In the last seven years, the Supreme Court has declared several categories of prisoners, such as juvenile and mentally retarded offenders, to be categorically ineligible for capital punishment under the Eighth Amendment. If these “death ineligible” offenders nonetheless sit on death row with procedurally defective habeas corpus petitions, can the writ be used to scrutinize their capital eligibility? In other words, may a death-ineligible offender be executed on a technicality?
The issue is not hypothetical, and the role federal habeas corpus is to play in redressing ineligibility violations remains a conspicuously open question. That question, in turn, implicates some of the most fundamental disagreements over the Supreme Court’s equitable authority over the habeas writ, as well as over the related “actual innocence” laws that often determine the outcome of federal habeas litigation. Existing ineligibility rules derive largely from actual innocence law applicable to the more familiar concept of “crime innocence”—the idea that, colloquially speaking, the petitioner “wasn’t there, and didn’t do it.” Unlike a crime-innocence claim, a death ineligibility challenge does not dispute that the offender committed the murder for which he was convicted; it disputes only the constitutionality of the capital sentence.
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