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Prof. Seeks Lighter Sentence; Fisher Argues Death Penalty Case Before Court

Publication Date: 
April 25, 2008
The Stanford Daily
Nikhil Joshi

Professor and Co-Director of the Supreme Court Litigation Clinic Jeffrey L. Fisher is quoted and the Supreme Court Litigation Clinic is noted in a Stanford Daily article about a high-profile death penalty case currently awaiting a ruling from the Supreme Court:

According to Fisher, such a ruling would open the door to the expansion of the death penalty as punishment for a variety of other crimes, and increase the number of inmates eligible for the ultimate penalty fivefold.

“This was definitely one of the very biggest [cases] that I’ve done, in terms of the intensity and importance,” Fisher said. “The constitutional cases always have a weightier air in the room because the Court really has the final say.”


“There are ways we would love to see this case decided for the development of the law,” Fisher continued, “but once you meet the client and get to know him and understand what the consequences are, everything changes. When you walk out of the prison that day, you say ‘whatever it takes to win this case for the client.’”

Fisher said that there are three directions the Court can go in with its ruling, which is expected to be revealed in June. The Court can either expand the death penalty and rule in favor of the state, or it can rule broadly in favor of Kennedy and strictly limit the death penalty to homicide cases. A third possibility, in which the Court would find the Louisiana statute that allows for execution of child rapists too broad, is the most likely scenario according to Fisher.

“Consensual sex between an 18 year old and a 12 year old is a capital offense right now in Louisiana,” Fisher said. “The Court may say that’s too broad."


“If the state wins, it’s a watershed event,” Fisher said. “It would be a dramatic decision, the first time in modern jurisprudence the Court has allowed the death penalty for a crime in which somebody didn’t die.”


“I’m always disappointed as a law professor when issues of the Court are so predictable because of divides,” Fisher said. “One of the things you want from the court is a legal institution, not a political one. As a professor you want legal arguments to be of a different flavor.”

Fisher wasn’t alone in preparing for the case. Three Stanford Law students accompanied Fisher to Washington for the oral arguments, traveled to Louisiana to visit Kennedy and helped write the briefs and speeches.

“From an educational perspective we are working with the best lawyers that are out there, and to work that closely with them and see them do what they do is just amazing,” said Patrick Nemeroff J.D. ‘09, who along with Andrew Dawson J.D. ‘08 and Ruth Zemel J.D. ‘09 assisted Fisher with the case.

“It wasn’t something I imagined I’d have the opportunity to do when I came to law school,” he said.