Kamin Sam - Death Penalty in a Nutshell

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Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

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University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

DEATH PENALTY

IN A NUTSHELL

FIFTH EDITION

VICTOR STREIB

Professor of Law (Emeritus)
Ohio Northern University

SAM KAMIN

Vicente Sederberg Professor of
Marijuana Law and Policy
University of Denver
Sturm College of Law

JUSTIN MARCEAU

Animal Legal Defense Fund Professor of Law
University of Denver
Sturm College of Law

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ISBN: 978-1-63460-302-7

To Lynn and to Jessi and NoahVS

To Viva and LeoSK

To Moses and Adela with
hope for the future.

PREFACE TO THE FIFTH EDITION

This brief text is designed to serve several purposes and reach various audiences. Our first audience is made up of law students, particularly those taking a course on death penalty law and practice. Our book is intentionally written to be in sync with nationally published casebooks on this topic and to serve as brief sketch of almost all of the issues covered in those large and detailed texts. Another part of this law student audience includes those doing research and/or writing a paper on a death penalty issue. We try to provide them with a concise summary of their topic and to place it in the broader context of death penalty law and procedure.

We also mean for this book to serve as a point of entry for practicing lawyers and other criminal justice professionals who find themselves involved in a death penalty case. Almost every unique death penalty issue they will confront is covered at least briefly in this text, with citations to the primary authorities they should consult for further detail. Although our book is written by law professors/death penalty lawyers primarily for law students and other lawyers, we have endeavored to adopt a tone that should be accessible to lay people as well. Thus, this text should also be useful for graduate students and upper-level undergraduate students studying the death penalty in criminology, criminal justice, or a related department.

This text can be read straight through, from chapter to chapter, exploring all of death penalty law in a logical order or as a reference tool for specific information about a succinct issue within death penalty law. The first four chapters sketch the background and context of the death penalty, including the history, the basic constitutional issues, and the arguments for and against this ultimate punishment. The second major part of the book covers substantive criminal law topics. In addition to the specific crimes that carry with them the possibility of the death penalty, these chapters describe the additional factors that pull the jury toward a death sentence or push them toward a life sentence.

Parts Three and Four cover the complex, sometimes Byzantine procedures followed in death cases, running logically from arrest to execution. We describe the unique way that death penalty cases are handled highlighting the differences from the procedures used in run of the mill criminal cases. Finally, Part Five collects several special death penalty issues for consideration. These include the pivotal role of the capital defense attorney, the integral problems of bias in the system, and the specter of mistakenly executing the innocent. The final chapter explores foreign and international law in an effort to place the American death penalty system into a global context.

It is important to us that this is not another book about why the death penalty is or is not moral, or wise, or effective. The effort here is to provide a more objective description of what death penalty law is and how it works, leaving to others the gnarly questions of whether we should have it at all. However, every story gets a spin from the storyteller, so you should know about our backgrounds and perspectives. Victor Streib has taught criminal law topics since 1971 and capital punishment courses since 1987. He researches and writes about death penalty issues, particularly the death penalty for juveniles and for women. In addition to this work as a law professor, he serves as defense counsel for death row prisoners before courts all over the country. Sam Kamin teaches criminal law and procedure as well as classes having to do with the death penalty and drug policy. He has taught at the University of Denver, Sturm College of law since 1999 and is the author of multiple articles on the death penalty; along with Justin Marceau and two others, he is the author of Cases and Materials on the Death Penalty, one of the leading textbooks in the field. Justin Marceau teaches a wide range of criminal law and civil rights courses. He has taught at the University of Denver with Sam Kamin since 2008. He specializes in capital punishment law and habeas corpus. He was a federal public defender before becoming an academic. He continues to litigate plaintiffs side civil rights cases and has served as an expert and an attorney in support of persons facing execution.

One convention that should be pointed out is the fairly consistent use of the male pronoun when referring to a defendant in a death penalty case or a death row prisoner. It seemed to the author that this convention was most appropriate, given that around 99% of those persons are male. When other individuals within the death penalty system are referred to, we have tried to use gender pronouns interchangeably.

Finally, many thanks are in order to many people. Our respective law schools have facilitated our research and writing on this subject, and our students have helped refine our thinking on these issues. We are also grateful to our families for supporting our efforts on this and other death penalty related work.

S.K., J.M., V.S.

Greensboro, NC & Denver, CO
December 2016