Death Penalty Cases [3 ed.] 9780123820242, 2010033966

Table of contents :
Front-matter_2011_Death-Penalty-Cases
Front matter
Copyright_2011_Death-Penalty-Cases
Copyright
Dedication_2011_Death-Penalty-Cases
Dedication
Preface_2011_Death-Penalty-Cases
Preface
Acknowledgments
Table-of-Cases_2011_Death-Penalty-Cases
Table of Cases
Chapter-1---Capital-Punishment-in-America_2011_Death-Penalty-Cases
Capital Punishment in America
History
Colonial Practice to the Mid-20th Century
1950 to 1976
The cruel and unusual punishments clause
Arguments for and against capital punishment
History
State Power
Religious Beliefs
The Evangelical Lutheran Church in America (Protestant)
The Southern Baptist Convention (Protestant)
The Roman Catholic Church
Judaism
Justifications of Punishment
Retribution and Related Arguments
Deterrence
Incapacitation
Rehabilitation
Executing Innocents
Fairness
Racial Discrimination
Selection Process
Jurisdictional Differences
Defense Resources
Humaneness
Cost
Stages of a capital case
Stage 1: Pretrial—Investigation, Charging, and Plea Bargaining
A
B
C
D
Stage 2: Trial
Jury Selection
The Guilt/Innocence Phase
The Penalty Phase
Stage 3—Direct Appeal
Stage 4—Certiorari Petition to the United States Supreme Court
Stage 5—State Post-Conviction Remedy
Stage 6—Federal Habeas Corpus
Federal Death Sentence Review Procedures
Stage 7—Executive Clemency
Readings
Chapter 1: Capital Punishment in America
History
The Cruel and Unusual Punishments Clause
Arguments for and against Capital Punishment
Chapters 2, 3, and 4: The Furman, Gregg, and Woodson Cases
Chapter 5: Mitigating Evidence
Chapter 6: Racial Bias
Chapters 7 and 11: Rape and Other Nonhomicide Crimes
Chapter 8: Murder and Aggravating Factors
Chapter 9: Felony-Murder
Chapter 10: Mentally Retarded and Juveniles
Chapter 12: Sentencing by Jury or Judge
Chapter 13: Jury Selection
Chapter 14: Victim Impact Evidence
Chapter 15: The Sentencing Decision
Chapter 16: Ineffective Counsel
Chapter 17: Claims of Innocence
Chapter 18: Executing the Insane
Chapter 19: Method of Execution
Chapter-2---Cruel-and-Unusual-as-Applied-Furman-v--Geor_2011_Death-Penalty-C
Cruel and Unusual as Applied—Furman v. Georgia (1972)
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed.2d 346 (1972)
Per Curiam Opinion
Concurring opinion of justice douglas
Concurring opinion of justice brennan
II
III
Concurring opinion of justice stewart
Concurring opinion of justice white
Concurring opinion of justice marshall
III
V
A
B
C
E
VI
Dissenting opinion of chief justice burger, joined by justices powell, blackmun, and rehnquist
III
IV
V
Dissenting opinion of justice powell, joined by chief justice burger and justices blackmun and rehnquist
IV
V
VI
VIII
Chapter-3---Not-Inherently-Unconstitutional-Gregg-v--Ge_2011_Death-Penalty-C
Not Inherently Unconstitutional—Gregg v. Georgia (1976)
Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976)
Opinion of Justice Stewart, Joined by justices Powell and Stevens
I
II
III
IV
A
B
V
Concurring opinion of justice white, joined by chief justice burger and justice rehnquist
III
Dissenting opinion of justice brennan
Dissenting opinion of justice marshall
Chapter-4---Mandatory-Death-Penalty-Woodson-v--North-Ca_2011_Death-Penalty-C
Mandatory Death Penalty—Woodson v. North Carolina (1976)
Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978,
49 L. Ed.2d 944 (1976)
Opinion of Justice Stewart, Joined by Justices Powell and Stevens
I
III
A
B
C
Dissenting Opinion of Justice White, Joined by Chief Justice Burger and Justice Rehnquist
Dissenting Opinion of Justice Rehnquist
I
II
III
IV
Chapter-5---Mitigating-Evidence-Lockett-v--Ohio--1978--an_2011_Death-Penalty
Mitigating Evidence—Lockett v. Ohio (1978) and Jurek v. Texas (1976)
Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed.2d 973 (1978)
Opinion of Chief Justice Burger, Joined by Justices Stewart, Powell, and Stevens
III
Dissenting Opinion of Justice White
Dissenting Opinion of Justice Rehnquist
I
Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed.2d 929 (1976)
Opinion of Justice Stevens, Joined by Justices Stewart and Powell
I
II
III
A
B
IV
Concurring Opinion of Justice White, Joined by Chief Justice Burger and Justice Rehnquist
Chapter-6---Racial-Bias-McCleskey-v--Kemp--1987-_2011_Death-Penalty-Cases
Racial Bias—McCleskey v. Kemp (1987)
McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262 (1987)
Opinion of Justice Powell for the Court
I
II
III
IV
V
Dissenting Opinion of Justice Brennan, Joined by Justices Marshall, Blackmun, and Stevens
II
III
IV
V
Chapter-7---Rape-and-Other-Nonhomicide-Crimes-Coker-v--_2011_Death-Penalty-C
Rape and Other Nonhomicide Crimes—Coker v. Georgia (1977)
Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed.2d 982 (1977)
Opinion of Justice White, Joined by Justices Stewart, Blackmun, and Stevens
I
II
III
A
B
IV
Opinion of Justice Powell, Concurring in the Judgment in Part and Dissenting in Part
Dissenting Opinion of Chief Justice Burger, Joined by Justice Rehnquist
Chapter-8---Murder-Godfrey-v--Georgia--1980-_2011_Death-Penalty-Cases
Murder—Godfrey v. Georgia (1980)
Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed.2d 398 (1980)
Opinion of Justice Stewart, Joined by Justices Blackmun, Powell, and Stevens
I
II
Dissenting Opinion of Justice White, Joined by Justice Rehnquist
IV
V
VI
Chapter-9---Felony-Murder-Enmund-v--Florida--1982--and-Ti_2011_Death-Penalty
Felony-Murder—Enmund v. Florida (1982) and Tison v. Arizona (1987)
Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed.2d 1140 (1982)
Opinion of Justice White for the Court
I
II
B
III
IV
Dissenting Opinion of Justice O’connor, Joined by Chief Justice Burger and Justices Powell and Rehnquist
I
II
A
B
C
Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed.2d 127 (1987)
Opinion of Justice O’connor for the Court
I
II
Dissenting Opinion of Justice Brennan, Joined by Justices Marshall, Blackmun, and Stevens
I
II
III
A
B
C
IV
A
Chapter-10---The-Mentally-Retarded-and-Juveniles-Atkins-v--V_2011_Death-Pena
The Mentally Retarded and Juveniles—Atkins v. Virginia (2002) and Roper v. Simmons (2005)
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed.2d 335 (2002)
Opinion of Justice Stevens for the Court
I
II
III
IV
Dissenting opinion of chief justice rehnquist, joined by justices scalia and thomas
Dissenting Opinion of Justice Scalia, Joined by Chief Justice Rehnquist and Justice Thomas
II
III
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed.2d 1 (2005)
Opinion of Justice Kennedy for the Court
I
II
III
A
B
IV
Concurring opinion of justice stevens, joined by justice ginsburg
Dissenting Opinion of Justice O’Connor
II
C
Dissenting Opinion of Justice Scalia, Joined by Chief Justice Rehnquist and Justice Thomas
I
II
III
Chapter-11---Child-Rape-Kennedy-v--Louisiana--2008-_2011_Death-Penalty-Cases
Child Rape—Kennedy v. Louisiana (2008)
Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641,
171 L. Ed.2d 525 (2008)
Opinion of Justice Kennedy for the Court
I
III
A
B
D
IV
A
B
V
Dissenting Opinion of Justice Alito, Joined by Chief Justice Roberts and Justices Scalia and Thomas
I
A
C
D
F
II
A
B
C
Chapter-12---Appropriate-Decision-Makers-Spaziano-v--Florid_2011_Death-Penal
Appropriate Decision Makers—Spaziano v. Florida (1984) and Ring v. Arizona (2002)
Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed.2d 340 (1984)
Opinion of Justice Blackmun for the Court
III
Opinion of Justice Stevens, Concurring in Part and Dissenting in Part, Joined by Justices Brennan and Marshall
IV
V
VII
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.2d 556 (2002)
Opinion of Justice Ginsburg for the Court
I
II
Concurring Opinion of Justice Scalia, Joined by Justice Thomas
Concurring opinion of justice kennedy
Opinion of justice breyer concurring in the judgment
I
II
Dissenting Opinion of Justice O’connor, Joined by Chief Justice Rehnquist
Chapter-13---Selecting-Jurors-Witherspoon-v--Illinois--1968-_2011_Death-Pena
Selecting Jurors—Witherspoon v. Illinois (1968), Turner v. Murray (1986), and Uttecht v. Brown (2007)
Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed.2d 776 (1968)
Opinion of Justice Stewart for the Court
I
II
III
Dissenting Opinion of Justice Black, Joined by Justices Harlan and White
Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed.2d 27 (1986)
Opinion of Justice White for the Court
II
III
IV
Dissenting Opinion of Justice Powell, Joined by Justice Rehnquist
I
Uttecht v. Brown, 551 U.S. 1, 127 S. Ct. 2218, 167 L. Ed.2d 1014 (2007)
Opinion of Justice Kennedy for the Court
I
II
A
B
III
B
Iv
Dissenting Opinion of Justice Stevens, Joined by Justices Souter, Ginsburg, and Breyer
I
II
Dissenting opinion of justice breyer, joined by justice souter
Chapter-14---Victim-Impact-Evidence-Payne-v--Tennessee_2011_Death-Penalty-Ca
Victim Impact Evidence—Payne v. Tennessee (1991)
Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed.2d 720 (1991)
Opinion of Chief Justice Rehnquist
for The Court
Concurring Opinion of Justice Souter, Joined by Justice Kennedy
Dissenting Opinion of Justice Marshall, Joined by Justice Blackmun
Dissenting Opinion of Justice Stevens, Joined by Justice Blackmun
II
III
IV
V
Chapter-15---The-Sentencing-Decision-McKoy-v--North-Carolin_2011_Death-Penal
The Sentencing Decision—McKoy v. North Carolina (1990) and Kansas v. Marsh (2006)
McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed.2d 369 (1990)
Opinion of Justice Marshall for the Court
I
II
III
Dissenting Opinion of Justice Scalia, Joined by Chief Justice Rehnquist and Justice O’connor
I
III
IV
Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed.2d 429 (2006)
Opinion of Justice Thomas for the Court
I
III
IV
A.
B.
V
Dissenting Opinion of Justice Stevens
Dissenting Opinion of Justice Souter, Joined by Justices Stevens, Ginsburg, and Breyer
II
III
Chapter-16---Ineffective-Counsel-Strickland-v--Washington--_2011_Death-Penal
Ineffective Counsel—Strickland v. Washington (1984) and Williams v. Taylor (2000)
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed.2d 674 (1984)
Opinion of Justice O’connor for the Court
I
A.
II
III
A.
B.
V
Opinion of Justice Brennan, Concurring in Part and Dissenting in Part
Dissenting Opinion of Justice Marshall
I
A.
B.
III
IV
Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. E.2d 389 (2000)
Opinion of Justice Stevens for the Court
I
State Habeas Corpus Proceedings
Federal Habeas Corpus Proceedings
IV
Dissenting opinion of Chief Justice Rehnquist, Joined by Justices Scalia and Thomas
Chapter-17---Claims-of-Innocence-Herrera-v--Collins--1993-_2011_Death-Penalt
Claims of Innocence—Herrera v. Collins (1993) and Kansas v. Marsh (2006)
Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed.2d 203 (1993)
Opinion of chief justice rehnquist for the court
Concurring opinion of justice o’connor, joined by justice kennedy
Concurring opinion of justice scalia, joined by justice thomas
Concurring opinion of justice white
Dissenting opinion of justice blackmun, joined in parts i–iv by justice stevens and souter
I
A
B
C
A
C
II
III
IV
V
Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed.2d 429 (2006)
Dissenting opinion of justice souter, joined by justices stevens, ginsburg, and breyer
III
Concurring opinion of justice scalia
III
Chapter-18---Insane-Convicts-May-Not-Be-Executed-Ford-v--Wai_2011_Death-Pena
Insane Convicts May Not Be Executed—Ford v. Wainwright (1986) and Panetti v. Quarterman (2007)
Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed.2d 335 (1986)
Opinion of Justice Marshall for the Court
II
Concurring opinion of justice powell
I
Opinion of justice o’connor, joined by justice white, concurring in the result in part and dissenting in part
Dissenting Opinion of Justice Rehnquist, Joined by Chief Justice Burger
Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed.2d 662 (2007)
Opinion of Justice Kennedy for the Court
I
IV
A
B
Dissenting Opinion of Justice Thomas, Joined by Chief Justice Roberts and Justices Scalia and Alito
III
Chapter-19---Method-of-Execution-Baze-v--Rees--2008-_2011_Death-Penalty-Case
Method of Execution—Baze v. Rees (2008)
Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed.2d 420 (2008)
Opinion of Chief Justice Roberts, Joined
by Justices Kennedy and Alito
I
A.
B.
II
A.
B.
C.
III
A.
B.
Concurring Opinion of Justice Alito
I
II
III
Opinion of Justice Stevens Concurring in the Judgment
I
II
III
IV
Opinion of Justice Scalia Concurring in the Judgment, Joined By Justice Thomas
I
III
Opinion of Justice Thomas Concurring in the Judgment, Joined by Justice Scalia
I
II
III
IV
V
Opinion of Justice Breyer Concurring in the Judgment
Dissenting Opinion of Justice Ginsburg, Joined by Justice Souter
I
II
Appendix-A---Facts-and-Figures-on-Murder-and-the-Death_2011_Death-Penalty-Ca
Facts and Figures on Murder and the Death Penalty
Homicides
Age of offenders
Race of offenders
Gender of offenders
Age of victims
Race of victims
Homicide circumstances
Murder arrests, convictions, and sentences
Death sentences and executions
Number sentenced and executed
Death penalty jurisdictions
Method of execution
Capital offender characteristics
Time consumption
Public opinion
Other countries
Appendix-B---Understanding-Statutory-Provisions_2011_Death-Penalty-Cases
Understanding Statutory Provisions
Aggravating Circumstances
Death-eligibility
Cal. Penal Code § 190.2
Fla. Stat. Ann. § 921.141(5)
TEX. Penal Code Ann. § 19.03—Capital Murder
Mont. Code Ann. § 46-18-303
Role of aggravating circumstances in determining whether a defendant receives a death sentence
Mitigating circumstances
Rules for Sentencing Decisions
Arkansas Code, Section 5-4-603
Pennsylvania Consolidated Statutes, Title 42, Section 9711
Texas Code of Criminal Procedure, Article 37.071

Citation preview

Death Penalty Cases Third Edition

Death Penalty Cases

Third Edition

Leading U.S. Supreme Court Cases on Capital Punishment Barry Latzer David McCord

AMSTERDAM • BOSTON • HEIDELBERG • LONDON NEW YORK • OXFORD • PARIS • SAN DIEGO SAN FRANCISCO • SINGAPORE • SYDNEY • TOKYO Butterworth-Heinemann is an imprint of Elsevier

