1 See 408 U.S. 238, 239 (1972) (per curiam); id. at 309–10 (Stewart, J., concurring). The Court wrote a per curiam opinion which very briefly stated the holding; the five justices which made up the plurality then delineated their interpretation of the Eighth Amendment’s prohibition against cruel and unusual punishment in five separate concurring opinions. See id. at 239 (per curiam); id. at 240 (Douglas, J., concurring); id. at 257 (Brennan, J., concurring); id. at 306 (Stewart, J., concurring); id. at 310 (White, J., concurring); id. at 314 (Marshall, J., concurring).
2 See id. at 239 (per curiam); id. at 295 (Brennan, J., concurring). The Eighth Amendment provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. amend. VIII.
3 See Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Today’s Arbitrary and Mandatory Capital Punishment Scheme, 6 Wm. & Mary Bill Rts. J. 345, 352–53 (1998).
4 See Jonathan R. Sorensen, Ph.D., Criminology: An Actuarial Risk Assessment of Violence Posed By Capital Murder Defendants, 90 J. Crim. L. & Criminology 1251, 1252 (2000).
5 See Shelley Clarke, Note, A Reasoned Moral Response: Rethinking Texas’s Capital Sentencing Statute After Penry v. Lynagh, 69 Tex. L. Rev. 407, 409–10 (1990).
6 See Mark David Albertson, Can Violence Be Predicted? Future Dangerousness: The Testimony of Experts in Capital Cases, 3-WTR Crim. Just. 18, 19 (1989); Brock Mehler, The Supreme Court and State Psychiatric Examinations of Capital Defendants: Stuck Inside of Jurek with the Barefoot Blues Again, 59 UMKC L. Rev. 107, 110 (1990).
7 See infra notes 187–242 and accompanying text.
8 See Bennett v. Texas, 766 S.W.2d 227, 231 (1989) (Teague, J., dissenting) (explaining that Dr. Grigson earned the nickname “Dr. Death” because he frequently testified in capital cases on behalf of state with successful results); Kirchmeier, supra note 3, at 372; Texas Defender Service, A State of Denial: Texas Justice and the Death Penalty 26, available at http://www.texasdefender.org/study/chapter3.html (last visited Apr. 11, 2002) (stating Texas prosecutors have used Dr. Grigson’s testimony extensively despite his questionable reputation).
9 See Kirchmeier, supra note 3, at 372.
10 See Satterwhite v. Texas, 486 U.S. 249, 259–60 (1988) (noting Dr. Grigson stated unequivocally that in his expert opinion defendant would be continuing threat to society; that defendant was “as severe a sociopath as you can be;” that on scale of one to ten, where ten indicated complete disregard for human life, defendant was ten; and that defendant was beyond the reach of psychiatric rehabilitation); Barefoot v. Estelle, 463 U.S. 880, 919 (1983) (Blackmun, J., dissenting) (quoting Dr. Grigson as testifying that the defendant was in the “most severe category” of sociopaths meaning that on a scale of one to ten, defendant was “above ten;” that whether defendant was in society at large or in a prison society there was a “one hundred percent and absolute” chance that defendant would commit future violent acts); Estelle v. Smith, 451 U.S. 454, 459–60 (1981) (noting that Dr. Grigson testified that defendant was “a very severe sociopath;” that he will continue his behavior and his sociopathic condition will “only get worse;” that defendant has “no regard for another human being’s property or for their life, regardless of who it may be;” that there is no treatment or medicine that would change defendant’s behavior; and that defendant had no remorse or sorrow for his actions); Texas Defender Service, supra note 8, at 32 (describing Dr. Grigson’s testimony in Randall Dale Adams case wherein Dr. Grigson stated that on scale of sociopathy, Adams was at worst end of the scale; that there was nothing that could change the defendant; that Adams had no regard for the lives or property of others, whoever they might be; and that Adams would continue to threaten society).
