The death penalty has gained its legitimacy from the belief that capital prosecutions are more procedurally rigorous than noncapital prosecutions. This Article reveals how a project of heightened capital standards, set in motion when the Supreme Court ended and then revived the death penalty, was set up to fail.
In establishing what a constitutional death penalty would look like, the Court in 1976 called for heightened standards of reliability in capital cases. In the late 1970s and early 80s, the Supreme Court laid out specific constitutional procedures that must be applied in capital cases and left the door open for the Eighth Amendment to do even more. In the decades that followed, state and federal courts have fueled a perception of heightened procedural rigor in capital cases by referring repeatedly to the heightened standards applicable in capital cases.
A review of courts’ application of a standard of “heightened reliability,” however, reveals that (1) courts routinely use the language of “heightened” standards while simultaneously applying exactly the same constitutional tests that are used in noncapital cases and demonstrating no serious effort to tie procedural rigor to the severity of punishment; and (2) even more problematic, some courts have shown a willingness to use the “heightened reliability” language to justify lesser procedural protection for capital defendants than that applied to noncapital cases—a perverse application of what was clearly intended to be an added measure of assurance that the death penalty is reserved only for those who are truly guilty and who are the most culpable.
This decades-long failure to observe meaningfully heightened constitutional standards calls into question the death penalty’s institutional legitimacy and raises particular concerns in light of current Supreme Court trends.
* Associate Professor and Director of the Criminal Defense Clinic, University of Connecticut School of Law. My thanks go out to Bethany Berger, Steve Bright, Sanjay Chhablani, Brad Colbert, Todd Fernow, Catherine Hancock, Alexandra Harrington, Katie Kronic, Vida Johnson, Leslie Levin, Kathryn Miller, Josh Perry, Judith Resnik, and Carol Steiker; and members of the NYU Clinical Writers Workshop and the Criminal Law and Procedure discussion group at the 2019 Southeast Association of Law Schools annual conference. I owe special thanks to Shiv Rawal and Hannah Lauer for their incredible research assistance, and to the wonderful editorial team at the University of Illinois Law Review, including Alex Bailey, Bryce Davis, Sarah Storti, Joe Self, Dylan Burke, and Blythe Cardenas. All mistakes are, of course, my own.
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