Substantial Guidance Without Substantive Guides: Resolving the Requirements of Moore v. Texas and Hall v. Florida

Abstract

Exempting certain classes of people from the possibility of the death penalty is hardly new; Blackstone noted the common law prohibition on executing the insane, stating that "furiosus furore solum punitur"-madness is its own punishment.' Even then, however, "the reasons for the rule [were] less sure and less uniform than the rule itself." 2 In the United States, Eighth Amendment jurisprudence does little to clarify the reasons behind a particular death penalty exemption because it relies, in part, on the practice of the states to decide what is outside the bounds of acceptable punishment. 3 Because exemptions are thus dependent on state actions, the reasoning behind any particular death penalty exemption is a step removed from the states' underlying reasons for their own practices. These states' conclusions, analyzed by the Court independently from their underlying reasons, then become the "objective indicia" the Court uses to determine whether a punishment is valid under the Eighth Amendment. Ironically, these conclusions are considered "the clearest and most reliable objective evidence of contemporary values," even when the reasons behind the legislatures' votes are not considered.