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Articles 1 - 28 of 28
Full-Text Articles in Law
All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes
All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes
Michigan Law Review
A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.
Six Overrulings, Andrew Koppelman
Six Overrulings, Andrew Koppelman
Michigan Law Review
John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional …
Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz
Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz
Michigan Law Review
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 …
The Banality Of Wrongful Executions, Brandon L. Garrett
The Banality Of Wrongful Executions, Brandon L. Garrett
Michigan Law Review
What is so haunting about the known wrongful convictions is that those cases are the tip of the iceberg. Untold numbers of unnoticed errors may send the innocent to prison — and to the death chamber. That is why I recommend to readers a trilogy of fascinating new books that peer deeper into this larger but murkier problem. Outside the rarified group of highly publicized exonerations, which have themselves done much to attract attention to the causes of wrongful convictions, errors may be so mundane that no one notices them unless an outsider plucks a case from darkness and holds …
Missing Mcveigh, Michael E. Tigar
Missing Mcveigh, Michael E. Tigar
Michigan Law Review
The bombing that killed at least 169 people became an event by which time was thereafter measured — at least in Oklahoma. Ninety minutes after the bombing, a state trooper arrested Timothy McVeigh on a traffic charge; within hours, he was linked to the bombing, and the legal process began. Terry Nichols, who had met McVeigh when they were in the army together, was arrested in Herington, Kansas, where he lived with his wife and daughter. The Tenth Circuit chief judge designated Richard Matsch, chief judge for the District of Colorado, to preside over the case. Judge Matsch came to …
The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow
The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow
Michigan Law Review
The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …
Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd
Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd
Michigan Law Review
Policymakers' false beliefs about capital punishment's universal deterrent effect may have caused many people to die needlessly. If deterrence is capital punishment's purpose then, in the majority of states where executions do not deter crime, executions kill convicts uselessly. Moreover, in the many states where the brutalization effect outweighs the deterrent effect, executions not only kill convicts needlessly but also induce the additional murders of many innocent people. After Part II discusses capital punishment's recent history in the United States, Part III reviews the conflict in recent studies on capital punishment and deterrence. Part IV explores differences in states' applications …
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Michigan Law Review
What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …
Casting New Light On An Old Subject: Death Penalty Abolitionism For A New Millennium, Wayne A. Logan
Casting New Light On An Old Subject: Death Penalty Abolitionism For A New Millennium, Wayne A. Logan
Michigan Law Review
For opponents of capital punishment, these would appear promising times. Not since 1972, when the Supreme Court invalidated the death penalty as then administered, has there been such palpable concern over its use, reflected in the lowest levels of public opinion support evidenced in some time. This concern is mirrored in the American Bar Association's recently recommended moratorium on use of the death penalty, the consideration of or actual imposition of moratoria in several states, and even increasing doubts voiced by high-profile political conservatives. An array of troubling empirical realities has accompanied this shift: persistent evidence of racial bias in …
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
Michigan Law Review
The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …
The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker
The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker
Michigan Law Review
To make the case for the proposed changes, I will first describe briefly in Parts I and II the structure of pre- and post-Furman capital decisiorurtaking and the weaknesses of those approaches. I then will set forth in Part III the specific rationales for each proposed reform.
The scheme I propose raises a significant constitutional question. Can the death penalty be retained as a punishment if we abandon the pretense of providing meaningful guidance through detailed sentencing instructions? Would the reestablishment of relatively unstructured penalty phase deliberations similar to, but also importantly different from, those characteristic of pre-Furman …
Legitimating Death, Louis D. Bilionis
Legitimating Death, Louis D. Bilionis
Michigan Law Review
This article arrives at the surprising conclusion that a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology with firm roots in the traditions of constitutional adjudication.