11 Kirchmeier, supra note 3, at 372.
12 Barefoot, 463 U.S. at 918.
13 Texas Defender Service, supra note 8, at 30.
14 Bennett, 766 S.W.2d at 232 (Teague, J., dissenting).
15 See Texas Defender Service, supra note 8, at 32–35.
16 See id. at 32–33.
17 See id.
18 Paul C. Giannelli, “Junk Science”: The Criminal Cases, 84 J. Crim. L. & Criminology 105, 116 (1993).
19 Kirchmeier, supra note 3, at 372.
20 See Texas Defender Service, supra note 8, at 29–30.
21 See id. at 31–33.
22 See id. at 28.
23 This Note will argue specifically that psychiatric expert determinations of future dangerousness are unconstitutional. Other methods of questionable constitutionality are also used in some states, but will not be discussed here. One such method is the use of the defendant’s prior unadjudicated offenses to indicate future violence. For a more in-depth discussion of the other methods used to prove a defendant’s future danger to society see generally Steven Paul Smith, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phases of Capital Trials, 93 Colum. L. Rev. 1249 (1993), and Jason J. Solomon, Note, Future Dangerousness: Issues and Analysis, 12 Cap. Def. J. 55 (1999).
24 See infra notes 32–103 and accompanying text.
25 See infra notes 106–145 and accompanying text.
26 See infra notes 146–174 and accompanying text.
27 See infra notes 175–251 and accompanying text.
28 See infra notes 175–211 and accompanying text.
29 See infra notes 212–242 and accompanying text.
30 See infra notes 243–251 and accompanying text.
31 See infra notes 252–304 and accompanying text.
32 See Kirchmeier, supra note 3, at 346.
33 See Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
34 See Furman v. Georgia, 408 U.S. 238, 309–10 (1972) (Stewart, J., concurring).
35 See id.
36 See Woodson, 428 U.S. at 303–05.
37 See id. at 304.
38 See Clarke, supra note 5, at 416–23.
39 See id. at 418–19.
40 See id. at 416–18.
41 408 U.S. 238, 239 (1972). The Furman decision included three death penalty cases from two states in which the jury was given unfettered discretion in deciding whether to grant the death penalty or a lesser sentence. See id. at 239 (per curiam); id. at 253 (Douglas, J., concurring).
42 Id. at 252, 253 (Douglas, J., concurring).
43 Id. at 240, 253 (Douglas, J., concurring).
44 See id. at 239–40 (per curiam).
45 The per curiam opinion stated only the holding of the case with no explanation of the Court’s reasoning. See Furman, 408 U.S. at 239–40.
46 See id. at 241 (Douglas, J., concurring).
47 Id. at 242 (Douglas, J., concurring) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
48 See id. at 241–42, 253 (Douglas, J., concurring).
49 See id. at 274 (Brennan, J., concurring).
50 See Furman, 408 U.S. at 286–88 (Brennan, J., concurring).
51 See id. at 309–10 (Stewart, J., concurring).
52 See id. at 310 (Stewart, J., concurring).
53 See Kirchmeier, supra note 3, at 352–53.
54 See id. at 352.
55 See Clarke, supra note 5, at 409.
56 See 428 U.S. 153, 163–64 (1976).
57 See id.
58 Id. at 164, 165. The ten aggravating factors were: (1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions; (2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree; (3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person; (4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value; (5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty; (6) The offender caused or directed another to commit murder or committed murder as the agent or employee of another person; (7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim; (8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties; (9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; and (10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another. Id. at 166 n.9.
59 Id. at 160.
60 Gregg, 428 U.S. at 160–61.
61 Id. at 161.
62 Id. at 189.
63 See id.
64 Id. at 190.
65 See Gregg, 428 U.S. at 189, 206–07.
66 Id. at 207.
67 See 428 U.S. 242, 248, 260 (1976). The aggravating circumstances were: (a) The capital felony was committed by a person under sentence of imprisonment; (b) The defendant was previously convicted of another capital felony or felony involving the use or threat of violence to the person; (c) The defendant knowingly created a great risk of death to many persons; (d) The capital felony was committed while the defendant was engaged, or in flight after committing or attempting to commit, or was an accomplice, in the commission of, or an attempt to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb; (e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (f) The capital felony was committed for pecuniary gain; (g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; (h) The capital felony was especially heinous, atrocious, or cruel. Id. at 250 n.6. The mitigating circumstances are: (a) The defendant has no significant history of prior criminal activity; (b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; (c) The victim was a participant in the defendant’s conduct or consented to the act; (d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor; (e) The defendant acted under extreme duress or under the substantial domination of another person; (f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; (g) The age of the defendant at the time of the crime. Id.
