Law Commons^™

Aggravation And Mitigation In Capital Cases: What Do Jurors Think?, Stephen P. Garvey

Cornell Law Faculty Publications

The Capital Jury Project in South Carolina interviewed jurors who sat in forty-one capital murder cases. The Project asked jurors a range of questions relating to crime, the defendant, the victim, the victim's family, the jurors' deliberations, the conduct of counsel, and background characteristics of the jurors. In this essay, Professor Stephen P. Garvey presents and examines data from the Project relating to the importance jurors attach to various aggravating and mitigating factors. The results suggest that jurors have a discernible moral compass. According to the data, jurors found especially brutal killings, killings with child victims, future dangerousness, and lack …

Death By Default: State Procedural Default Doctrine In Capital Cases, John H. Blume, Pamela A. Wilkins

Cornell Law Faculty Publications

Before 1991, South Carolina capital defendants benefitted from lenient policies of error preservation. However, in 1991 the South Carolina Supreme Court put an end to these policies and began enforcing default rules that are more draconian than those of any other American jurisdiction with a death penalty. Furthermore, the South Carolina Supreme Court’s decisions have made it difficult for trial practitioners to discern the rules under which they must operate. Taken in combination, the strictness of the new procedural policy, the lack of clarity regarding the applicable rules, and the South Carolina Supreme Court’s often ad hoc approach to enforcing …

Justice Blackmun, Franz Kafka, And Capital Punishment, Martha Dragich

Faculty Publications

The Article discusses the problem of judging death penalty cases, comparing Justice Blackmun's death penalty jurisprudence to the struggle of a character in Kafka's story. It focuses on three critical moments in the decisional process--hesitation, decision, and escape--and assesses Justice Blackmun's performance at each step. It concludes that although Justice Blackmun's views remained consistent throughout his judicial career, his death penalty legacy is equivocal, and in some important respects, unsatisfying.

Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson

Cornell Law Faculty Publications

In federal habeas corpus proceedings, Earl Matthews, an African American, South Carolina death row inmate, alleged that his death sentence was the result of invidious racial discrimination that violated the Equal Protection Clause of the Fourteenth Amendment. To support his contention, Matthews presented statistical evidence showing that in Charleston County, where a jury convicted him and sentenced him to death, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white person than for any other racial combination of victims and defendants, and also that such a Black defendant was more …

But Was He Sorry? The Role Of Remorse In Capital Sentencing, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

What role does remorse really play in capital sentencing? We divide this basic question in two. First, what makes jurors come to believe a defendant is remorseful? Second, does a belief in the defendant's remorse affect the jury's final judgment of life or death? Here we present a systematic, empirical analysis that tries to answer these questions.

What makes jurors think a defendant is remorseful? Among other things, we find that the more jurors think that the crime is coldblooded, calculated, and depraved and that the defendant is dangerous, the less likely they are to think the defendant is remorseful. …

Unconscious Racism And The Criminal Law, Sheri Johnson

Cornell Law Faculty Publications

No abstract provided.

The Underfunded Death Penalty: Mercy As Discrimination In A Rights Based System Of Justice, Malla Pollack

Malla Pollack

This paper suggests that the relationship between justice and mercy is dependent on the system in which they are operating. [In a rights-based system, one where discrimination is forbidden, mercy is acceptable only when it is a subset of justice. Arbitrary mercy treating like cases in unlike fashion is moral only if individuals have no "right" to equal treatment, i.e., in a duty-based system. This paper begins with moral theory: part I briefly presents other recent philosophical treatments of mercy; part II states a philosophical "Thesis," illustrates it with the leading case of Queen v. Dudley, and explains why Dudley …

The Failed Case For Eighth Amendment Regulation Of The Capital-Sentencing Trial, Scott W. Howe

Scott W. Howe

This article explores Eighth Amendment theories that might justify the effort by the Supreme Court to regulate capital-sentencing trials but explains why they are problematic. The Court typically has asserted that the aim of its capital-sentencing doctrine is to achieve nonarbitrariness or consistency in the use of the death penalty. However, the article shows why the Court's regulatorty efforts have not served that goal, why that goal is unachievable, and, ultimately, why that goal does not comport with the mandate of the Eighth Amendment. The article contends that the better view is that the Eighth Amendment limits the use of …

