Deborah W. Denno

Fordham University · School of Law

Are the cognitive sciences relevant for law? How do they influence legal theory and practice? Should lawyers become part-time cognitive scientists? The recent advances in the cognitive sciences have reshaped our conceptions of human decision-making and behavior. Many claim, for instance, that we can no longer view ourselves as purely rational agent...

The Eighth Amendment and Its Future in a New Age of Punishment - edited by Meghan J. Ryan June 2020

The growing influx of neuroscientific evidence in various criminal justice systems has prompted a number of excellent assessments of the nature and degree of its impact in courtrooms across the world. There have been few efforts, however, to conduct a comparative analysis of systematic empirical research on the use of neuroscientific evidence in cr...

In Bucklew v. Precythe, the Supreme Court decided against a death-row inmate with a rare medical condition. The case reveals to an unprecedented degree the extent and complexity of the medical community’s role in executions.

My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim's injury, the actual application of...

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally a...

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mit...

In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky's lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying the...

Rapid advances in genetic and neuroscience research over the past few decades have fueled a focus on how such information is viewed and used by the criminal justice system. Researchers at the University of Utah recently conducted an unprecedented experimental study indicating that psychopathic criminal offenders are more likely to receive lighter s...

Between 1994-1996, this author was one of twenty-eight members of a Drugs-Violence Task Force ("Task Force") created to report to the United States Sentencing Commission specific findings, conclusions, and recommendations concerning the interrelationship (if any) between drugs and violence. This Essay discusses briefly the Task Force''s goals, deve...

This article discusses the significance of Paul Robinson’s and John Darley’s book, Justice, Liability, and Blame: Community Views and the Criminal Law (“Justice”), and why the book is an excellent springboard for further research comparing community standards and legal codes. However, contrary to Justice’s conclusions, this article particularly emp...

The author describes the schism between law and science and its reflection of the long-standing tension between two views of human behaviour: free will and determinism; and assesses their relevance in examining crime, consciousness and the notion of involuntary acts. Article by Professor Deborah W. Denno, Fordham University School of Law New York,...

A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous in...

This article discusses the paradoxical motivations and problems behind legislative changes from one method of execution to the next, and particularly moves from electrocution to lethal injection. The discussion primarily focuses on the author's study of current protocols for lethal injection in all thirty-six states where anesthesia is used for a s...

"Short of homicide, rape is the ‘ultimate violation of self," as the Supreme Court stated in Roper v. Georgia. Yet, comprehending the doctrine and controversy of rape in this country requires an understanding of why rape differs from other crimes on so many dimensions. This introduction to Fordham Law School's panel, Men, Women and Rape, summarizes...

This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the pre...

This introduction discusses a symposium on the linking of neuroscience, cognitive psychology, and law. Although the symposium is one of a number of projects on neuroscientific approaches to the legal system that have been organized over the years, readers will see something very different in the articles that follow. The contributions cover a disti...

This paper examines multidisciplinary correlates of delinquency in an attempt to integrate sociological and environmental theories of crime with human developmental and biological explanations of crime. Structural equation models are applied to assess links among biological, psychological, and environmental variables collected prospectively from bi...

Gender is one of the strongest predictors of crime, particularly violent crime. Arrest, self report, and victimization data consistently show that men and boys commit significantly more crime, both serious and not, than women and girls. In addition evidence from the Biosocial Study - one of the country’s largest longitudinal studies of biological,...

American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between un...

Lethal injection, the most common method of execution in the United States, is at a troubling impasse. Inmates continue to challenge the method on the grounds that it is an inhumane and unconstitutional method of execution, and states continue to cling to scientifically uninformed procedures in an effort to ensure the death penalty’s survival gener...

This article examines the role of the possible biological deficiency defenses in the criminal law. The topic is inspired by the renewed interest in biological and genetic research on behavior and the possible use of this research in a variety of criminal defenses in the United States and other countries. In general, the article presents three major...

The death penalty’s popularity has waned appreciably in recent years. Riding high on the momentum of this snowballing development are challenges to lethal injection under the Eighth Amendment’s Cruel and Unusual Punishments Clause. This Chapter contends that despite the contributions that lethal injection challenges, such as the 2008 Supreme Court...

In the 2008 case, Baze v. Rees, the Supreme Court upheld the constitutionality of Kentucky’s lethal injection protocol. Four of the seven opinions looked to the 1947 Supreme Court case of Louisiana ex rel. Francis v. Resweber for Eighth Amendment Cruel and Unusual Punishments precedent in the death penalty context. Resweber upheld Louisiana’s deter...

This chapter addresses the question: how have courts and litigators treated behavioral genetics evidence in criminal cases between 1994 and 2007. The chapter proceeds as follows. Part II briefly reviews the facts and legal arguments in the Stephen Mobley case. Part III addresses the primary issues that concerned the court in Mobley, noting that man...

