This Casenote analyzes the majority and dissenting opinions in Sanders in an attempt to determine which Justice, if any, offers and satisfying solution to the problem of death sentences partially based on subsequently invalidated factors. It argues that, while the dissenting opinions leave something to be desired, Justice Scalia's majority opinion is unacceptable because it treats too lightly the real possibility that a jury may choose death due to the role played by a subsequently invalidated sentencing factor. In response, this Note offers an alternate approach-one that would accommodate the needs of judicial economy while simultaneously protecting against the substantial risks that Scalia erroneously ignores.
Nicholas A. Fromherz,
Assuming Too Much: An Analysis of Brown v. Sanders,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol43/iss2/7