Showing papers in "Buffalo Law Review in 1996"

The Pain of Punishment

Abstract: 5 ' Two characteristics of the current system of capital punishment manifest with particular clarity the struggle to deny responsibility for the painful dimension of capital punishment. Both characteristics minimize the sense of responsibility of participants in the system of capital punishment. First, every effort is made to deny the violence of capital punishment in the first place. As the rehabilitative ideal has been discredited and disavowed, it is in execution protocols, of all places, that the treatment metaphor remains alive and well as the medicalization of capital punishment continuous to flourish. Today, physicians participating in lethal injections refer to condemned prisoners as patients and execution procedures are reformed to eliminate the condemned's pain. Second, to the extent that these efforts to characterize involuntary termination as beneficial treatment have failed, the system of capital punishment sustains itself by dispersing any residual re51. See infra text accompanying notes 75-77. 52. Leigh B. Bienen, Helping Jurors Out: Post-Verdict Debriefing for Jurors in Emotionally Disturbing Trials, 68 IND. L.J. 1333, 1347 (1993); Stanley M. Kaplan, Death, So Say We All, PSYCHOL. TODAY, July 1985, at 48, 49. 53. Whitherspooning and reverse-Whitherspooning, in theory, exclude only those prospective jurors who hold a categorical view on the issue of capital punishment irrespective of the circumstances of the particular case. See Craig Haney et al., \"Modern\" Death Qualification, 18 LAW & HuM. BEHAY. 619, 619, 625 (1994). [Vol. 44

The Wages of Ambivalence: On the Context and Prospects of New York's Death Penalty

Abstract: This note aims to be a modest contribution to a vast and neglected topic: the political science of capital punishment. Five years ago, I published statistical evidence illustrating that the states that actually conducted executions during the 1980s were a self-selected subset of those jurisdictions that sentenced prisoners to death.1 Ten of the states that had been in the top twelve in rates of execution in the 1950s (when execution rates were under state rather than federal control) were also among the thirteen states that conducted executions in the 1980s.2 The inference I drew was that if the local culture was strongly supportive of executions in a state, the barriers to execution that existed in the 1980s were overcome.3 If states that really wanted executions in the 1980s conducted executions, what then explained the fact that sixty-five percent of all the jurisdictions in the United States that maintained a death penalty conducted no executions during the 1980s?4 The implication I drew from the statistical pattern was that these states, too, were a self-selected subset of death penalty jurisdictions with larger levels of ambivalence about putting human beings to death.5 Judges and public officials were less apt to wholeheartedly support executions, the political climate was less apt to demand executions, and opposition to the practice was more likely among lawyers and