To reach that conclusion, it is helpful first to have some sense of what the Supreme Court has been doing in the death penalty area lately. Part I thus presents a topical review of the Court's recent work, identifying the themes that now dominate, pointing out the concerns those themes raise, and asking whether any sense can be …
Capital Punishment's Future, Welsh S. White
Capital Punishment's Future, Welsh S. White
Michigan Law Review
A Review of Capital Punishment in America by Raymond Paternoster
The Death Penalty In The Nineties: An Examination Of The Modern System Of Capital Punishment, Thomas L. Shaevsky
The Death Penalty In The Nineties: An Examination Of The Modern System Of Capital Punishment, Thomas L. Shaevsky
Michigan Law Review
A Review of The Death Penalty in the Nineties: An Examination of the Modern System of Capital Punishment by Welsh S. White
The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii
The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii
Michigan Law Review
This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …
Capital Punishment And The American Agenda, John Pierce Stimson
Capital Punishment And The American Agenda, John Pierce Stimson
Michigan Law Review
A Review of Capital Punishment and the American Agenda by Franklin E. Zimring and Gordon Hawkins
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Michigan Law Review
This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …
The Capital Punishment Conundrum, Eric Schnapper
The Capital Punishment Conundrum, Eric Schnapper
Michigan Law Review
A Review of Life in the Balance: Procedural Safeguards in Capital Cases by Welsh S. White
Capital Punishment: For Or Against, Jan Gorecki
Capital Punishment: For Or Against, Jan Gorecki
Michigan Law Review
A Review of The Death Penalty -- A Debate by Ernest van den Haag and John Conrad
Capital Punishment: Criminal Law And Social Evolution, Michigan Law Review
Capital Punishment: Criminal Law And Social Evolution, Michigan Law Review
Michigan Law Review
A Review of Capital Punishment: Criminal Law and Social Evolution by Jan Gorecki
The Death Penalty In America, Michigan Law Review
The Death Penalty In America, Michigan Law Review
Michigan Law Review
A Review of The Death Penalty in America (Third Edition) by Hugo Adam Bedau
Berger's Defense Of The Death Penalty: How Not To Read The Constitution, Hugo Adam Bedau
Berger's Defense Of The Death Penalty: How Not To Read The Constitution, Hugo Adam Bedau
Michigan Law Review
A Review of Death Penalties: The Supreme Court's Obstacle Course by Raoul Berger
Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick
Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick
Michigan Law Review
As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.
A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor's use of the …
Desert And Deterrence: An Assessment Of The Moral Bases Of The Case For Capital Punishment, Richard O. Lempert
Desert And Deterrence: An Assessment Of The Moral Bases Of The Case For Capital Punishment, Richard O. Lempert
Michigan Law Review
The controversy over the death penalty has generated arguments of two types. The first argument appeals to moral intuitions; the second concerns deterrence. Although both types of argument speak to the morality of systems of capital punishment, the first debate has been dominated by moral philosophers and the second by empirical social scientists. For convenience I shall at times refer to the approach of the moral philosophers as the moral case for (or against) capital punishment or as the argument from morality.
For Capital Punishment, Michigan Law Review
For Capital Punishment, Michigan Law Review
Michigan Law Review
A Book Notice about For Capital Punishment by Walter Berns
Constitutional Law-Due Process-Right Of Condemned Prisoner To A Hearing On Claim Of Supervening Insanity, Robert P. Griffin S.Ed.
Constitutional Law-Due Process-Right Of Condemned Prisoner To A Hearing On Claim Of Supervening Insanity, Robert P. Griffin S.Ed.
Michigan Law Review
Petitioner was convicted of murder in a Georgia court and sentenced to die by electrocution. He made application to the governor to postpone execution on the ground that he had become insane after conviction. The governor, acting under authority of a state statute, appointed three physicians who conducted an examination of petitioner and found him sane. Thereupon, petitioner filed a petition for a writ of habeas corpus in a state court contending that the due process clause of the Fourteenth Amendment entitled him to a hearing on his insanity claim before a judicial or administrative tribunal at which he could …
Criminal Law And Procedure - Inexperience Of Defense Attorney As Denial Of Fair Trial
Criminal Law And Procedure - Inexperience Of Defense Attorney As Denial Of Fair Trial
Michigan Law Review
Defendant was convicted of first degree murder and sentenced to be electrocuted. He now claims he was denied a fair trial as the attorney appointed by the circuit court to defend him was inexperienced, having practiced only thirteen months. Held, that inasmuch as the nature and extent of the attorney's practice was not shown and the record showed the defense was carried on in a highly creditable manner, the inexperience of defendant's attorney was not a denial of a fair trial. McGuire v. State, ( Ark. 1934) 74 S. w. (2d) 235.
Mild Punishments, Robert Mcmurdy
Mild Punishments, Robert Mcmurdy
Michigan Law Review
If life, freedom, or hope be taken from man, he is ashes. Therefore we ought not to take away any of them lightly. But some, restraint or punishment is necessary. We often miss our aim, however,'by prescribing punishments that are too severe, whereupon human nature revolts, so that it is "impossible to combine certainty with severity," a lesson we have long since learned from the experience of England.