by Mike Dorf
My latest Verdict column uses the occasion of two recent executions gone awry to call for the Supreme Court to overrule Baze v. Rees (which upheld lethal injection) and one or both of the two decisions that enable states to execute people who, according to the International Court of Justice, had their rights violated under the Vienna Convention on Consular Relations.
I won't recap the argument here but I end the column by speculating that even though the SCOTUS continues to regulate the death penalty pursuant to the Eighth Amendment, it appears to be skeptical of what it may consider "opportunistic" challenges to the death penalty--i.e., challenges to a particular method of execution by lawyers who believe that all methods are unconstitutional or challenges to the violation of Vienna Convention rights by countries that don't care to assert their Vienna Convention claims in non-capital cases. I make clear at the end of the column that while this kind of thinking may explain why the Court ruled as it did in Baze and the Vienna Convention cases (Sanchez-Llamas v. Oregon and Medellin v. Texas), it hardly justifies those rulings.
In this post I want to explore what might be meant by a "technicality" in the context of the death penalty.
We are all familiar with the notion of a defendant "getting off on a technicality" with respect to the guilt phase of a criminal proceeding. When someone makes that complaint, what he means is that the defendant in fact committed the crime but that some procedural rule that does not correlate with the merits resulted in the exclusion of evidence. For example, the police searched the defendant's home without a warrant when they needed one, so although they discovered incontrovertible proof of the defendant's guilt, the prosecutor is unable to enter it at trial. This sort of thing happens less frequently than one might guess from watching police dramas on tv and in the movies, partly because the constitutional rules have so many exceptions, but it does happen from time to time.
"Technicality" certainly has a normative dimension. For example, people who believe strongly in Fifth Amendment rights are unlikely to regard the failure of the police to Mirandize a suspect in custody before interrogating him as a mere "technical" violation of rights. Still, one does not need to share in the normative view of the critics to understand the distinction they are (implicitly) drawing between grounds for acquittal or dismissal that are merits-based (even if the defendant is guilty) and those that flow from violations of procedural norms that do not closely correlate with guilt or innocence.
Thus, even someone who takes a dim view of defendants' rights would not ordinarily say that a defendant "got off on a technicality" in many circumstances in which a guilty defendant is acquitted. For example, if the defendant is a persuasive liar, or if the defendant's boyfriend fabricates a persuasive-sounding alibi, or even if the prosecutor simply does a bad job of assembling his case, a guilty person may go free, and we would thus say that an injustice has occurred, but we would not typically classify that injustice as the product of a "technicality."
Accordingly, we appear to have a reasonably stable, reasonably determinate, conception of "technicality" with respect to guilt and innocence. Now let's turn to capital cases.
Above and in the column, I said that conservative Justices may regard method-of-execution claims and Vienna Convention claims as technicalities. The point is clear enough with respect to the Vienna Convention, where claims closely parallel Miranda claims under the Fifth Amendment. But upon closer examination, it's not entirely clear what it means to say that someone evaded the death penalty on the basis of a technicality. The reason is that we don't have the same sort of pre-legal understanding of who should get the death penalty that we do with respect to the categories of guilt and innocence. Put differently, to say that someone avoided the death penalty on a technicality implies that there are people who simply deserve the death penalty as a factual matter in the same way that someone is guilty of a crime as a factual matter.
Certainly the converse can be true in a certain sense. Someone who is intellectually disabled or a minor or committed a non-homicide offense is entitled to avoid the death penalty on substantive constitutional grounds, and so we wouldn't ordinarily characterize a successful Atkins, Roper, or Coker claim as one that utilizes a technicality. Likewise, someone who is not "death-eligible" because the state failed to prove the requisite aggravating factor(s) under state law would have avoided the death penalty on the merits.
But, because the Constitution forbids a mandatory death penalty, no one can ever be said to deserve the penalty of death in quite the same way that someone is guilty of a crime. Accordingly, while we can distinguish technical from non-technical grounds for avoiding the death penalty, to the extent that the whole idea of "getting off on a technicality" rests on a picture of a counterfactual world in which the defendant gets his just desserts, the notion of a technicality has less bite in the capital sentencing context than in the guilt/innocence context.