68 See id. at 248–49.
69 See id. at 249–50.
70 Id. at 244.
71 Proffitt, 428 U.S. at 246.
72 Id.
73 Id.
74 Id.
75 Id. at 246–47.
76 Proffitt, 428 U.S. at 253 (quoting Gregg, 428 U.S. at 188 (quoting Furman, 408 U.S. at 313 (White, J., concurring))).
77 428 U.S. 280 (1976).
78 See id. at 282.
79 See id. at 286–87.
80 Id. at 282–83.
81 Id. at 283–84.
82 Woodson, 428 U.S. at 302.
83 See id. at 305.
84 Id. at 303.
85 Id. at 304.
86 See id. at 303–04; see also Furman, 408 U.S. at 286–88 (Brennan, J., concurring).
87 Woodson, 428 U.S. at 305.
88 See 428 U.S. 262, 276–77 (1976).
89 For instance, a crime may be considered death penalty eligible if: the victim holds special status such as a police officer or a young child; the murder is committed during the commission of another felony; the murderer was incarcerated and murdered someone employed in the penal institution; the murder was committed for remuneration, or if the murderer employed another to commit the murder for remuneration or the promise of remuneration. See Tex. Penal Code Ann. � 19.03 (Vernon 2001).
90 Jurek, 428 U.S. at 269.
91 Id.
92 Id. Since the Jurek decision the Texas statute has been modified to include the following special issue question in addition to those previously mentioned: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. Tex. Crim. Proc. Code Ann. Art. 37.071 � 2(e)(1) (Vernon 2001).
93 Jurek, 428 U.S. at 269.
94 Id. at 264–65, 267.
95 Id. at 267.
96 Id. at 267–68.
97 See id. at 272.
98 Jurek, 428 U.S. at 274.
99 Id. at 276.
100 463 U.S. 880 (1983).
101 See supra notes 32–37 and accompanying text.
102 See supra notes 35–37 and accompanying text.
103 See supra note 33 and accompanying text.
104 See Barefoot, 463 U.S. at 901 (stating the position of the majority); id. at 924–25 (Blackmun, J., dissenting).
105 See, e.g., Clarke, supra note 5, at 418–19.
106 428 U.S. 153, 190 (1976).
107 428 U.S. 280, 305 (1976).
108 See 509 U.S. 579, 589, 593–94 (1993).
109 See 463 U.S. at 905–06.
110 Id. at 883.
111 See id. at 884.
112 See id.
113 Id.
114 Barefoot, 463 U.S. at 918 (Blackmun, J., dissenting).
115 Id. (Blackmun, J., dissenting).
116 Id. (Blackmun, J., dissenting).
117 Id. (Blackmun, J., dissenting).
118 Id. at 918–19 (Blackmun, J., dissenting).
119 Barefoot, 463 U.S. at 918–19 (Blackmun, J., dissenting).
120 Id. at 919 (Blackmun, J., dissenting).
121 Id. (Blackmun, J., dissenting).
122 Id. (Blackmun, J., dissenting).
123 Id. at 901.
124 Barefoot, 463 U.S. at 898.
125 Id. at 899.
126 Id. at 920 (Blackmun, J., dissenting).
127 Id. (Blackmun, J., dissenting).
128 Id. (Blackmun, J., dissenting).
129 Barefoot, 463 U.S. at 921 (Blackmun, J., dissenting).
130 Id. at 923 (Blackmun, J., dissenting).
131 Id. at 924 (Blackmun, J., dissenting).
132 Id. at 924, 926 (Blackmun, J., dissenting).
133 Id. at 924 (Blackmun, J., dissenting).
134 See Barefoot, 463 U.S. at 926–28 (Blackmun, J., dissenting).
135 See id. at 926–28 (Blackmun, J., dissenting). The Federal Rules of Evidence (FRE) do not apply to the sentencing phase of state capital trials. See, e.g., Flores v. Johnson, 210 F.3d 456, 464 n.10 (5th Cir. 2000) (Garza, J., concurring). The text of FRE 403, however, helps to illustrate Justice Blackmun’s statement: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.
