Criminal Procedure Commons^™

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

Law Student Publications

Since the founding of Jamestown Colony in 1607, few topics in American life and culture have generated as much controversy, both in terms of persistence and volatility, as the death penalty. Foreign policy, economic recessions, and social movements come to the forefront of national discussion in their own respective ebbs and flows. Capital punishment, however, has been a staple of the American criminal justice system since the early inhabiting of the continent, and has remained a permanent vehicle through which we can enact retribution on the most heinous criminal offenders in our society, ridding ourselves of the worst among us.

Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz

Michigan Law Review

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

Criminal Procedure Decisions In The October 2005 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

Cold Comfort Food: A Systematic Examination Of The Rituals And Rights Of The Last Meal, Sarah Gerwig-Moore

Articles

Last meals are a resilient ritual accompanying executions in the United States. Yet states vary considerably in the ways they administer last meals. This paper explores the recent decision in Texas to abolish the tradition altogether. It seeks to understand, through consultation of historical and contemporary sources, what the ritual signifies. We then go on to analyze execution procedures in all 35 of the states that allowed executions in 2010, and show that last meal allowances are paradoxically at their most expansive in states traditionally associated with high rates of capital punishment (Texas now being the exception to that rule.) …

The Marriage Of State Law And Individual Rights And A New Limit On The Federal Death Penalty, Jonathan Ross

Cleveland State Law Review

Since the 1990s, federal prosecutors have, with increasing frequency, sought the death penalty for federal offenses committed in and also punishable under the laws of non-death penalty states. Critics of this practice have pointed out that federal prosecutors can use the federal death penalty to circumvent a state's abolition of capital punishment. Courts, however, have almost unanimously rejected arguments that state law should be a shield from federal punishment for federal offenses. This article proposes a novel way to challenge the federal death penalty's use in a non-death penalty state—the Supreme Court's reasoning in United States v. Windsor. In Windsor, …

Executing Whiteness: Fictional And Nonfictional Accounts Of Capital Punishment In The United States, 1915-1940, Daniel Lachance

Studio for Law and Culture

Over the course of the nineteenth century, elites in the United States increasingly sought to privatize executions and rationalize execution protocols. The source of this change is well known to historians of punishment: a fear that public executions had become unwieldy spectacles drove state actors to move these events into jail yards, at first, and then, with the advent of new technologies, into the interior of centralized prisons that were often far from the county in which the crime had occurred. The centralization of executions and the rationalization of execution protocols reflected and reinforced a more bureaucratic image of the …

Missing Mcveigh, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Getting Jurors To Awesome, Cortney E. Lollar

Law Faculty Scholarly Articles

A 2011 American Bar Association report on the death penalty in Kentucky revealed that a shocking two-thirds of the 78 people sentenced to death in Kentucky since reinstatement of the death penalty in 1976 have had their sentences overturned on appeal. Kentucky’s reversal rate is more than twice the national average, with a 31% reversal rate in capital cases and almost four times the 17% national reversal rate in all other case types. With a sentence as irreversible as death, troubling does not begin to describe the depth of concern many experience when viewing such a startling statistic.

A closer …

Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay

Faculty Scholarship

No abstract provided.

The Hanging Judge By Michael A. Ponsor -- A Book Review: Capital Punishment -- Is The Death Penalty Worth The Price?, Beth D. Cohen, Pat K. Newcombe

Faculty Scholarship

In 2000-2001, Judge Ponsor presided over the first death penalty case in Massachusetts in nearly 50 years, United States v. Gilbert. Gilbert’s trial marked only the third time that a federal capital case had gone to trial in a state without the death penalty. According to Ponsor, he felt a particularly heavy responsibility to ensure that both the government and the defense got a fair trial. In fact, in 2001, after the conclusion of the trial, Ponsor did something somewhat unusual for a judge; he wrote a lengthy editorial about the death penalty. He wrote: “[t]he simple question - not …

