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Articles 1 - 30 of 40
Full-Text Articles in Law
The “Especially Heinous” Aggravator: Sharpshooter Bonuses Do Not Belong In Capital Sentencing Law, Taylor Lopa
The “Especially Heinous” Aggravator: Sharpshooter Bonuses Do Not Belong In Capital Sentencing Law, Taylor Lopa
St. John's Law Review
(Excerpt)
In capital cases, the jury is often left with the onerous decision about whether to impose the death penalty. To help jurors make sentencing decisions, judges will instruct them on how to apply the law. As one juror summarized, “[The judge told us] that we were to make our decision on the basis of his instructions and the law, not what we felt, not what we thought ought to be.” Because of jury instructions like this, jurors know that they must base sentencing decisions on the law rather than their personal beliefs. But what happens when the law itself …
When Police Volunteer To Kill, Alexandra L. Klein
When Police Volunteer To Kill, Alexandra L. Klein
Faculty Articles
The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.
Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …
"Only To Have A Say In The Way He Dies:" Bodily Autonomy And Methods Of Execution, Alexandra L. Klein
"Only To Have A Say In The Way He Dies:" Bodily Autonomy And Methods Of Execution, Alexandra L. Klein
Faculty Articles
Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …
Capital Punishment And The ‘Acnestis’ Of Its Modern Reformation, Sudarsanan Sivakumar
Capital Punishment And The ‘Acnestis’ Of Its Modern Reformation, Sudarsanan Sivakumar
Human Rights Brief
The term “Capital Punishment” encompasses any penalizing punishment that results in the death of people accused of committing a crime.1 This damnation dates back to the Eighteenth Century B.C. in the “Code of Hammurabi,” a misemployed code that ensured the death penalty for twenty-five distinct crimes. People convicted of crimes were made to suffer for their actions in horrific ways, including being burnt alive and drowning.2 Since then, death by hanging has been the conventional method for capital punishment in most of the world.
The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein
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, …
A Few Words For The Firing Squad (Editorial), Alexandra L. Klein, Brandon Hasbrouck
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.
Keeping Up: Walking With Justice Douglas, Charles A. Reich
Keeping Up: Walking With Justice Douglas, Charles A. Reich
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
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 …
The Difference Of One Vote Or One Day: Reviewing The Demographics Of Florida’S Death Row After Hurst V. Florida, Melanie Kalmanson
The Difference Of One Vote Or One Day: Reviewing The Demographics Of Florida’S Death Row After Hurst V. Florida, Melanie Kalmanson
University of Miami Law Review
As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital punishment in the United States—the Eleventh Circuit reviews several claims each year related to capital punishment. Florida is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important for understanding capital punishment nationwide.
This Article analyzes the empirical demographics of Florida’s death row population and reviews how defendants are sentenced to death and ultimately executed in Florida. The analysis reveals that although age is not a factor upon which murder/manslaughter defendants are discriminated against in the …
Humane Proposals For Swift And Painless Death, Bryce Buchmann
Humane Proposals For Swift And Painless Death, Bryce Buchmann
Law Student Publications
This comment will provide reasons why lethal injection is not the appropriate method of execution in the United States, discuss factors that should be considered in selecting a method of execution and conclude that several alternative methods of punishment are preferable to lethal injection. Part I of this comment will detail the history of lethal injection in the United States and the issues associated with the practice. Part II examines how the government determines which method of execution is appropriate. Finally, Part III provides proposals for more humane punishment and concludes the comment.
The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin
The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin
Bryan H. Druzin
Court Of Appeals Of New York, People V. Lavalle, Randi Schwartz
Court Of Appeals Of New York, People V. Lavalle, Randi Schwartz
Touro Law Review
No abstract provided.
Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali
Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali
Touro Law Review
No abstract provided.
Does Religion Have A Role In Criminal Sentencing?, Jack B. Weinstein
Does Religion Have A Role In Criminal Sentencing?, Jack B. Weinstein
Touro Law Review
No abstract provided.
From Death To Near-Death: The Fate Of Serious Youthful Offenders After Roper V. Simmons, Christopher A. Mallett
From Death To Near-Death: The Fate Of Serious Youthful Offenders After Roper V. Simmons, Christopher A. Mallett
Social Work Faculty Publications
The United States juvenile death penalty was abolished in 2005 when the Supreme Court, in Roper v. Simmons, found this punishment to be cruel and unusual and in violation of the Constitution’s Eighth Amendment.1 This decision was the final step in ending the death sentence for those under the age of eighteen. While this sentence is no longer an option for retributively-inclined states, many serious youthful offenders continue to meet similar, and in some ways, comparably difficult fates. These fates include the wholesale transfer of serious youthful offenders to the criminal courts2 and the subsequent incarceration of tens of …
An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term, Richard Klein
An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term, Richard Klein
Touro Law Review
No abstract provided.
Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman
Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman
Touro Law Review
No abstract provided.
Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien
Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien
Faculty Works
Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …
Life Without Parole, Or A Juvenile Death Sentence, Kyle Gottuso
Life Without Parole, Or A Juvenile Death Sentence, Kyle Gottuso
Missouri Law Review
Part II of this Note will look at the court's decision to allow juveniles to be sentenced to life without parole. In doing so, this Note will outline the policies underlying the U.S. Supreme Court's Eighth Amendment jurisprudence. Next, Part III of this Note will survey more broadly the U.S. Supreme Court's interpretation of the Eighth Amendment in terms of life without parole as well as death penalty cases. Part IV of this Note will then look at the reasoning of the majority and the dissent in the instant case. Finally, Part V of this Note will attempt to reconcile …
Efforts To Improve The Illinois Capital Punishment System: Worth The Cost?, Thomas P. Sullivan
Efforts To Improve The Illinois Capital Punishment System: Worth The Cost?, Thomas P. Sullivan
University of Richmond Law Review
No abstract provided.