136 Barefoot, 463 U.S. at 929–30 (Blackmun, J., dissenting).
137 Id. at 929 (Blackmun, J., dissenting).
138 Id. (Blackmun, J., dissenting).
139 Id. at 930 (Blackmun, J., dissenting).
140 Id. at 935–36 (Blackmun, J., dissenting).
141 See 509 U.S. at 590; see also Michael H. Gottesman, From Barefoot to Daubert to Joiner: Triple Play or Double Error? 40 Ariz. L. Rev. 753, 756 (1998).
142 See 463 U.S. at 900–01.
143 See id. at 924–29.
144 509 U.S. at 582–83.
145 Id. at 583.
146 Id. at 597.
147 Id. at 585.
148 Id. at 586.
149 See Daubert, 509 U.S. at 588–89.
150 Id. at 589 (emphasis added).
151 See id. at 593–94.
152 See id. at 592–95.
153 See id. at 593.
154 Daubert, 509 U.S. at 593.
155 Id. at 595; see also Barefoot, 463 U.S. at 926–28.
156 See G. Michael Fenner, The Daubert Handbook: The Case, Its Essential Dilemma, and Its Progeny, 29 Creighton L. Rev. 939, 974 (1996).
157 See Flores, 210 F.3d at 464–65 (Garza, J., concurring).
158 See id. at 464 n.10 (Garza, J., concurring).
159 See id.
160 See John Monahan, Violence Risk Assessment: Scientific Validity and Evidentiary Admissibility, 57 Wash. & Lee L. Rev. 901, 916 (2000).
161 See 970 S.W.2d 549, 552, 560, 562 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).
162 Id. at 552.
163 Id.
164 Id.
165 See id. at 560. Defendant specifically urged that Lanning’s testimony was lacking because “the State failed to produce any evidence (1) that the theories underlying Lanning’s testimony are accepted as valid by the relevant scientific community, (2) that the alleged literature on the theories supports his theories, (3) that there are specific data or published articles regarding the area of future dangerousness of prison inmates, (4) that his theories have been empirically tested, (5) that he has conducted any studies or independent research in the area of future dangerousness, or (6) that anyone else had tested or evaluated the theories upon which his testimony was based.” Id.
166 Nenno, 970 S.W.2d at 560; see also Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) (requiring satisfaction of reliability test for expert testimony similar to test announced in Daubert).
167 Nenno, 970 S.W.2d at 561.
168 Id.
169 See id. at 561–62.
170 See, e.g., Giannelli, supra note 18, at 113–14; Kirchmeier, supra note 3, at 370–71; Edmund H. Mantell, A Modest Proposal to Dress the Emperor: Psychiatric and Psychological Opinion in the Courts, 4 Widener J. Pub. L. 53, 62–63 (1994).
171 See, e.g., People v. Murtishaw, 631 P.2d 446, 471 (Cal. 1981); Balfour v. State, 598 So.2d 731, 748 (Miss. 1992).
172 See Sorensen, supra note 4, at 1252.
173 See Albertson, supra note 6, at 19.
174 See Mehler, supra note 6, at 110; Texas Defender Service, supra note 8, at 26.
175 See, e.g., Estelle v. Smith, 451 U.S. 454, 460 (1981) (noting doctor’s prediction based on 90 minute interview with defendant); see also Barefoot v. Estelle, 463 U.S. 880, 918 (1983) (Blackmun, J., dissenting) (explaining psychiatrists’ testimony was not based on actual examination—because neither examined defendant—but rather on extended hypothetical questions); Flores v. Johnson, 210 F.3d 456, 458 (5th Cir. 2000) (Garza, J., concurring) (noting doctor never examined defendant, nor did he make his evaluation based on psychological records or psychological testing).