Murder, Minority Victims, And Mercy, Aya Gruber

Publications

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest …

Death Penalty, Josh D. Moore

Mercer Law Review

The Georgia Supreme Court addressed numerous cases touching on the death penalty in our survey period, including the review of four death sentences on direct appeal in Ellington v. State, Rice v. State, Barrett v. State, and Brockman v. State. Three of the death sentences reviewed on direct appeal were affirmed and one was reversed. The court also reversed the decision of a habeas court to vacate a death sentence in Humphrey v. Riley. Several other cases involving the death penalty at various stages of trial were also decided and will be addressed further as …

Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate

Law Faculty Publications

This book review discusses Richard A. Stack's book, Grave Injustice, which illustrates the flaws in America's use of capital punishment. "Simply put, the death penalty is shown to be a massive policy failure diminishing the legitimacy of the criminal justice system in the world's leading democracy. Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension. This dimension is always at the center of crime and punishment and, most hauntingly, at the center of the American death penalty and its tragic …

Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain

Law Faculty Publications

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives?

Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment).

So why weren’t the states executing? We tend to hear about innocence claims, trench warfare litigation, official moratoriums, study …

How Administrative Law Halted The Death Penalty In Maryland , Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

Numerous arguments have been raised to halt the death penalty, including constitutional claims such as ineffective assistance of counsel, equal protection, right to trial by jury, and cruel and unusual punishment. The winning argument, however, in Evans v. State, a Maryland death penalty appeal, was based not on constitutional or criminal law, but rather Administrative Law. A death row inmate attacked the validity of the procedures for administering lethal injection capital punishment because the Maryland Department of Corrections had not followed the proper statutory procedures for adopting the regulation which set forth the capital punishment process. In order for a …

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

Touro Law Review

No abstract provided.

Data Underlying "Living Death: Ambivalence, Delay, And Capital Punishment", Marianne Wesson, Amy Kingston, Jocelyn Jenks, Laura Mcnabb, Lauren Seger, Genet Tekeste, Edwin Hurwitz

Research Data

The documents here archived contain data compilations researched and recorded by me and my research assistants in connection with the article by Marianne "Mimi" Wesson, Living Death: Ambivalence, Delay, and Capital Punishment (Feb. 20, 2013), https://ssrn.com/abstract=2221597.

Our research investigated four study jurisdictions: Arizona, Louisiana, Nevada, and Ohio. The data falls into two categories: analyses of reported appellate cases during designated periods in those jurisdictions; and investigations of the subsequent careers of every individual who resided on death row in one of our jurisdictions in April of 1995. The article further explains the impetus for these investigations, and the conclusions …

Thompson V. Oklahoma: Debating The Constitutionality Of Juvenile Executions, Susan M. Simmons

Pepperdine Law Review

No abstract provided.

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 …

The Virtues Of Thinking Small, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should "think small," examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Irreconcilable Differences: Yet More Attitudinal Discrepancies Between Death Penalty Opponents And Proponents: A California Sample, Robert J. Robinson

Pepperdine Law Review

No abstract provided.

Ring V. Arizona: The Sixth And Eighth Amendments Collide: Out Of The Wreckage Emerges A Constitutional Safeguard For Capital Defendants, Jason E. Barsanti

Pepperdine Law Review

No abstract provided.

Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard

All Faculty Scholarship

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held …

Criminal Justice, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Raising The Bar: How Rompilla V. Beard Represents The Court's Increasing Efforts To Impose Stricter Standards For Defense Lawyering In Capital Cases, Whitney Cawley

Pepperdine Law Review

No abstract provided.

Casting A Wider Net: Another Decade Of Legislative Expansion Of The Death Penalty In The United States, Jeffrey L. Kirchmeier

Pepperdine Law Review

During the last decade, judges, politicians, scholars, and the general public have become troubled about problems with the death penalty in the United States. Also during this time, major studies of the death penalty have recommended a reduction in the number of statutory factors that make one eligible for the death penalty. Despite these concerns, legislatures continue to expand their capital punishment statutes to make more defendants eligible for the death penalty. This Article examines how, during a time of growing concern about innocence and arbitrariness in the death penalty system, a number of legislatures have continued to expand their …