Criminal Procedure Commons^™

Empirical Studies Contribute To Death Penalty Debate, Joan W. Howarth

Scholarly Works

At a time of renewed scrutiny of capital punishment, Nevada lawyers may be interested in some of the recent legal scholarship on the death penalty based on social science data, rather than on legal philosophy or constitutional theory. Three projects are of particular interest: Professor James Liebman's work on errors in death penalty cases; the National Jury Project's data about how jurors decide capital cases; and David Baldus' recent study of peremptory challenges in capital cases.

The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey

Publications

Norms urging prosecutors to seek justice by playing a quasi-judicial role and striving for fairness to defendants are often assumed to have deep historical roots. Yet, in fact, such a conception of the prosecutor's role is relatively new. Based on archival research on the papers of the New York County District Attorney's Office, "The Discretionary Power of 'Public' Prosecutors in Historical Perspective" explores the meaning of the word "public" as it applied to prosecutors in the nineteenth century. This article shows that, in the early days of public prosecution, district attorneys were expected to maximize convictions and leave defendants' rights …

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses Of Electocution And Lethal Injection And What It Says About Us, Deborah W. Denno

Faculty Scholarship

This article discusses the paradoxical motivations and problems behind legislative changes from one method of execution to the next, and particularly moves from electrocution to lethal injection. This article first examines the constitutionality of electrocution, contending that a modern Eighth Amendment analysis of a range of factors, such as legislative trends toward lethal injection, indicates that electrocution is cruel and unusual. It then provides an Eighth Amendment review of lethal injection, demonstrating that injection also involves unnecessary pain, the risk of such pain, and a loss of dignity. The article next presents the author's study of the most current protocols …

A Broken System, Part Ii: Why There Is So Much Error In Capital Cases And What Can Be Done About It, James S. Liebman, Jeffrey A. Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss

Faculty Scholarship

There is growing awareness that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system.

Our June 2000 Report shows how often mistakes occur and how serious it is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors.

Analyses presented for the first time here reveal that 76% of the reversals at the two appeal stages where data are available for study were …

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 …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of …

Probing "Life Qualification" Through Expanded Voir Dire, John H. Blume, Sheri Lynn Johnson, A. Brian Threlkeld

Cornell Law Faculty Publications

The conventional wisdom is that most trials are won or lost in jury selection. If this is true, then in many capital cases, jury selection is literally a matter of life or death. Given these high stakes and Supreme Court case law setting out standards for voir dire in capital cases, one might expect a sophisticated and thoughtful process in which each side carefully considers which jurors would be best in the particular case. Instead, it turns out that voir dire in capital cases is woefully ineffective at the most elementary task--weeding out unqualified jurors.

Empirical evidence reveals that many …

Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey

Cornell Law Faculty Publications

Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture.

Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …

Forecasting Life And Death: Juror Race, Religion, And Attitude Toward The Death Penalty, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

Determining whether race, sex, or other juror characteristics influence how capital case jurors vote is difficult. Jurors tend to vote for death in more egregious cases and for life in less egregious cases no matter what their own characteristics. And a juror's personal characteristics may get lost in the process of deliberation because the final verdict reflects the jury's will, not the individual juror's. Controlling for the facts likely to influence a juror's verdict helps to isolate the influence of a juror's personal characteristics. Examining each juror's first sentencing vote reveals her own judgment before the majority works its will. …

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

Criminal Law: Guilty Of Something: Gilson V. State And The Death Penalty For Omission In Oklahoma, Carla Mullins

Oklahoma Law Review

No abstract provided.