176 See Albertson, supra note 6, at 19; Clarke, supra note 5, at 445–46; Texas Defender Service, supra note 8, at 26.
177 See Tex. Crim. Proc. Code Ann. Art. 37.071 � 2(c) (Vernon 2001); Or Rev. Stat. � 163.150(1)(d) (2001).
178 See Mehler, supra note 6, at 110; Texas Defender Service, supra note 8, at 26.
179 Albertson, supra note 6, at 19–20.
180 Id. at 20.
181 See id. at 19–20.
182 See, e.g., Flores, 210 F.3d at 466 (Garza, J., concurring) (“As has been previously recognized, when a medical doctor testifies that ‘future dangerousness’ is a scientific inquiry on which they have particular expertise, and testifies that a particular defendant would be a ‘continuing threat to society,’ juries are almost always persuaded.”); Bennett v. State, 766 S.W.2d 227, 232 (Tex. Crim. App. 1989) (Teague, J., dissenting) (“[W]hen Dr. Grigson testifies at the punishment stage of a capital murder trial he appears to the average lay juror . . . to be the second coming of the Almighty. . . . Dr. Grigson is extremely good at persuading jurors to vote to answer the [future dangerousness] issue in the affirmative.”); see also Brief of Amici Curiae for the American Psychiatric Association at 6, Barefoot v. Estelle, 463 U.S. 880 (1983) (No. 82–6080) [hereinafter APA Brief] (stating that psychiatric opinions regarding future dangerousness are prejudicial to defendant).
183 See Barefoot, 463 U.S. at 924, 926–27, 934; White v. Estelle, 554 F. Supp. 851, 858 (S.D. Tex. 1982); Mantell, supra note 175, at 65; APA’s Brief at 3–6, Barefoot (No. 82–6080).
184 See APA’s Brief at 6, Barefoot (No. 82–6080); see also White, 554 F. Supp. at 858 (“[W]hen this lay opinion is proffered by a witness bearing the title of ‘Doctor,’ its impact on the jury is much greater than if it were not masquerading as something it is not.”).
185 APA’s Brief at 6, Barefoot (No. 82–6080).
186 Flores, 210 F.3d at 465–66 (Garza J., concurring).
187 See APA’s Brief at 3, Barefoot (No. 82–6080).
188 Id.
189 See id. at 6; Mantell, supra note 175, at 65–66.
190 See APA’s Brief at 6, Barefoot (No. 82–6080); Mantell, supra note 175, at 65–66.
191 APA’s Brief at 6, Barefoot (No. 82–6080).
192 Mantell, supra note 175, 65–66 (quoting Barefoot, 463 U.S. at 934 (Blackmun, J., dissenting)).
193 See APA’s Brief at 3, Barefoot (No. 82–6080).
194 Joan M. Cheever & Joanne Naiman, The View from the Jury Box: Poll: Jurors Have Faith in System, Nat’l L.J., Feb. 22, 1993, at S2.
195 View from the Jury Box: Expert Witnesses Found Credible by Most Jurors, Nat’l L.J., Feb. 22, 1993, at S4.
196 Id.
197 See Scott E. Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109, 1123 (1997).
198 See id. at 1112–13; see also William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 10 Ind. L. J. 1043, 1043 (1995).
199 Sundby, supra note 202, at 1112–13.
200 See id. at 1118.
201 Id. at 1123.
202 Id.
203 See id. at 1125.
204 Sundby, supra note 202, at 1125.
205 See id. at 1129–30.
206 Id.
207 See, e.g., Barefoot, 463 U.S. at 930 (Blackmun, J., dissenting) (citing American Bar Association’s warning that juries are particularly incapable of dealing with information regarding defendant’s future dangerousness); APA’s Brief at 6, Barefoot (No. 82–6080).
208 See APA’s Brief at 6, Barefoot (No. 82–6080).
209 See Albertson, supra note 6, at 20–21; see generally Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974).
210 See Ennis & Litwack, supra note 214, at 737; see also Albertson, supra note 6, at 21.
211 Ennis & Litwack, supra note 214, at 712; see also Baxtrom v. Herold, 383 U.S. 107, 110, 111 (1966) (holding that prisoners detained in Department of Corrections hospitals after their sentence had expired must be released and committed civilly, if committed at all).
212 Ennis & Litwack, supra note 214, at 712.
213 Id.
214 Id. at 713.
215 Id.
216 Id.
217 See Randy K. Otto, On the Ability of Mental Health Professionals to “Predict Dangerousness”: A Commentary on Interpretations of the “Dangerousness” Literature, 18 Law & Psychol. Rev. 43, 62–63 (1994).