Putting The Guesswork Back Into Capital Sentencing, Sean O'Brien
Putting The Guesswork Back Into Capital Sentencing, Sean O'Brien
Faculty Works
In 1972, in Furman v. Georgia, the Supreme Court deemed it "incontestable" that a death sentence is cruel and unusual if inflicted "by reason of [the defendant's] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capital crimes. The issue of innocence was barely a footnote in Furman; the Court's concerns focused on …
Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan
Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan
Faculty Scholarship
The essay shows that the new deterrence studies are fraught with numerous technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider several relevant factors that drive murder rates such as drug epidemics, missing data on key variables in key states, the tyranny of a few outlier states and years, weak to non-existent tests of concurrent effects of incarceration, statistical confounding of murder rates with death sentences, failure to consider the general performance of the criminal justice system, artifactual results from truncated time frames, and the absence of any direct test of the components of contemporary theoretical constructions …
Justice Miriam Shearing: Nevada's Trailblazing Minimalist, Mary E. Berkheiser
Justice Miriam Shearing: Nevada's Trailblazing Minimalist, Mary E. Berkheiser
Scholarly Works
Nevada Supreme Court Justice Miriam Shearing retired at the end of her second term on January 4, 2005. Over the nearly thirty years of her very public life on the bench, many have written of her accomplishments as the firs woman to enter the brotherhood of the Nevada judiciary. With Justice Sharing’s retirement, the time is ripe for an examination of her judicial decisions during the twelve years she served on the Nevada Supreme Court. The analysis here provides one perspective on her body of work. It begins, as it must, with a glimpse into the person behind the work.
The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffery Fagan
The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffery Fagan
Faculty Scholarship
Shortly after the U.S. Supreme Court issued its decision in Atkins v. Virginia holding that the execution of mentally retarded persons violated the Eighth Amendment, legal scholars, advocates, and journalists began to speculate that the Court would next turn its attention to the question of the execution of persons who were juveniles – below eighteen years of age – at the time they committed homicide. Following the Atkins decision, four Justices expressed the view that the rationale of Atkins also supported the conclusion that execution of juvenile offenders was unconstitutional. A constitutional test of capital punishment for juveniles was inevitable. …
The Innocence Revolution And Our "Evolving Standards Of Decency" In Death Penalty Jurisprudence, Mark A. Godsey, Thomas Pulley
The Innocence Revolution And Our "Evolving Standards Of Decency" In Death Penalty Jurisprudence, Mark A. Godsey, Thomas Pulley
Faculty Articles and Other Publications
One cannot adequately consider whether the current administration of the death penalty in America measures up to modern notions of decency without doing so in light of the revolution that has occurred over the past decade in the American criminal-justice system - the Innocence Revolution. Up through the 1990s, as a society, we believed our criminal-justice system was highly accurate, but the recent advent of DNA testing and other advanced technologies has demonstrated the naiveté of such beliefs. This article will discuss the history of the Innocence Revolution, examine the impact of that revolution on our society, and ask: "What …
Gallery Of The Doomed: An Exploration Of Creative Endeavors By The Condemned, Roberta M. Harding
Gallery Of The Doomed: An Exploration Of Creative Endeavors By The Condemned, Roberta M. Harding
Law Faculty Scholarly Articles
This Article examines creative expressions produced by the death row faction of the incarcerated population. Looking at these works provide insights about what it means to live as a condemned person in our society, and about the people who occupy the death rows across our nation. After reviewing and analyzing a substantial amount of the enormous body of work of this genre, it became apparent that the condemned's creative endeavors reflect how they address and handle serious issues such as their executions and the ways spirituality influences their life. When the individual issues are examined, two general themes are evident: …
Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman
Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman
Faculty Scholarship
Innocent fatalities are a concern of all social activity with a capacity to kill. This is especially true when the social activity is the death penalty since an innocent person's execution is not simply a tragic collateral consequence of activity with a non-fatal objective. Instead, the taking of life is the goal of the enterprise, and the killing is the intended act of the state.
There is another difference between accidental fatalities in other social activities and those that occur when the capital system miscarries. Typically, the former fatalities are easy to spot and quantify; the latter are not. Precisely …
Informing Capital Juries About Parole: The Effect On Life Or Death Decisions, C. Lindsey Morrill
Informing Capital Juries About Parole: The Effect On Life Or Death Decisions, C. Lindsey Morrill
Kentucky Law Journal
No abstract provided.
Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman
Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman
Faculty Scholarship
In late March, a reporter called with news of a pirated copy of Professor Joseph Hoffinann's soon-to-be-published "attack" on our study, A Broken System: Error Rates in Capital Cases, 1973-1995. Did we care to comment? Obtaining our own copy revealed that Professor Hoffmann's fusillade missed its mark (he misstates what we did) and boomeranged (his mischaracterizations of our analysis accurately describe his own). We do care to comment, and Hoffmann and the Indiana Law Journal have graciously let us do so.
Hoffmann's main claim is that we "extrapolated" the 68% rate of reversible error we reported for capital verdicts …
A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West
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 …