The Law: Death Rattles

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The L.D.F. nonetheless is keeping careful tabs on the death-decision aftermath. By its count, courts in at least 17 of the 35 states with functioning death-penalty statutes have already ruled that the Supreme Court's decision applies; the Delaware Supreme Court, on the other hand, finally accepted the attorney general's argument and ruled that a mandatory death penalty is still constitutional. As of now, somewhat less than half the 63 1 prisoners on death row at the time of the Supreme Court's decision have had their death sentences formally voided. Nor could anyone currently under a death sentence ever be executed under new laws, even if they were found constitutional; no law can apply retroactively.

L.D.F.'s Himmelstein argues that fighting to restore capital punishment, though a politically easy response, is not likely to succeed and so is not a realistic allocation of crime-fighting resources. "What we're hoping," he says, "is that people will realize that trying to find the loopholes is an enormous waste of time, energy and funds."

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