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February 2, 2010

"Death Ineligibility and Habeas Corpus"

The title of this post is the title of this new article in the Cornell Law Review by Lee Kovasky.  Here is the enticing first paragraph of the piece:

In the last seven years, the Supreme Court has declared several categories of prisoners, such as juvenile and mentally retarded offenders, to be categorically ineligible for capital punishment under the Eighth Amendment.  If these “death ineligible” offenders nonetheless sit on death row with procedurally defective habeas corpus petitions, can the writ be used to scrutinize their capital eligibility?  In other words, may a death-ineligible offender be executed on a technicality?

February 2, 2010 at 06:21 PM | Permalink


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The section on the inadequacy of state remedies (p. 366-72) is great.

Posted by: JC | Feb 2, 2010 7:37:19 PM

Check note 285, which cites the Ninth Circuit's decision in Osborne but doesn't note that it was overruled last summer. I know law reviews law behind, but come on.

Posted by: Jay | Feb 3, 2010 12:15:28 AM

"may a death-ineligible offender be executed on a technicality?"

That's very possibly what happened with Michael Richard, the fellow whose case led to the "We close at 5" debacle at the Texas Court of Criminal Appeals who was executed hours after the Baze moratorium took effect.

He had a pretty strong Atkins claim because the psych expert who evaluated him improperly inflated his IQ scores, but he was put to death anyway when his final habeas petition was never filed because his attorneys were late and the court experienced what might generously be called a procedural screwup, which led to still-ongoing removal proceedings against the court's presiding judge.

Posted by: Gritsforbreakfast | Feb 3, 2010 8:00:39 AM

Kovarsky not Kovasky

Posted by: helping | Feb 3, 2010 10:58:08 AM

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