LSN: Criminal Law (Public Law) (Topic) 04/2007; 27.
This Article, a contribution to the Symposium Meting Out Justice: Fairness and Finality in the Death Penalty (Spring 2001) argues that in the United States, debates over capital punishment are increasingly influenced by victim's rights movements seeking to reshape the criminal justice system in ways that individual victims may experience closure. While legislation, policies, and a proposed Constitutional Amendment broadly confirm the internalization of victim-centered notions of closure, the impact on death penalty debates has been ambivalent. This is because victim's rights movements are themselves divided between those proposing vengeance or mercy as routes to "closure." This Article criticizes the former group and cautions to the latter, urging skepticism toward any expectation that meaningful closure might be achieved through the limited means of the criminal justice system.
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[Show abstract][Hide abstract] ABSTRACT: The American Bar Association and other professional organizations have adopted policy statements calling for an exclusion from capital punishment for those with severe mental illness at the time of the offense. If this policy is adopted, either legislatively or judicially under the Eighth Amendment, a procedural question would arise concerning how this mental illness/capital punishment exclusion issue is determined. Should the issue be determined by pretrial motion made to the trial judge or a special jury convened for this purpose? Should it be determined by the capital jury at the penalty stage that would follow conviction for a capital crime? This Chapter analyzes the various factors that should be considered in resolving the procedural question of how this exclusion from capital punishment should be determined, and argues that Eighth Amendment values and considerations of accuracy, cost, and therapeutic jurisprudence all tilt strongly in the direction of having the issue decided pretrial by the trial judge. The chapter then examines whether having the trial judge make the determination would be inconsistent with Ring v. Arizona (2002), which reflects the Sixth Amendment’s constitutional preference for jury determinations of disputed issues of fact in capital sentencing. Finally, the chapter analyzes whether the prosecution or the defense should have the burden of persuasion on the Eighth Amendment question, and by what standard of proof that burden should be carried.
[Show abstract][Hide abstract] ABSTRACT: But justice, though due the accused, is due the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.