"How to Assess Real World Application of a Capital Sentencing Statute: A Response to Professor Chad Flanders's Comment"
The title of this post is the title of this new paper by John Mills now available via SSRN. As the title indicates, this piece is a response to a recent article by Chad Flanders, blogged here, about capital sentencing procedures. Here is the abstract:
In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope. To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst. Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point. This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract. This response focuses on Arizona’s capital sentencing regime to illustrate the importance of understanding the real world operation of the law and discusses the well-established basis in law and policy for relying on empirical studies in support of narrowing claims.
Prior related post:
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