Author: Sharon N. Chaitin-Pollak
Translator: Chao Liu
The present volume is a teaching tool created by the New York University School of Law’s U.S.-Asia Law Institute to describe the basic history and concepts of United States death penalty jurisprudence to an audience of Chinese legal scholars, practitioners, and law students. While the chapters vary in style and the views of the authors are their own, the common theme of this book is the presentation of the struggles faced by a legal system striving to retain the death penalty but implement it in increasingly rational and fair ways, to avoid arbitrary results and excessive use of this ultimate penalty. We hope that the reader will come away from this book with an understanding of the limitations on the use of the death penalty in the U.S. but also of the controversies that have arisen in high court decisions in this area of law, and the way in which U.S. judicial process allows those controversies to be aired publicly. Indeed, we hope that our descriptions of the case analysis method of judicial reasoning will highlight the importance of transparency, not only in judicial decision-making, but just as importantly in the disclosure to the public, attorneys, parties and judges in lower courts, of the reasoning of the high courts, which controls judicial determinations in the lower courts.
The authors and editor of this volume, Research Fellows at the U.S.-Asia Law Institute, have learned a great deal about their own country’s death penalty jurisprudence through the research and writing of these chapters. Leaving novel arguments to the scholars who specialize in this particular field, we have tried to present a relatively neutral lens through which to view the work of the U.S. courts in jurisdictions that have retained the death penalty. We represent a diversity of backgrounds and viewpoints, on issues from the lessons and implications to be drawn from specific court decisions to the propriety of retaining the death penalty at all. We hope that this diversity will enrich the reader’s experience overall.
This book separates various lines of U.S. death penalty jurisprudence into topical chapters. Each chapter contains a large portion of the original text of an appellate case (or cases) with binding precedential value, accompanied by historical information leading up to the case as well as political and legal fallout following the issuance of the decision. Where possible, the chapters follow a standardized format, but the format varies when necessary to encapsulate all issues discussed. Some chapters focus on a single U.S. Supreme Court or federal appeals court case, while others describe multiple cases to cover multiple issues, and some focus on a State Supreme Court case that provides a good example of the treatment of a particular issue.
We hope that you will enjoy and learn from this Death Penalty Casebook. Please also see our Death Penalty Casebook website, at usali-dp.org, for an online version of this volume in Chinese and in English, as well as a forum for discussion and questions.
Having made these general points of authorship, we now come to some specific notes from the editor, authors, and translators of this work to the reader.
On the Use of the Term “Guilt Phase”
First, a note on the use of the term “guilt phase.” In the appellate case law analyzing death penalty cases, the Supreme Court has adopted the use of the term “guilt phase” to distinguish the trial itself – on the issue of guilt or innocence – from the later phases of death penalty cases, including the “eligibility determination” (which can be part of either the trial itself or the sentencing phase) and the penalty “selection decision.” From the appellate point of view, since nearly all defendants have been convicted before appeal, the use of this phrase to look backward and designate what would otherwise be called “the trial” or “the trial on the merits” as the “guilt phase” is understandable. On the other hand the use of this term during the trial, when the defendant is still presumed innocent and there is certainly no assumption that he will be convicted, is incorrect in the eyes of many practitioners who are concerned about the rights of defendants. The term “guilt phase” is also less-often used in non-capital cases. The present volume is translated into Chinese, however, and the logical translation of this term seems to be 定罪阶段 (dingzui jieduan), a term which also appears to mean “conviction phase” or “guilt phase” when read literally, but simultaneously carries a legal implication that the defendant could be found not guilty. Given the translation, the convenience of the shorthand, and the widespread use of “guilt phase” in the lexicon of U.S. capital punishment jurisdictions and the Supreme Court, this volume has therefore adopted the use of the term “guilt phase” in its chapters. This does not imply an endorsement of its use in the trial phase (or earlier), however.
On the Translation of Legal Terms
On the issue of translation of legal terms, generally, it merits stating that the Institute is well aware that the U.S. and Chinese criminal law and procedure systems are not analogous, from the use of such basic concepts as the description of types of mens rea, to the vast differences between China’s civil law-based inquisitorial criminal justice system and the U.S.’s common law adversarial system. These differences in foundational concepts and background assumptions often make the one-to-one translation of legal terms impossible or imprecise. Therefore, wherever our translators, who are also native Chinese speakers and Research Fellows at the Institute, felt that due to context or implications, a translation alone was insufficient to convey important aspects of the meaning of a U.S. legal term, translator’s notes have been added, in footnote form, to explain the term to the Chinese readership in greater detail.
A Modified System of Citation
As the present work is designed as an exposition and explanation of case analysis for a Chinese audience, we have adopted a modified citation format that is based on, but less elaborate than, the Blue Book system of citation used by U.S. law schools and legal writing. This in-house system of citation is an effort to provide the Chinese readership with sufficient information to locate a case citation or quotation online, without providing excessive information that may be of little use to the reader. For the first use of each case name, full citation information is provided that is sufficient to find that case online. For each subsequent citation, only the case name and page number on which a given passage may be found are provided, and short form citations, full procedural parentheticals (except where specifically relevant), and supra and infra references have been eschewed in footnotes.
On Case Citation Information
1. Case Name: Generally, a case citation begins with the names of the parties, italicized. In first instance criminal cases the name of the prosecuting party comes first (usually a form of government) and the defendant’s family name is second, with a “v.” in the center – the abbreviation for “versus.” On appeal these names may or may not be reversed, depending on the practice in the specific jurisdiction.
After exhausting their direct appellate remedies, parties must file a petition to request “certiorari” review of their cases by the Supreme Court of a state or the United States. In these cases, the name of the petitioner will be first in the case name, followed by “v.” and then the party against whom he is petitioning. Our example, above, is such a case. Alternatively, the case name will begin with Ex parte (meaning “on the petition of”) and include only the name of the petitioner.
2. Reporter Information: Following a case name will be a comma, then a number, some letters, and another number. In the example above, “428” is the volume number of the reporter (collection of published cases), “U.S.” refers to the United State Supreme Court as the court that wrote the decision as well as to the United States Reports (the reporter of Supreme Court cases), and “280” is the page number on which the case decision begins within the reporter. Often a citation will then have another comma, followed by another number, which is the page number on which a specific quotation or passage can be found. All that is needed to find a case online is the information after the case name.
3. Year and Jurisdiction: At the end of the citation is the year in which the decision was made, in parentheses. The year will often be preceded by a reference to the jurisdiction in which the case was heard when it is not clear from the name of the reporter. For example, (5th Cir. 1999), refers to the Fifth Circuit Federal Court of Appeals, and (Ala. 2002) indicates the decision was issued by the Alabama Supreme Court, in the year 2002. Our example does not indicate jurisdiction because the U.S. reporter includes only federal Supreme Court cases.
Finally, a note on indented quotations. When the principal cases chosen for each chapter are discussed in the body of a chapter’s text, indented paragraphs are used to indicate that a passage is a quotation. Any quotation marks within the indented paragraphs are quotes-within-the-quotation. For ease of reading, we decided to omit internal citations in long indented quotes. This means that, for the most part, we do not include the names of cases that are quoted within a long case quotation. These references can be easily found, however, within the original court decision, for which the citation is always provided.