"Somewhere Between Death Row and Death Watch: How Courts Have Precluded Capital Defendants From Raising Execution-Related Claims"
The title of this post is the title of this new paper authored by Melanie Kalmanson now available via SSRN. Here is its abstract:
Most discussion on capital punishment focus on the merits of the death penalty generally. While those arguments are surely important, for as long as capital punishment remains in the United States, safeguarding defendants’ rights throughout the capital sentencing process — including through execution — is crucial. As part of that effort, this Article identifies a portion of the often-overlooked capital appellate process that effectively divests defendants of significant claims.
This issue is illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, which provided insight in a lot of contexts. Contributing to the conversation on the Court’s recent decisions, this Article explains how Bucklew and Dunn provided insight into not-so-obvious aspects of capital punishment with which defendants often struggle. Specifically, Bucklew and Dunn illustrate the procedural predicament defendants face in raising execution- and warrant-related claims. On one hand, courts determine that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant. On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts determine the claims are brought too late, suspecting a game of delay. Thus, as this Article explains, the proper time for defendants to raise execution-related claims is caught somewhere between death row and death watch, and courts have essentially precluded defendants from properly raising and being heard on these issues.
Addressing this concern, this Article canvasses potential solutions. Ultimately, this Article concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures, an example of which is outlined here.
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