Future Dangerousness In Capital Cases: Always "At Issue", John H. Blume, Stephen P. Garvey, Sheri Lynn Johnson

Cornell Law Faculty Publications

Under Simmons v. South Carolina, a capital defendant who, if not sentenced to death, will remain in prison with no chance of parole is constitutionally entitled to an instruction informing the jury of the fact, but only if the prosecution engages in conduct that places the defendant's future dangerousness "at issue." Based on data collected from interviews with South Carolina capital jurors, Professors Blume, Garvey and Johnson argue that future dangerousness is on the minds of most capital jurors, and is thus "at issue" in virtually all capital trials, regardless of the prosecution's conduct. Accordingly, the authors argue that …

The Deadly Paradox Of Capital Jurors, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

We examine support for the death penalty among a unique group of respondents: one hundred and eighty-seven citizens who actually served as jurors on capital trials in South Carolina. Capital jurors support the death penalty as much as, if not more than, members of the general public. Yet capital jurors, like poll respondents, harbor doubts about the penalty's fairness. Moreover, jurors--black jurors and Southern Baptists in particular--are ready to abandon their support for the death penalty when the alternative to death is life imprisonment without the possibility of parole, especially when combined with a requirement of restitution. Support for the …

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

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 …

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

Articles

In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

Plea Bargaining In The Shadow Of Death, Joseph L. Hoffmann, Marcy L. Kahn, Steven W. Fisher

Articles by Maurer Faculty

No abstract provided.

Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Professors John H. Blume and Sheri Lynn Johnson explore the occurrences of religious imagery and argument invoked by both prosecutors and defense attorneys in capital cases. Such invocation of religious imagery and argument by attorneys is not surprising, considering that the jurors who hear such arguments are making life and death decisions, and advocates, absent regulation, will resort to such emotionally compelling arguments. Also surveying judicial responses to such arguments in courts, Professors Blume and Johnson gauge the level of tolerance for such arguments in specific jurisdictions. Presenting proposed rules for prosecutors and defense counsel who wish to employ religious …

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

The Emotional Economy Of Capital Sentencing, Stephen P. Garvey

Cornell Law Faculty Publications

You often hear that one reason capital jurors condemn capital defendants is that jurors don't empathize with defendants. And one reason they don't empathize is that the process of capital sentencing is rigged against empathy. Using data from the South Carolina segment of the Capital Jury Project, I try to examine the role emotion plays in capital sentencing.

Without entering here all the important and necessary caveats, I find that the self-reported emotional responses jurors have toward capital defendants run the gamut from sympathy and pity at one extreme, to disgust, anger, and fear at the other. What causes these …

Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus

Cornell Law Faculty Publications

In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study …

Crossing The Line: Rape-Murder And The Death Penalty, Phyllis L. Crocker

Law Faculty Articles and Essays

When a woman is raped and then murdered, it is among the most horrifying of crimes. It is also, often, among the most sensational, notorious, and galvanizing of cases. In 1964, Kitty Genovese was raped and murdered in Queens, New York. Her murder sparked soul-searching across the country because her neighbors heard her cries for help and did not respond: it made us question whether we had become an uncaring people. During the 1970s and 80s a number of serial killers raped and murdered their victims: including Ted Bundy in Florida and William George Bonin, the “Freeway Killer,” in Southern …

Adieu To Electrocution, Deborah W. Denno

Faculty Scholarship

This Article contends that there is no moral or legal reason to retain electrocution, particularly because other execution methods are available. It is clear that at some point soon, electrocution will no longer exist in this country and, as a result, throughout the world. By eliminating this perplexing vestige, the other problems with the death penalty may appear all that more offensive.

Substance And Procedure In Capital Cases: Why Federal Habeas Courts Should Review The Merits Of Every Death Sentence, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West

Faculty Scholarship

In Capital Appeals Revisited and The Meaning of Capital Appeals, Barry Latzer and James N.G. Cauthen argue that a study of capital appeals should focus only on overturned findings of guilt, and complain that in A Broken System we examine all overturned capital verdicts. But the question they want studied cannot provide an accurate evaluation of a system of capital punishment. By proposing to count only "conviction" error and not "sentence" error, Latzer and Cauthen ignore that if a death sentence is overturned, the case is no longer capital and the system of capital punishment has failed to achieve its …

Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

The legal treatment of capital punishment in the United States "rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. This predicate is among "the evolving standards of decency that mark the progress of a maturing society" and determine whether a punishment is "cruel and unusual" in violation of the Constitution. Because "'[f]rom the point of view of the defendant, [death] is different in both its severity …

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 …

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors …

Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd

Faculty Scholarship

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …