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The Virtue Of Obscurity, Colin Starger
The Virtue Of Obscurity, Colin Starger
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The critics have panned Justice Kennedy’s majority opinion in United States v. Windsor. Supporters and opponents of same-sex marriage have together bemoaned what may be called Kennedy’s “doctrinal obscurity” in Windsor. Doctrinal obscurity describes the opinion’s failure to justify striking down Section 3 of the Defense of Marriage Act (DOMA) using any discernable accepted test for substantive due process or equal protection. Specifically, Kennedy does not ask whether DOMA burdens a right “deeply rooted in this Nation’s history and tradition,” nor does he identify sexual orientation as a suspect or semi-suspect classification, nor does he subject DOMA to explicit rational …
Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard
Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard
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The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held …
And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard
And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard
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This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …