The Decline of the Judicial Override

2019 ◽  
Vol 15 (1) ◽  
pp. 539-557
Author(s):  
Michael L. Radelet ◽  
G. Ben Cohen
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
State Courts ◽  
Death Sentence ◽  
Death Sentences ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
National Consensus ◽  
Key Questions

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness. In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence. Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus. In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences. The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts. Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.

scholarly journals Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21

2019 ◽  
Author(s):  
John H. Blume ◽  
Hannah Freedman ◽  
Lindsey Vann ◽  
Amelia C. Hritz
Keyword(s):  
Young People ◽  
The United States ◽  
People Of Color ◽  
Current State ◽  
Jury Verdicts ◽  
Death Sentences ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Juvenile Sentencing

Texas Law Review, ForthcomingNearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under 18 at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience. In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience. These changes beg the question: Why 18? Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at 21? To answer those questions, this Article considers post-Roper developments in the relevant domains to make the case that the 18-year-old constitutional line should be extended to age 21. It does so by applying the Supreme Court’s evolving-standards-of-decency methodology. Specifically, the Article examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper. Two predominant trends emerge. First, there is a national consensus against executing people under 21. This consensus comports with what new developments in neuroscience have made clear: people under 21 have brains that look and behave like the brains of younger teenagers, not like adult brains. Second, young people of color are disproportionately sentenced to die — even more so than adult capital defendants. The role of race is amplified when the victim is white. These trends confirm that the logic that compelled the Court to ban executions of people under 18 extends to people under 21.

Francis Karioko Muruatetu v. Republic

2018 ◽  
Vol 112 (4) ◽  
pp. 707-713
Author(s):  
Jacquelene Mwangi
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Death Penalty ◽  
Rule Of Law ◽  
Death Sentence ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
Trial Courts ◽  
The Supreme Court ◽  
Court Mandated

The decision of the Supreme Court of Kenya (Court) in Francis Karioko Muruatetu and Another v. Republic (Muruatetu), finding the mandatory nature of the death penalty unconstitutional, represents not only a victory for human rights in Africa but also the transformative capacity of contemporary constitutions in Africa and the growing assertiveness of African judiciaries. In the judgment, the Court held that the mandatory death penalty is “out of sync with the progressive Bill of Rights” in Kenya's 2010 Constitution (para. 64) and an affront to the rule of law. The Court also relied on global death penalty jurisprudence to find the mandatory death sentence “harsh, unjust and unfair” (para. 48). Consequently, the Court mandated that all trial courts conduct a pre-sentencing hearing to determine whether the death penalty is deserved. The Court's judgment could spell the end of the mandatory death penalty in Kenya after almost 120 years on the statute books.

Is There Such a Thing as “Future Dangerousness”? Examining Capital Sentencing Jurisprudence in India After Anil Anthony

2019 ◽  
Vol 22 (2) ◽  
pp. 200-222
Author(s):  
Megha Hemant Mehta
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Burden Of Proof ◽  
The United States ◽  
Death Sentence ◽  
Capital Sentencing ◽  
Future Dangerousness ◽  
Supreme Court Of India ◽  
The Supreme Court

The Supreme Court of India in Bachan Singh v. State of Punjab, listed “future dangerousness” of the accused as one of the factors the court must consider when awarding the death sentence. The burden of proof lies on the State to prove the same. This standard has been inconsistently applied in Indian capital sentencing jurisprudence. In Anil Anthony, the most recent decision on this issue, the Supreme Court held that determination of future dangerousness cannot be based on the facts of the case. However, in earlier decisions such as Gurdev Singh, the court concluded that the brutality of the crime ruled out the possibility of reform. This article argues, drawing on a comparative analysis with the United States, that though future dangerousness is an inevitable “fact in issue” for judges, the evidence that may be adduced does not meet the standards required for the imposition of the death penalty. Thus, future dangerousness as a determining factor during sentencing is a ground for challenging the constitutionality of the death penalty itself. In the interim, Anil Anthony is a better standard to apply, as compared to both Bachan Singh and Gurdev Singh, in principle as well as in practice.

Penological Justifications as Sentencing Factors in Death Penalty Sentencing

2021 ◽  
pp. 227740172097285
Author(s):  
Anup Surendranath ◽  
Neetika Vishwanath ◽  
Preeti Pratishruti Dash
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
The Other ◽  
Death Sentence ◽  
Life Imprisonment ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The One ◽  
Core Framework

When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

The Supreme Court, Cruel and Unusual Punishment, and the Death Penalty

1969 ◽  
Vol 15 (1) ◽  
pp. 121-131
Author(s):  
Sol Rubin
Keyword(s):  
United States ◽  
Supreme Court ◽  
Death Penalty ◽  
The United States ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
History Of

The history of the Eighth Amendment (prohibiting cruel and unusual punishment) as interpreted by the Supreme Court of the United States is bleak. For all practical purposes, the Court's rulings have rendered the Eighth Amendment a dead letter.

Rep v. Chimkango: The Application of Kafantayeni to Pre-resentencing Appeals Against the Mandatory Death Penalty in Malawi

2018 ◽  
Vol 26 (4) ◽  
pp. 527-547
Author(s):  
Esther Gumboh
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Attorney General ◽  
Death Sentence ◽  
High Court ◽  
Criminal Jurisdiction ◽  
Death Sentences ◽  
The Status ◽  
Court Of Appeal

Despite confirming in several decisions that the striking down of the mandatory death penalty in Kafantayeni v. Attorney General entitled all offenders sentenced under the mandatory death penalty regime to a fresh hearing on sentence, the Malawi Supreme Court of Appeal (MSCA) entertained appeals against the original (now unconstitutional) mandatory death sentences in the absence of resentencing hearings in the High Court. The question that arose in Rep v. Chimkango was whether the High Court has the jurisdiction to hold a resentencing hearing in respect of a death sentence which had already been confirmed by the MSCA on appeal. The High Court, considering itself bound by judicial precedent and wary of running afoul of the doctrine by ‘faulting or refusing to be bound by’ the MSCA's decision, remitted the case to the MSCA for directions or resentencing. This article explores the High Court's decision and the status of appeal decisions against mandatory death sentences before the resentencing hearings. It argues that by entertaining these appeals, the MSCA dubiously assumed an original criminal jurisdiction mode within the confines of appellate principles instead of dismissing them as premature and directing the appellants to pursue a resentencing hearing in the High Court. The article also faults the decision of the High Court for not affording the accused a resentencing hearing.

Breard and Treaty-Based Rights Under the Consular Convention

1998 ◽  
Vol 92 (4) ◽  
pp. 691-697
Author(s):  
Jordan J. Paust
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
The State ◽  
State Courts ◽  
Vienna Convention ◽  
The Supreme Court ◽  
The Individual

Article 36(1) of the Vienna Convention on Consular Relations provides that (a) “[nationals . . . shall have the same freedom with respect to communication with and access to consular officers,” and that (b) “[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” In Breard v. Greene, the Supreme Court nearly recognized that, under the Convention, the individual petitioner had actionable rights that had been violated. The Court concluded, however, that the rights were “defaulted” when not pursued in the state courts, that the errors would not be prejudicial, and that the subsequendy enacted federal Antiterrorism and Effective Death Penalty Act limited the petitioner’s “ability to obtain relief based on violations of the Vienna Convention.”

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