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Abstract: This article examines the debate about whether or not an innocent person has been executed in the United States. The article begins by discussing several famous historical claims of wrongful execution, including Sacco & Vanzetti, the Rosenbergs, and Bruno Hauptmann. Then, the article addresses some recent claims of wrongful executions, including the case of Larry Griffin and the impact of a 2006 DNA test in the Roger Coleman case. The article evaluates why some innocence claims attract more attention than others. By recognizing two obstacles in wrongful execution claims and by establishing five lessons for gaining media attention, the article uses its historical analysis to extract strategy lessons for death penalty abolitionists. Finally, the article weighs arguments regarding the pros and cons of an abolitionist strategy that focuses on proving the innocence of executed individuals. The article concludes that wrongful execution claims provide an important argument for abolitionists, but such claims should not be presented as the main or only problem with the death penalty.
death penalty, capital punishment, moratorium, abolition, civil rights, legal history, innocent, innocence, wrongful executions, executions
Abstract: In Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States, Professor Kirchmeier examines the recent decline in support for the death penalty in the United States and the resulting emergence of a movement to impose a moratorium on executions. After discussing the history of the death penalty abolition movement in the United States, he identifies five major and seven minor events that have contributed to the growth of the Death Penalty Moratorium Movement. Then, he compares the current Moratorium Movement to other similar reform periods: the 1960s Death Penalty Abolitionist Movement; legislative abolition of the death penalty in several states during the mid-1800s and early 1900s; death penalty abolition in other countries; and the Anti-Lynching Movement of the early 1900s. Based on the history of these other movements, Professor Kirchmeier discovers various lessons for today's Moratorium Movement, including lessons about strategy and the roles of public opinion and leadership. Finally, using these lessons from history and looking at recent events, he considers the future of the Moratorium Movement. Professor Kirchmeier concludes that for the Movement to continue to be successful: (1) there must be no major national distracting forces; (2) the Movement must continue to broaden its arguments and not be overly dependent upon one issue, one person, or one strategy; (3) the Movement must continue seek support from unexpected voices; and (4) the Movement must stay focused on the goals of achieving popular support and creating new leaders. Finally, Professor Kirchmeier predicts that the Moratorium Movement is strong enough to continue to have lasting effects.
death penalty, capital punishment, moratorium, abolition, civil rights, lynching, international, legal history
Abstract: The United States Supreme Court has not created a clear Eighth Amendment standard to determine whether or not a capital defendant is competent to be executed. Justice Thomas best summarized the confusion about the Court’s jurisprudence in this area when he criticized the 2007 majority’s opinion in Panetti v. Quarterman as “a half-baked holding.”
This Article addresses one execution competency issue that has been left open by the Court: the question of to what extent a mentally ill capital defendant must understand the concept of death. In other words, to be competent to be executed, must a mentally ill defendant comprehend that execution means the end of one’s physical life?
This Article considers the historical development of the ban on executing the insane, a ban with a murky history that has been passed down from medieval times and through Blackstone and English common law to modern day international law. Because of a long historical pedigree, the Supreme Court essentially accepted the ban as a constitutional given in 1986.
The justifications for the ban, however, need to be the foundation for fashioning a standard out of the Court’s opinions. The Article examines the Supreme Court precedent regarding the ban, statutory definitions of competency, and the other court decisions that have begun to consider whether or not there should be a requirement that a mentally ill defendant can comprehend the end of life to be competent. The Article examines the policies behind the ban, and it uses them to conclude that the history and precedent require a death comprehension standard. The Article proposes a standard that is consistent with the historical underpinnings of the ban on executing the insane and that is consistent with Supreme Court precedent.
