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Death Eligibility and Procedural Bars

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Lauren's Blog Scan notes a post at SL&P, noting an article by Lee Kovarsky on the question of whether relief for persons now ineligible for the death penalty should be blocked by procedural rules. I have to wonder if this is a solution in search of a problem.

All of the 17-year-old murderers' death sentences were commuted after Roper. None were executed anyway because of procedural default. In our experience, when a death row inmate is found to be genuinely retarded post-Atkins, the prosecution does not assert a procedural bar to relief.  I was at a meeting of California capital prosecutors Friday, and one of them noted a (rare) case where a person on death row really is retarded. Everyone there agreed that the right thing to do was to stipulate to a grant of state habeas corpus relief.

There are, of course, a great many false claims of retardation. The day after Atkins was decided, a massive wave of adult-onset retardation swept across the death rows of America, unhindered by the inconvenient truth that there is no such thing as adult-onset retardation. Experts came out of the woodwork to serve up platters of baloney, such as the so-called "Flynn effect," to get those inconvenient 70+ scores on pre-crime tests down where they needed to be. They staunchly assert their confidence in the validity of post-arrest tests where the defendant has every incentive to malinger, when everyone knows those tests are suspect.

Is it a problem if a phony claim of retardation is blocked on procedural default or the statute of limitations? No. How about one close to the ragged edge? Should we waive default and time rules and adjudicate them all on the merits? Maybe, but what if the case goes to one of those district judges or appellate panels that is determined to overturn all death sentences regardless of the truth? Should the statute of limitations be asserted to prevent a miscarriage of justice when the prosecution is convinced the murderer is not really retarded? It's a tough question.

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I don't think it's a tough call at all. If the defendant cannot prove MR within the numerous appeals he is given, too bad.

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