Thursday, January 30, 2014

What's a Technicality in the Death Penalty Context?

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.

27 comments:

Joe said...

Justice Alito briefly stayed an execution out of Missouri yesterday as seen by a few orders on the Court's website.

Media coverage focused on lethal injection drug issues since there was some secrecy involving the exact drugs to be used. But, talking "technicality," a couple knowledgeable blogs referenced a possible Batson/juror issue in the case.

The order was lifted w/o noted dissent & he was executed.

pvineman1 said...

Many would argue that your former boss on the Ninth Circuit is always looking for "technicalities" (i.e., nitpicking his way around the mandate of AEDPA and Supreme Court cases interpreting that statute) in order to reverse the penalty phase of capital cases.

Joe said...

"technicality" / violating of basic protections of due process ... you decide. Also, repeatedly, "Reinhardt" translates as "an opinion by the 9th Cir. of more than one person."

Unknown said...
This comment has been removed by the author.
Unknown said...

Media coverage focused on lethal injection drug issues since there was some secrecy involving the exact drugs to be used. But, talking "technicality," a couple knowledgeable blogs referenced a possible Batson/juror issue in the case. http://fifa14.mmo18.com/ | lol.mmo18.com

Unknown said...

新女性徵信
外遇調查站
鴻海徵信
亞洲徵信
非凡徵信社
鳳凰徵信社
中華新女性徵信社
全國新女性徵信社
全省女人徵信有限公司
私家偵探超優網
女人感情會館-婚姻感情挽回徵信
女子偵探徵信網
女子國際徵信
外遇抓姦偵探社
女子徵信社
女人國際徵信
女子徵信社
台中縣徵信商業同業公會
成功科技器材
女人國際徵信社
女人國際徵信
三立徵信社-外遇
女人國際徵信
女人國際徵信
大同女人徵信聯盟
晚晴徵信

Unknown said...


thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق

Unknown said...

Simply super comments are posted here.. humanesocietynewbraunfels

Riyash Dev said...

Information are more innovative and nice to read it.
kilotipo

Unknown said...

Its very useful if every one should follow this. npo-yhk

Steve said...

Must be appreciated for the article tpgobjektfabriken

Gautham said...

Very useful to implement in Life dohong

John Joeban said...


Thank you for this tutorial.its really informative tutorial.
acne-rosacea-times

Steve said...

Not only to read need to spreed every one ruidingtouzi

Unknown said...

All the post are nice to read it.sleeplessnightsnovel

Jambari Juma said...


Thank you for this tutorial.its really informative tutorial.tbs-tu

Mohamed said...

Need to implement in my blog latertuliadeloscuervos

Moha said...

Technically very well above you said zontadistrict18

George jakzin said...

Peoples are giving wonderful thoughts…goldietaylorproject

AllinOnePestControl said...

Its very useful if every one should follow this argunetta

zeollo tomo said...

What a good suggestion posted by the peoples..valdezforcitycouncil

hollyjpepper said...

for my view is Really nice fgxzjj

Zhara Timothy said...


Keep posting the articles,useful to every one.
pekanbuku

HMS Janitorial Service said...

Keep posting the articles,useful to every one indigomoore

Jammy Ray said...

What a good suggestion posted by the peoples..alkinserver

Unknown said...

For my view is Really nice.chajrhockey

Unknown said...



Very awesome post , i am really impressed with it a lot


Arts de la table
recette tiramisu
gateau aux pommes
creme patissiere
creme anglaise
recette chantilly
recette gaufre
recette galette des rois
mélatonine