Acquiring Editor: Pamela Chester Development Editor: Gregory Chalson Project Manager: Marilyn Rash Designer: Alisa Andreola Butterworth-Heinemann is an imprint of Elsevier 30 Corporate Drive, Suite 400, Burlington, MA 01803, USA Copyright © 2011 Elsevier, Inc. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher. Details on how to seek permission, further information about the Publisher’s permissions policies and our arrangements with organizations such as the Copyright Clearance Center and the Copyright Licensing Agency, can be found at our website: www.elsevier.com/permissions. This book and the individual contributions contained in it are protected under copyright by the Publisher (other than as may be noted herein). Notices Knowledge and best practice in this field are constantly changing. As new research and experience broaden our understanding, changes in research methods or professional practices may become necessary. Practitioners and researchers must always rely on their own experience and knowledge in evaluating and using any information or methods described herein. In using such information or methods they should be mindful of their own safety and the safety of others, including parties for whom they have a professional responsibility. To the fullest extent of the law, neither the Publisher nor the authors, contributors, or editors, assume any liability for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions, or ideas contained in the material herein. Library of Congress Cataloging-in-Publication Data Latzer, Barry, 1945Death penalty cases : leading U.S. Supreme Court cases on capital punishment / Barry Latzer, David McCord. — [3rd ed.] p. cm. ISBN 978-0-12-382024-2 1. Capital punishment—United States—Cases. I. United States Supreme Court. II. Title. KF9227.C2L38 2011 345.73’0773—dc22 2010033966 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. For information on all Butterworth-Heinemann publications visit our website at www.elsevierdirect.com/security Printed in the United States of America 10  11  12  13  14   10  9  8  7  6  5  4  3  2  1



For Miriam Latzer – no longer a kid, but still my best To my parents Wallace and June McCord, my wife Laura, and my children Jess, Kyle, and Claire

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

Preface

This third edition of Death Penalty Cases is a substantial revision that nonetheless retains the qualities and essential format of previous versions. It continues to present substantial verbatim excerpts from the most important United States Supreme Court decisions on the death penalty. Five new part headings have been created to bring more organizational structure to the cases: Part I, Foundational Cases; Part II, Death-Eligible Crimes and Persons; Part III, The Death Penalty Trial; Part IV, Post-Conviction Review; and Part V, Execution Issues. We have also added to Chapter 1, Introduction, a list of readings keyed to the chapters of Death Penalty Cases. These books and articles present, wherever possible, contrasting viewpoints on each topic. In addition, Appendices A and B present supporting material that may serve as a reference tool for students or for anyone interested in the subject. We continue to present this material as impartially as possible, adopting a completely neutral stance on the merits of capital punishment as public policy. We have added nine cases, most of which were decided after the publication of the second edition: Roper v. Simmons (2005), prohibiting the execution of juveniles Kennedy v. Louisiana (2008), barring the death penalty for raping a child ■ Ring v. Arizona (2002), requiring that a jury, not a judge, determine the facts that make a defendant eligible for a death sentence ■ Uttecht v. Brown (2007), concerning the selection of impartial jurors in a death penalty trial ■ Kansas v. Marsh (2006), involving the appropriate considerations for a jury that must determine whether or not to impose a death sentence ■ Strickland v. Washington (1984), establishing the legal standard for ineffective assistance of counsel ■ Williams v. Taylor (2000), clarifying the Strickland v. Washington standard for ineffective assistance of counsel ■ ■

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

ix

x

Preface

Panetti v. Quarterman (2007), discussing the standards for carrying out the death sentence on a prisoner who claims to be insane ■ Baze v. Rees (2008), approving the use of lethal injection as a method of execution ■

We also have deleted eight cases whose importance has been superseded or whose significance is best understood through later cases: Blystone v. Pennsylvania (1990), Lockhart v. McCree (1986), Turner v. Murray (1986), Simmons v. South Carolina (1994), Burger v. Kemp (1987), Pulley v. Harris (1984), Arizona v. Rumsey (1984), and Stanford v. Kentucky (1989). Chapter 1 has been revised, particularly to include a more detailed history of the death penalty in the United States and an expanded survey of arguments for and against capital punishment. All Editors’ Notes at the beginning of Chapters 2 through 19 have been revised, and we have added thoughtprovoking questions at the end of many chapters. Appendix A, Facts and Figures on Murder and the Death Penalty, has been updated with the most recent information available. Appendix B, Understanding Statutory Provisions, has been revised to provide a guided tour of the key features of death penalty statutes. The first edition of this book was the creation of Professor Barry Latzer of John Jay College of Criminal Justice; Professor Latzer also revised the book into its second edition. Professor David McCord of Drake University Law School has joined as a co-author for this third edition, which very much reflects the Latzer/McCord partnership, a shared commitment to produce in one compact book the most useful and comprehensive source for understanding the death penalty in the United States.

Acknowledgments Anyone who writes a book knows that the process involves a great many people, not just authors. We have been very fortunate to work with a team of real professionals at Elsevier, a team dedicated to producing the best possible casebook in the criminal justice field. Their work deserves a tribute. Our deep appreciation goes to Pam Chester, our Acquisitions Editor; Marilyn Rash, the Project Manager in Production; Greg Chalson, Senior Development Editor in charge of instructor ancillaries; and Alisa Andreola who gave us the dramatic new cover. Barry Latzer David McCord

Table of Cases idx0115

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) 111 Adams v. Texas, 448 U.S. 38 (1980) 265 Almendarez-Torres v. United States, 523 U.S. 224 (1998) 244n4 Apodaca v. Oregon, 406 U.S. 404 (1972) 304 Apprendi v. New Jersey, 530 U.S. 466 (2000) 242, 244, 244n4, 248, 250 Arave v. Creech, 507 U.S. 463 (1993) 146 Arizona v. Rumsey, 467 U.S. 203 (1984) x Atkins v. Virginia, 536 U.S. 304 (2002) 111, 181–199, 201–202 Ballew v. Georgia, 435 U.S. 223 (1978) Batson v. Kentucky, 476 U.S. 79 (1986) Baze v. Rees, 553 U.S. 35 (2008) Bazemore v. Friday, 478 U.S. 385 (1986) Beck v. Alabama, 447 U.S. 625 (1980) Blystone v. Pennsylvania, 494 U.S. 299 (1990) Booth v. Maryland, 482 U.S. 496 (1987) Boyde v. California, 494 U.S. 370 (1990) Branch v. Texas, 408 U.S. 238 (1972) Brewer v. Quarterman, 550 U.S. 286 (2007) Brown v. Allen, 344 U.S. 443 (1953) Burch v. Louisiana, 441 U.S. 130 (1979) Burger v. Kemp, 483 U.S. 776 (1987) Cabana v. Bullock, 474 U.S. 376 (1986) California v. Brown, 479 U.S. 538 (1987) Campbell v. Wood, 511 U.S. 1119 (1994) Chapman v. California, 386 U.S. 18 (1967) Coker v. Georgia, 433 U.S. 584 (1977) Coleman v. Thompson, 504 U.S. 188 (1992) Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

305 128–129 x, 387–409 116, 125–126 342, 357 x, 282, 296, 313 275, 276, 278, 284 296, 310–311, 313 106, 110 111 352 304 x, 285 176 289 388 328 135–143, 159, 184, 355 365 xi

xii

Table of Cases

Duncan v. Louisiana, 391 U.S. 145 (1968)

247

Eberheart v. Georgia, 433 U.S. 917 (1977) 135 Eddings v. Oklahoma, 455 U.S. 104 (1982), 121n37, 198, 281, 302 Enmund v. Florida, 458 U.S. 782 (1982) 155, 156–165, 168,    171, 243, 289 Ex parte Garland, 4 Wall. 333 (1867) 347 Farmer v. Brennan, 511 U.S. 825 (1994) 392 Ford v. Wainwright, 477 U.S. 399 (1986) 186, 356, 360, 373–379, 380 Francis v. Resweber, 329 U.S. 459 (1947) 392 Franklin v. Lynaugh, 487 U.S. 164 (1988) 111, 309 Furman v. Georgia, 408 U.S. 238 (1972) 1n1, 6, 8, 22, 37–66, 67,     69, 72, 73, 78, 79, 91, 92, 103, 106, 109, 110, 122, 124, 136, 137,   148, 149, 218, 247, 306, 309, 313, 401, 417, 428 Gardner v. Florida, 430 U.S. 349 (1977) 126 Gideon v. Wainwright, 372 U.S. 335 (1963) 5n7 Godfrey v. Georgia, 446 U.S. 420 (1980) 145–153, 187, 196, 290, 304 Graham v. Collins, 506 U.S. 461 (1993) 111 Gregg v. Georgia, 428 U.S. 153 (1976) 18, 67–83, 86, 88,     99, 106, 107, 109, 117, 118, 124, 136–137, 145, 146, 148, 149, 160, 187, 249, 280–281, 291, 295, 301, 305, 305n5, 309, 355, 389, 417 Ham v. South Carolina, 409 U.S. 524 (1973) Harmelin v. Michigan, 501 U.S. 957 (1991) Harris v. Alabama, 513 U.S. 504 (1995) Helling v. McKinney, 509 U.S. 25 (1993) Herrera v. Collins, 506 U.S. 390 (1993) Hitchcock v. Dugger, 481 U.S. 393 (1987) Hodgson v. Minnesota, 497 U.S. 417 (1990) Hooks v. Georgia, 433 U.S. 917 (1977) House v. Bell, 386 F.3d 668 (2004) House v. Bell, 547 U.S. 518 (2006)

254 184, 196, 231, 404 249 392 337–361, 367 302 212 135 365–366 338

In re Kemmler, 136 U.S. 436 (1890) In re Winship, 397 U.S. 358 (1970)

4, 7–8, 63, 72, 391 342

Jackson v. Virginia, 443 U.S. 307 (1979) Johnson v. Mississippi, 486 U.S. 578 (1988) Johnson v. Texas, 509 U.S. 350 (1993) Jurek v. Texas, 428 U.S. 262 (1976)

343, 354 356 111, 205 99, 102, 104–111, 296

Table of Cases

Kansas v. Marsh, 548 U.S. 163 (2006) ix, 295, 306–315, 338, 361–371 Kennedy v. Louisiana, U.S., 128 S. Ct. 2641 (2008) ix, 135, 215–233 Kuhlmann v. Wilson, 554 U.S. 407 (2008) 345, 358 Leland v. Oregon, 343 U.S. 790 (1952) 304 Lockett v. Ohio, 438 U.S. 586 (1978) 99–104, 121n37,171, 198, 298,        302, 345, 437 Lockhart v. McCree, 476 U.S. 162 (1986) x, 272 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) 50, 96 Malloy v. South Carolina, 237 U.S. 180, 185 (1915) 388 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 360 Maynard v. Cartwright, 486 U.S. 356 (1988) 145 McCleskey v. Kemp, 481 U.S. 279 (1987) 21, 113–133, 212, 293, 300 McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984) 113 McGautha v. California, 402 U.S. 183 (1971) 6, 37, 43, 44, 58 McKoy v. North Carolina, 494 U.S. 433 (1990) 295, 296–306, 345 McMann v. Richardson, 397 U.S. 759 (1970) 320 Medina v. California, 505 U.S. 437 (1992) 345 Mills v. Maryland, 486 U.S. 367 (1988) 281, 292, 295, 296, 297 Morgan v. Illinois, 504 U.S. 719 (1992) 254 Morissette v. United States, 342 U.S. 246, 250 (1952) 175 Murray v. Carrier, 477 U.S. 478 (1986) 358 Murray v. Giarratano, 492 U.S. 1 (1989) 345 Nelson v. Campbell, 541 U.S. 637 (2004) Nobles v. Georgia, 168 U.S. 398, 405–406 (1897) O’Neil v. Vermont, 144 U.S. 323 (1892) Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)

405 379 50 33

Panetti v. Quarterman, 551 U.S. 930 (2007) x, 373, 379–386 Patterson v. New York, 432 U.S. 197 (1977), 299, 342, 346 Payne v. Tennessee, 501 U.S. 808 (1991), 85, 275–293 Penry v. Johnson, 532 U.S. 782 (2001) 111 Penry v. Lynaugh, 492 U.S. 302 (1989) 182, 202, 300, 301, 302, 313 People v. Kelly, 171 P. 3d 548 (2007) 294 People v. LaValle, 3 N.Y. 3d 88 (2004) 417n7 People v. Smith, 185 Ill. 2d 532, 708 N. E. 2d 365 (1999) 367–368 Powell v. Alabama, 287 U.S. 45 (1932) 5n7 Proffitt v. Florida, 428 U.S. 242 (1976) 102, 107, 235, 244n4, 437 Pulley v. Harris, 465 U.S. 37 (1984) x, 118–119, 120

xiii

xiv

Table of Cases

Ring v. Arizona, 536 U.S. 584 (2002) ix, 145, 235, 236, 241–251, 307 Ristaino v. Ross, 424 U.S. 589 (1976) 254, 262, 263 Roberts v. Louisiana, 428 U.S. 325 (1976) 85, 91, 103, 107, 110 Robinson v. California, 370 U.S. 660 (1962) 8, 96, 136, 184, 356n2 Rochin v. California, 342 U.S. 165, 172 (1952) 358 Roper v. Simmons, 543 U.S. 551 (2005) ix, 181, 199–214 Rosales-Lopez v. United States, 451 U.S. 182 (1981) 254, 262, 262n2 Ross v. Moffitt, 417 U.S. 600 (1974) 342 Rudolph v. Alabama, 375 U.S. 889 (1963) 6n9 Saffle v. Parks, 494 U.S. 484 (1990) 303 Sawyer v. Whitley, 505 U.S. 333 (1992) 344 Schlup v. Delo, 513 U.S. 298 (1995) 338 Sheets v. Butera, 389 F. 3d 772 (CA8 2004) 368–369 Shell v. Mississippi, 498 U.S. 1 (1990) 145 Simmons v. South Carolina 512 U.S. 154 (1994) x Skipper v. South Carolina, 476 U.S. 1 (1986) 302 Smith v. Murray, 477 U.S. 527 (1986) 358–359 Smith v. Texas, 543 U.S. 37 (2004) 111 Snider v. Peyton, 356 F.2d 626, 627 (CA4 1966) 141 Snyder v. Massachusetts, 291 U.S. 97 (1934) 284 Sochor v. Florida, 504 U.S. 527 (1992) 314 Solem v. Helm, 463 U.S. 277 (1983) 122, 174, 178, 193, 360 South Carolina v. Gathers, 490 U.S. 805 (1989) 275, 276, 278, 284 Spaziano v. Florida, 468 U.S. 447 (1984) 235, 236–241, 314, 355, 357 Stanford v. Kentucky, 492 U.S. 361 (1989) x, 181, 189, 200, 202,   207, 211, 220 State v. Sheets, 260 Neb 325, 327, 618 N. W. 2d 117, 122 (2000) 369 Strickland v. Washington, 466 U.S. 668 (1984) ix, 317–329, 335 Sumner v. Shuman, 483 U.S. 66 (1987) 198 Tennard v. Dretke, 542 U.S. 274 (2004) 111 Thompson v. Oklahoma, 487 U.S. 815, 863–864 (1988) 191, 202 Tibbs v. Florida, 457 U.S. 31 (1982) 369 Tison v. Arizona, 481 U.S. 137 (1987) 155, 165–180, 193, 243, 279,    289, 290 Townsend v. Sain, 372 U.S. 293 (1963) 341, 342, 354, 358 Trop v. Dulles, 356 U.S. 86 (1958) 8, 44, 51, 72, 89, 96, 136, 184,   207–208, 222 Tuilaepa v. California, 512 U.S. 967 (1994) 145 Turberville v. United States, 112 U.S. App. D.C. 400 (1962) 259 Turner v. Murray, 476 U.S. 28 (1986) x, 119, 126, 253, 254, 260–263

Table of Cases

United States v. Lovett, 328 U.S. 303, 324 (1946) United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833) Uttecht v. Brown, 551 U.S. 1 (2007)

57 346–347 ix, 253, 254, 264–274

Wainwright v. Witt, 469 U.S. 412 (1985) 254, 264–265, 271 Walton v. Arizona, 497 U.S. 639 (1990) 99, 145, 236, 242, 244, 247, 248, 250, 295, 307, 313, 315 Washington v. Davis, 426 U.S. 229 (1976) 113 Weems v. United States, 217 U.S. 349 (1910) 8, 47, 50, 136, 184, 404 West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943) 360 Wilkerson v. Utah, 99 U.S. 130 (1879) 7, 50, 63, 72, 96, 391 Williams v. Florida, 399 U.S. 78 (1970) 305 Williams v. New York, 337 U.S. 241, 248 (1949) 57, 73 Williams v. Taylor, 529 U.S. 362 (2000) ix, 317, 329–335 Witherspooon v. Illinois, 391 U.S. 510 (1968) 6, 41, 72, 88, 120, 238,   249, 253–260, 264, 272 Woodson v. North Carolina, 428 U.S. 280 (1976) 67, 85–97, 99, 103,      107, 121n37, 181, 198, 285, 295–296, 306, 428, 437 Zant v. Stephens, 462 U.S. 862, 885 (1983)

131

xv

Chap ter 1

Capital Punishment in America History Capital punishment is of ancient origin. Indeed, the very name “capital” indicates its antiquity. The word derives from the Latin caput, which means “head.” Capital punishment, therefore, may refer to decapitation or beheading as a method of execution. Today the phrase is interchangeable with the term “death penalty” regardless of how imposed. The death penalty was transported from England to the American colonies during the 17th and 18th centuries. The English legal system placed substantial reliance on it, in part because the concept of imprisoning people for varying lengths of time had not fully developed until the end of the 1700s. The death penalty has persisted for almost four centuries on American soil, accounting for, at best estimate, about 20,000 executions.1 But the penalty has undergone dramatic changes over that time. The next three pages briefly examine the trends up to about 1950, when the forces that would lead the United States Supreme Court to “constitutionalize” the death penalty began to appear. Pages 4 to 6 provide a concise survey of trends since 1950, setting forth the historical context for the earliest cases in this book. This historical survey ends with the landmark cases of the 1970s, excerpts from which are reprinted in Chapters 2 through 5. The post-1976 history may be gleaned from Chapters 6 through 19.