Capital Punishment, Death Penalty, Competency, Competent, Insane, Insanity, Ford, Panetti, Mental Illness, Mentally Ill, Competent to be Executed, Execution Competency, Execution, Eighth Amendment
Abstract: Cultural anthropologist Ernest Becker explored the impacts of the subconscious fear of death upon humans. In recent years, experimental psychologists have conducted studies related to Becker's theories. This "terror management theory" research has found that human beings become more punitive and hostile toward other groups when they are reminded of their own mortality. For example, in one study of municipal judges, the judges who were reminded of death set an average bond of $455 in a fictional case, while judges in the control group who were not reminded of their mortality set an average bond of $50 for the same case. This study, and others like it, provides significant lessons for the legal system, especially in cases involving death. This Article begins with a brief introduction into the existential theories about the fear of death discussed by Ernest Becker and others, and then it provides an overview of the recent empirical terror management theory research. The following sections give a brief overview of the capital punishment system and discuss how the terror management studies explain several inherent problems with the capital punishment system. These theories and experiments provide an important understanding of the subconscious influences upon jurors and upon other participants in the legal system such as judges, attorneys, and defendants. For example, terror management theory helps explain why death-qualified jurors are more punitive. The article concludes by explaining how attorneys and judges should work to lessen the death denial influences in capital cases because these existential influences contribute to the arbitrariness of the application of the death penalty. In addition to providing advice for capital defense attorneys, prosecutors and judges, the article proposes areas of further study for experimental existential psychologists. The conclusion appeals for more education in the legal community and for further interdisciplinary study in the scientific community.
death penalty, capital punishment, jury selection, voir dire, terror management, Ernest Becker, psychology, existential, mortality salience, death, volunteers, judges
Abstract: 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 death penalty statutes, often in inadequate attempts to address other legitimate societal concerns. The ultimate impact of such an ever-expanding death penalty is that almost all murders become eligible for the death penalty, a result that is inconsistent with the Eighth Amendment. The Article begins in Part One by giving a brief overview of the role of statutory eligibility factors in capital cases. This Part also discusses several recent studies that recommend that legislatures should be eliminating aggravating factors, not adding them. In Part Two, the Article lists and categorizes the large number of new eligibility factors that legislatures have added since 1995. In Part Three, the Article discusses some of the reasons for the new factors, and it considers the implications of the expanding death penalty statutes. The Article discusses the inconsistencies between the recommendations to eliminate aggravating factors and the actual practice of adding aggravating factors. The Article concludes that although legislatures have slowed down their expansions of the death penalty in the last few years, many states have broader death penalty statutes than they had a decade ago. These ongoing expansions raise constitutional issues and have been an ineffective response to legitimate political concerns. Another article by the author compiles older capital eligibility and aggravating factors.
Death penalty, capital punishment, aggravating factors, aggravating circumstances, legislatures, statutes, Eighth Amendment, eligibility factors
Abstract: Using arguments from philosophy, science, and the law, this Article considers the justifications for our current system of punishment through a unique and in-depth examination of mitigating factors in capital cases. Because the Supreme Court requires states to allow broad consideration of mitigating circumstances in capital cases, such factors have not been developed in a systematic way. Therefore, this Article first identifies and categorizes the capital case mitigating factors used across the United States, and then the Article examines the legal and moral justifications for the consideration of mitigation. The Article explains how one category of mitigating factors support a "disease theory" of crime. In analyzing the role of mitigation, the Article considers: utilitarian and retributive punishment theories; Judge David Bazelon's "rotten social background" defense; scientific theories about the causes of criminal behavior; and philosophical concepts of free will and determinism. The Article considers the implications of disease theory and mitigating factors for the criminal justice system, concluding that the development of the law of mitigating factors is at the forefront of the development of new understandings of criminal responsibility. Just as this Article categorizes the mitigating factors used in capital cases, a previous article by Professor Kirchmeier categorized the aggravating factors used in the United States.
