Law Commons^™

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

Remember Not To Forget Furman: A Response To Professor Smith, Sam Kamin, Justin F. Marceau

Sturm College of Law: Faculty Scholarship

Professor Robert J. Smith encourages readers, lawyers, and courts to forget Furman v. Georgia and to focus instead on death penalty challenges grounded in the diminished culpability of nearly all capital defendants. We applaud Professor Smith’s call to focus on the mental and emotional characteristics that reduce the blameworthiness of so many of those charged with capital crimes; recognizing diminished culpability as the rule rather than the exception among capital defendants conveys a reality that rarely finds its way into reported cases. We are troubled, however, by Professor Smith’s call to “forget Furman.” We believe the title and the …

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

Sheri Lynn Johnson

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 …

Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Stephen P. Garvey

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …

Death-Innocence And The Law Of Habeas Corpus, Stephen P. Garvey

Stephen P. Garvey

The legal space between a sentence of death and the execution chamber is occupied by an intricate network of procedural rules. On average, it currently takes between six and seven years to traverse this space, but this interval is expected to shrink. Federal habeas corpus, an important part of this space, is studded more and more with procedural obstacles that bar the federal courts from entertaining the merits of a defendant's claims. By design, these barriers foreclose federal review in order to protect the state's interests in the finality of its criminal convictions, as well as to display healthy respect …

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

John H. Blume

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 …

Constitutional Concerns About Capital Punishment: The Death Penalty Statute In New York State, Richard Klein

Richard Daniel Klein

No abstract provided.

The Folly - And Faith - Of Furman, John H. Blume, Sheri Lynn Johnson

The Journal of Appellate Practice and Process

No abstract provided.

Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn

Richard Daniel Klein

No abstract provided.

History Repeats Itself: The Post-Furman Return To Arbitrariness In Capital Punishment, Lindsey S. Vann

Law Student Publications

Part I of this comment provides a brief review of Furman and the circumstances leading to the decision. Part II discusses the factors indicating current arbitrariness and other recurring fac-tors surrounding the American death penalty. Part III examines the development of the Cruel and Unusual Punishments Clause since Furman. Finally, Part IV discusses how the Supreme Court should apply its contemporary Eighth Amendment doctrine to the current circumstances surrounding the imposition of the death penalty.

The Impact Of Civilian Aggravating Factors On The Military Death Penalty (1984-2005): Another Chapter In The Resistance Of The Armed Forces To The Civilianization Of Military Justice, Catherine M. Grosso, David C. Baldus, George Woodworth

University of Michigan Journal of Law Reform

In 1984, the U.S. Armed Forces amended its capital punishment system for death eligible murder to bring it into compliance with Furman v. Georgia. Those amendments were modeled after death penalty legislation prevailing in over thirty states. After a brief period between 1986 and 1990, the charging decisions of commanders and the conviction and sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently. Since 1990, a member of the armed forces accused of a killing a commissioned officer or murder with a …

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …

Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …

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 …

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 …

Death In The Federal Courts: Expectations And Realities Of The Federal Death Penalty Act Of 1994, John P. Cunningham

University of Richmond Law Review

"Thou shalt not kill." These four words have echoed throughout the churches, judicial courts, and political meeting places of men and women for time immemorial. Along with their deep religious and political significance, they carry with them a haunting contrast to the current state of mankind: men and women can kill other men and women-legally. In the United States, this "legal" killing, commonly referred to as the "death penalty," traditionally takes place within the confines of the individual state judicial systems, and generally involves the execution of felons tried and convicted of some form of intentional murder.

Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn

Scholarly Works

No abstract provided.

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 …

"As The Gentle Rain From Heaven": Mercy In Capital Sentencing, Stephen P. Garvey

Cornell Law Faculty Publications

Our constitutional law of capital sentencing does not understand Shakespeare's "gentle rain from heaven." Mercy confuses and befuddles it. The jury that sentenced Albert Brown to death was instructed that "'mere ... sympathy"' should not play on its judgment. Brown claimed this instruction violated his Eighth Amendment rights, but the Supreme Court disagreed. Some five years later, Justice Scalia dissented when the Court reversed Derrick Morgan's death sentence. According to Justice Scalia, the Court had held that no "merciless" juror could sit in judgment of a capital defendant. The Constitution, he thought, demanded no such thing. These dissents, one embracing …

Constitutional Concerns About Capital Punishment: The Death Penalty Statute In New York State, Richard Klein

Scholarly Works

No abstract provided.

Discretion In Capital Sentencing Instructions: Guided Or Misguided?, James Luginbuhl, Julie Howe

Indiana Law Journal

Symposium: The Capital Jury Project

Where's The Buck?: Juror Misperception Of Sentencing Responsibility In Death Penalty Cases, Joseph L. Hoffmann

Indiana Law Journal

Symposium: The Capital Jury Project

The Capital Jury Project: Rationale, Design, And Preview Of Early Findings, William J. Bowers

Indiana Law Journal

Symposium: The Capital Jury Project

Taking Capital Jurors Seriously, Craig Haney

Indiana Law Journal

Symposium: The Capital Jury Project

Cross-Overs-Capital Jurors Who Change Their Minds About The Punishment: A Litmus Test For Sentencing Guidelines, Marla Sandys

Indiana Law Journal

Symposium: The Capital Jury Project

Comparative Proportionality Review: Will The Ends, Will The Means , Bruce Gilbert

Seattle University Law Review

This Comment attempts to achieve several objectives. Part II discusses the reasons that the death penalty was found to be unconstitutional in Furman v. Georgia. Part III reviews several post-Furman Supreme Court cases and the revised death penalty statutes that were deemed to satisfy the procedural inadequacies found in pre-Furman death sentence statutes. This Part also discusses the role proportionality review plays in making a death penalty statute constitutional. Part IV examines the development of comparative proportionality review in the State of Washington. State v. Benn will serve as the focus of this discussion. Part V demonstrates that Washington's application …

The Quality Of Mercy: Race And Clemency In Florida Death Penalty Cases, 1924-1966, Margaret Vandiver

University of Richmond Law Review

The scholarly literature on capital punishment includes few empirical studies of executive clemency. Commutations in capital cases have been rare since 1972 when the current era of capital punishment began with the United States Supreme Court's ruling in Furman v. Georgia. A large proportion of pre-1972 death sentences were commuted; examination of clemency decisions in those cases promises to reveal much about the history of capital punishment in the United States. The present study attempts to identify factors which influenced decisions to grant commutations of Florida death sentences pre-Furman, focusing particularly on whether the race of defendants and victims influenced …

The Role Of Executive Clemency In Modern Death Penalty Cases, Bruce Ledewitz, Scott Staples

University of Richmond Law Review

When a governor commutes a sentence of death, typically to one of life imprisonment either with an extended mandatory term or without possibility of parole, how is this action to be understood? As former Governor Pat Brown's book about his commutation decisions illustrates, in a period of widespread support for the death penalty, each commutation contains an appeal for popular support and understanding as to why the decision was made. Where the case for commutation cannot be made to the public's satisfaction, a governor is not likely to act.

Executive Clemency In Post-Furman Capital Cases, Michael L. Radelet, Barbara A. Zsembik

University of Richmond Law Review

In the 1972 case of Furman v. Georgia, the United States Supreme Court invalidated virtually all existing death penalty statutes in the United States. Consequently, those jurisdictions that wanted to continue to execute were forced to revise their capital sentencing procedures. Since Furman,nearly all aspects of American death penalty law have been rewritten. Left unchanged by both the courts and the legislatures, however, are the ways in which states decide which death-sentenced inmates will have their sentences commuted through the powers of executive clemency.