part of GW's Supreme Court Clerks at 100 symposium.

The Supreme Court is involved, directly or otherwise, with virtually every execution carried out in the United States. Most executions are appealed to the Court, and inmates commonly request a stay of execution a few days or hours before their scheduled death. The clerks review these requests and recommend a ruling.

A few days after I arrived at the Court, I got my first death penalty assignment. As the date drew near, the defendant asked the Court to stay his execution. I opened his file and began to …

The Political Development Of Capital Punishment In The Modern Moroccan State, Mia Barr

Independent Study Project (ISP) Collection

The modern Moroccan state seen today is very young. Having only been independent from France since 1956, the country has spent the last sixty-four years crafting its post-colonial statehood. What has emerged is a hybrid political system with powers split, however unequally, between the King and his inner circle, known as the makhzen, and the Parliament. Not only is the monarchy constitutional—meaning that its legitimacy is literally written into the primary governing document of Morocco, which had its last referendum in 2011—but it is also self-sustaining and self-legitimizing, for the monarchy uses its constitutional powers to grant itself further powers …

Nondelegating Death, Alexandra L. Klein

Scholarly Articles

Most states’ method of execution statutes afford broad discretion to executive agencies to create execution protocols. Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s nondelegation and separation of powers doctrines. State courts routinely use the nondelegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts. Despite its uncertain status, the nondelegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of nondelegation. It analyzes state court decisions upholding broad legislative delegations to …

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

Furman'S Legacy: New Challenges To The Overbreadth Of Capital Punishment, Jeffrey A. Fagan

Faculty Scholarship

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state's largest county and location of the nation's fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what …

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Articles

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies …

Race-Of-Victim Disparities And The "Level Up" Problem, Aya Gruber

Publications

No abstract provided.

The Unwavering Movement: Integrating Reason Into British Penal Code 1730-1823, Rebecca M. Good

International ResearchScape Journal

Between the early 16^th and 18^th centuries, English attitude towards crime and correction were based on the strong held belief that faith and religion were the only cure to immorality. Lawmakers began to threaten citizens with capital punishment for menial crimes such as petty theft and begging. Resulting of a moral panic, lawmakers turned to the deterrence to dissuade citizens from partaking in criminal activity. The list of crimes punishable by death in England rose from 50 offenses in 1688 to over 220 in 1815. This article explains the origins of the Bloody Code and how Enlightenment-Era thought …