“Preserving Precedent on Capital Mitigation”

The title of this post is the title of this new essay authored by Jesse Cheng now available via SSRN.  Here is its abstract:

In the Court’s recent decision in United States v. Tsarnaev, Justice Thomas appears to be planting the seeds for overturning longstanding precedent in death penalty trial procedure.  A line of cases on capital mitigation — evidence in favor of sparing the life of a criminal defendant facing the death penalty — has both expanded the scope of mitigating evidence and afforded wide latitude to sentencing decision-makers when evaluating this evidence.  The Essay asserts that in opposing this line of cases, Justice Thomas improperly ignores the procedural safeguard function that mitigation’s deliberative liberties serve at a capital trial.  This safeguard function is indispensable: even with it in place, the existing system has produced convictions and death sentences of innocent individuals, some of whom have likely been executed.  The Essay casts a much-needed spotlight on the logic of mitigation as procedural safeguard, arguing that any attempt to overturn precedent must explain why this logic and its aspiration to heightened reliability no longer apply when it comes to the nation’s ultimate punishment.