criminal law, death penalty, capital punishment, mitigation, mitigating factors, mitigating circumstances, Bazelon, philosophy, crime, free will, determinism, psychology, causes of crime, rotten social background, RSB
Abstract: In the 1970's, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. The "guided discretion" capital sentencing scheme that replaced the other schemes, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties. This Article argues that today's sentencing scheme is arbitrary because of undefined aggravating factors, unlimited non-statutory aggravating factors, and victim impact evidence. Justices Scalia, Blackmun, and Thomas also have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. At the same time, today's death penalty scheme has moved toward a mandatory scheme as legislature expand death penalty statutes and the Court sanctions other expansions of the application of the penalty. Thus, the paradox of the present system is that it is both arbitrary and mandatory. Focusing on the Court's decisions regarding aggravating and mitigating factors, the Article discusses the arbitrary and mandatory aspects of the current system and then examines five options for addressing those constitutional problems: keeping the present system, narrowing the application of the death penalty, returning to unguided discretion statutes, returning to mandatory death penalty schemes, or, as Justices Blackmun and Powell have suggested, abandoning the death penalty. The Article concludes that a mandatory death penalty scheme is the only way to potentially apply the death penalty in an evenhanded manner. The mandatory aspects of the current scheme and the historical experience with mandatory death penalty schemes, however, illustrate that no human system for selecting defendants for the ultimate punishment can be both fair and non-arbitrary.
death penalty, capital punishment, aggravating factors, aggravating circumstances, mitigating factors, mitigating, mitigating circumstances, legislatures, statutes, Eighth Amendment, eligibility factors
Abstract: This Article examines the use of dictionaries by the United States Supreme Court. Beginning with a short history of dictionaries and their use, the Article examines the Supreme Court Justices' use of dictionaries in their opinions throughout the history of the Court. The Article is critical of the Justices' lack of consistency in their use of dictionaries, and it discusses problems with the use of general purpose dictionaries in legal opinions. In conclusion, the Article makes several suggestions regarding how dictionaries still may be used as an important aid in legal analysis. The appendices to this Article are available as separate downloads. The appendices list (1) every term ever defined by a dictionary in a Supreme Court opinion; (2) every case where a Supreme Court Justice has used a dictionary in an opinion; and (3) every dictionary used by a Supreme Court Justice. An update to this Article, also available for download, is Samuel Thumma and Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 The Green Bag 51 (2001).
dictionary, dictionaries, supreme court, lexicon
Abstract: This Article examines the Sixth Amendment Right to Counsel and ineffective assistance of counsel claims in the context of cases where attorneys are intoxicated, are under the influence of drugs, or are sleeping during a trial. In some cases, indigent criminal defendants are not provided competent appointed counsel, and sometimes they are not even appointed attorneys who remain alert or sober during trial. Although a line of cases, including Strickland v. Washington, guarantee a right to effective assistance of counsel, the test from Strickland has been criticized as allowing poor representation of indigent defendants because it creates a presumption that counsel was competent and places the burden of showing prejudice upon the defendant. The Article discusses cases involving intoxicated, impaired and sleeping counsel and proposes a new standard for such cases. The Article begins with a brief history of the right to counsel in the United States and of the development of the right to effective assistance of counsel. In the next section, the Article discusses exceptions to the Strickland v. Washington ineffective assistance of counsel test and what those exceptions have in common. In the next section the Article examines the cases involving ineffective assistance of counsel claims where counsel was sleeping or otherwise mentally impaired. Then the Article examines the existing framework of the Strickland test and its exceptions. It specifically addresses the mental impairment cases in the context of this framework and proposes a standard for cases involving sleeping counsel and a standard for cases involving counsel who abuse drugs or alcohol during trial.
Sixth Amendment, right to counsel, ineffective assistance, effective assistance, sleeping lawyers, strickland, prejudice, impaired attorneys
Abstract: The articles examine the use of dictionaries by the United States Supreme Court and in appendices they list (1) every term ever defined by a dictionary in a Supreme Court opinion; (2) every case where a Supreme Court Justice has used a dictionary in an opinion; and (3) every dictionary used by a Supreme Court Justice. This update evaluates the Supreme Court Justices continued use of dictionaries, noting that while they still rely upon dictionaries to a great degree, there are signs that the Justices might be becoming more concerned about the broad use of dictionaries in court opinions.
