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October 27, 2017

"How to Assess Real World Application of a Capital Sentencing Statute: A Response to Professor Chad Flanders's Comment"

The title of this post is the title of this new paper by John Mills now available via SSRN. As the title indicates, this piece is a response to a recent article by Chad Flanders, blogged here, about capital sentencing procedures. Here is the abstract:

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope.  To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst.  Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point.  This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract.  This response focuses on Arizona‚Äôs capital sentencing regime to illustrate the importance of understanding the real world operation of the law and discusses the well-established basis in law and policy for relying on empirical studies in support of narrowing claims.

Prior related post:

October 27, 2017 at 10:57 AM | Permalink


Hey, lawyers, all mitigating factors are aggravating factors in real life.

Posted by: David Behar | Oct 27, 2017 12:46:24 PM

I support the a federal statute ending the death penalty in the nation. That would result in the immediate laying off of all death penalty appellate lawyers.

Posted by: David Behar | Oct 27, 2017 12:58:41 PM

Every death penalty appellate lawyer I know would also support the same outcome.

Posted by: John | Oct 27, 2017 1:24:38 PM

I have not asked the death penalty appellate lawyers I know that question. Given what I know of their character, I agree with you, John. I respect and admire them, for their zeal for their cause. Incidentally, I have also made some defense points to them, that they have never used, such as the cruelty of the set date, the need for a mistrial after mention of any aspect of general deterrence, and some different race points.

Yet, the Supreme Court has the death penalty finely tuned so it rarely happens, but it provides decades of employment for lawyers on both sides an in the middle. They have made it rare, late, ineffective (on the low end of the dose response curve of remedies) and prohibitively expensive to the taxpayer. One cannot but suspect rent seeking.

Posted by: David Behar | Oct 27, 2017 2:11:21 PM

What is the death penalty for?
If the death penalty is good for something, why civilized world left it decades, when not centuries ago? and why only the United States is using it?
And, if capital punishment satisfies any undeniable social or moral purposes, why right in the United States we find the most ancient abolitionist jurisdiction? And why in the very America there are other eleven states which abandoned it decades, when not centuries ago?
And why, if capital punishment is such an unquestionable instrument of justice, it is restricted in a very little number of American states and counties?
So, at the very end the question is this: Why there is still the death penalty in the United States and how is this justified?

Posted by: Claudio Giusti | Oct 27, 2017 3:07:00 PM

Collier County Has a Low Crime Rate. They Do Not Care about Mental Illness.

All lawyer mitigating factors are in reality, aggravating factors. They are mental illness, youth at the time of the murder, and intellectual disability. Each makes the defendant far more dangerous, and should fast track the sentencing.


Posted by: David Behar | Oct 27, 2017 11:04:51 PM

Hi, Claudio. You ask why is there still a death penalty in the United States. One reason is that the lawyer is the stupidest group of people in the country. Another, is $billion ay year budget for appellate practice.

I agree with you. The US must get smarter, and adopt the Italian Death Penalty. It will reduce the cost in each case to the price of a carton of cigarettes.

Posted by: David Behar | Oct 27, 2017 11:08:05 PM

"why civilized world left it"

Figure the U.S. and Japan have some civilization, tbh.

Posted by: Joe | Oct 28, 2017 11:14:55 AM

Joe. OMG. I thought you opposed the death penalty. Now, you are saying, it is civilized. I can't take it.

Posted by: David Behar | Oct 28, 2017 11:34:56 AM

I'm saying the U.S. and Japan are civilized countries.

Nice people do non-nice things. So, that doesn't quite follow.

Posted by: Joe | Oct 28, 2017 12:20:31 PM

Michigan abolished capital punishment first march 1847.

Posted by: Claudio Giusti | Oct 28, 2017 2:16:35 PM

Michigan is the demonstration that even Americans can live without Killing people.

Posted by: Claudio Giusti | Oct 28, 2017 2:18:38 PM

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