Eric Clark believed he was battling space aliens when he shot and killed Officer Jeffrey Moritz. Charged under a first-degree murder statute that requires knowledge the victim is a police officer, Clark should have been not guilty two ways: first, by reason of insanity, and second, because he did not satisfy the mens rea requirement. Instead, he was found guilty, and the United States Supreme Court's decision upholding this result tortured insanity law jurisprudence. The only plausible explanation for the Court's decision lies in society's emotional reaction to mental illness. Fear and loathing have displaced not only care and compassion, but even logic.

This article first describes and then unpacks the irrationality of the Court's reasoning in Clark. The Court's inexplicable decisions - finding no semiotic truncation of Arizona's insanity statute, and upholding its refusal to admit evidence of mental illness on the question of mens rea - can be explained only by reference to our unconscious selves. The mentally ill frighten us, and when we are frightened, we do not think clearly. But the decisions in Clark serve only to stigmatize and marginalize even further a group that needs our help as well as our compassion. We must reexamine the criminal law's insanity jurisprudence. Our unconscious animus toward the mentally ill ill-serves them, and ill-becomes us.

Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest.

Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these, which require that the same jury that determined guilt also determine punishment, place defendants in a double-bind. Death-qualifying a unitary jury before the conviction stage asks jurors to presume the defendant is guilty before the trial has even begun. Waiting to death-qualify the unitary jury until after conviction, however, means jurors will be asked about their willingness to impose death after having heard all the gristly details of the crime, and not a scrap of evidence in mitigation.

True bifurcation offers an escape from the double-bind, but the unitary jury requirement forbids it. This article considers the rationales for the unitary jury requirement, framed as objections to true bifurcation, and proves them to be illusory. As the only real barrier to the improved fairness true bifurcation offers is the statutory requirement itself, that requirement should be abandoned. Surely the principled executioner would agree.

Adulterous wives, especially those caught in the act, are classically provoking. Conventional wisdom explains that the ordinary, reasonable, otherwise law-abiding person cannot be expected to control himself when faced with an actively faithless spouse - or at least, control becomes so hard to maintain that a defendant who kills under those circumstances may be partially excused. But the conventional wisdom is wrong: most people can control themselves under such circumstances. Instead, provocation is properly grounded in justification, and should be permitted only to those defendants who were legally entitled to use some amount of force when they killed.

Death qualification is the process by which prospective jurors are questioned at voir dire regarding their attitudes toward the death penalty. Those who indicate they are so opposed to capital punishment that they either (1) would not find the defendant guilty regardless of the evidence, or (2) would not consider death as a possible sentence regardless of the circumstances of the crime, are excused for cause. They are not “death qualified” and may not sit.

Others have pressed for an end to the “disturbing practice” of death qualification because it denies capital defendants their constitutional rights to a jury drawn from a fair cross-section of the community and to an impartial jury. This article offers an understanding of the law of death qualification as it presently exists that ensures that capital defendants are provided the protections to which they are entitled, without requiring a change in the law.