Abstract: This appendix to The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries lists all terms defined by the United States Supreme Court through the 1997-98 Term. The Article itself, available as a separate download, examines the use of dictionaries by the United States Supreme Court. Beginning with a short history of dictionaries and their use, the Article reviews the Supreme Court Justices' use of dictionaries in their opinions throughout the history of the Court. The Article is critical of the Justices' lack of consistency in their use of dictionaries, and it discusses problems with the use of general purpose dictionaries in legal opinions. In conclusion, the Article makes several suggestions regarding how dictionaries still may be used as an important aid in legal analysis. Other appendices to this Article are available as separate downloads. The appendices list (1) every term ever defined by a dictionary in a Supreme Court opinion; (2) every case where a Supreme Court Justice has used a dictionary in an opinion; and (3) every dictionary used by a Supreme Court Justice. An update to this appendix, also available for download, is Samuel Thumma and Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 The Green Bag 51 (2001).
Abstract: This appendix to The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries lists each dictionary ever used by the the United States Supreme Court through the 1997-98 Term. With each dictionary, the appendix lists the cases where that dictionary was cited, the Justices who cited that dictionary, and the terms defined by that dictionary in the Supreme Court opinions. The Article itself, available as a separate download, examines the use of dictionaries by the United States Supreme Court. Beginning with a short history of dictionaries and their use, the Article reviews the Supreme Court Justices' use of dictionaries in their opinions throughout the history of the Court. The Article is critical of the Justices' lack of consistency in their use of dictionaries, and it discusses problems with the use of general purpose dictionaries in legal opinions. In conclusion, the Article makes several suggestions regarding how dictionaries still may be used as an important aid in legal analysis. Other appendices to this Article are available as separate downloads. The appendices list (1) every term ever defined by a dictionary in a Supreme Court opinion; (2) every case where a Supreme Court Justice has used a dictionary in an opinion; and (3) every dictionary used by a Supreme Court Justice. An update to this appendix, also available for download, is Samuel Thumma and Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 The Green Bag 51 (2001).
Abstract: This appendix to The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries lists all United States Supreme Court Justices through the 1997-98 Term and every opinion where each Justice cited a dictionary. This appendix also lists the rate at which each Justice used dictionaries per year. The Article itself, available as a separate download, examines the use of dictionaries by the United States Supreme Court. Beginning with a short history of dictionaries and their use, the Article reviews the Supreme Court Justices' use of dictionaries in their opinions throughout the history of the Court. The Article is critical of the Justices' lack of consistency in their use of dictionaries, and it discusses problems with the use of general purpose dictionaries in legal opinions. In conclusion, the Article makes several suggestions regarding how dictionaries still may be used as an important aid in legal analysis. Other appendices to this Article are available as separate downloads. The appendices list (1) every term ever defined by a dictionary in a Supreme Court opinion; (2) every case where a Supreme Court Justice has used a dictionary in an opinion; and (3) every dictionary used by a Supreme Court Justice. An update to this appendix, also available for download, is included in Samuel Thumma and Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 The Green Bag 51 (2001).
Abstract: Justice Ruth Bader Ginsburg's appointment to the United States Supreme Court in 1993 coincided with rising concerns about the use of the death penalty in the United States. To date, Justice Ginsburg has not written a majority opinion upholding a death sentence. In Bell v. Cone, Justice Ginsburg joined a majority opinion written by Chief Justice Rehnquist that upheld a Tennessee death penalty by an eight to one vote, with Justice Stevens dissenting. The sentencing process used by South Carolina in Shafer had apparently been adopted by the State to get around the requirements of Simmons, but the majority opinion was content with correcting the process and did not offer any especially harsh words for the State. It is also significant in that it is only her third death penalty majority opinion for the Court, again in a case with a seven-to-two vote. No discussion of death penalty jurisprudence is complete without considering habeas corpus, a procedural area of the law that is intertwined with the rights of capital defendants. Penry II -- like Ring, Simmons, and Shafer -- is important because it reasserts the importance of the role of a fully in-formed jury as the basic foundation of a fair capital sentencing hearing.
Death Penalty, Justice Ruth Bader Ginsberg, Capital Punishment, U.S. Supreme Court
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