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October 11, 2017

"Is Having Too Many Aggravating Factors the Same as Having None at All?: A Comment on the Hidalgo Cert. Petition"

The title of this post is the title of this short commentary authored by Chad Flanders that a helpful reader alerted me to.  Here is a paragraph from the introduction:

[This] paper proceeds in three short parts.  The first part sets out the argument in the Hidalgo petition and explains its claim that having too many aggravating factors is as ineffective as having no aggravating factors.  The second part provides a straightforward critique of the Hidalgo argument along the lines detailed above — that the fact that aggravating factors may cover a large number of actual murders does not say much (indeed, practically nothing in the abstract) about whether those aggravating factors “narrow” the class of the death eligible.  In the third part, I suggest that the “multiple aggravators” argument is in essence a version of the original worry about broad and amorphous aggravating factors.  But this critique means analyzing how aggravators work (individually and together) as a conceptual matter, rather than analyzing whether all murders committed in the state happen to fit under one of the aggravating factors.

October 11, 2017 at 05:36 PM | Permalink



Posted by: MidWestGuy | Oct 11, 2017 11:08:52 PM

I thought that when law professors wanted to influence the outcome of a case, the thing to do was to draft an amicus brief.

Posted by: John | Oct 12, 2017 1:34:48 PM

The original idea was to make it narrowly tailored to the worst of the worst. The initial Supreme Court cases right after restoring the death penalty suggested it would be narrow. That being said, many states just have very vague aggravating factors that aren't necessarily an improvement.

Posted by: Erik M | Oct 12, 2017 5:09:54 PM

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