On April 16, 2008, for the first time in decades, the United States Supreme Court reviewed evidence concerning whether a state's method of execution violated the Eighth Amendment's Cruel and Unusual Punishments Clause. In Baze v. Rees, a 7-2 plurality ruling, the Court upheld the constitutionality of Kentucky's method of executing inmates by lethal...

This essay reports the results of the 'Biosocial Study,' one of this country's largest longitudinal' studies of biological, sociological, and environmental predictors of crime. The Biosocial Study is unique because it analyzed numerous variables relating to a group of nearly one thousand males and females during the first twenty-four years of their...

This article addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The analysis first explores the early treatment of mental retardation, concluding that throughout history society has viewed mentally retarded persons as either asexual and childlike or hypersex...

This Article discusses how historical transformations in social and legal perspectives toward sexuality, crime, and the criminal law spurred the creation of this country's initial sexual psychopath statutes enacted between 1937-1957. Part I analyzes the primary precursors of the sexual psychopath statutes that encouraged the public's and politician...

This article constitutes excerpts of a videotaped discussion hosted by the New England Journal of Medicine on January 14, 2008, concerning a range of topics on lethal injection prompted by the United States Supreme Court's January 7 oral arguments in Baze v. Rees. Dr. Atul Gawande moderated the roundtable that included two anesthesiologists - Dr. R...

On February 20, 2006, Michael Morales was hours away from execution in California when two anesthesiologists declined to participate in his lethal injection procedure, thereby halting all state executions. The events brought to the surface the long-running schism between law and medicine, raising the question of whether any beneficial connection be...

Appendixes One-Three follow the article, "Getting to Death: Are Executions Constitutional?" Appendix One contains eight tables specifying a range of information concerning execution methods in the United States, including the following: the methods of execution by state, the author's execution method's test, changing patterns of all execution metho...

This article addresses the question of when a method of executing a capital defendant amounts to cruel and unusual punishment under the Eighth Amendment. The United States Supreme Court has never reviewed evidence concerning whether any particular execution method is unconstitutional and has rarely even broached the issue. This article contends tha...

Electrocution has been used in the great majority of executions in this century. Today, it is second only to lethal injection as the preferred method of execution. At the same time, however, electrocution never has been scrutinized under modern Eighth Amendment standards. This circumstance persists despite substantial evidence that death by electro...

Appendixes Two and Three are the second and third of three appendixes that follow the article, "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us." Appendix Two details state trends in execution methods from 1800-2001. Appendix Three provides edited lethal injec...

In 1994, convicted murderer Stephen Mobley's death penalty case attracted intense international debate when his attorneys attempted to have Mobley tested for genetic deficiencies based on his family history of disorders. According to the attorneys, indications that Mobley shared a genetic propensity for serious misconduct could help explain some of...

Lethal injection is this country's primary method of execution, adopted for use by all but one of the thirty-seven death penalty states, as well as the federal government. It is predictable, then, that questions would arise the moment such a widely accepted form of punishment becomes especially vulnerable to an Eighth Amendment attack, as recent ca...

This Article contends that some of the case law and social science research that form the basis for the United States Supreme Court's decision in Roper v. Simmons are insufficient and outdated. The Court also relies heavily upon briefs submitted by the respondent and his amici, in lieu of providing more pertinent citations and analysis that could h...

The influences of a Youth Service Center are assessed in two South Philadelphia police districts and two pairs of selected comparison districts, using Uniform Crime Reports (UCR) and the Youth Center's caseload arrest data. UCR data indicate a slight change in arrest rates within the selected target districts and fluctuating rates within comparison...

Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the...

This essay reflects on particular themes in George Fletcher's Rethinking Criminal Law as part of a symposium celebrating the book's twenty-five years of contributions. The discussion focuses on the book's well-known patterns of criminality: (1) manifest criminality, which proposes that crimes are acts that any objective observer would clearly recog...

By all accounts, the Model Penal Code is enormously respected and influential. Yet, relatively soon after the Code's 1962 publication, the Code's sexual offense provisions and even its 1980 revised Commentaries, were already considered outdated. The rapid onslaught of the sexual and feminist revolutions of the 1960s and 1970s brought an intense mom...

This article examines in detail the different stories behind the Andrea Yates death penalty case - the defense's, the prosecution's, and the explanation that Yates herself provided. The jury did not accept the defense's story that Yates was insane and thought she was under Satan's influence at the time she drowned her five children in the bathtub....

This article examines the legal implications linked to recent scientific research on human consciousness. The article contends that groundbreaking revelations about consciousness expose the frailties of the criminal law's traditional dual dichotomies of conscious versus unconscious thought processes and voluntary versus involuntary acts. These bina...

This article examines the important, but hardly recognized, legal implications that stem from modern scientific research on human consciousness. In light of groundbreaking scientific developments, the article focuses on questioning two of criminal law's traditional dichotomies: conscious versus unconscious thought processes, and voluntary versus in...

