Death Ineligibility and Habeas Corpus

lee b. kovarsky, New York University School of Law

Abstract

In this Article, I map the dimensions of an increasingly important source of habeas litigation: death ineligibility. In the last six years, the Supreme Court has declared several categories of prisoners, such as juvenile and mentally retarded offenders, to be categorically exempt from execution under the Eighth Amendment. I explore whether states may execute these offenders on what is effectively a technicality, when their ineligibility claims appear in procedurally defective habeas corpus petitions. That issue, in turn, implicates fundamental disagreements about the Supreme Court’s equitable authority over the habeas writ.

Habeas law lacks a coherent ineligibility doctrine because the prevailing rules and actual innocence exceptions reflect the litigation of a different era. Our habeas regime is now geared largely towards restricting relitigation of procedural questions, with exceptions for challenges supplementing viable claims that an offender did not commit the murder for which (s)he was convicted. Death ineligibility claims disrupt this established model of habeas adjudication. They are not purely procedural challenges because, if successful, they would categorically bar a capital sentence. Nor do they go purely a conviction’s validity, so they are beyond the strictest readings of existing exceptions for procedurally defective petitions.

The number of offenders in which a death ineligibility claim vests has increased dramatically and will only grow as the Court declares any new categories of prisoners exempt from capital punishment. Existing scholarship has made little attempt to explore how these claims’ unique attributes change the habeas equation. In this Article I argue that, in light of important distinctions between death ineligibility challenges and those contemplated under existing law, the Supreme Court should reformulate habeas relief available to categories of offenders that may not be executed under the Eighth Amendment.