Stuart Banner, The Death Penalty: An American History (Harvard University Press, 2002), the primary source for this summary, notes that there are no definitive numbers for total executions. The most complete listing, by researcher Watt Espy, put the number at over 19,000 by 1998. Espy’s database gives an idea of the distribution of executions over time: more than 100 before 1700, about 1500 in the 18th century, over 5000 in the 19th century, and over 7000 from 1900 to 1972 (up to Furman v. Georgia); see www.deathpenaltyinfo.org/executions-us-1608-2002-espy-file. From 1972 to early 2010, there were about 1200 executions.

1

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

1

2

Chapter 1:  Capital Punishment in America

Colonial Practice to the Mid-20th Century In America in the 17th and 18th centuries, death was imposed by hanging in a public and solemn occasion attended by everyone in the area—men, women, and children. Public execution was intended to provide justice to the accused (retribution), to frighten others in order to prevent crime (deterrence), and to give the condemned an opportunity to repent and thereby gain salvation in an afterlife. Hangings were accompanied by sermons, a speech by the condemned, and hymn singing. They were, in short, quasi-religious occasions. Their solemnity reinforced a sense of community and impressed the average person with the awesome power of the law. The list of capital crimes in those days was quite long; however, the proportion of offenders actually executed is uncertain. Although trials took less than a day and, until the 19th century, appeals were not permitted, there was a great deal of leniency. An accused sometimes was granted “benefit of clergy,” which resulted in the remittance of certain death sentences.2 Executive clemency by state governors was common in the 18th century as well. In New York, for instance, more than half of the condemned received clemency. There even were “mock hangings” to emphatically deliver the message but spare the life of the offender. There was virtually no opposition to the death penalty until the end of the 18th century, when the concept of imprisoning criminals for varying amounts of time, depending on their crimes, began to mature. Efforts to completely abolish capital punishment gained ground in the 19th century. Beginning with Michigan in 1846, some midwestern states ended the practice altogether. Occasionally, however, in response to a particularly atrocious crime, the ­penalty would be reinstated, only to be reabolished later. In the South, largely because of slavery, the movement to abolish capital punishment never caught on.3 “Benefit of clergy” traces back to England in the Middle Ages when Catholic priests, subject to punishment in ecclesiastical courts, were given immunity in civil courts. The test for the benefit was an ability to read, which few nonclergy could do. Given the unfairness of this test to the uneducated defendant, the benefit eventually was extended to anyone accused of certain minor crimes nevertheless punishable by death. By pleading the benefit of clergy, the accused could get leniency—branding on the thumb instead of execution. Because of the benefit’s arbitrariness, however, Congress declined in 1790 to approve it, and the states abolished the practice soon thereafter. See Stuart Banner, The Death Penalty: An American History, pp. 62–64 (Harvard University Press, 2002); William Blackstone, Commentaries on the Laws of England, Book 4 Chap. 28 (1765–1769); see,www.lonang.com/exlibris/blackstone/bla–428.htm. 3 The South was slow to adopt penitentiaries; when it did, they were for whites and free blacks. Slaves were punished on the plantation by whipping, but they could be hanged after a trial in the regular courts for a fairly long list of serious crimes or, in a few cases, burned to death for grave misconduct such as engaging in a slave rebellion. The southern penitentiaries were destroyed during the Civil War and, because of postwar shortages of money, not immediately rebuilt. This gave impetus to the death penalty and to the convict lease system, both of which were disproportionately applied to AfricanAmerican convicts. See Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the 19th-Century American South (Oxford University Press, 1984). 2

History

As with most aspects of American culture, the death penalty was applied discriminatorily against African Americans. This was especially true in the slaveholding states of the South, where certain capital crimes were applicable only to blacks. Slaves could be executed for such crimes as wounding a white man, a third conviction for striking a white man, poisoning or attempted poisoning, crop burning, insurrection, and assault with intent to rape a white woman.4 Throughout the 19th century there were widespread extralegal executions in the United States—lynchings—especially in the West and South. These took place in areas where there were few law enforcement personnel and often ineffectual criminal justice systems. Mainly whites were lynched in the West, and, before the Civil War, that was true even in the South. At the end of the 19th century, however, when the southern states adopted a rigid system of segregation by race, it was overwhelmingly (but not exclusively) blacks who were hanged without trials. Lynching declined dramatically in the United States by the early decades of the 20th century.5 One effect of the movement to abolish capital punishment was a steady reduction in the number and kinds of crimes for which death was a possible punishment. In Pennsylvania at the end of the 18th century, levels of homicide, or “degrees” of murder, were established to differentiate capital from noncapital crimes. The practice of dividing murder into first- and second-degree offenses, with only the former being death-eligible, was adopted by nearly all states during the 19th century. Under the system inherited from England, death had been a mandatory penalty for certain crimes. Beginning in the mid-1800s, however, American jurisdictions abandoned mandatory death sentencing in favor of allowing jurors to choose between death and imprisonment. A major reason for this change was jury nullification, through which jurors acquitted obviously guilty culprits rather than send them to the gallows. Yet another effect of the reform movement was to seek more humane methods of execution. The primary method until the 20th century was hanging, but hangings were known to go gruesomely wrong sometimes, decapitating some criminals and leaving others dangling for long periods. Moreover, public hangings were becoming unruly gatherings, attended by drunks and rowdies—a far

See Michael Stephen Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878, p. 131 (University of North Carolina Press, 1980). 5 One database listed over 2800 lynchings, mostly of blacks, in ten southern states, carried out between the 1880s and the first two decades of the 20th century; see http://people.uncw.edu/hinese/HAL/HAL%20 Web%20Page.htm. For a good history of lynching, see Michael J. Pfeifer, Rough Justice: Lynching and American Society, 1874–1947 (University of Illinois Press, 2004). 4

3

4

Chapter 1:  Capital Punishment in America

cry from the solemn community rituals of the previous century. By the end of the 19th century, executions, conducted at a central location within the state, became closed events to which only a few invited guests were admitted. The last public execution in the United States was in 1936. The power—and danger—of harnessed electricity convinced the New York legislature to mandate “electrocution” (a newly coined term) as the state’s mode of execution in 1888.6 The Supreme Court gave approval in In re Kemmler, 136 U.S. 436 (1890), and by 1913 electrocution had been adopted in 14 more states. It was believed to be more surely and swiftly lethal and therefore more humane than hanging. Beginning in 1921, 11 states adopted lethal gas, also for humanitarian reasons. By the middle of the 20th century, in most American jurisdictions death was an authorized punishment only for the highest level of homicide offense, typically first-degree murder. A few states still had the death penalty on the books for some nonhomicide crimes like rape, kidnapping, and armed robbery, but rarely if ever resorted to it—except sometimes in the South for blacks convicted of raping a white woman. By 1950, about one-quarter of the states—none in the South—had abolished the death penalty. Criminal defendants also had gained considerable procedural protections, including more federal constitutional rights, more consistent assistance of defense lawyers, and greater availability of appellate review. By mid-century, death-sentenced inmates were increasingly prevailing on appeal, and even those who didn’t sometimes managed to litigate for years before being executed.

1950 to 1976 From 1950 to 1968, the death penalty went into decline. The nationwide total of 158 death sentences handed out in 1935 decreased to 79 in 1950. Actual executions also declined significantly (albeit with some modest yearly spikes upward) and then went into freefall—plummeting from over 40 in 1962 to 0 by 1968 (see Appendix A, Figure A.7). The reason was threefold. At the time, a monumental battle of technologies was under way between Thomas Edison, promoting the virtues of direct current, and George Westinghouse, touting alternating current. One of Edison’s arguments was that alternating current was more dangerous (which was true), and he demonstrated this by dispatching animals with it—including a rogue circus elephant that had killed three people. (Edison memorialized this event, which took place in 1903 at Coney Island in front of 1500 spectators, via another new technology—motion pictures. The rudimentary film can be viewed on the web). As part of his negative publicity campaign, Edison proposed that killing by alternating current be referred to as “westinghousing.” Despite Edison’s efforts, alternating current largely prevailed over direct current because of several inherent technological advantages, and so “electrocuted” prevailed over “westinghoused.”

6

History

First, the rights of criminal defendants, especially the right to counsel, were dramatically expanded. Many states, even without prompting by the U.S. Supreme Court, began to grant indigent defendants the right to counsel at public expense in capital cases. And the Court, beginning in limited fashion in the “Scottsboro Boys” case in 1932 and culminating in the sweeping Gideon ruling three decades later, established a federal constitutional right to state-paid counsel for all felony trials.7 Moreover, largely in the 1960s, the Supreme Court “incorporated” most of the criminal procedure protections of the Bill of Rights into the Fourteenth Amendment Due Process Clause, making these rights applicable to the states, where the overwhelming majority of capital cases, and indeed all criminal cases, were prosecuted. The effect of this was to give the Supreme Court power over criminal proceedings throughout the United States, power that the Court under Chief Justice Earl Warren used to greatly expand defendants’ rights. The increasing participation of defense lawyers and the proliferation of constitutional rights made trials more time-consuming and complicated, and encouraged more vigorous appellate review. Second, public opinion in favor of the death penalty was softening. In 1953, roughly 70% of the American public approved of capital punishment for someone convicted of murder. By the 1960s, that support had fallen to less than half of the respondents, with only 42% giving approval in 1966. (See Appendix A, Figure A.8 and Table A.5.) Third, the leaders of the civil rights movement, in full swing at the time, took aim at the death penalty, which they and their civil liberties allies saw as a vestige of the racially discriminatory criminal justice system established in the southern states in the 19th century. In particular, lawyers from the NAACP’s Legal Defense Fund and the American Civil Liberties Union were keen to attack the institution of capital punishment. As historian Stuart Banner put it, “[t]he idea of mounting a systemic challenge to the death penalty was an outgrowth of the civil rights movement.”8 These three developments proved to be a potent combination in gradually slowing the number of executions and finally, following a gas chamber execution in Colorado in mid-1967, bringing them to a screeching halt for an entire decade.

7 Powell v. Alabama, 287 U.S. 45 (1932) held that indigent capital defendants who were incapable of self-defense were entitled to publicly paid counsel. Gideon v. Wainwright, 372 U.S. 335 (1963) extended the right to all indigent felony defendants regardless of ability to defend themselves. 8 Stuart Banner, The Death Penalty: An American History, p. 247 (Harvard University Press, 2002).

5

6

Chapter 1:  Capital Punishment in America

Litigation had proven successful in attacking race discrimination, and the anti−death penalty lawyers hoped the same might be true for capital punishment. Their hopes were galvanized by a dissent by Supreme Court Justice Arthur Goldberg in a 1963 capital case, in which three Justices indicated that the proportionality of a death sentence for rape was an important constitutional issue that should have been reviewed by the High Court.9 The first major legal blow to the death penalty came five years later in Witherspoon v. Illinois (Chapter 13), where the Court ruled on the selection of jurors in capital cases. In 1971, however, the abolitionist legal campaign suffered what appeared to be a mortal setback in McGautha v. California, 402 U.S. 183 (1971). There the Court rejected, by a 6-to-3 vote, the due process argument that giving juries unrestricted discretion to decide whether a death sentence should be imposed—the practice in every death penalty jurisdiction—resulted in unconstitutional arbitrariness. Despite the rebuff, the anti−death penalty lawyers put forth the same argument in the Court’s next Term in the case of William Henry Furman, this time couching the claim in terms of the Eighth Amendment’s Cruel and Unusual Punishments Clause. Much to everyone’s astonishment, the vote in Furman v. Georgia was 5 to 4 in favor of Furman’s position. (See Chapter 2.) While the defense lawyers’ argument had not changed, the minds of Justices Potter Stewart and Byron White had, seemingly influenced by the dramatic drop in death sentences and executions since the 1930s and by the outright abolition by several states in the preceding two decades. The Furman decision, which declared the death penalty unconstitutional as it was then applied, stunned the nation and set off a pro−death penalty backlash culminating in the 1976 Supreme Court reaffirmations of capital punishment. (See Chapters 3 through 5.) It also moved the Court to center stage in the molding of capital case procedures. The death penalty had been, in a word, “constitutionalized.”

The cruel and unusual punishments clause The Eighth Amendment to the United States Constitution, along with the rest of the Bill of Rights, was ratified in 1791. It says, Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

9

Rudolph v. Alabama, 375 U.S. 889 (1963) (Goldberg, J., dissenting from the denial of certiorari).

The Cruel and Unusual Punishments Clause

The Cruel and Unusual Punishments Clause was derived from the English Bill of Rights of 1689, from which the Eighth Amendment language was taken verbatim. The English Bill was a response to the cruelty of King James II, who savagely suppressed a revolution against him. Hundreds of rebels were captured, tried before special courts (the “Bloody Assizes”), and brutally executed by being hanged, cut down before death, disemboweled, beheaded, and hacked to pieces. Use of the rack, drawing and quartering, and burning alive also were common in Europe prior to the 18th century. By 1791, the phrase “nor cruel and unusual punishments inflicted” had become a stock verbal formula in foundational documents of the era. It appeared in the Virginia Declaration of Rights of 1776, several other state constitutions, and the Northwest Ordinance of 1787. Thus, there was almost no debate about it during the adoption of the Bill of Rights. Clearly, though, the Clause was intended to at least forbid the federal government10 from using barbarous modes of execution that inflicted more pain than was necessary to extinguish life. Equally clearly, the Clause was not intended to abolish the practice of capital punishment, which was well established before, during, and after the founding era and was recognized in the Fifth Amendment.11 The Cruel and Unusual Punishments Clause was scarcely mentioned in the courts for almost 90 years after its adoption. It was construed for the first time by the United States Supreme Court in 1879 and again in 1890. These cases involved claims, both rejected, within the core historical meaning of the Clause—that a particular mode of execution was barbarous. First, in Wilkerson v. Utah, 99 U.S. 130 (1879), the Court unanimously upheld a sentence of death by firing squad. Although the Eighth Amendment had not yet been made applicable to the states, it was enforceable in federal territories such as Utah at the time of Wilkerson’s case. In In re Kemmler, 136 U.S. 436 (1890), the Court, again without dissent, approved New York State’s use of the electric chair. This case was decided on the basis of the Fourteenth Amendment’s Due Process Clause, which, the Justices assumed, made the Cruel and Unusual Punishments Clause applicable to the states. Kemmler merely reaffirmed the

10 The Bill of Rights originally applied exclusively to the federal government. Only after the adoption of the Fourteenth Amendment in the aftermath of the Civil War (1868) was it possible to construct an argument for making the provisions of the Bill of Rights applicable to the states through the Due Process Clause of that Amendment, and that argument did not prevail with any degree of success until well into the 20th century. 11 The following Fifth Amendment clauses (italics added) imply the use of capital punishment: “No person shall be held for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”; “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”; “nor [shall any person] be deprived of life, liberty, or property, without due process of law.”

