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February 22, 2022

"Dead Right: A Cautionary Capital Punishment Tale"

The title of this post is the title of this intriguing new article authored by Joseph Margulies, John Blume and Sheri Lynn Johnson now available via SSRN. Here is its abstract:

At least 228 people executed in the modern era — or more than one in every seven — were right too soon.  That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late.  Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively.  But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court.  If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief.  Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them.  This resistance was particularly egregious in Texas and Florida.  In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution.  The result is a system that routinely kills people even when they are right.

February 22, 2022 at 03:09 PM | Permalink


Notice the complete absence of even a claim that the persons executed didn't do what they were convicted of doing.

Posted by: Bill Otis | Feb 22, 2022 4:21:20 PM

Bill, I regret to inform you that the law applies equally to the innocent and guilty alike.

Posted by: Curious | Feb 22, 2022 10:43:15 PM

Curious --

Could you quote me where I said, "The law applies unequally to the innocent and the guilty"?

Please. We all know the application of the law is the same, but one would hope the outcomes of the cases are very different, right?

Posted by: Bill Otis | Feb 23, 2022 3:27:19 PM

Their claim is rather dubious at best.

First, the assertion of right too soon assumes that the current interpretation is "right" rather than these defendants simply being wrong at the wrong time (when the courts had it right rather than when the courts had it wrong).

Second, the category of judicial resistance similarly assume that the later refinement of earlier decisions to create broader protections means that courts that relied on a narrow interpretation of the earlier decisions were "resisting" those decisions.

Third, it assumes that the lower courts got it wrong in deciding what law was clearly established and what state court rulings were contrary to the clearly established law. The Supreme Court has not been hesitant to slap down the Fifth Circuit for too narrowly defining clearly established and the Third, Sixth, and Ninth Circuit for too braodly defining clearly established. This article seems to adopt the Ninth Circuit's view of clearly established as its definition for wrongfully executed.

Posted by: tmm | Feb 23, 2022 4:27:21 PM

Bill, the article is about people being unlawfully executed. Your complaint is that the authors should have mentioned whether those people were factually innocent. But you've confused the lawfulness of their sentence with the fact of their guilt. Death sentences can be unlawful even when applied to guilty people.

Posted by: Curious | Feb 23, 2022 9:40:46 PM

Curious --

1. Since you didn't answer, I'll try again: Could you quote me where I said, "The law applies unequally to the innocent and the guilty"?

2. You say, "Death sentences can be unlawful even when applied to guilty people." Yup, and death sentences can be just and earned even when unlawful under today's version of the law (although fine under yesterday's version recognized at the time the case was heard and, for all we know, tomorrow's version as well).

Posted by: Bill Otis | Feb 23, 2022 10:49:11 PM

Lol. Bill, your defense of unlawful executions on the ground that the defendant was factually guilty shows you do not believe the law applies equally to the guilty and the innocent. Otherwise you'd object to them!

Posted by: Curious | Feb 25, 2022 8:48:52 AM

Curious --

Since you didn't answer, I'll try again: Could you QUOTE -- you know what "quote" means, right? -- me where I said, "The law applies unequally to the innocent and the guilty"?

Hint: Your assessment I what I mean is not a quote.

Posted by: Bill Otis | Feb 25, 2022 6:36:38 PM

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