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Category: Issue 6

Article

Getting to Death: Race and the Paths of Capital Cases After Furman

Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law and Professor of Epidemiology, Columbia University; Garth Davies, Associate Professor of Criminal Justice, Simon Fraser University; and Raymond Paternoster, Professor of Criminology and Criminal Justice, University of Maryland

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment…

Sep 2022

Article

Ghosts of Executions Past: A Case Study of Executions in South Carolina in the Pre-Furman Era

John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques at Cornell Law School and Director of the Cornell Death Penalty Project

The protracted and (somewhat) ongoing debate over whether lethal injection—in some or all of its forms—is cruel and unusual punishment under the Eighth Amendment is the newest variation on the question of whether a particular form of capital punishment is inhumane and cruel. The history of capital punishment in the United States over the last…

Sep 2022

Article

Explaining the Invidious: How Race Influences Capital Punishment in America

Sheri Lynn Johnson, James and Mark Flanagan Professor of Law, Cornell Law School

This Article primarily focuses on how racial bias creates nearly ubiquitous racial disparities in the imposition of the death penalty; it does so both to amass further reasons McCleskey was wrongly decided, and to point the way forward. Part I provides the necessary foundation by summarizing the history of race and the death penalty in…

Sep 2022

Article

Little Furmans Everywhere: State Court Intervention and the Decline of the American Death Penalty

Carol S. Steiker, Henry J. Friendly Professor of Law, Harvard Law School & Jordan M. Steiker, Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law.

In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased…

Sep 2022

Article

The Modern Federal Death Penalty: A Cruel and Unusual Penalty

Hannah Freedman, Staff Attorney and the Director of Juvenile Litigation, Justice 360 and adjunct clinical professor, Cornell Law School

The federal death penalty today would be unrecognizable to the founders, who saw the ultimate penalty as a means of protecting sovereign interests and who therefore carefully guarded the practice at English common law of yielding national interests to local ones. Over the course of time, the geographic distribution and substantive basis for the penalty…

Sep 2022

Article

AEDPA Repeal

Brandon L. Garrett, L. Neil Williams Jr. Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice & Kaitlin Phillips, J.D., 2021, Duke University School of Law

Given how pressing the problem has become, and the real interest in reforms to promote access to justice, this Article takes a different tack than prior habeas reform work: to restore habeas corpus to its pre-AEDPA and pre-Rehnquist court state, in which a federal court can review claims and reach their merits. The approach would…

Sep 2022