Category: 89:3

The Supreme Court has long viewed mitigation evidence as key to saving the death penalty from constitutional challenge. Mitigation evidence about a capital defendant’s life history, combined with other procedural protections, is thought to alleviate arbitrariness in juries’ decisions of whether a defendant deserves to die. This Article presents original empirical research studying that hypothesis. Interviews with thirty mitigation specialists who have represented over 700 capital clients in twenty-five death penalty states reveal that despite the Supreme Court’s hope, mitigation evidence has not alleviated arbitrariness in death penalty decisions. Instead, new arbitrariness enters the system through the process of gathering mitigation evidence and presenting it to juries. This Article therefore concludes that mitigation must be reformed if it is to succeed in eliminating arbitrariness in capital punishment decisions. Without such reform, the death penalty will remain unconstitutionally arbitrary despite mitigation.

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention.

A major focus of finance is reducing risk on investments, a goal commonly achieved by dispersing the risk among numerous investors. Sometimes, however, risk dispersion can cause investors to underestimate and under-protect against risk. Risk can even be so widely dispersed that rational investors individually lack the incentive to monitor it. This Article examines the market failures resulting from risk dispersion and analyzes when government regulation may be necessary or appropriate to limit these market failures. The Article also examines how such regulation should be designed, including the extent to which it should limit risk dispersion in the first instance.