7

8

Chapter 1:  Capital Punishment in America

core principle: “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution.”12 Before 1972, the Court had held only three punishments unconstitutionally cruel and unusual—all in noncapital cases. First, in Weems v. United States, 217 U.S. 349 (1910), the Philippines, then under U.S. control as a result of victory in the Spanish-American War, imposed 12 years’ imprisonment in heavy chains at hard and painful labor for minor falsification of government documents—a punishment derived from Spanish law, not from the AngloAmerican legal tradition. Looking askance at this punishment that “has no fellow in American legislation” and “come[s] to us from a government of a different form and genius than ours,” the Court for the first time indicated that the Eighth Amendment does more than simply ban barbarous punishment; it also prohibits punishments that are disproportionate to the offense. Second, in Trop v. Dulles, 356 U.S. 86 (1958), the Court held that it was cruel and unusual punishment to strip someone of his citizenship for the crime of wartime desertion. In so holding, the Court stated: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” This would become the polestar for the modern Supreme Court’s position that it is not bound by the original understanding of what is “cruel and unusual.” So, even though the 18th century accepted pillorying, branding, and cropping or nailing of the ears, the Court would stand ready to squelch reappearance of such punishments in the unlikely event that some state legislature would try to impose them. Third and finally, in Robinson v. California, 370 U.S. 660 (1962), the Court held that being addicted to illegal drugs (as opposed to possessing them) could not be criminalized because addiction is a condition or status. Any punishment— even a minimal one—for something that is not a crime is cruel and unusual. It was with this meager body of precedent that the Supreme Court in 1972 faced the claim in Furman v. Georgia that the death penalty as then applied in the United States was unconstitutionally cruel and unusual.

Arguments for and against capital punishment The death penalty has been the subject of countless fervent debates. These arguments often end inconclusively because they usually reflect disagreements about ultimate values. Even where empirical facts, such as whether the death 12

Id. 136 U.S. at 447.

Arguments for and Against Capital Punishment

penalty deters murder, are relevant in the determination of public policy, discussions often reach an impasse. As will be seen, some empirical issues, such as the deterrence question, are as a practical matter very difficult to resolve. The Supreme Court cases in this book, implicate, if not explicitly then implicitly, most of the major arguments for and against capital punishment. We think it useful to present those arguments in plain English in the sections that follow. No attempt is made to resolve the differences between the positions. Instead, we identify as objectively as possible the best arguments for each side. As you will see, there are compelling claims on both sides of the death penalty divide.

History Proponents of the death penalty point out that death is a punishment with a pedigree thousands of years old, and that death has been an acceptable punishment in the United States since earliest colonial days. Moreover, the framers of the Constitution expressed no opposition to the penalty, and the Constitution itself (notably in the Fifth Amendment) implicitly approved of it. Opponents respond that since the 18th century Enlightenment, the trend of world history has been inexorably against death as a punishment. This trend has accelerated since the bloody horrors of World War II, and the nations of Europe, along with countries that have close ties to them (e.g., Canada), have steadily abandoned the death penalty. (For a list of retentionist and abolitionist countries, see the end of Appendix A.) Opponents further argue that the death penalty is out of step with the historical abolition of other corporal punishments (those that are intended to harm the body), such as flogging or branding, which have been replaced by imprisonment. Proponents respond that while death may be one of the few remaining corporal punishments, it is uniquely well suited to especially horrific murderers.

State Power Death penalty abolitionists sometimes contend that governments (also called “the State,” which does not here refer to the states of the United States) do not have the authority to put their citizens to death. Since many countries have established capital punishment by law, this claim rests on a “higher law” position. The present-day view is that there is an evolving body of “human rights” that transcend individual governments, and that capital punishment is a denial of a basic human right to life. The sticking point here is that there is no universal agreement on the content of human rights. While many nations have signed international agreements that abolish the death penalty, many more, including the United States, have declined to do so.

9

10

Chapter 1:  Capital Punishment in America

There is a more profound philosophical issue involved as well. Opponents of the death penalty claim that no government has the authority to kill its citizens because that authority intrudes into a personal sphere beyond the reach of the State. This libertarian argument resonates with Americans who recognize the “self-evident” truths of the Declaration of Independence: that each individual is endowed with certain “unalienable Rights” that all governments must respect, including the right to “life, liberty and the pursuit of happiness.” Supporters of the death penalty can point to the Constitution, which arguably trumps the Declaration and acknowledges the authority of the American government to take life (provided it is done with “due process of law”). Furthermore, it is universally recognized that the State has the authority to conscript (draft) soldiers and place them in situations in which there is a great likelihood that many will lose their lives. If the State can force citizens to face death on the battlefield, then can it not impose death on its worst criminals? The reference to due process raises a related point. Abolitionists contend that governments time and again act arbitrarily, imposing penalties unjustly, often for political purposes. The use of the death penalty poses special risks because once imposed it cannot be terminated, not even after change to a regime that respects due process. Proponents respond that, although arbitrariness and lack of due process have been hallmarks of dictatorial governments, they are not characteristic of American democracy, with its system of checks and balances. Furthermore, they add, the modern death penalty is imposed only after the most elaborate process (as this book makes especially clear), which sharply reduces, if not eliminates, arbitrariness. Plus, the United States enshrines public participation in its criminal justice system through the jury trial—a strong insurance policy against abuse of the system by those in power. And juries play an even greater role in capital cases, where they usually determine both guilt and sentence.

Religious Beliefs Many Americans derive their views on the death penalty from deep-seated religious convictions. For those who are Christians or Jews, proper interpretation of what the Bible says about the death penalty is crucial. But biblical teaching is susceptible to a variety of interpretations, and unlike the U.S. Constitution, which has the benefit of an ultimate interpreter, the meaning of scripture remains contested. What follows is a sampling of the positions of religious groups on capital punishment. The two statements by Protestant groups present opposing views. The Catholic Church, represented by an encyclical of Pope John Paul II, offers a limited endorsement. As there is no official Jewish position on the death

Arguments for and Against Capital Punishment

­ enalty, we offer the views of contemporary rabbinical authority which also p give qualified support. The rank and file of religious adherents, you will not be surprised to learn, may have views that differ considerably from the “official” positions of their churches. In a recent Gallup opinion poll, Americans who self-identified as Christians or Jews supported the death penalty as follows: Protestants (71%), Catholics (66%), and Jews (57%).13

The Evangelical Lutheran Church in America (Protestant) For the Evangelical Lutheran Church in America, following Jesus leads to a commitment to restorative justice. This commitment means addressing the hurt of each person whose life has been touched by violent crime. Restorative justice makes the community safer for all. It is because of this church’s ministry with and to people affected by violent crime that we oppose the death penalty. Executions focus on the convicted murderer, providing very little for the victim’s family or anyone else whose life has been touched by the crime. Capital punishment focuses on retribution, sometimes reflecting a spirit of vengeance. Executions do not restore broken society and can actually work counter to restoration. This church recognizes the need to protect society from people who endanger that society: removing offenders from the general population, placing them in a secure facility, and denying them the possibility of committing further crime (i.e., incapacitating them). Our challenge is to incapacitate offenders in a manner that limits violence, and holds open the possibility of conversion and restoration.14

The Southern Baptist Convention (Protestant) Whereas, The Bible teaches that every human life has sacred value (Genesis 1:27) and forbids the taking of innocent human life (Exodus 20:13); and Whereas, God has vested in the civil magistrate the responsibility of protecting the innocent and punishing the guilty (Romans 13:1-3); and

13 2004 Gallup poll, reported by the Death Penalty Information Center; see www.deathpenaltyinfo.org/ religion-and-death-penalty. 14 Social practice statement adopted by a more than two-thirds majority vote at the second biennial Churchwide Assembly of the Evangelical Lutheran Church in America, meeting in Orlando, August 28–September 4, 1991; see www.elca.org/What-We-Believe/Social-Issues/Social-Statements/Death-Penalty. aspx#top1.

11

12

Chapter 1:  Capital Punishment in America

Whereas, We recognize that fallen human nature has made impossible a perfect judicial system; and Whereas, God authorized capital punishment for murder after the Noahic Flood, validating its legitimacy in human society (Genesis 9:6); and Whereas, God forbids personal revenge (Romans 12:19) and has established capital punishment as just and appropriate; and Whereas, God requires proof of guilt before any punishment is administered (Deuteronomy 19:15-19); and Whereas, God’s instructions require a civil magistrate to judge all people equally under the law, regardless of class or status (Leviticus 19:15; Deuteronomy 1:17); and Whereas, All people, including those guilty of capital crimes, are created in the image of God and should be treated with dignity (Genesis 1:27). Therefore, be it Resolved, That the messengers to the Southern Baptist Convention . . . support the fair and equitable use of capital punishment by civil magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death; and Be it further Resolved, That we urge that capital punishment be administered only when the pursuit of truth and justice result in clear and overwhelming evidence of guilt; and Be it further Resolved, That because of our deep reverence for human life, our profound respect for the rights of individuals, and our respect for the law, we call for vigilance, justice, and equity in the criminal justice system; and Be it further Resolved, That we urge that capital punishment be applied as justly and as fairly as possible without undue delay, without reference to the race, class, or status of the guilty; and Be it further Resolved, That we call on civil magistrates to use humane means in administering capital punishment; and Be it finally Resolved, that we commit ourselves to love, to pray for, and to minister the gospel to victims and perpetrators of crimes, realizing that only in Christ is there forgiveness of sin, reconciliation, emotional and spiritual healing, and the gift of eternal life.15

Resolution of the Southern Baptist Convention of June 2000, meeting in Orlando, Florida, June 13–14, 2000; see www.sbc.net/resolutions/resprintfriendly.asp?ID=299.

15

Arguments for and Against Capital Punishment

The Roman Catholic Church . . . This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society. The primary purpose of the punishment which society inflicts is “to redress the disorder caused by the offence”. Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated. It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.16

Pope John Paul II, Encyclical Letter, Evangelium Vitae, March 25, 1995; see www.vatican.va/holy_father/ john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html. Supreme Court Justice Antonin Scalia, speaking as a private citizen and a Catholic, expressed disagreement with the Encyclical. He wrote in God’s Justice and Ours, First Things (May, 2002):

16

I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. . . . I take the encyclical and the latest, hot-off-the-presses version of the catechism (a supposed encapsulation of the “deposit” of faith and the Church’s teaching regarding a moral order that does not change) to mean that retribution is not a valid purpose of capital punishment. . . . I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral.

13

14

Chapter 1:  Capital Punishment in America

Judaism In recent years leading rabbinical authorities in the United States have been consulted by the government regarding the Orthodox Jewish beliefs regarding capital punishment. Rabbi Moshe Feinstein, one of the foremost modern authorities on Jewish Law, explained: the death penalty is administered . . . not out of hate for the wrongdoers or [even] out of concern for the stability of society . . . but rather so that people should be aware of the seriousness of these prohibitions and therefore would not transgress them . . . And so, throughout the generations there were virtually no murderers among the Jews, because of the gravity of the prohibition and because they were educated by the Torah and by the punishments of the Torah to understand the gravity of the prohibition, and not because they were simply afraid of the punishment. We can learn from his reply that the educational dimension of a system of justice is at least as important as the deterrent factor. Severe punishments are meant to impress upon citizens the gravity of the crime. Rabbi Moshe [Feinstein] adds that although Jewish Law does not advocate capital punishment in all cases, it nevertheless permits the death penalty to be applied where the law of the land permits it. However this should be restricted to cases of particularly cruel murders, or in a situation where bloodshed becomes widespread and out of control and the threat of capital punishment will restore respect for the law.17

Religious views, in the American system of separation of church and state, are relegated to the private sphere and play no overt role in the interpretation of the Constitution. Neither may they play such a role in the application of the death penalty. If a prospective juror, for example, holds an unshakeable belief that scripture requires death for certain murders, there is a good chance that he or she will never serve in a death penalty case (see Chapter 13).

Justifications of Punishment The traditional justifications of criminal punishment are retribution, deterrence, incapacitation, and rehabilitation. Although they apply to punishment in general, they also significantly contribute to the debate between advocates of the death penalty and their adversaries. 17

See www.askmoses.com/en/article/239,523177/What-is-the-Jewish-view-on-capital-punishment.html.

Arguments for and Against Capital Punishment

Retribution and Related Arguments The theory of retribution says that punishment is justified because, and only because, the criminal has transgressed. Two principles or corollaries of ­retributivism are that only the guilty may be punished and that the punishment must “fit” (be proportional to) the crime. The death penalty dispute often turns on the proportionality question. Where the crime involves the taking of life, advocates of capital punishment say that the only proportional penalty is death, for only death is severe enough to balance the wrong that was done. Furthermore, the “fit,” as in Exodus 21, is perfect: “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” In its pure formulation, the lex talionis, or law of retaliation, requires that what was done to the victim be done to the criminal. Death penalty opponents think the lex talionis is barbaric and add that the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits many punishments that replicate the crime, such as castration of rapists or severing the hands of thieves. Defenders of the death penalty no longer rely on the law of retaliation. They say that relative proportionality—the more reprehensible the crime, the harsher the punishment—is all that is needed to support death. In other words, proportional punishment requires fine-tuning so that the worst killings receive the severest sanction while the less reprehensible killings do not. This is possible only with a death penalty, they reason, as no other punishment is sufficiently severe for the most reprehensible crimes. Opponents respond that imprisonment is perfect for tailoring punishments because it can be lengthened to the span of a human life. The sentence of “life without parole” is sufficient to punish even the worst offenders, they add, by condemning such criminals to a lifetime loss of freedom with its accompanying regimentation, degradation, and boredom. Abolitionists also fear that enforcement of the death penalty will extend to more and more crimes, not just the most reprehensible. As proof, they point out that even in the contemporary period many awful murders end with imprisonment while less heinous crimes are punished by death. The pro−death penalty camp reminds us that the Supreme Court has steadfastly restricted capital punishment so that it is virtually unenforceable against any crime other than murder in the first degree. A related—but, strictly speaking not a retributivist—argument of proponents is that the public’s sense of justice demands a death penalty as denunciation for the vilest crimes.18 To opponents, however, any argument that the This is not a retributivist claim because retribution theory asks only whether the punishment fits the crime, not whether it satisfies public sentiment (or any other consequence of punishment). A true retributivist does not favor executing someone only because the public demands it, but favors it if the offender is guilty of a very grave offense for which death is a just punishment, and the law, reflecting public opinion, has provided such a penalty.

18

15

16

Chapter 1:  Capital Punishment in America

criminal law should gratify public clamor for death is barbaric; it is vengeance in disguise—a catering to the darkest of human instincts. Opponents also claim that executing criminals, far from affirming the value of human life, devalues it. This sentiment fits neatly on the bumper sticker sometimes sported by opponents: “Why do we kill people to show that killing people is wrong?” Proponents relying on the denunciation argument sometimes take a different tack, defending the death penalty on communitarian grounds. The public’s collective sense of justice defines us as a community; it says that we all care about one another, that we are deeply grieved when one of our members, though perfectly innocent, is wrongfully taken from us. (We may care about lives lost in other communities as well, but loss of innocent American lives usually is more deeply disturbing to us than is loss of foreign lives. Naturally, other communities feel the same way about their own losses.) The death of the killer at the hands of the community (represented, of course, by the criminal justice system) reaffirms our common bond. It declares, more than any lesser punishment, that we are horrified by this loss and consider it an attack on us all. “Anger is an expression of that caring,” Walter Berns contends, “and society needs men [and women] who care for each other.”19 Related, but again not a retributive argument as properly understood, is the role of the death penalty in preventing vigilantism, the enforcement of community norms outside the legal process. America has a significant history here, especially in the 19th century West and South, where hundreds were hanged by “Judge Lynch.” The pro−death penalty argument is that many of these extralegal killings, especially in the West, reflect the lack of a properly functioning criminal justice system. In short, when a murder victim’s relatives and friends, to say nothing of the general public, come to feel that the authorities are incapable of providing justice, they may be forced to provide it themselves. Death penalty opponents consider this argument totally unrealistic in modern times, because in American society today such manifestations of vigilantism as clan feuds and kin reprisals have been almost universally replaced (except in a few subcultures such as criminal street gangs) by a recognition that the government has a monopoly on retribution. Of course, this trust in the justice system is bolstered by the death penalty, which has not been abolished in the United States. Would such trust erode, and would more people resort to private enforcement, if the movement to abolish were successful?

19

Walter Berns, For Capital Punishment, p. 155 (Basic Books, 1979).

