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July 6, 2005

Considering O'Connor's capital sentencing legacy

As discussed here and here, I think the biggest sentencing story in the wake of Justice O'Connor's retirement concerns the fate and future of the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule.  But, given the Supreme Court's capital sentencing fetish (lamented here and  here and here), I suppose it is not surprising that others are discussing Justice O'Connor's role in death penalty cases.  Unable to resist a trend, I have a few thoughts to share on the subject.

Actually, this post over at the Supreme Court Nomination Blog purports to be about "Justice O'Connor's positions on several key criminal law issues."  However, the post only covers the death penalty, habeas corpus and ineffective assistance of counsel, and these later two areas of law usually come before the High Court in capital cases.  That SCONo post does effectively highlight O'Connor's "case-by-case approach" in all these areas, although I would add to the discussion a point emphasized in this O'Connor item from the Death Penalty Information Center:  O'Connor's "evolving skepticism about capital punishment" during her tenure on the Court seemed to shift her from a fairly consistent vote to uphold death sentences to an uncertain vote who became hard to predict in capital cases. 

Of course, the evolution of Justice O'Connor's views was not nearly as dramatic as Justice Blackmun's transformation on capital punishment.  (Recall that Justice Blackmun went from being a dissenter in Furman to the Court's only abolitionist by the time he retired.)  Nevertheless, I have an inkling that Justice O'Connor, who in a 2001 speech publically expressed her concerns about innocent persons sentenced to death, was a key player in the Supreme Court's recent trend of giving capital cases heightened scrutiny.  And, as I discussed here last week, I believe the Court's heightened scrutiny in capital cases has played a consequential role in recent declines in the use of the death penalty in the United States.

July 6, 2005 at 12:37 PM | Permalink


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» Wednesday links (updated) from The Supreme Court Nomination Blog
An updated version of last night's round-up... At Sentencing Law and Policy, Doug Berman has these thoughts on Justice O'Connor's capital sentencing legacy. Professor Berman notes that during her time on the Court, Justice O'Connor evolved "from a fair... [Read More]

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