218 Id. at 63.
219 Id.
220 See Sorensen, supra note 4, at 1269–70.
221 See id. at 1260.
222 Id. at 1264.
223 Id. at 1256.
224 See id. at 1269.
225 Sorensen, supra note 4, at 1269.
226 Albertson, supra note 6, at 21.
227 Id.
228 Id.
229 Id.
230 See, e.g., id. at 21.
231 Albertson, supra note 6, at 45.
232 Id.
233 Id.
234 See id.
235 Id. at 46.
236 Albertson, supra note 6, at 46.
237 See id.
238 See, e.g., Murtishaw, 29 P.2d at 471; Balfour, 598 So.2d at 748.
239 See 29 Cal.3d at 767–68.
240 Id. at 740.
241 See id. at 767.
242 Id. at 771.
243 Id. at 773.
244 See Murtishaw, 29 P.2d at 469.
245 See Balfour, 598 So.2d at 748.
246 Id. at 747–48.
247 See supra notes 41–68, 80–90 and accompanying text.
248 See supra notes 88–90 and accompanying text.
249 See 408 U.S. 238, 239 (1972) (per curiam); id. at 253 (Douglas, J., concurring).
250 See 428 U.S. 280, 304 (1976); see also Furman, 408 U.S. at 286–88 (Brennan, J., concurring).
251 See supra notes 41–56 and accompanying text.
252 See supra notes 41–56 and accompanying text.
253 See supra notes 41–68, 80–90 and accompanying text.
254 See supra notes 41–68, 80–90 and accompanying text.
255 428 U.S. 153, 190 (1976).
256 Woodson, 428 U.S. at 305.
257 See supra notes 91–103 and accompanying text.
258 See Jurek v. Texas, 428 U.S. 262, 276 (1976) (quoting Furman, 408 U.S. at 310 (Stewart, J., concurring)); see also supra notes 91–103 and accompanying text;
259 See supra notes 41–68, 80–90, 114–145 and accompanying text.
260 See supra notes 128–130 and accompanying text.
261 See supra notes 128–130; see also supra notes 131–145 and accompanying text.
262 See supra notes 91–103, 114–130 and accompanying text.
263 See supra notes 32–40 and accompanying text.
264 509 U.S. 579 (1993).
265 See supra notes 154–159 and accompanying text.
266 See supra notes 161–174 and accompanying text.
267 See supra notes 161–174 and accompanying text.
268 See, e.g., Woodson, 428 U.S. at 305.
269 See supra notes 146–160.
270 See Woodson, 428 U.S. at 305.
271 See supra notes 156, 213–242 and accompanying text.
272 See supra notes 213–242 and accompanying text.
273 See supra notes 213–242 and accompanying text.
274 See supra notes 213–242 and accompanying text.
275 See supra notes 213–242 and accompanying text.
276 See supra notes 213–242 and accompanying text.
277 See supra notes 213–242 and accompanying text.
278 See supra notes 155–160 and accompanying text.
279 See supra notes 155–160 and accompanying text.
280 See supra notes 155–160 and accompanying text.
281 See supra notes 155–160 and accompanying text; see also supra notes 213–242 and accompanying text.
282 See supra notes 182–242 and accompanying text.
283 See supra notes 182–211 and accompanying text.
284 See supra notes 187–193 and accompanying text.
285 See supra notes 194–198 and accompanying text.
286 See supra notes 194–198 and accompanying text.
287 See supra notes 194–198 and accompanying text.
288 See supra notes 199–211 and accompanying text.
289 See supra notes 190–206 and accompanying text.
290 See e.g., Ennis & Litwack, supra note 214, at 737; see also supra notes 213–242 and accompanying text.
291 See supra notes 213–242 and accompanying text.
292 See supra notes 8–23 and accompanying text.
293 See, e.g., Barefoot v. Estelle, 463 U.S. 880, 918–19 (1983) (Blackmun, J., dissenting).
294 See supra note 10.
295 See supra notes 15–18 and accompanying text.
296 See e.g., supra notes 14, 19–21 and accompanying text.
297 See supra notes 19–21 and accompanying text.
298 See supra notes 8–9 and accompanying text.
299 See supra notes 8–23 and accompanying text.