Dead Right: A Cautionary Capital Punishment Tale

71 Pages Posted: 14 Feb 2022

See all articles by Joseph Margulies

Joseph Margulies

Cornell University

John H. Blume

Cornell Law School

Sheri Lynn Johnson

Cornell Law School

Date Written: February 10, 2022

Abstract

At least 228 people executed in the modern era—or more than one in every seven—were right too soon. That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late. Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively. But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court. If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief. Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them. This resistance was particularly egregious in Texas and Florida. In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution. The result is a system that routinely kills people even when they are right.

Keywords: execution, capital punishment, punishment, Roper v. Simmons, Atkins v. Virginia, Supreme Court, caselaw, Texas, Florida, death penalty, Supreme Court Doctrine

Suggested Citation

Margulies, Joseph and Blume, John H. and Johnson, Sheri Lynn, Dead Right: A Cautionary Capital Punishment Tale (February 10, 2022). Columbia Human Rights Law Review, Vol. 53, No. 1, 2021, Cornell Legal Studies Research Paper No. 22-07, Available at SSRN: https://ssrn.com/abstract=4031848

Joseph Margulies (Contact Author)

Cornell University ( email )

Ithaca, NY 14853
United States

John H. Blume

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Sheri Lynn Johnson

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-6478 (Phone)
607-255-7193 (Fax)

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