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Rethinking Categorical Prohibitions On Capital Punishment: How The Current Test Fails Mentally Ill Offenders And What To Do About It, Pamela A. Wilkins
My aim in this short Article is both specific and general. Specifically, I examine whether the Eighth Amendment should be held to prohibit imposition of death sentences upon offenders with severe mental illnesses, as is the case with mentally retarded and juvenile offenders. More generally, and perhaps more importantly, I examine the current Eighth Amendment test for categorical prohibitions, find it wanting, and propose a different test that, at least in my view, more neatly captures what the Eighth Amendment is intended to accomplish.
I believe the key to an Eighth Amendment analysis of categorical prohibitions lies in two dilemmas …