Arguments for and Against Capital Punishment

Deterrence A fundamental assumption of the criminal law is that punishing criminals discourages potential offenders from committing crime. This is known as general deterrence. Here follows a quick exchange on deterrence and the death penalty between the pro− and anti−death penalty forces: Pro: Deterrence is based on fear and since death is feared the most, it will deter the best. Anti: Murder often is an impulsive act and killers do not think about punishment before committing their crimes. Pro: Perhaps some killers cannot be deterred, but potential murderers (e.g., those who plan a murder) can, and that justifies the most effective deterrent. Anti: Even if some potential killers do make a cost/benefit calculation, they do not weigh the risk of a death sentence much more heavily than the risk of a sentence of life without parole. Pro: Although there is scant proof that longer prison sentences deter more than shorter ones do, a fundamental premise of the criminal justice system is that harsher sentences deter more; this same assumption supports the ultimate penalty. Anti: It may be doubted that much deterrence is possible when so few executions actually take place. Pro: More executions would be better, but, like the lottery, selecting only a few suffices so long as members of the target audience believe that they too might be chosen. In the abstract, the effectiveness of deterrence is an empirical question, one that should be subject to scientific proof. But there is intense disagreement among social scientists about the quality of that proof. How does one measure a nonevent: the failure of would-be killers to commit murder? The answer from social science is to calculate the instances of homicide over time and the number of executions during that same time period, and then determine the correlation between the two. If homicides are reduced when executions increase (and vice versa), the inference is that the executions deterred the homicides. The problem is the difficulty of isolating the death penalty from other factors that can affect murder rates. If homicides decline after an increase in executions, it is certainly plausible to think that the executions deterred them. But it is also plausible that more and better police work, fewer handguns or controlled substances, improvements in the economy, reductions in the proportion of young males, increased incarceration, and so on, caused the decline.

17

18

Chapter 1:  Capital Punishment in America

Social scientists try to “control for” these other factors through a sophisticated statistical method known as “multiple regression analysis.” The first major study to use this method, carried out by economist Isaac Ehrlich in 1975, found that each execution prevented eight murders.20 Ehrlich’s work was published just as the Supreme Court was immersed in the death penalty issue, and it became a point for discussion in Gregg v. Georgia, 428 U.S. 153 (1976). (See Chapter 3.) But Ehrlich’s analysis was quickly challenged by a National Academy of Sciences report, setting a pattern of study followed by refutation that went on for decades.21 Recent years have seen several new regression analyses, some finding no deterrent effect but even more claiming a strong effect.22 In the face of all this contradictory social science, it seems that death penalty policy will have to be made without benefit of empirical guidance. Proponents argue that if a consensus on deterrence is unattainable, it is better to err in favor of capital punishment. After all, they reason, if the death penalty deters (although we cannot prove it), employing it saves lives. If it does not deter, justice is still served by the execution of murderers. Opponents respond that society values identifiable lives (even those of murderers) more than unidentifiable future victims who might be saved because of deterrence. Furthermore, they say, even if there is possibly some small deterrent value, it is outweighed by the penalty’s disadvantages, including the risk of executing innocents. The pro side disagrees: In their view, even a few lives saved by deterrence outweigh the slight risk of a miscarriage of justice. Abolitionists sometimes flip the deterrence argument to claim not only that the death penalty fails to deter, but that it actually encourages murder. This reverse deterrent or “brutalization” effect is based on some scattered data that the number of murders actually increases after each execution. Proponents respond that the data are too short term, and add that even if some ­people could be

20 Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Matter of Life and Death, Vol. 65, American Economic Review, 397 (1975). 21 Alfred Blumstein, Jacqueline Cohen, & Daniel Nagin, eds., Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (National Academy of Sciences, 1978). 22 No deterrence: Lawrence Katz, Steven D. Levitt, & Ellen Shustorovich, Prison Conditions, Capital Punishment, and Deterrence, Vol. 5, American Law and Economics Review, 318 (2003). Deterrence: Hashem Dezhbakhsh, Paul H. Rubin, & Joanna M. Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, Vol. 5, American Law and Economics Review, 344 (2003); H. Naci Mocan & R. Kaj Gittings, Getting off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment, Vol. 46, Journal of Law and Economics, 453 (2003); Paul R. Zimmerman, State Executions, Deterrence, and the Incidence of Murder, Vol. 7, Journal of Applied Economics, 163 (2004). For a summary and assessment of deterrence studies, see John J. Donohue III & Justin Wolfers, Estimating the Impact of the Death Penalty on Murder, Vol. 11, American Law and Economics Review, 249 (2009).

Arguments for and Against Capital Punishment

stimulated to violence by seeing it, contemporary ­executions do not serve as that kind of stimulus because they no longer are conducted in public. Closely related to deterrence is the debate over whether the death penalty provides reinforcement of moral inhibitions against murder. That is, do executions prevent murder, not just by engendering fear (deterrence) but by strengthening the norms that restrain law-abiding citizens? Proponents are fond of quoting the 19th-century English jurist Sir James Fitzjames Stephen: Some men, probably, abstain from murder because they fear that, if they committed murder, they would be hung. Hundreds of ­thousands abstain from it because they regard it with horror. One great reason why they regard it with horror is, that murderers are hung with the hearty approbation of all reasonable men.23 That is, deterrence holds some in check; internal moral constraints (conscience) restrain most of us, and punishment fortifies or reinforces these moral constraints. But would our strong revulsion against murder diminish if there were no death penalty? Opponents doubt it. They say that the vast majority of people do not need to have this norm reinforced, and that the few who do are the very ones who will fail to heed the message. Proponents believe that over time the size of the morally inhibited population might be reduced. In other words, the question is whether, in the absence of the death penalty, there would be an increase in the number of people who do not regard murder “with horror” and therefore engage in it.

Incapacitation This justification seeks to prevent the offender from committing further harm. Death penalty proponents point out that death achieves this goal completely. Even lifers pose a threat to fellow inmates and prison personnel, and there is always the possibility (however remote) of the commutation of a sentence by a governor, retroactive liberalization of the parole laws, or escape. Death forecloses all risk. Opponents contend that murderers usually behave quite well in prison; that the prison system can take measures to guard against violent tendencies; and that commutation, parole, and escape are highly unlikely.

Rehabilitation Advocates of the death penalty contend that the worst murderers are unlikely to be rehabilitated, even within prison walls. Alternatively, they argue that even if such murderers might be rehabilitated, the reasons for executing

Sir James Fitzjames Stephen, A General View of the Criminal Law of England, Vol. 2, p. 99 (Macmillan and Co., 1863).

23

19

20

Chapter 1:  Capital Punishment in America

them—­retribution and deterrence—are weightier than the benefits of ­reforming the killer. Opponents argue that even the worst murderers are not predictably beyond hope of rehabilitation, and often can live productively and safely in prison.

Executing Innocents For opponents, the possibility that an innocent person will be executed is sufficient in itself to warrant an end to capital punishment. Proponents acknowledge that the system is not foolproof, but contend that many valuable public endeavors—from war to space exploration to coal mining—entail the risk of innocent deaths. Whether a policy is worth pursuing, they say, requires a cost/ benefit analysis—and proponents find the benefits of capital punishment to outweigh its costs. Proponents buttress their position that the system is sufficiently trustworthy by stressing that no compelling proof exists that even one innocent person— among the approximately 1200 inmates put to death (as of 2010)—was executed since capital punishment resumed in 1977. Opponents respond that the lack of absolute proof of a miscarriage of justice does not mean that the miscarriage has not occurred. One well-known study concluded that 350 persons were wrongly convicted of capital or “potentially capital” crimes in the United States from 1900 to 1985, and 23 of these cases (before 1976) resulted in the execution of an innocent person.24 While critics point out that this study involved pre-1976 practice, not the modern, super due process death penalty, abolitionists say that even the contemporary system is so fraught with error that a miscarriage is inevitable. From 1976 to 2001, by one calculation, 68% of death-sentenced inmates obtained appellate reversal, and even with a recalculation by other researchers, the figure was still 52%.25 Assuming that this rate is high—and lengthy two-part death penalty trials may be expected to produce more reversals—the question remains whether appellate reversals are indicators of innocence. Death penalty supporters remind us that in the American system, reversals connote nothing more than procedural error at trial.

Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, Vol. 40, Stanford Law Review, 21 (1987). For a critique, see Steven J. Markman & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, Vol. 41, Stanford Law Review, 121 (1988). 25 James S. Liebman, Jeffrey Fagan, & Valerie West, in A Broken System: Error Rates in Capital Cases, 1973–1995 (June 2000), www.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf, found a 68% rate. On recalculation using the same data, Barry Latzer & James N.G. Cauthen, in Another Recount: Appeals in Capital Cases, Vol. 35, The Prosecutor, 25 (2001), found a 52% rate. 24

Arguments for and Against Capital Punishment

Death penalty opponents have one more arrow in their quivers. They claim that there have been over 100 cases of death row inmates being found innocent through legal processes.26 But “innocent” does not necessarily mean persuasive proof that the inmate was not the real killer. Many of these cases involve reversals on appeal followed by a failure to retry, which often occurs because the long lapse in time makes retrial unfeasible. Advocates of the death penalty are not, in any event, disturbed by these figures. They say that these cases prove that death sentences are given such intensive scrutiny that errors are virtually certain to be discovered before it is too late. For a debate on this topic between Supreme Court Justices Souter and Scalia, see Chapter 17.

Fairness Opponents argue that the death penalty never has been—and never can be— fairly and consistently applied. Proponents respond by acknowledging that while the death penalty is not perfectly fair, neither is any other worthwhile social endeavor, and that the death penalty is applied fairly enough to render it acceptable. Next we consider several unfairness arguments.

Racial Discrimination Abolitionists maintain that the history of capital punishment in the United States demonstrates that the death penalty has been discriminatorily applied since colonial times. Their adversaries concede this point as to the hundreds of years prior to the contemporary era, but contend that since the Supreme Court constitutionalized the death penalty in 1972, systematic racial discrimination has been eliminated. They add that the differential in rates of murder—African-American rates have long been seven to nine times white rates—provides a rational basis for the seeming over-representation of blacks on death row (see Appendix A, Figure A.3). Since 1972, there have been many social science research studies on whether the death penalty remains racially discriminatory. The first and best known of these, conducted by David C. Baldus, Charles Pulaski, and George Woodworth, formed the basis for the racial discrimination claim in McCleskey v. Kemp (see Chapter 6). Based on over 2000 Georgia homicide cases from the 1970s, that study found that racial discrimination in the application of the death penalty still existed, but not primarily against black defendants. Rather, the principal discrimination was against defendants who killed white victims; they Data from the Death Penalty Information Center, an anti–death penalty organization, identify 138 such cases from 1976 to spring 2010; see www.deathpenaltyinfo.org/innocence-and-death-penalty. The Center’s definition of “innocent” is that the inmate’s conviction was overturned and he was acquitted at retrial or all charges were dropped. Alternatively, the inmate received an absolute pardon by a governor based on new evidence of innocence.

26

21

22

Chapter 1:  Capital Punishment in America

were statistically far more likely to receive a death sentence. As death penalty­ ­opponents put it, the lives of black murder victims were not valued as highly as those of white murder victims. The Supreme Court held in McCleskey that this study did not provide sufficient proof of a constitutional defect (see Chapter 6). That holding notwithstanding, the Baldus study findings have been replicated by many subsequent investigations.27 Death penalty advocates do not concede that race discrimination explains the outcomes. It is odd, they note, that allegedly racist juries rarely have been proven to discriminate against black murder defendants. In addition, they say, during the entire post-1972 period, it appears that no evidence other than statistics (produced by the same controversial multiple regression methods used in the deterrence debate) has ever been offered to prove race bias in a death penalty case. Moreover, proponents of the death penalty say, nonracial factors may explain the different treatment of white and black murder victims. Keep in mind that murders are overwhelmingly intraracial. That is, whites generally kill whites, and blacks kill blacks. (See Appendix A, Figure A.6.) It is, death penalty supporters reason, primarily the failure to seek the penalty in black-on-black murders that produces the racial disparity. Cases with black victims arise more often in majority black communities where support for the death penalty is weak, leading to fewer capital prosecutions.28 Thus, prosecutors are merely reflecting democratic values—the preferences of black communities—when they refrain from seeking death in black-victim cases. Moreover, they add, this phenomenon has the effect of benefiting black murderers by reducing the likelihood that they will get death sentences. White murderers, by contrast, are statistically more likely to get the death penalty than are black murderers.

Selection Process Another unfairness claim is that the legal process is unable (or at least has never been shown to be able) to fairly choose the worst criminals for execution—a claim at the basis of the seminal United States Supreme Court case of Furman v. Georgia (see Chapter 2). This complex issue is so central to the Court’s jurisprudence in the cases in this book that we will not discuss it further at this point. For a review of the research, see Scott Phillips, Racial Disparities in the Capital of Capital Punishment, Vol. 45, Houston Law Review, 807 (2008). 28 See Theodore Eisenberg, Death Sentence Rates and County Demographics: An Empirical Study, Vol. 90, Cornell Law Review, 347 (2005). 27

Arguments for and Against Capital Punishment

Jurisdictional Differences Opponents point to disparities among states (the same crime committed in a death penalty state is not death-eligible across the border in a nondeath penalty state), among counties within a death penalty state (which often vary widely in their willingness to seek death sentences), and even within the same county over time. Proponents respond that these variations are natural consequences of federalism and of local control over criminal prosecutions, and are not disturbing as long as the defendants who get death sentences are d ­ eserving of them.

Defense Resources Yet another unfairness claim is that the quantity and quality of defense resources provided to capital defendants (who are almost all indigent and thus dependent on public funding) have been variable and often abysmally insufficient. This most obviously applies to the provision of able defense counsel, but it also applies to support for obtaining investigators, expert witnesses, and other tools needed to mount a first-rate defense. Indeed, glaring examples of inadequate capital defense lawyers are not difficult to find. Proponents respond that the lawyers for most capital defendants are adequate and at least as good as those provided to other indigent criminal defendants. Moreover, states have significantly improved their capital defense systems over time. In addition, high-priced law firms frequently serve as counsel on a pro bono (no fee) basis, giving capital defendants better representation than could be afforded by any other accused indigent. Finally, death penalty supporters contend that the appeals process is aggressive in scrutinizing the work of trial counsel in death penalty cases. Ineffective assistance of counsel claims (see Chapter 16) are the most frequent bases for reversals in capital cases. But death penalty opponents say that this only demonstrates the poor quality of trial work.

Humaneness Opponents contend that no sufficiently humane mode of execution has yet been conceived. Proponents respond that the mode that is now almost exclusively employed in the United States—lethal injection—is the fastest, least painful, and most humane method of executing a person ever devised. (See Chapter 19.) Moving beyond the method used to end life, abolitionists argue that the emotional tolls exacted by the lengthy death penalty process are inhumane, including the mental stress on the defendant while awaiting execution or appellate reversal, the emotional roller-coaster for the relatives and friends of both the defendant and the victim, and the impact on prison personnel who must carry out the execution.

23

24

Chapter 1:  Capital Punishment in America

Defenders of the death penalty point out that delays are a product of the system that the Supreme Court established, mainly in response to suits mounted by anti–death penalty lobbyists. Moreover, the prisoners themselves create the delays by mounting as many appeals as they can. Finally, they argue, extra emotional strain is unavoidable given the enormity of the punishment but acceptable given the enormity of the crime.

Cost Abolitionists contend that it costs more to run a criminal justice system with capital punishment than without it. This seems counterintuitive because one would expect death to cut short both imprisonment and appeals. Nonetheless, several studies have found this contention to be true because of the much higher litigation costs per capital inmate.29 Proponents respond that the studies are not conclusive but that, even if they are, the social costs of abolition—primarily in terms of loss of deterrence and retributive justice in horrific murders—make the additional monetary cost acceptable. Moreover, they claim that the capital punishment system can be made much more efficient, such as by reducing the number and length of appeals, and still provide due process to defendants.

Stages of a capital case Since 1976, when the death penalty was reinstated in the United States, the Supreme Court has required, as a matter of constitutional law, extraordinary procedures in capital cases, sometimes characterized as “super” due process. The following subsections describe the seven stages of a typical capital case. All executions since 1976 have been for aggravated murder, and the discussion here will assume that the death penalty is being imposed for murder, although it is conceivable that certain crimes against the government, such as treason and espionage, also may be eligible for death.

