It appears the means of determining whether someone gets a second shot in arguing for a more lenient punishment may change. The CCA took a pretty common sense approach in the Jennings case in finding lack of impulse control due to brain damage and bad upbringing did not mean a jury was significantly less likely to administer the ultimate punishment for a ruthless killing. Jennings (08). While a federal district judge later thought otherwise, a Fifth Circuit panel found Jennings' claim involved a double-edged sword and dueling experts so that a re-do was not called for. Most retrials of capital cases result in the original result being re-instated. But that may not keep the SCOTUS from re-evaluating how the second prong of Strickland applies in the punishment context. Jennings Redux.

It may be the case only involves an appellate procedure issue, but it is likely worth watching, especially since more and more non-death penalty punishment hearings are being attacked on this basis. It is no longer just a question of just desserts, that is for sure.

Should the answer in Jennings be tied in any way to the temporal and geographic context of the original 1989 death-worthy decision? Emerging standards of "mitigation evidence" should not be conclusive.