Cheng on Death Is Disparate

Jesse Cheng (DePaul University - College of Law) has posted Death Is Disparate (SMU Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The high stakes of capital punishment demand heightened procedural safeguards: death is different, so the maxim goes. One such safeguard is the doctrine of individualized sentencing mitigation, which establishes the defense’s right to introduce expansively open-ended evidence about the defendant’s unique life circumstances when making the case for mercy at the penalty trial. But some have criticized individualized mitigation for upending prior efforts by the U.S. Supreme Court to establish consistency and fairness in death verdicts. This Article takes individualized sentencing to its logical limit by considering the doctrinal possibility of “adversarial parity,” whereby open-ended individualization is also extended to aggravating evidence offered by the prosecution when making the case for death. In exploring this possibility, the Article draws attention to a crucial yet heretofore unexplored dynamic of capital sentencing trials. Even if aggravation is expanded under a doctrine of adversarial parity, the defense’s evidentiary burden will always be substantially more onerous than the prosecution’s, with the case in mitigation delving into the defendant’s full biopsychosocial history across life. Death is not only different. It is also disparate. This Article thinks through some constitutional implications of death’s disparity, offering a new framework for reconceptualizing key tensions in the troubled evolution of Eighth Amendment capital trial doctrine.