Stage 1: Pretrial—Investigation, Charging, and Plea Bargaining Once the police determine that a homicide (defined as the killing of a living human being by another human being) has occurred and a suspect has been arrested, the prosecutor must make several decisions, as detailed in the ­following

Robert M. Bohm, “The Economic Costs of Capital Punishment: Past, Present, and Future,” Ch. 18 in James R. Acker, Robert M. Bohm, & Charles S. Lanier, eds., America’s Experiment with Capital Punishment (Carolina Academic Press, 1998).

29

Stages of a Capital Case

paragraphs. It is important to realize that in almost every death penalty jurisdiction these decisions are made at the county level by a district attorney.30 Thus, the same crime might be subject to different prosecutorial decisions even within the same state, depending on the county in which it is prosecuted. A.  First, the prosecutor must decide whether the killing was a crime at all. A very small proportion of homicides are justifiable, such as killings in self-defense or by law enforcement agents in the arrest of a dangerous felon. An even smaller percentage are excused if the killer was not blameworthy. The most prominent excuse defense is insanity. A defendant who was legally insane at the time of the killing should be acquitted by reason of insanity, although he may be committed to a psychiatric institution if he is mentally ill and dangerous. Most jurisdictions use a variant of the so-called McNaughten test for insanity, and only a tiny proportion of cases can satisfy its standards. Generally, the defendant must prove that because of a mental disease or defect he did not know he was killing someone or thought that such conduct was acceptable by society’s moral (or legal) standards. B.  If the prosecutor decides that the homicide was a crime, but was neither justified nor excused, the next decision is the level of homicide charge to file against the defendant. Every state has its own set of homicide statutes, but to pursue the death penalty the prosecutor must charge the highest level of homicide offense existing in that jurisdiction.31 In a few states this crime is called capital murder, in many it is called first-degree murder, and in some ­simply murder. Different types of killings meet the requirements for a highest-level murder charge, depending on the state’s statutes. One type existing in every state is that the defendant killed the victim intentionally, and many jurisdictions add that the defendant also must have premeditated and deliberated the killing. Another type existing in most states is that the killing occurred while the defendant was committing or fleeing from the commission of certain specified felonies, typically arson, burglary, kidnapping, rape, or robbery (felony-murder). (See Chapter 9.) Other highest-level murder statutes apply to certain narrow categories of homicide, such as killing a police officer, using an explosive device, or a contract killing. 30 In the small states of Delaware and New Hampshire, decision-making authority lies with the state Attorney General. In death penalty cases prosecuted by the federal government, the ultimate decisional authority lies with the Attorney General of the United States, not with the individual United States Attorneys. Our discussion of the stages of a capital case assumes a state prosecution. (See the subsection Federal Death Sentence Review Procedures on page 32 for a discussion of the few defendants who receive death sentences in federal court.) 31 There are lower-level homicide crimes: typically second-degree murder (except in jurisdictions that do not have degrees of murder), voluntary (heat of passion) manslaughter, involuntary manslaughter (nowadays sometimes called reckless manslaughter), and vehicular homicide. These lower-level homicide offenses are never punishable by death.

25

26

Chapter 1:  Capital Punishment in America

C.  If the prosecutor decides to charge the highest-level homicide offense, he must then decide whether the murder is aggravated so as to make it eligible for a death sentence.32 The aggravating circumstances that make a murder deatheligible are specified in each jurisdiction’s statutes. Typically they include multiple victims; the killing of an on-duty police or correctional officer; a death during the commission of arson, burglary, kidnapping, rape, or robbery; and ­murder by a defendant who has a prior record of serious dangerous ­felonies. (For  complete lists of aggravating circumstances in sample statutes see Appendix B.) If the prosecutor believes that an aggravating circumstance exists, he must then decide whether to seek a death sentence, which in some states requires the filing of a document called a “death specification.” D.  Even if the prosecutor decides to seek a death sentence, he may engage in plea bargaining, usually by agreeing to let the defendant plead guilty to the highest-level homicide offense in exchange for a sentence of lengthy imprisonment. Thus, it may be in the prosecution’s interest to file capital charges in most death-eligible cases because even if the prosecutor is ultimately willing to agree to a lesser sentence, the death specification makes a great bargaining chip. (“If your client will plead guilty to murder in the first degree, I’ll take death off the table.”) A recent study found that more death-eligible cases were plea-bargained to nondeath sentences than taken to trial.33

Stage 2: Trial If the prosecutor is determined to seek a death sentence or the defendant is unwilling to plead guilty, the case goes to trial. A capital trial has three key stages: selection of the jury, determination of guilt or innocence, and (if guilty of a capital crime) determination of the sentence.

Jury Selection There is a special rule of competence for capital jurors—they must be willing to impose a death sentence, but not be too strongly committed to doing so. (See Chapter 13.) Further, the composition of the jury is critical, because in most jurisdictions even one holdout out of 12 jurors results in a nondeath sentence. Thus, prospective jurors will be probed extensively by both

In states that employ the offense of “capital murder,” however, the aggravating factors are part and parcel of the definition of the crime. 33 David McCord, Lightning Still Strikes: Evidence from the Popular Press That Death Sentencing Continues to Be Unconstitutionally Arbitrary More Than Three Decades after Furman, Vol. 71, Brooklyn Law Review, 797 (2005). Of 590 defendants in death-eligible cases, 323 (55%) pled guilty and were sentenced to imprisonment. 32

Stages of a Capital Case

­ rosecutors and defense attorneys to determine their competence to serve p and their attitudes toward the death penalty should they be faced with the prospect of returning the ultimate sentence. The selection process—known as voir dire—is conducted by having the prospective jurors fill out questionnaires and through face-to-face questioning by the attorneys (and sometimes the judge). If a prospective juror’s views on the death penalty are determined to be so strong in either direction (mercy or harshness) that they will interfere with rendering an impartial verdict or fairly determining the sentence, he or she is excused “for cause.” Both the defense and the prosecution have an unlimited number of challenges for cause. In addition, each side has a limited number (e.g., 20 per side) of “peremptory challenges” for which no explanation need be given. Peremptory challenges, however, may not be exercised on the constitutionally impermissible bases of race, gender, or ethnicity.

The Guilt/Innocence Phase As you will see later in this book, the feature that most distinguishes capital trials from other criminal trials is that the former are bifurcated into two phases: the guilt/innocence phase and the sentencing or penalty phase. (By contrast, in all but a handful of states noncapital criminal trials involve only the determination of guilt, with sentencing performed by the judge after the trial is completed.) The purpose of bifurcation is twofold. First, it permits the jury to consider evidence relevant to the sentence (e.g., prior crimes) that would be inappropriate for it to consider when deciding guilt. Second, it allows the jury to focus exclusively on the weighty question of life-or-death without prejudicing its decision on the defendant’s guilt. The guilt/innocence phase runs like an ordinary trial. Should the jury acquit or find the defendant guilty of a lower-level homicide offense, there will be no penalty hearing. But if the verdict is that the defendant is guilty of the highestlevel homicide, the trial will proceed to the penalty phase.

The Penalty Phase In the penalty phase, the jury34 is presented with two issues. The first is whether the prosecution has proven beyond a reasonable doubt that at least

Every death penalty jurisdiction has jury sentencing except Alabama, Florida, Delaware, and Nebraska. In these states, juries recommend a sentence and judges make the ultimate decision. Nebraska uses a three-judge panel. For brevity, we refer to “the jury” as the sentencer. The same legal principles apply to both judge and jury sentencing. 34

27

28

Chapter 1:  Capital Punishment in America

one ­aggravating circumstance exists.35 If an aggravating factor is not proven, then a term of imprisonment—in most jurisdictions mandatory life without parole—is imposed. If the jury does find that an aggravating circumstance has been proven, it moves to the second issue—should the defendant be sentenced to death? As to this issue, both the prosecution and the defense have the opportunity to present evidence at the penalty phase. For the prosecution, this usually consists of the defendant’s past criminal convictions and other misdeeds and, in most states, “victim impact evidence.” (See Chapter 14.) Defense evidence at the penalty phase is called mitigating evidence that is, evidence that supports leniency. Relevant mitigating evidence pertaining to the defendant’s “character” or record or the circumstances of the offense may be presented to convince the jury to spare the defendant’s life. (See Chapters 4 and 5 and Appendix B.) The varieties of mitigating evidence are numerous and include such things as the mental or emotional impairment of the defendant (albeit insufficient for a finding of insanity at the guilt/innocence phase), the influence of alcohol or drugs, youthfulness, a terrible childhood, minimal criminal history, relative lack of responsibility for the victim’s death (such as where he was dominated by another person or where someone else did the actual killing), and good deeds and character traits. In making the determination whether to sentence the defendant to death, the jurors must follow the judge’s instructions about how to consider the aggravating and mitigating evidence and the proper relationship between them. (See Chapter 15.) If the jury returns a death sentence, the case proceeds to Stage 3.

Stage 3—Direct Appeal A defendant sentenced to death, unlike defendants who receive nondeath sentences, is statutorily entitled in most jurisdictions to appeal directly to the highest state court (usually called “supreme court”), bypassing the intermediate appeals court.36 The rationale is that the highest court will end up reviewing a death sentence case eventually so there is no reason to require a decision by the court of appeals. Indeed, nearly all states require appellate review of a capital case even if a convict does not wish to appeal (sometimes called a death penalty “volunteer”). In jurisdictions that have the crime of “capital murder,” where the aggravating circumstances are part of the definition of the offense, a guilty verdict obviates the need for a finding of an aggravating circumstance at the penalty phase. 36 Only two states, Alabama and Tennessee, provide for direct appeal in capital cases to intermediate courts (called in those states courts of criminal appeals). 35

Stages of a Capital Case

The state supreme court will review the transcript of the trial for errors alleged by the defendant, such as violations of state rules of evidence or federal constitutional guarantees. If no serious error (known as “reversible error”) is found, the case moves to Stage 4. If, however, the state supreme court concludes that errors occurred, and that they were serious enough to have resulted in an unfair trial or sentencing hearing, the case will be reversed and remanded to the trial court so that the defective proceeding can be done over before a new jury.37 A reversal may test how committed the prosecution is to seeking a death sentence, since a retrial likely will take place long after the original crime, when witnesses may no longer be available or able to clearly recall significant events. This problem is exacerbated when reversals occur after subsequent stages of the post-conviction process, which usually add many years to a case. Prosecutors often agree to a guilty plea and a life sentence rather than retry old cases.

Stage 4—Certiorari Petition to the United States Supreme Court A death-sentenced state defendant who claims that his federal constitutional rights were violated (which means virtually all such defendants since every capital case involves numerous federal constitutional issues) may petition the United States Supreme Court for a writ of certiorari. Review is discretionary with the Justices of the Court (four of the nine must agree to take the case) and is conferred only infrequently. About 1% of petitions in death penalty cases succeed in obtaining Supreme Court consideration.38 If the Supreme Court denies certiorari, the decision of the state court of last resort stands.

Stage 5—State Post-Conviction Remedy The direct appeal process ends when the United States Supreme Court denies certiorari or reviews the case and rules adversely to the defendant. At that point, a death-sentenced defendant may seek further review through the

Sentences are reversed about twice as often as convictions. For the period 1973 through 2005, 1406 death sentences were reversed nationwide, compared with 784 capital convictions. U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment 2005, http://bjs.ojp.usdoj.gov/content/pub/pdf/cp05. pdf, p. 14. 38 A study of over 1676 death penalty cases reviewed by a state court of last resort found that twothirds sought U.S. Supreme Court review but only 1.2% (n = 20) actually were reviewed. Barry Latzer and James N.G. Cauthen, Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study (2007) (on file with coauthor Latzer). 37

29

30

Chapter 1:  Capital Punishment in America

state’s post-conviction remedy procedure. (The state remedy sometimes goes by the name “state habeas corpus,” which is not to be confused with federal habeas corpus, discussed in Stage 6.) Post-conviction proceedings also are known as a collateral attack, in contrast to the direct appeal described in Stage 4. While in most states they are technically considered civil suits rather than a continuation of the criminal case, they function as another avenue for criminal appeal. Although post-conviction processes vary by state, the following description is generally true. The defendant must raise claims that could not be (or at least were not) raised on direct appeal, usually because they involve issues that cannot be resolved by examining the trial transcript. An example is the failure of the trial lawyer to put an allegedly favorable witness on the stand. The defendant must first file the post-conviction petition with the trial court judge. If denied, he may appeal to the intermediate appeals court and then to the state supreme court. Post-conviction claims usually involve federal or state constitutional arguments. The most popular claim is “ineffective assistance of counsel,” which means that the trial attorney did not provide an adequate defense (see Chapter 16). Another frequently raised claim is that the prosecution failed in its constitutional obligation to turn over exculpatory evidence (evidence that supports innocence or leniency). If the post-conviction petition is unsuccessful, and if the claims include federal constitutional issues (which they invariably do), the prisoner may (for the second time) seek U.S. Supreme Court review by writ of certiorari. On the other hand, if the petition is successful, the trial court judgment (conviction or sentence) is usually reversed and the case remanded. The defendant may then be retried or resentenced. Depending on state rules, the defendant may be able to file another postconviction remedy petition after having failed on the first one, provided he raises different claims each time. Most states, though, have constructed their rules to limit defendants to just one post-conviction petition.

Stage 6—Federal Habeas Corpus Once a state prisoner has “exhausted” all of his state direct appeal and state post-conviction remedies, he may seek federal habeas corpus review. A great deal of death penalty law has come about through habeas corpus litigation— indeed, 10 of the 28 U.S. Supreme Court opinions in this book are habeas corpus cases. Federal habeas corpus is a civil action brought by an inmate against the prison authorities to challenge the legality of his incarceration. Thus, the title of the

Stages of a Capital Case

case does not look like a typical criminal proceeding in which one of the parties is the state and the other is the defendant. A habeas case caption usually includes the name of the death row inmate and the administrator of the correctional institution. The purpose of federal habeas is to ensure that those accused of crimes are not convicted and punished in violation of the United States Constitution or federal law. Federal habeas corpus is governed by federal statutes (28 U.S.C. §§ 2241–2266) and some rather complex Supreme Court decisions interpreting them. The “writ” of habeas corpus (court order) may be issued by federal judges to state prisoners “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). (State criminal cases rarely are affected by federal laws or treaties. Thus, habeas claims almost always involve alleged violations of federal constitutional rights.) If the writ issues, the prisoner must be released, retried, or resentenced, depending on the legal defect. Federal habeas petitions must be filed with the United States District Court (single-judge federal courts) in the federal district in which the prisoner is incarcerated. The claims raised on federal habeas must already have been reviewed (and rejected) by the state courts during the direct appeal or state post-conviction process. This redundancy, which adds to the inefficiency of the appeals process, is intended to permit state courts to correct their own constitutional errors and to minimize federal court interference in state criminal prosecutions. If the application for the writ is denied, the prisoner may appeal the denial to the appropriate United States Court of Appeals and, if unsuccessful there, may seek review of the denial of the writ by the U.S. Supreme Court. This is likely to be a death row inmate’s third Supreme Court certiorari petition, including the petitions on direct appeal and on state post-conviction review. Until the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), discussed below, prisoners could file as many federal habeas petitions as they or their lawyers could formulate, subject only to the rather ineffectual limitations of the Supreme Court’s “abuse of the writ” doctrine. There were no time limits on filings and no bars to successive petitions, including eleventh-hour applications just before scheduled executions. To many, federal habeas corpus had become a major source of inefficiency and lack of finality in the administration of criminal justice. The AEDPA was intended to expedite the federal habeas corpus process by shortening the time allowed for submitting applications, narrowing the legal grounds for issuing petitions, and discouraging appeals and successive petitions. The important aspects of the Act include the following:

31

32

Chapter 1:  Capital Punishment in America

Time limits for filing habeas petitions. Previously no time limits existed. Prisoners now must file within one year of the conclusion of their state litigation. Deference by federal habeas judges to state court rulings. Habeas claims must be denied unless the state court made an unreasonable application of federal law or an unreasonable determination of the facts. Factual determinations by the state courts must be presumed correct. Discouragement of appeals by unsuccessful habeas petitioners. The petitioner may only appeal when an appeals court judge or a Supreme Court Justice issues a “certificate of appealability” indicating that the applicant made a substantial showing of the denial of a constitutional right. Barring, with a few narrow exceptions, of multiple habeas petitions. Second or successive petitions must be authorized by a federal court of appeals and only for newly discovered facts sufficient to undercut guilt or for new rules of constitutional law made retroactive by the Supreme Court. How often are federal habeas corpus petitions successful? For nondeath penalty prisoners (who make up the vast majority of habeas corpus petitioners) relief is highly unlikely, around 1%. For death-sentenced state inmates, the success rate is estimated to be higher, about 7.5%, but the likelihood of success may have been modestly decreased by the AEDPA.39

Federal Death Sentence Review Procedures Different post-conviction processes are provided for defendants who received a death sentence in a federal (district) court for violating a federal criminal law. Unlike death sentence review in most states, federally death-sentenced defendants do not skip the intermediate court (a United States court of appeals) and go immediately to the United States Supreme Court. Indeed, the Supreme Court declines discretionary review for the overwhelming majority of federally death-sentenced defendants, so court of appeals decisions usually are final. The federal post-conviction remedy is available under 28 U.S.C. §2255, again with discretionary review by the Supreme Court—and again seldom granted. Given these facts, one might imagine that federal death sentence cases would proceed more swiftly to execution than state cases, but for reasons that are unclear that has not proven to be true.