International Law And The Implementation Of The American Bar Association Resolution Regarding The American Bar Association Resolution Regarding The Death Penalty, Ved P. Nanda

ILSA Journal of International & Comparative Law

My assignment is to consider the emerging international norms and how they might affect implementation of the American Bar Association (ABA) resolution calling for a moratorium on the imposition and enforcement of the death penalty.'

International Law And Abolition Of The Death Penalty: Recent Developments, William A. Schabas

ILSA Journal of International & Comparative Law

As a goal for civilized nations, abolition of the death penalty was promoted during the drafting of the Universal Declaration of Human Rights' in 1948. It found, however, that expression was only implicit in the recognition of what international human rights law designated "the right to life;" the same approach was taken in the American Declaration of the Rights and Duties of Man, adopted May 4, 1948.

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 …

Does New York's Death Penalty Statute Violate The New York Constitution?, Honorable Stewart F. Hancock Jr., Christopher Quinn, Richard Klein

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Suffolk County: People V. Shulman

Touro Law Review

No abstract provided.

The Relevance Of "Execution Impact" Testimony As Evidence Of Capital Defendants' Character, Darcy F. Katzin

Fordham Law Review

No abstract provided.

Capital Jury And Absolution: The Intersection Of Trial Strategy Remorse And The Death Penalty, Scott E. Sundby

Articles

No abstract provided.

On Seeking Controlling Law And Re-Seeking Death Under Section 2929.06 Of The Ohio Revised Code , Margery B. Koosed

Cleveland State Law Review

This article explores and analyzes the two-pronged legal dilemma that confronted the court in State v. Marshall: in Ohio, finding the correct sentencing law is often difficult; and a recent amendment to the resentencing portion of that law, S.B. 258, destroys the efficiency that was characteristic of Ohio's previous resentencing framework. Consequently, Part II of this article examines the facts and holding of State v. Marshall and suggests that finding the applicable law must be simplified. Practitioner handbooks are often confusing and incomplete, in part as the Ohio legislature generates an ever-changing body of law. Justice and the lives of …

Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse

Scholarly Works

This article chronicles the Burger Court's inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. The article discusses the Court's initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. The article further explores the Court's reinstatement of the death penalty, and two of the Court's forays into “bad faith” denial that sustained the death penalty, particularly the Court's …

When Something Wicked This Way Comes: Evolving Standards Of Indecency - Thompson And Stanford Revisited , Jennifer L. Whitney

Cleveland State Law Review

If the death penalty becomes an option for children under sixteen, the unavoidable conclusion must be that we have reverted back to colonial theories of punishment. The issue facing the nation will again become at what age to draw the line. In this article I argue that, as a society, we must prevent such executions and refute claims that, as a result of the failure of the juvenile justice system to rehabilitate killers before they kill, a consensus in favor of reducing the minimum age of execution has evolved. Part II of this note presents the theories of colonial crime …

Feminism And Defending Men On Death Row Symposium: Thoughts On Death Penalty Issues 25 Years After Furman V. Georgia., Phyllis L. Crocker

St. Mary's Law Journal

In this Essay I explore the relationship between being a feminist and representing men on death row. It is appropriate to engage in this inquiry in considering how the law has developed in the twenty-five years since Furman v. Georgia. During that time both Furman and the advent of feminist legal theory have required a restructuring in the way we think about two fundamental legal questions: for death penalty jurisprudence, how and why we sentence individuals to death; and for feminist jurisprudence, how the law views crimes of violence against women. The relationship between these two developments becomes apparent when …

