Criminal Law Commons^™

The Vanishing Voice: Juror Disenfranchisement In Capital Cases And The Erosion Of Constitutional Protections, Yacenda Hudson

Michigan Journal of Race and Law

After years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation threatens to disenfranchise minority jurors, thereby implicating the Sixth and Fourteenth Amendments. The death penalty is one of the most controversial issues in our society, and it has evolved over time. Due to a paradigm shift in beliefs, the death penalty’s constitutionality was challenged under the Eighth and Fourteenth Amendments. Pivotal legal decisions, such as Furman v. Georgia and Hurst v. Florida, required states to institute changes to the death penalty. …

Judges, Speaking Of Death: Criminal Sentencing As A Socio-Cultural Practice In India’S Trial Courts, Ashna Devaprasad

Socio-Legal Review

What role does language play in legitimising the exercise of judicial discretion during sentencing? And what can a judge’s linguistic choices tell us about the wider sentencing culture of a criminal justice system? Sentencing outcomes have long attracted considerable attention in criminal law scholarship, but the process of sentencing – the logics judges use, the narratives they construct, and the audiences they seek to persuade – has received much less empirical scrutiny. Building on ideas from “law and culture” and organisational sociology literature, this Article proposes studying sentencing as a “socio-cultural” practice; one that qualitatively examines the judicial function of …

The Court And The Killing State, Eric Berger

Michigan Law Review

A review of Secrets of the Killing State: The Untold Story of Lethal Injection. By Corinna Barrett Lain.

Affirmatively Misled: The Commutation Instruction That Distorted Louisiana’S Death Penalty, G. Ben Cohen

Akron Law Faculty Publications

In 1997, Louisiana voters amended the state constitution to mandate that capital juries be instructed on the governor’s power to commute life and death sentences. This amendment, urged by the Louisiana District Attorneys Association, followed a Louisiana Supreme Court ruling that found an earlier clemency instruction violated the state constitution.     The instruction was fundamentally false. Louisiana governors, it turns out, lacked the unilateral authority to commute sentences; such actions require a favorable vote from the Parole Board. This reality became starkly clear in 2023, when the clemency petitions of fifty-six condemned prisoners—many sentenced by juries affirmatively given this instruction—were terminated …

From Hanging To Nitrogen Hypoxia: The Evolution Of Execution And The Case For American Abolition, Anna Kuhlman

The International Law Review Association Student Forum

The death penalty has been a dark fixture in societal punishment for most of human history. It has allowed for grisly, violent executions of people found guilty of misconduct relative to the culture they live in. “The first established death penalty laws date as far back as the Eighteenth Century BCE in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes.” The first death sentence on record was a member of nobility in 16th-century BCE Egypt, where the wrongdoer was accused of magic and ordered to commit suicide. In the seventh century B.C.E., …

Victim-Offender Relationships And Their Influence On Crime Brutality And Sentencing Outcomes In Capital Homicide Cases, Samantha Jane Trowbridge

Graduate Theses/Dissertations

This study examines capital murder cases in Missouri from 1976 to 2022 to explore how victim-offender relationships relate to both the brutality of homicides and sentencing outcomes. It addresses three main questions: What are the different types of victim-offender relationships in these cases, and how frequently does each type occur? How do these relationships influence sentencing outcomes, particularly the likelihood of receiving the death penalty versus life without parole? And which types of relationships are associated with the highest and lowest levels of brutality? The study uses official court records and applies a coding process to analyze relationship type, sentencing …

Death By Jury: Jurisprudential Trends And Hybrid Capital Sentencing Authority, Jacob T. Hayes

Tennessee Journal of Law and Policy

No abstract provided.

Panel Four: Finding A Silver Lining In The Darkest Clouds: How Today's Economic Crisis Creates Opportunities For Reform And Cost Savings In The Administration Of The Death Penalty, Tony Mauro, Jean Faria, Jon B. Gould, Elizabeth (Libby) Sykes, Malcolm R. Hunter

Tennessee Journal of Law and Policy

No abstract provided.

Distorted Burden Shifting & Barred Mitigation: Being A Stubborn 234 Years Old Ironically Hasn’T Helped The Supreme Court Mature, Noah Seabrook

Journal of Law and Health

This Note explores the intricate relationship between emerging adulthood, defined as the transitional phase between youth and adulthood (ages 18-25), and the legal implications of capital punishment. Contrary to a fixed age determining adulthood, research highlights the prolonged nature of the maturation process, especially for individuals impacted by Adverse Childhood Experiences (ACEs). The Note challenges the current legal framework that deems individuals aged 18 to 25 who experienced ACEs as eligible for capital punishment, highlighting the cognitive impact of ACEs on developmental trajectories. Examining cases like Dzhokhar Tsarnaev and Billy Joe Wardlow, this Note argues that courts often bypass mitigating …

The Twenty-First Century Death Penalty And Paths Forward, Jeffrey Omar Usman

MC Law Review

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States. Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration. While not abolished, in many states application of the death penalty is grinding or has ground to a halt. If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age …

Survey Of Capital Cases In Georgia, Jessica Heywood

Scholarly Works

This Article examines five cases decided during the Survey period: two decisions by the Supreme Court of Georgia and three decisions by federal courts involving Georgia defendants. The Georgia Supreme Court cases are a direct appeal and a habeas appeal. All three federal cases are habeas petitions by Georgia state prisoners. We included federal cases because they involve significant points of law and illustrate the United States Court of Appeals for the Eleventh Circuit’s continued lax oversight of habeas claims, decades after the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) by Congress. The small number of cases …

Racial Discrimination In Jury Selection: The Urgent Need For Sixth Amendment Protections For Black Capital Defendants, Claire Austin

Marquette Benefits and Social Welfare Law Review

In the U.S., death row is made up of a disproportionate number of black persons. In capital trials, black defendants often face all white juries. The deep-rooted racial discrimination in the justice system impacts jury selection because prosecutors use peremptory strikes to remove black jurors from the jury panel. As the law stands today, the Sixth Amendment guarantee of an impartial jury made up of a fair representation of the jury applies only to the pool of jurors called in for jury service, not those who are actually selected to hear the case.

