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Death Be Not So Complicated


The title of this post is the title of an ABA Journal article by David Savage (h/t SL&P). The article discusses the Supreme Court capital cases of the present term.

If the law on sentencing is confused, the high court itself bears part of the blame. It has been closely split on death penalty cases, and some of its narrowly decided opinions have left the door open for differing interpretations in the lower courts.

That's a serious candidate for understatement of the year, and we're only in the second week.

How's this for a simple rule? If the state capital sentencing system conforms to the broad outline required by Gregg v. Georgia and its companion cases, the Furman mandate is satisfied. The implementation of that system in individual cases is a matter of state law.


Kent, how are we to know whether the state system does conform to Furman, Gregg, Jurek, etc. except by addressing cases? If you mean something akin to pre-clearance, well, that train never even left the station!

Jurek examined the Texas system as a whole and found that it had cured the unguided discretion problem of Furman and did not violate the contemporaneously created individualized sentencing requirement of Woodson. The simple rule would be that Jurek answered the federal question on the special issues system, and the implementation of that system in individual cases is a matter of state law.

That the SCt felt it was necessary to take the Texas special issues cases, one because the highest state criminal court wouldn't follow a previous decision from the high court and instead decided to make a new, ad hoc state rule doesn't speak well for your proposed rule of ultra-deference.

Sure, implementation of the system is up to the states. But that system must enforce federal rights or lose its legitimacy. We'll see what the Court says about it in Smith, I suppose.

Yes, I fully expect the Supreme Court will continue trying to micromanage capital sentencing for the foreseeable future. What I think it should do and what I think it will do are quite different.

I agree in the abstract that the system must enforce federal rights, but all the "rights" in the Lockett line of cases are not really in the Constitution and are not really federal.

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