Criminal Procedure Commons^™

Unpleasant Facts: The Supreme Court's Response To Empirical Research On Capital Punishment, Phoebe C. Ellsworth

Book Chapters

Slowly at first, and then with accelerating frequency, the courts have begun to examine, consider, and sometimes even require empirical data. From 1960 to 1981, for example, use of the terms "statistics" and "statistical" in Federal District and Circuit Court opinions increased by almost 15 times.1 Of course, citation rates indicate only that a topic is considered worthy of mention, not that it is taken seriously, or even understood. Nonetheless, in a number of areas, such as jury composition and employment discrimination, the courts have come to rely on empirical data as a matter of course.

In the last 25 …

Sentencing The Mentally Retarded To Death: An Eighth Amendment Analysis, John H. Blume, David Bruck

Cornell Law Faculty Publications

Today, on death rows across the United States, sit a number of men with the minds of children. These people are mentally retarded. Typical of these individuals is Limmie Arthur, who currently is imprisoned at Central Correctional Institution in Columbia, South Carolina. Although Arthur is twenty-eight years old, all the mental health professionals who have evaluated him, including employees of the South Carolina Department of Corrections, agree he has the mental capacity of approximately a 10-year-old child. Arthur was convicted and sentenced to death for the murder of a neighbor. At his first trial, his court appointed attorneys did not …

The Supreme Court, The Mentally Disabled Criminal Defendant, And Symbolic Values: Random Decisions, Hidden Rationales, Or Doctrinal Abyss?, Michael L. Perlin

Articles & Chapters

No abstract provided.

Wainwright V. Witt: A New Standard For Death-Qualifying A Capital Jury, Phillip M. Stowers

West Virginia Law Review

No abstract provided.

Capital Juries And The Fair Cross-Section Requirement: Modern Constitutional Reasoning In Jury Selection, John Coleman Ayers

Kentucky Law Journal

No abstract provided.

Taking Witherspoon Seriously: The Search For Death-Qualified Jurors, Eric Schnapper

Articles

This Article assesses, in light of fifteen years of judicial experience under Witherspoon v. Illinois, 391 U.S. 510 (1968), the meaning and impact of that decision and the practical and legal problems that arise in its application. The analysis draws heavily on actual voir dires reported in published opinions and considers the problems that judges and attorneys face when attempting to distinguish jurors who cannot be excluded under Witherspoon(commonly referred to as "death-qualified" jurors) from jurors who may be excluded for cause. Part II discusses the ways in which Witherspoon altered the law regarding jury selection in capital …

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 Evaluation Of The Moral Bases For Capital Punishment, Richard O. Lempert

Book Chapters

Because the death penalty was so influential in its development, the law of homicide cannot be thoroughly understood without considering the subject of capital punishment. The question of whether or not the State is justified in taking an offender's life has for centuries been fraught with controversy. Moreover, the law on the subject has become enormously complicated as the courts have attempted to assure that the death penalty is fairly administered.

Guiding Capital Sentencing Discretion Beyond The "Boiler Plate": Mental Disorder As A Mitigating Factor, James S. Liebman, Michael J. Shepard

Faculty Scholarship

In five decisions handed down on July 2, 1976, the United States Supreme Court held that the death penalty may be imposed for the crime of murder, so long as there are clear standards to guide the sentencing authority and the sanction is not imposed mandatorily. The authors examine the eighth amendment doctrinal framework used by the Court in the July 2 Cases, with particular reference to the requirement that individualized mitigating information be considered in the sentencing decision. Illustrating that requirement, they contend that mental disorder should be considered as a possibly mitigating factor and then suggest a standard …

Some Legislative History And Comments On Ohio's New Criminal Code , Harry J. Lehman, Alan E. Norris

Cleveland State Law Review

Having briefly outlined the history of the formal development of the Act, it is the purpose of this Article to discuss in narrative form the legislative process on certain key provisions which were the subject of much debate and disagreement. These areas of disagreement include murder and felony penalties, especially minimum sentences; capital punishment to conform to the U.S. Supreme Court's Furman decision as well as other changes; parole eligibility for those serving life sentences for a capital offense; early release on parole, also known as shock parole; eligibility for probation; definition of reasonable doubt and jury instructions on reasonable …

Societal Concepts Of Criminal Liability For Homicide In Medieval England, Thomas A. Green

Articles

THE early history of English criminal law lies hidden behind the laconic formulas of the rolls and law books. The rules of the law, as expounded by the judges, have been the subject of many studies; but their practical application in the courts, where the jury of the community was the final and unbridled arbiter, remains a mystery: in short, we know little of the social mores regarding crime and crimi- nals. This study represents an attempt to delineate one major aspect of these societal attitudes. Its thesis is that from late Anglo-Saxon times to the end of the middle …

Capital Punishment: A Model For Reform, Charles E. Glasscock

Kentucky Law Journal

No abstract provided.

In Defense Of Capital Punishment, R. Rees Kinney

Kentucky Law Journal

No abstract provided.

Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel

Articles

During the 1962 Term, the Supreme Court, on a single Monday, announced six decisions concerned with constitutional limitations upon state criminal procedure. The most publicized of these, though probably not the most important in terms of legal theory or practical effect, was Gideon v. Wainwright. In an era of constantly expanding federal restrictions on state criminal processes, the holding of Gideon-that an indigent defendant in a state criminal prosecution has an unqualified right to the appointment of counsel-was hardly startling. And while Gideon will obviously have an important effect in the handful of states that still fail to appoint counsel …

Capital Punishment Reconsidered, William O. Reichert

Kentucky Law Journal

No abstract provided.

Crimes-Right Of Jury To Recommend Mercy

Michigan Law Review

In a trial for murder, under a statute which provided that if the jury found the accused guilty of murder they might recommend him or her to the mercy of the court, thus reducing the punishment from death to life imprisonment, the court instructed the jury, ''You cannot of your own free will recommend or not recommend [mercy] because you are opposed to capital punishment." Exception was taken on the grounds that this circumscribed the statutory privilege of the jury to recommend mercy. Held, the instruction was erroneous and constituted grounds for new trial. State v. Blakely (S. C. …