Two controversial topics dominate discussions of the legal implications of genetics and crime research; (1) the viability and politics of such research, which has sparked fervent debate in the USA; and (2) the current status of new or atypical criminal law defences, which would include a genetic-defect defence to criminal behaviour. This chapter be...

This essay reviews Professor Welsh White's book, The Death Penalty in the Nineties (1991). After discussing some of the analytical and methodological shortcomings of The Nineties, this review focuses on the book’s most frustrating missed opportunity: its failure to develop the far-reaching implications of the principle that death is different from...

This book presents the most comprehensive study to date of the major biological, psychological and environmental predictors of criminal behavior, particularly violence, through a detailed analysis of nearly 1000 low-income black youths from their birth to early adulthood. By examining over 150 variables spanning the lives of these youths, the study...

This essay examines the century-long conflict between an individual's right to privacy and the freedom of the press in the context of the media's disclosure of rape victims' names. Part I briefly reviews the United States Supreme Court's primary rulings on this topic, explaining that the Court has generally protected the freedom of the press under...

The author examines criminal behaviour from birth to adulthood in a sample of nearly 1,000 subjects in order to determine the biological and sociological influences on violence. Over 100 predictors of violent behaviour found to be significant in past biological and sociological studies of crime are analysed. The results indicate that both biologica...

After Furman v. Georgia held that state statutes that allow for the imposition of the death penalty in an arbitrary and capricious manner violate the Constitution, the states were forced to rewrite their capital punishment statutes. New Jersey adopted a new statute in 1982. Despite the attempt of the New Jersey legislature to comply with the mandat...

Experimental support for the hypothesis that violent behavior is associated with left-hemisphere dysfunction is scarce. This study examines the association between crime, violence, and left-hemisphere dysfunction using measures of hand, eye, and foot dominance within a sample of 1,066 males born and raised in Philadelphia between the ages of 10 and...

Conflicting evidence exists concerning the possible role of birth stress in the etiology of left-sided lateral preferences. In order to clarify this issue, associations among lateral preferences of hand, eye, and foot and eight indices of prenatal and perinatal stress were examined in the present study on a sample of 987 boys and girls who particip...

Recent growth in interdisciplinary research on crime, vio lence, and mental disorder has encouraged the development of computerized techniques for organizing literature from a variety of sources and many different fields. This paper describes a detailed, pre-tested format for classifying systematically re search references on factors such as: sampl...

Associations between birth order and lateral preferences of hand, eye and foot were examined in a sample of 6436 black seven year old boys and girls whose mothers participated in the Collaborative Perinatal Project (CPP) in Philadelphia. Overall, most of the subjects (87%) showed right hand preference, and the majority of subjects showed right eye...

The purpose of this study was to assess the differences between one-time offenders and repeat offenders according to select victim, offender, and situational characteristics associated with the first victim-related offense. A second purpose was to determine which characteristics were the strongest predictors of repeat offense status with and withou...

This paper reports a partially successful attempt to evaluate a particular delinquency prevention program in light of a number of methodological and data weaknesses which are common in evaluation research. The self-reported attitudes and behaviors of a comparison sample and an experimental sample are analyzed to determine the appropriateness of cli...

Results of recent research suggest that longitudinal influences on sex differences in verbal and spatial abilities, and delinquent behavior, may be similar. The present study examined biological, environmental, and psychological variables collected from birth through age 17 on a sample of subjects who participated in the Philadelphia Collaborative...

Patterns of lateral preferences of hand, eye and foot were analyzed on 7364 children, differing in race (black and white) and sex. Right hand and foot preferences were found in over 80%, and right eye preferences were found in over 50% of the subjects. No sex or race differences appeared in left-right preferences. However, significantly more female...

A study designed to examine biological, sociological, and early maturational correlates of intelligence collected data prospectively, from birth to 15 years of age, on a sample of 987 black children. Multiple indicators of eight independent and three dependent variables were tested in a structural equation model. Altogether, clear sex differences a...

Six scales of early cognitive functioning were administered at three times (eight months, four and seven years) to 3013 black and white, male and female children. Hypotheses addressed the nature and extent of longitudinal sex differences in cognitive abilities among racial groups varying in physical maturation. Controlling for selected socioeconomi...

Thesis (Ph. D.)--University of Pennsylvania, 1982. Includes bibliographical references (leaves 604-644) and index. Photocopy.

Evidence shows that many juveniles are not as easily rehabilitated as others. Moreover, past criminal record, as opposed to age, seems the more accurate indicator of a juvenile's treatment potential. It is apparent that in order to be effective, a community correctional program must direct its treatment efforts toward a variety of factors (both cog...

Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectiv...

Thesis (M.A.)--University of Toronto. Includes bibliographical references (leaves 308-318).