From 1997 through 2004, death-sentenced state habeas petitioners prevailed in 103 of 1369 cases in United States courts of appeals—a 7.5% success rate. John H. Blume, AEDPA, The “Hype” and the “Bite,” Vol. 91, Cornell Law Review, 259 (2006). For over 1600 habeas cases from eight federal districts, terminated in 1990 and 1992, success rates averaged less than 1%. This database included a small number of death penalty cases. Victor E. Flango & Patricia McKenna, Federal Habeas Corpus Review of State Court Convictions, Vol. 31, California Western Law Review, 237 (1995).

39

Readings

Stage 7—Executive Clemency Once all judicial options have been unsuccessfully pursued, the death row inmate may apply for executive clemency. Traditionally in English law, the King had the authority to grant clemency: full or conditional pardon, commutation (reduction) of sentence, remissions of fines, and reprieves. In America, Article II, § 2 of the Constitution bestows upon the President the “Power to grant Reprieves and Pardons for Offences against the United States.” Similarly, state constitutions vest governors with sole clemency authority or final authority to act upon the recommendations of a clemency board. This authority rarely is subject to judicial review or legislative control, although the Supreme Court has held that minimal due process must be accorded capital inmates in clemency proceedings. Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). Executive clemency for death sentences has a become a relatively unusual occurrence since the Supreme Court “constitutionalized” the death penalty beginning in 1972, thus increasing the likelihood of judicial review. From 1973 to 2005, there were 7662 death sentences handed down, 1004 inmates executed, 2702 appellate reversals, and 341 death sentence commutations (including over 150 in one fell swoop by Illinois Governor George Ryan in 2003).40

Readings The readings that follow are books and articles related to the chapters in this edition of Death Penalty Cases. An effort was made to include contrasting viewpoints on each topic.

Chapter 1: Capital Punishment in America History Stuart Banner, The Death Penalty: An American History (Harvard University Press, 2002).

The Cruel and Unusual Punishments Clause Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted”: The Original Meaning, Vol. 57, California Law Review, 839 (1969). Meghan J. Ryan, Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual? Vol. 87, Washington University Law Review, 567 (2010).

U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment 2005; see http://bjs.ojp. usdoj.gov/content/pub/pdf/cp05.pdf, p. 14. Many of the court-reversed sentences were reimposed after new trials.

40

33

34

Chapter 1:  Capital Punishment in America

Arguments for and against Capital Punishment Hugo A. Bedau, Debating the Death Penalty: Should America Have Capital Punishment? (Oxford University Press, 2004). Dale Jacquette, Dialogues on the Ethics of Capital Punishment (Rowman & Littlefield Publishers, 2009). Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, Vol. 46, Case Western Law Review, 1 (1995). Erik C. Owens, John D. Carlson, & Eric P. Elshtain, eds., Religion and the Death Penalty: A Call for Reckoning (William B. Eerdmans Publishing Company, 2004).

Chapters 2, 3, and 4: The Furman, Gregg, and Woodson Cases Scott W. Howe, The Failed Case for Eighth Amendment Regulation of the Capital-Sentencing Trial, Vol. 146, University of Pennsylvania Law Review, 795 (1998). Corinna Barrett Lain, Deciding Death, Vol. 57, Duke Law Journal, 1 (2007). Carol S. Steiker, “Furman v. Georgia: Not an End, But a Beginning,” Ch. 2 in John H. Blume & Jordan M. Steiker, eds., Death Penalty Stories (Foundation Press, 2009).

Chapter 5: Mitigating Evidence John H. Blume, Sheri Lyn Johnson, & Scott E. Sundby, Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us about Mitigation, Vol. 36, Hofstra Law Review, 1035 (2008). Adam Kotlowitz, In the Face of Death, The New York Times Magazine, July 6, 2003, www.alexkotlowitz. com/03_01.html

Chapter 6: Racial Bias David A. Baldus, George Woodworth, John Charles Boger, & Charles A. Pulaski Jr., “McCleskey v. Kemp: Denial, Avoidance, and the Legitimization of Racial Discrimination in the Administration of the Death Penalty,” Ch. 6 in John H. Blume & Jordan M. Steiker, eds., Death Penalty Stories (Foundation Press, 2009). Theodore Eisenberg, Death Sentence Rates and County Demographics: An Empirical Study, Vol. 90, Cornell Law Review, 347 (2005). Scott Phillips, Status Disparities in the Capital of Capital Punishment, Vol. 43, Law & Society Review, 807 (2009).

Chapters 7 and 11: Rape and Other Nonhomicide Crimes J. Richard Broughton, Kennedy and the Tail of Minos, Vol. 69, Louisiana Law Review, 593 (2009).

Readings

Chapter 8: Murder and Aggravating Factors Richard Rosen, The “Especially Heinous” Aggravating Circumstance in Capital Cases—The Standardless Standard, Vol. 64, North Carolina Law Review, 941 (1986).

Chapter 9: Felony-Murder David McCord, State Death Sentencing for Felony Murder Accomplices under the Enmund and Tison Standards, Vol. 32, Arizona State Law Journal, 843 (2000).

Chapter 10: Mentally Retarded and Juveniles Robert Blecker, A Poster Child for Us, Vol. 89, Judicature, 297 (2006). Barry Latzer, Misplaced Compassion: The Mentally Retarded and the Death Penalty, Vol. 38, Criminal Law Bulletin, 327 (2002). Carol Steiker & Jordan Steiker, Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA’s Resolutions Concerning the Execution of Juveniles and Persons with Mental Retardation, Vol. 61, Journal of Law and Contemporary Problems, 89 (1998).

Chapter 12: Sentencing by Jury or Judge Nathan A. Forrester, Judge versus Jury: The Continuing Validity of Alabama’s Capital Sentencing Regime After Ring v. Arizona, Vol. 54, Alabama Law Review, 1157 (2003). Bryan A. Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing, Vol. 54, Alabama Law Review, 1091 (2003).

Chapter 13: Jury Selection Marla Sandys & Adam Trahan, Life Qualification, Automatic Death Penalty Voter Status, and Juror Decision Making in Capital Cases, Vol. 29, Justice System Journal, 385 (2008).

Chapter 14: Victim Impact Evidence David R. Karp & Jarrett B. Warshaw, Their Day in Court: The Role of Murder Victims’ Families in Capital Juror Decision Making, Vol. 45, Criminal Law Bulletin, 99 (2009). Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, Vol. 41, Arizona Law Review, 143 (1999).

Chapter 15: The Sentencing Decision Brooke Butler & Gary Moran, The Impact of Death Qualification, Belief in a Just World, Legal Authoritarianism, and Locus of Control on Venirepersons’ Evaluation of Aggravating and Mitigating Circumstances in Capital Trials, Vol. 25, Behavioral Sciences and the Law, 57 (2007). Valerie P. Hans, How Juries Decide Death: The Contributions of the Capital Jury Project, Vol. 70, Indiana Law Journal, 1233 (1995).

35

36

Chapter 1:  Capital Punishment in America

Chapter 16: Ineffective Counsel Kenneth Williams, Does Strickland Prejudice Defendants on Death Row? Vol. 43 University of Richmond Law Review, 1459 (2009).

Chapter 17: Claims of Innocence Jay D. Aronson & Simon A. Cole, Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States, Vol. 34, Law and Social Inquiry, 603 (2009).

Chapter 18: Executing the Insane Lyn Suzanne Entzeroth, The Illusion of Sanity: The Constitutional and Moral Danger of Medicating Condemned Prisoners in Order to Execute Them, Vol. 76, Tennessee Law Review, 641 (2009). Barry Latzer, Between Madness and Death: The Medicate-to-Execute Controversy, Vol. 22, Criminal Justice Ethics, 3 (2003).

Chapter 19: Method of Execution Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox behind State Uses of Electrocution and Lethal Injection and What It Says about Us, Vol. 63, Ohio State Law Journal, 63 (2002). Evan J. Mandery, Commentary: A Human Death: Legal and Ethical Restraints on Methods of Execution, Vol. 42, Criminal Law Bulletin p. 721 (2006).

Chap ter 2

Cruel and Unusual as Applied— Furman v. Georgia (1972) Editors’ Comment Three characteristics typified death sentencing in the United States before the Furman case. First, in most jurisdictions a broad variety of murders (and in some jurisdictions other crimes such as rape, kidnapping, and armed robbery as well) were eligible for death sentences. Second, most jurisdictions used a “unitary trial,” which meant that the issue of punishment was submitted to the jury along with the issue of guilt—there was no separate phase at which evidence relevant to the sentence was presented. Third, jurors were typically given little or no guidance regarding how to decide whether the penalty should be death or imprisonment. In Furman, the Supreme Court found that death sentences meted out under systems with these three characteristics were so arbitrary as to be unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause. However, entirely unclear was exactly what aspects of the system resulted in this unacceptable arbitrariness and whether there were any acceptable cures. Each Justice wrote a separate opinion. (The absence of agreement among the Justices is reflected in the use of a per curiam opinion—a concise unsigned opinion “for the Court.”) Only Justices Brennan and Marshall expressly contended that the death penalty was, in and of itself (per se), unconstitutional—although Justice Douglas was strongly suspected to be in this camp as well. But Justices Stewart and White, although part of the five-Justice majority, rejected this absolute position. This raised the possibility that new statutes might be enacted with sufficient potential for reduced arbitrariness to survive constitutional scrutiny. (See Gregg v. Georgia, 1976, Chapter 3.) The decision in Furman was a legal bombshell because of the profound effect it had on the death penalty in the United States—stopping it temporarily and reducing about 600 death sentences to prison terms. The result—the first Supreme Court ruling against capital punishment in the entire history of the United States—was also quite unexpected. Only the preceding year the Court had, by a 6–3 vote, rejected a claim that the death penalty was unconstitutionally arbitrary under the Due Process Clause. McGautha v. California, 402 U.S. 183 (1971). Yet it accepted the same argument by a 5–4 vote in Furman under the Eighth Amendment. The difference between the two outcomes was that Justices Stewart and White switched sides.

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

37

38

Chapter 2:  Cruel and Unusual as Applied

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed.2d 346 (1972) (5–4, the death penalty, as administered at the time, violates the Eighth Amendment.)

Per Curiam Opinion Petitioner in No. 69–5003 was convicted of murder in Georgia and was sentenced to death. . . . Petitioner in No. 69–5030 was convicted of rape in Georgia and was sentenced to death. . . . Petitioner in No. 69–5031 was convicted of rape in Texas and was sentenced to death. . . . Certiorari was granted limited to the following question: “Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.

Concurring opinion of justice douglas The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices. . . . The words “cruel and unusual” certainly include penalties that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is “cruel and unusual” to apply the death penalty—or any other penalty—selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board. . . . There is increasing recognition of the fact that the basic theme of equal protection is implicit in “cruel and unusual” punishments. “A penalty . . .

Concurring Opinion of Justice Douglas

should be considered ‘unusually’ imposed if it is administered arbitrarily or ­discriminatorily.” . . . We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12. . . . Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based not on equal justice, but on discrimination. In those days, the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments’ recurring efforts to foist a particular religion on the people. But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime. One cannot read this history without realizing that the desire for equality was reflected in the ban against “cruel and unusual punishments” contained in the Eighth Amendment. In a Nation committed to equal protection of the laws there is no permissible “caste” aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. In ancient Hindu law, a Brahman was exempt from capital punishment, and, under that law, “[g]enerally, in the law books, punishment increased in severity as social status diminished.” We have, I fear, taken in practice the same position, partially as a result of making the death penalty discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation. The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. A law that stated that anyone making more than $50,000 would be exempt from the death penalty would plainly fall, as would a law that in terms said that blacks, those who never went beyond the fifth grade in school, those who made

39

40

Chapter 2:  Cruel and Unusual as Applied

less than $3,000 a year, or those who were unpopular or unstable should be the only people executed. A law which, in the overall view, reaches that result in practice has no more sanctity than a law which in terms provides the same. Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on “cruel and unusual” punishments. Any law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment. . . . Such conceivably might be the fate of a mandatory death penalty, where equal or lesser sentences were imposed on the elite, a harsher one on the minorities or members of the lower castes. Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach.

Concurring opinion of justice brennan II . . . There are, then, four principles by which we may determine whether a particular punishment is “cruel and unusual.” . . . If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. . . .

III The question, then, is whether the deliberate infliction of death is today consistent with the command of the Clause that the State may not inflict punishments that do not comport with human dignity. I will analyze the punishment of death in terms of the principles set out above and the cumulative test to which they lead: it is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Under these principles and this test, death is today a “cruel and unusual” punishment. Death is a unique punishment in the United States. In a society that so strongly affirms the sanctity of life, not surprisingly, the common view is that death is the ultimate sanction. This natural human feeling appears all about us. There has been no national debate about punishment, in general or by

Concurring Opinion of Justice Brennan

i­ mprisonment comparable to the debate about the punishment of death. No other punishment has been so continuously restricted, nor has any State yet abolished prisons, as some have abolished this punishment. And those States that still inflict death reserve it for the most heinous crimes. Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers. Criminal defendants are of the same view. . . . Some legislatures have required particular procedures, such as two-stage trials and automatic appeals, applicable only in death cases. . . . This Court, too, almost always treats death cases as a class apart. And the unfortunate effect of this punishment upon the functioning of the judicial process is well known; no other punishment has a similar effect. The only explanation for the uniqueness of death is its extreme severity. Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering. Although our information is not conclusive, it appears that there is no method available that guarantees an immediate and painless death. Since the discontinuance of flogging as a constitutionally permissible punishment, death remains as the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. . . . The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself. . . . Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose “the right to have rights.” . . . His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted, see Witherspoon v. Illinois, yet the finality of death precludes relief. . . . In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity. I would not hesitate to hold, on that ground alone, that death is today a “cruel and unusual” punishment, were it not that death is a punishment of long-standing usage and acceptance in this country. I therefore turn to the

41

42

Chapter 2:  Cruel and Unusual as Applied

second principle—that the State may not arbitrarily inflict an unusually severe punishment. The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it. The evidence is conclusive that death is not the ordinary punishment for any crime. There has been a steady decline in the infliction of this punishment in every decade since the 1930’s, the earliest period for which accurate statistics are available. In the 1930’s, executions averaged 167 per year; in the 1940’s, the average was 128; in the 1950’s, it was 72; and in the years 1960–1962, it was 48. There have been a total of 46 executions since then, 36 of them in 1963–1964. Yet our population and the number of capital crimes committed have increased greatly over the past four decades. The contemporary rarity of the infliction of this punishment is thus the end result of a long-continued decline. . . . When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction. Although there are no exact figures available, we know that thousands of murders and rapes are committed annually in States where death is an authorized punishment for those crimes. However the rate of infliction is characterized— as “freakishly” or “spectacularly” rare, or simply as rare—it would take the purest sophistry to deny that death is inflicted in only a minute fraction of these cases. How much rarer, after all, could the infliction of death be? When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The States claim, however, that this rarity is evidence not of arbitrariness, but of informed selectivity: Death is inflicted, they say, only in “extreme” cases. Informed selectivity, of course, is a value not to be denigrated. Yet presumably the States could make precisely the same claim if there were 10 executions per year, or five, or even if there were but one. That there may be as many as 50 per year does not strengthen the claim. When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment. No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible. Certainly the laws that provide for this punishment do not attempt to draw that distinction; all cases to which the laws apply are necessarily “extreme.”

