1. D. Hay, Property, Authority, and the Criminal Law, in Douglas Hay, Peter Linebaugh, J. Rule, E. Thompson, and C. Winslow (Eds.), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (pp. 17–63), New York: Pantheon Books (1975), p. 28.
2. The U.S. Supreme Court has ruled that mentally ill prisoners may be executed as long as they are not legally "insane" or "incompetent to be executed"—a standard that requires merely that they understand the nature of the death penalty and why it is being imposed on them. See Ford v. Wainwright, 477 U.S. 399 (1986). With respect to children, the Justices previously decided that persons who were as young as 16 years old at the time of their crime may be given the death sentence. See Stanford v. Kentucky, 492 U.S. 361 (1989). However, just this year, the Court reversed itself in a narrow 5–4 decision that banned the death penalty for juveniles under the age of 18. See Roper v. Simmons, 125 S. Ct. 1183 (2005). Similarly, after ruling in 1989 that the Constitution did not prohibit the execution of developmentally disabled capital defendants "Penry v. Lynaugh, 492 U.S. 302 (1989)", the Court decided 13 years later, in Atkins v. Virginia, 536 U.S. 304 (2002), that a new national consensus now rendered the practice unconstitutional.
3. Simmons v. South Carolina, 512 U.S. 154,183 (1994) (Scalia, J., dissenting). At other times, Justice Scalia has called capital jurisprudence the product of a "fog of confusion" "Morgan v. Illinois, 504 U.S. 719 (1992) (dissenting), at 751" and a "blow against the People" (at 752).
4. H. Bedau and M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stanford Law Review 21, 83 (1987). Bedau and Radelet identified some 350 cases in which a factually innocent person was convicted of a potentially capital crime. They were able to attribute these erroneous convictions to a number of systemic