This comment analyzes the Supreme Court decision, …

A Reflection On Contemporary Issues Regarding The Death Penalty, Talia R. Harmon, David Taylor, Chelsea Henning

Journal of Criminal Justice and Law

The general trend in the use and application of the death penalty is an increasing movement toward abolition. This is reflected in the repeal of state death penalty laws, state moratoriums, and the reduction in executions and death sentences. The nature of the death penalty debate has also changed in the past two decades. Radelet and Borg (2000) provided an exhaustive overview of the nature of the debate surrounding capital punishment. This comment updates and reflects on some of the crucial contemporary scholarship that has been done in the following six central areas: incapacitation, deterrence, caprice and racial bias, retribution, …

The Court And Capital Punishment On Different Paths: Abolition In Waiting, Carol S. Steiker, Jordan M. Steiker

Washington and Lee Journal of Civil Rights and Social Justice

The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past …

Severe Mental Illness And The Death Penalty: A Menu Of Legislative Options, Richard J. Bonnie

Washington and Lee Journal of Civil Rights and Social Justice

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders. The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006. This brief article focuses primarily on diminished responsibility at the time …

The Gross Injustices Of Capital Punishment: A Torturous Practice And Justice Thurgood Marshall’S Astute Appraisal Of The Death Penalty’S Cruelty, Discriminatory Use, And Unconstitutionality, John D. Bessler

Washington and Lee Journal of Civil Rights and Social Justice

Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. …

Does The Death Penalty Still Matter: Reflections Of A Death Row Lawyer, David I. Bruck

Washington and Lee Journal of Civil Rights and Social Justice

This talk was given by Professor David Bruck for the Frances Lewis Law Center at Washington and Lee University School of Law, April, 2002. It is a follow-up to “Does the Death Penalty Matter?,” given by Professor Bruck as the 1990 Ralph E. Shikes Lecture at Harvard Law School.

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

The 2022 Alabama Executions And The Crisis Of American Capital Punishment, Alexandra L. Klein

Scholarly Articles

The Death Penalty Information Center described 2022 as “the year of the botched execution” in its 2022 Annual Report. Alabama’s execution errors were especially serious: it attempted to execute four people, botched three of its four executions, and ultimately called off two executions. Alabama’s 2022 executions and its errors are the culmination of common problems in capital punishment across the United States. A full understanding of capital punishment requires an analysis of individual cases, including executions, and analysis of how that case fits within the system of capital punishment. Evaluating a single case may reveal unfairness and arbitrariness, but tracking …

How They Get Away With Murder: The Intersection Of Capital Punishment, Prosecutor Misconduct, And Systemic Injustice, Rushton Davis Pope

Emory Law Journal

Black defendants are executed at a disproportionately high rate, an injustice quietly persisting in the shadow of America’s dark history of slavery and Jim Crow. While a variety of intersectional factors have perpetuated this injustice, the role of prosecutors who commit misconduct to secure a conviction is significant. Defendants are presumed innocent until proven guilty, but when the prosecutors who carry the burden of proving that guilt choose not to play by the rules, they wantonly and recklessly embrace the risk of convicting—even killing—an innocent person.

This Comment focuses on two primary forms of prosecutor misconduct: Batson violations that occur …

Constitutional Losses And (Some) Statutory Wins For Criminal Defendants: Select Criminal Law And Procedure Cases From The Supreme Court's 2022-2023 Term., Eve Brensike Primus, Mark Rucci

Articles

The Supreme Court’s 2022–23 Term included a number of important statutory interpretation rulings, as well as significant cases concerning the scope of the Confrontation Clause; the Venue, Vicinage, and Double Jeopardy Clauses; the federal courts’ ability to entertain claims of legal innocence; and the contours of the adequate and independent state ground doctrine. It also was the first term for Justice Ketanji Brown Jackson—the first former public defender and first Black woman to join the centuries-old institution. Although Justice Jackson joined a Court ruptured along ideological lines and confronting serious challenges to its legitimacy and ethical standards, she quickly proved …

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 …

Resurrecting Arbitrariness, Kathryn E. Miller

Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …

When Police Volunteer To Kill, Alexandra L. Klein

Scholarly 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 consequences …

"Only To Have A Say In The Way He Dies": Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Scholarly 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

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 Havoc Death Wreaks: Civil Rights Challenges To Capital Punishment, Bailey D. Barnes

Faculty Publications

Following a per curium opinion that banned the imposition of capital punishment because it violated the Eighth Amendment, as made applicable to the states through the Fourteenth Amendment, United States Supreme Court Justice Thurgood Marshall offered a unique criticism of capital punishment. Justice Marshall, an iconic civil rights litigator prior to his confirmation to the Court, stated, "[T]he death penalty wreaks havoc with our entire criminal justice system." Similarly, sometime in the late 1950s, Associate Justice Robert H. Jackson reportedly said that capital punishment "completely bitches up the criminal law." In essence, both Justices were asserting that the death penalty …

Brief Of R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, And Ellen C. Yaroshefsky As Amici Curiae In Support Of Petitioner, R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, Ellen C. Yaroshefsky

Faculty Scholarship

No abstract provided.

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 …

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?