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Arizona State Law Journal


dying speech, death row, free speech, right of allocution, first amendment


This Article asserts that the privilege to deliver a last dying speech— uttered in the presence of, and made audible to, the assembled witnesses in the moments just before one's execution—is a First Amendment right, and that prison policies departing from its traditional exercise are unconstitutional. After canvassing the state prison policies that govern last words, this Article will recount the long historical tradition surrounding their utterance—a history that reveals the extraordinary degree to which Anglo-American governments have honored the privilege.Next, this Article will draw a parallel between the right to utter one's last words and the well-established right of “allocution”—the right to be heard just prior to sentencing. Finally, this Article will perform a First Amendment analysis of the prison policies that restrict last words. This analysis will begin with “first principles,” examining the policies in terms of the reasons why our law protects free expression. The analysis section will then proceed by invoking a succession of First Amendment doctrines. We will perform, in turn, a prior restraint analysis, a content-neutrality analysis, a public forum analysis, an overbreadth analysis, a restricted environment analysis, and an original intent analysis.