Faculty Bibliography
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This article describes the three types of death penalty jurisdictions in the United States: states without the death penalty by law ("abolitionist states"), states with the death penalty but insignificant numbers of executions ("symbolic states") and states with both the death penalty in law and practice - states actively carrying out executions ("executing states"), focusing on death penalty implementation distinctions between the latter two types of jurisdictions.
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Unlike casebooks, this title goes with greater detail into the human stories and the social, political, and legal contexts of the "big" Supreme Court cases regarding criminal justice. It unearths details not available anywhere else. In addition to great narrative enrichment, it provides the provocative thoughts of highly respected scholars who are each experts on the particular cases they address. This book will greatly enhance the teaching of both police practices (a/k/a "Cops and Robbers") and criminal adjudication (a/k/a "Bail to Jail") by providing both important context not available in any casebook and by offering the insights of some of the scholars who have thought the most deeply about these cases and issues.
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Cass Sunstein and Adrian Vermeule argue that, if recent empirical studies finding that capital punishment has a substantial deterrent effect are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible but actually morally required. While the empirical studies are highly suspect (as John Donohue and Justin Wolfers elaborate in a separate article in this Issue), this Article directly critiques Sunstein and Vermeule's moral argument. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to nonpurposeful killing) and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven. Rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This Article also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments and concludes by suggesting that even consequentialists should not be convinced by the argument...
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This article articulates the authors' concerns with the focus on innocence in death penalty cases, which derive from a perspective sympathetic to reform or abolition of the death penalty.
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Carol S. Steiker & Jordan M. Steiker, The Shadow of Death: The Effect of Capital Punishment on American Criminal Law, 89 Judicature 250 (2005).
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Symposium: The Effects of Capital Punishment on the Administration of Justice
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Last June, in the course of a week, the Supreme Court issued two death penalty decisions—Atkins v. Virginia and Ring v. Arizona— which together invalidated, at least in part, the administration of capital punishment in roughly two-thirds of the American states that currently retain the death penalty on their books. Atkins prohibited the application of the death penalty to defendants with mental retardation in the twenty states without statutes already precluding such application, and Ring precluded judges (as opposed to juries) from making factual determinations that render a defendant eligi le for capital punishment in the five states where judges alone make capital sentencing determinations. In addition, Ring is likely to affect four states with hybrid sentencing schemes that mandate shared responsibility between judges and juries.
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Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 Or. L. Rev. 97 (2002).
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Wayne Morse Center for Law and Politics Symposium: The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform.
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Carol S. Steiker, Capital Punishment: Legal Aspects, in Encyclopedia of Crime and Justice 160 (Joshua Dressler ed., Macmillan Reference 2002).
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Symposium: Addressing Capital Punishment through Statutory Reform.
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Carol S. Steiker, The Civil and Criminal Divide, in Encyclopedia of Crime and Justice 160 (Joshua Dressler ed., Macmillan Reference 2002).
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Carol S. Steiker, Solving Some Due Process Puzzles: A Response to Jerold Israel, 45 St. Louis U. L.J. 445 (2001).
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In this essay Carol Steiker responds to two papers: one by John Braithwaite and one by Michael Tonry. The common theme in each that she addresses is their argument that criminal punishment, or at least certain manifestations of it, may well disappear or significantly diminish in the United States in the future. Steiker is skeptical and pessimistic about this prospect. She states that punishment as it is perceived and applied in the United States may be far more immutable – more like "death and taxes." She bases her position on the perspective that punitiveness is both engendered and reinforced, at least in part, by social conditions and institutional arrangements that show no signs of changing. Symposium: The Future of Punishment
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Examines the constitutional and moral issues behind community policing, including the measures taken to prevent urban crime and the role of individual rights in a democratic society.
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Steiker and Steiker discuss the ABA's resolutions regarding the execution of juveniles and persons with mental retardation. The strongest legal case for the ABA's position requires a more nuanced argument than the ABA has advanced.
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Twenty-Sixth Annual Review of Criminal Procedure: Foreword. A growing number of cases in the United States Supreme Court and the lower federal and state courts pose versions of the same general question: when do governmental actions which are denominated "civil" by legislature but which deprive citizens of liberty or property count as "punishment" so as to implicate some or all of the special procedural regime reserved for the imposition of criminal punishment? The article begins by considering two recent cases in the Supreme Court which pose quite different versions of the question: United States v. Ursery, which posed a double jeopardy challenge to in rem civil forfeiture actions in light of Halper, Austin, and Kurth Ranch; and Kansas v. Hendricks (currently pending), which poses an ex post facto and double jeopardy challenge to Kansas' "sexually violent predator" law, which authorizes long-term civil commitment for those, inter alia, who have been convicted of sexually violent crimes and who suffer from a "mental abnormality" which renders them likely to offend again. Before offering an analysis of the problems posed by Ursery and Hendricks, the article first explores some of the intellectual, institutional, and socio-cultural causes of the de-stabilization of the criminal-civil distinction in modern American law. It then turns to the work of moral philosophers on punishment theory to attempt to develop an account of punishment that distinguishes it from non-punitive takings of money and property and from non-punitive restrictions on liberty AND that explains how these distinguishing features relate to the separate procedural apparatus we have established for its imposition. Finally, it returns to the Ursery and Hendricks cases to apply the insights developed from moral theory.
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Carol S. Steiker, Book Review: Linda A. Fairstein, Sexual Violence: Our War Against Rape (1993), 30 Trial, no. 4, Apr. 1994, at 74.
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Carol S. Steiker, Did You Hear What Thurgood Marshall Did For Us? A Tribute, 20 Am. J. Crim. L. vii (1993).
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