Feminism And Defending Men On Death Row, Phyllis L. Crocker

Law Faculty Articles and Essays

In this Essay I explore the relationship between being a feminist and representing men on death row. It is appropriate to engage in this inquiry in considering how the law has developed in the twenty-five years since Furman v. Georgia. During that time both Furman and the advent of feminist legal theory have required a restructuring in the way we think about two fundamental legal questions: for death penalty jurisprudence, how and why we sentence an individual to death; and for feminist jurisprudence, how the law views crimes of violence against women. The relationship between these two developments becomes apparent …

Race And The Victim: An Examination Of Capital Sentencing And Guilt Attribution Studies, Cynthia Lee

GW Law Faculty Publications & Other Works

This article examines the effect of the race of the victim on legal decision making in capital and non-capital criminal cases. A large body of research on race and capital sentencing indicates that the crime victim's race affects the prosecutor's decision to seek, and the jury's decision to recommend, the death penalty. The most well known of these is undoubtedly the Baldus study, which provided the data underlying the defendant's challenge to the Georgia death penalty regime in McCleskey v. Kemp. Less well known are empirical analyses conducted since the Supreme Court rejected McCleskey's challenge. The article reviews several of …

Capital Punishment In The United States, Sarah Oppenheim

Human Rights Brief

No abstract provided.

Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields

Fordham Urban Law Journal

New York State's death penalty statute is constitutionally flawed in many respects. It violates the state and federal prohibition against cruel and unusual punishment and provides unrestricted prosecutorial discretion to pursue the death penalty. This standardless and unfettered discretion creates the risk of arbitrary or discriminatory application of capital punishment.

Capital Punishment In Jewish Law And Its Application To The American Legal System: A Conceptual Overview Symposium: Thoughts On Death Penalty Issues 25 Years After Furman V. Georgia., Samuel J. Levine

St. Mary's Law Journal

In recent years, a growing body of scholarship has developed in the United States which applies concepts in Jewish law to unsettled, controversial and challenging areas of American legal thought. One area of Jewish legal thought that has found prominence in both American court opinions and American legal scholarship concerns the approach taken by Jewish law to capital punishment. In this Essay, Levine discusses the issue of the death penalty in Jewish law as it relates to the question of the death penalty in American law, a discussion that requires the rejection of simplistic conclusions and the confrontation of the …

Update: American Public Opinion On The Death Penalty - It's Getting Personal (Symposium: How The Death Penalty Works: Empirical Studies Of The Modern Capital Sentencing System), Samuel R. Gross

Articles

Americans' views on capital punishment have stabilized. In 1994, when Professor Phoebe Ellsworth and I published a review of research on death penalty attitudes in the United States,' we began by noting that "support for the death penalty [is] at a near record high."'2 That finding, like most of the others we reported, has not changed. Nonetheless, it is interesting to pause and review the data on public opinion on the death penalty that have accumulated over the past several years. Stability is less dramatic than change but it may be equally important, and there is some news to report. …

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

One of the longstanding complaints against the death penalty is that it "distort[s] the course of the criminal law."' Capital prosecutions are expensive and complicated; they draw sensational attention from the press; they are litigated-before, during, and after trial-at greater length and depth than other felonies; they generate more intense emotions, for and against; they last longer and live in memory. There is no dispute about these effects, only about their significance. To opponents of the death penalty, they range from minor to severe faults; to proponents, from tolerable costs to major virtues. ntil recently, however, the conviction of innocent …

Harris V. Commonwealth: The Use Of "Statutory" Aggravating Circumstances In Kentucky's Sentencing Procedure, Melissa Bartlett

Kentucky Law Journal

No abstract provided.

Standards And Procedures For Determining Whether A Defendant Is Competent To Make The Ultimate Choice - Death; Ohio's New Precedent For Death Row Volunteers, Matthew T. Norman

Journal of Law and Health

Despite the fact that many states will allow a death row defendant to waive his legal appeals in order to hasten his execution date, there are inadequate standards and procedures for determining whether the "volunteer" is first competent to make this ultimate decision of life versus death. To provide background for this issue, this Note will discuss the events initially leading up to the nation's first death row "volunteer", then it will introduce subsequent volunteers of the present day. This Note then will look at what the United States Supreme Court has said about the standards and procedures that are …