Judge Danny J. Boggs of the Sixth Circuit Court of Appeals delivered the eighth of the 2007-2008 Bradley Lectures on April 7. Edited excerpts follow. A video of the lecture is available at www.aei.org/event1555/.

The phrase "death is different" first came into the legal lexicon in an opinion by Justice Potter Stewart supporting the constitutionality of the death penalty in the case that reinstated it in 1976. However, it seemed that the phrase came to mean that old or long-established principles, traditions, or uses of law needed to be rethought or abandoned in the context of the death penalty.

One way in which death is different is the extent to which it has become for some justices a matter of overwhelming moral urgency. It has become standard when prospective justices come before the Senate for confirmation for them to be quizzed about the extent to which they would be likely to overthrow established precedent. In general, prospective justices of whatever stripe give the general impression that they would not vote to overturn existing precedent on a regular or casual basis.

Every death penalty case effectively gets three complete trips through the judicial system. First there is the actual trial, with real witnesses, jurors, a finding of guilt or innocence, and a sentence imposed. That is then appealed to the state's highest courts and ultimately, though rarely, may be taken up by the U.S. Supreme Court. Following that, every state has a procedure of postconviction review. The case can again go all the way up through the state system and to the Supreme Court. By the filing of a writ of habeas corpus--that is, the contention that the person is being held in prison in violation of federal right--it can begin a third trip, this time through the federal system, beginning in a federal hearing, then to a federal appellate court, and ultimately to the U.S. Supreme Court.

This third trip under previous doctrine had the possibility of being repeated endlessly. In 1996, Congress passed a law with the sonorous title "The Antiterrorism and Effective Death Penalty Act," which placed significant limits on federal habeas. It imposed time limits and limited the standards by which habeas could be granted. With those limitations, jurisprudence changed.

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The principle of incompetence of counsel at sentencing has become the linchpin of whether an execution is permitted to proceed. Counsels who are found to be competent up to the time that the defendant is convicted are increasingly found to be incompetent as soon as the jury proceeds to the question of whether a person should be executed. The conviction stands, but the death penalty is delayed, undermined, and very frequently nullified.

Since this tactic has become so common and successful, it is undoubtedly known both to the prosecution and the defense at the original trial that the groundwork for a trial of the defense counsel is being laid. When this occurs, it is now in the interest of the condemned for his counsel to understand that his former client has his life hanging in the balance dependent on a showing that the counsel was incompetent. Thus, a counsel who meticulously documents his efforts, who notes and recalls every reason for every decision that he took--and the painstaking legal thought he gave to each decision--is thereby point by point moving his former client toward the death chamber. Whereas, if his recordkeeping is a bit sloppy, his memory a bit deficient, or simply his ability to defend his prior choices less vigorous, he is thereby advancing the goal that he was originally engaged to promote--saving the client from death.

Another two-edged sword at sentencing is the question of what tactic to use to convince a jury to spare the life of a person they may have just convicted of capital murder. Many commentators believe that the "poor me" or awful childhood defense is the most effective. Numerous death sentences--at least fifteen in the Sixth Circuit alone--have been overturned because defense counsel did not present information indicating a childhood that might have ranged from the difficult to the atrocious.

Counsels conventionally do--and are frequently chastised if they do not--present indications of otherwise good character: exemplary military service, model prisoner status, and so forth. The quintessential strategic decision is which course to take. Is it better to show an awful childhood, which might in some sense diminish moral responsibility but might also persuade a jury that the life of the convict is not worth much and that his prospects for future dangerousness remain high? On the other hand, an indication of good works, good background, and a good childhood might indicate to a jury that a person who had squandered all of those advantages was morally depraved and worthy of death. Whichever edge of this two-edged sword counsel grasps, the decision is subject to attack for incompetence.