Concurring Opinion of Justice Brennan

Nor is the ­distinction credible in fact. If, for example, petitioner Furman or his crime illustrates the “extreme,” then nearly all murderers and their murders are also “extreme.” Furthermore, our procedures in death cases, rather than resulting in the selection of “extreme” cases for this punishment, actually sanction an arbitrary selection. For this Court has held that juries may, as they do, make the decision whether to impose a death sentence wholly unguided by standards governing that decision. McGautha v. California, 402 U.S. 183, 196–208 (1971). In other words, our procedures are not constructed to guard against the totally capricious selection of criminals for the punishment of death. Although it is difficult to imagine what further facts would be necessary in order to prove that death is, as my Brother Stewart puts it, “wantonly and . . . freakishly” inflicted, I need not conclude that arbitrary infliction is patently obvious. I am not considering this punishment by the isolated light of one principle. The probability of arbitrariness is sufficiently substantial that it can be relied upon, in combination with the other principles, in reaching a judgment on the constitutionality of this punishment. When there is a strong probability that an unusually severe and degrading punishment is being inflicted arbitrarily, we may well expect that society will disapprove of its infliction. I turn, therefore, to the third principle. An examination of the history and present operation of the American practice of punishing criminals by death reveals that this punishment has been almost totally rejected by contemporary society. . . . From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. . . . Our practice of punishing criminals by death has changed greatly over the years. One significant change has been in our methods of inflicting death. Although this country never embraced the more violent and repulsive methods employed in England, we did for a long time rely almost exclusively upon the gallows and the firing squad. Since the development of the supposedly more humane methods of electrocution late in the 19th century and lethal gas in the 20th, however, hanging and shooting have virtually ceased. Our concern for decency and human dignity, moreover, has compelled changes in the circumstances surrounding the execution itself. No longer does our society

43

44

Chapter 2:  Cruel and Unusual as Applied

countenance the spectacle of public executions, once thought desirable as a deterrent to criminal behavior by others. Today we reject public executions as debasing and brutalizing to us all. Also significant is the drastic decrease in the crimes for which the punishment of death is actually inflicted. While esoteric capital crimes remain on the books, since 1930 murder and rape have accounted for nearly 99% of the total executions, and murder alone for about 87%. In addition, the crime of capital murder has itself been limited. As the Court noted in McGautha v. California, there was in this country a “rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers.” . . . In consequence, virtually all death sentences today are discretionarily imposed. Finally, it is significant that nine States no longer inflict the punishment of death under any circumstances, and five others have restricted it to extremely rare crimes. Thus, although “the death penalty has been employed throughout our history,” Trop v. Dulles, in fact the history of this punishment is one of successive restriction. What was once a common punishment has become, in the context of a continuing moral debate, increasingly rare. The evolution of this punishment evidences, not that it is an inevitable part of the American scene, but that it has proved progressively more troublesome to the national conscience. The result of this movement is our current system of administering the punishment, under which death sentences are rarely imposed and death is even more rarely inflicted. . . . The progressive decline in, and the current rarity of, the infliction of death demonstrate that our society seriously questions the appropriateness of this punishment today. The States point out that many legislatures authorize death as the punishment for certain crimes and that substantial segments of the public, as reflected in opinion polls and referendum votes, continue to support it. Yet the availability of this punishment through statutory authorization, as well as the polls and referenda, which amount simply to approval of that authorization, simply underscores the extent to which our society has, in fact, rejected this punishment. When an unusually severe punishment is authorized for wide-scale application but not, because of society’s refusal, inflicted save in a few instances, the inference is compelling that there is a deep-seated reluctance to inflict it. Indeed, the likelihood is great that the punishment is tolerated only because of its disuse. The objective indicator of society’s view of an unusually severe punishment is what society does with it, and today society will inflict death upon only a small sample of the eligible criminals. Rejection could hardly be more complete without becoming absolute. At the very least, I must conclude that contemporary society views this punishment with substantial doubt.

Concurring Opinion of Justice Brennan

The final principle to be considered is that an unusually severe and degrading punishment may not be excessive in view of the purposes for which it is inflicted. This principle, too, is related to the others. When there is a strong probability that the State is arbitrarily inflicting an unusually severe punishment that is subject to grave societal doubts, it is likely also that the punishment cannot be shown to be serving any penal purpose that could not be served equally well by some less severe punishment. The States’ primary claim is that death is a necessary punishment because it prevents the commission of capital crimes more effectively than any less severe punishment. The first part of this claim is that the infliction of death is necessary to stop the individuals executed from committing further crimes. The sufficient answer to this is that, if a criminal convicted of a capital crime poses a danger to society, effective administration of the State’s pardon and parole laws can delay or deny his release from prison, and techniques of isolation can eliminate or minimize the danger while he remains confined. The more significant argument is that the threat of death prevents the commission of capital crimes because it deters potential criminals who would not be deterred by the threat of imprisonment. The argument is not based upon evidence that the threat of death is a superior deterrent. Indeed, as my Brother Marshall establishes, the available evidence uniformly indicates, although it does not conclusively prove, that the threat of death has no greater deterrent effect than the threat of imprisonment. The States argue, however, that they are entitled to rely upon common human experience, and that experience, they say, supports the conclusion that death must be a more effective deterrent than any less severe punishment. Because people fear death the most, the argument runs, the threat of death must be the greatest deterrent. It is important to focus upon the precise import of this argument. It is not denied that many, and probably most, capital crimes cannot be deterred by the threat of punishment. Thus the argument can apply only to those who think rationally about the commission of capital crimes. Particularly is that true when the potential criminal, under this argument, must not only consider the risk of punishment, but also distinguish between two possible punishments. The concern, then, is with a particular type of potential criminal, the rational person who will commit a capital crime knowing that the punishment is long-term imprisonment, which may well be for the rest of his life, but will not commit the crime knowing that the punishment is death. On the face of it, the assumption that such persons exist is implausible. In any event, this argument cannot be appraised in the abstract. We are not presented with the theoretical question whether under any imaginable circumstances the threat of death might be a greater deterrent to the commission of capital crimes than the threat of imprisonment. We are concerned with the

45

46

Chapter 2:  Cruel and Unusual as Applied

practice of punishing criminals by death as it exists in the United States today. Proponents of this argument necessarily admit that its validity depends upon the existence of a system in which the punishment of death is invariably and swiftly imposed. Our system, of course, satisfies neither condition. A rational person contemplating a murder or rape is confronted not with the certainty of a speedy death, but with the slightest possibility that he will be executed in the distant future. The risk of death is remote and improbable; in contrast, the risk of long-term imprisonment is near and great. In short, whatever the speculative validity of the assumption that the threat of death is a superior deterrent, there is no reason to believe that, as currently administered, the punishment of death is necessary to deter the commission of capital crimes. Whatever might be the case were all or substantially all eligible criminals quickly put to death, unverifiable possibilities are an insufficient basis upon which to conclude that the threat of death today has any greater deterrent efficacy than the threat of imprisonment. There is, however, another aspect to the argument that the punishment of death is necessary for the protection of society. The infliction of death, the States urge, serves to manifest the community’s outrage at the commission of the crime. It is, they say, a concrete public expression of moral indignation that inculcates respect for the law and helps assure a more peaceful community. Moreover, we are told, not only does the punishment of death exert this widespread moralizing influence upon community values, it also satisfies the popular demand for grievous condemnation of abhorrent crimes, and thus prevents disorder, lynching, and attempts by private citizens to take the law into their own hands. The question, however, is not whether death serves these supposed purposes of punishment, but whether death serves them more effectively than imprisonment. There is no evidence whatever that utilization of imprisonment, rather than death, encourages private blood feuds and other disorders. Surely if there were such a danger, the execution of a handful of criminals each year would not prevent it. The assertion that death alone is a sufficiently emphatic denunciation for capital crimes suffers from the same defect. If capital crimes require the punishment of death in order to provide moral reinforcement for the basic values of the community, those values can only be undermined when death is so rarely inflicted upon the criminals who commit the crimes. Furthermore, it is certainly doubtful that the infliction of death by the State does in fact strengthen the community’s moral code; if the deliberate extinguishment of human life has any effect at all, it more likely tends to lower our respect for life and brutalize our values. That, after all, is why we no longer carry out public executions. In any event, this claim simply means that one purpose of punishment is to indicate social disapproval of crime. To serve that purpose our laws distribute punishments according to the gravity of crimes and punish more

Concurring Opinion of Justice Stewart

severely the crimes society regards as more serious. That purpose cannot justify any particular punishment as the upper limit of severity. There is, then, no substantial reason to believe that the punishment of death, as currently administered, is necessary for the protection of society. The only other purpose suggested, one that is independent of protection for society, is retribution. Shortly stated, retribution in this context means that criminals are put to death because they deserve it. . . . As administered today, however, the punishment of death cannot be justified as a necessary means of exacting retribution from criminals. When the overwhelming number of criminals who commit capital crimes go to prison, it cannot be concluded that death serves the purpose of retribution more effectively than imprisonment. The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a random few. As the history of the punishment of death in this country shows, our society wishes to prevent crime; we have no desire to kill criminals simply to get even with them. In sum, the punishment of death is inconsistent with all four principles: Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.

Concurring opinion of justice stewart The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eight and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. . . . In the first place, it is clear that these sentences are “cruel” in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. Weems v. United States. In the second place, it is equally clear that these sentences are “unusual” in the sense that the penalty of death is infrequently imposed for murder, and that its

47

48

Chapter 2:  Cruel and Unusual as Applied

imposition for rape is extraordinarily rare. But I do not rest by conclusion upon these two propositions alone. These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Concurring opinion of justice white The facial constitutionality of statutes requiring the imposition of the death penalty for first-degree murder, for more narrowly defined categories of murder, or for rape would present quite different issues under the Eighth Amendment than are posed by the cases before us. In joining the Court’s judgments, therefore, I do not at all intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by these cases and need not be decided. The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which (1) the legislature authorizes the imposition of the death penalty for murder or rape; (2) the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized; and (3) judges and juries have ordered the death penalty with such infrequency that the odds are now very much against imposition and execution of the penalty with respect to any convicted murderer or rapist. It is in this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment. I begin with what I consider a near truism: that the death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system. It is perhaps true that no matter how infrequently those convicted of rape or murder are executed, the penalty so imposed is not disproportionate to the crime and those executed may deserve exactly what they received. It

Concurring Opinion of Justice White

would also be clear that executed defendants are finally and completely incapacitated from again committing rape or murder or any other crime. But when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied. Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when, for so many in like circumstances, life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked. Most important, a major goal of the criminal law—to deter others by punishing the convicted criminal—would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others. For present purposes I accept the morality and utility of punishing one person to influence another. I accept also the effectiveness of punishment generally and need not reject the death penalty as a more effective deterrent than a lesser punishment. But common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted. The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. It is also my judgment that this point has been reached with respect to capital punishment as it is presently administered under the statutes involved in these cases. Concededly, it is difficult to prove as a general proposition that capital punishment, however administered, more effectively serves the ends of the criminal law than does imprisonment. But however that may be, I cannot avoid the conclusion that, as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice. . . . The short of it is that the policy of vesting sentencing authority primarily in juries—a decision largely motivated by the desire to mitigate the harshness of

49

50

Chapter 2:  Cruel and Unusual as Applied

the law and to bring community judgment to bear on the sentence as well as guilt or innocence—has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has, for all practical purposes, run its course.

Concurring opinion of justice marshall III . . . [A] punishment may be deemed cruel and unusual for any one of four distinct reasons. First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them—e.g., use of the rack, the thumbscrew. . . . Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offense. . . . If these punishments are intended to serve a humane purpose, they may be constitutionally permissible. . . . Prior decisions leave open the question of just how much the word “unusual” adds to the word “cruel.” I have previously indicated that use of the word “unusual” in the English Bill of Rights of 1689 was inadvertent, and there is nothing in the history of the Eighth Amendment to give flesh to its intended meaning. In light of the meager history that does exist, one would suppose that an innovative punishment would probably be constitutional if no more cruel than that punishment which it superseded. We need not decide this question here, however, for capital punishment is certainly not a recent phenomenon. Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose. Weems v. United States. The decisions previously discussed are replete with assertions that one of the primary functions of the cruel and unusual punishments clause is to prevent excessive or unnecessary penalties, e.g., Wilkerson v. Utah; O’Neil v. Vermont; Weems v. United States; Louisiana ex rel. Francis v. Resweber; these punishments are unconstitutional even though popular sentiment may favor them. . . . Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it. For example, if the evidence clearly demonstrated that capital punishment served valid legislative purposes, such punishment would, nevertheless, be unconstitutional if citizens found it to be morally unacceptable. A general abhorrence on the part of the public would, in effect, equate a modern punishment with those barred since the adoption of the Eighth Amendment. There are no prior cases in this Court striking down a penalty on this ground, but the very notion of changing values requires that we recognize its existence.

Concurring Opinion of Justice Marshall

It is immediately obvious, then, that since capital punishment is not a recent phenomenon, if it violates the Constitution, it does so because it is excessive or unnecessary, or because it is abhorrent to currently existing moral values. . . .

V In order to assess whether or not death is an excessive or unnecessary penalty, it is necessary to consider the reasons why a legislature might select it as punishment for one or more offenses, and examine whether less severe penalties would satisfy the legitimate legislative wants as well as capital punishment. If they would, then the death penalty is unnecessary cruelty, and, therefore, unconstitutional. There are six purposes conceivably served by capital punishment: retribution, deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and confessions, eugenics, and economy. These are considered seriatim below. A.  The concept of retribution is one of the most misunderstood in all of our criminal jurisprudence. The principal source of confusion derives from the fact that, in dealing with the concept, most people confuse the question “why do men in fact punish?” with the question “what justifies men in punishing?” Men may punish for any number of reasons, but the one reason that punishment is morally good or morally justifiable is that someone has broken the law. Thus, it can correctly be said that breaking the law is the sine qua non of punishment, or, in other words, that we only tolerate punishment as it is imposed on one who deviates from the norm established by the criminal law. The fact that the State may seek retribution against those who have broken its laws does not mean that retribution may then become the State’s sole end in punishing. Our jurisprudence has always accepted deterrence in general, deterrence of individual recidivism, isolation of dangerous persons, and rehabilitation as proper goals of punishment. See Trop v. Dulles. Retaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society. Punishment as retribution has been condemned by scholars for centuries, and the Eighth Amendment itself was adopted to prevent punishment from becoming synonymous with vengeance. . . . Retribution surely underlies the imposition of some punishment on one who commits a criminal act. But, the fact that some punishment may be imposed does not mean that any punishment is permissible. If retribution alone could serve as a justification for any particular penalty, then all penalties selected by

51

52

Chapter 2:  Cruel and Unusual as Applied

the legislature would by definition be acceptable means for designating society’s moral approbation of a particular act. The “cruel and unusual” language would thus be read out of the Constitution, and the fears of Patrick Henry and the other Founding Fathers would become realities. To preserve the integrity of the Eighth Amendment, the Court has consistently denigrated retribution as a permissible goal of punishment. It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society’s abhorrence of the act. But the Eighth Amendment is our insulation from our baser selves. The “cruel and unusual” language limits the avenues through which vengeance can be channeled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case. . . . The history of the Eighth Amendment supports only the conclusion that retribution for its own sake is improper. B.  The most hotly contested issue regarding capital punishment is whether it is better than life imprisonment as a deterrent to crime. . . . It must be kept in mind, then, that the question to be considered is not simply whether capital punishment is a deterrent, but whether it is a better deterrent than life imprisonment. There is no more complex problem than determining the deterrent efficacy of the death penalty. “Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged.” This is the nub of the problem and it is exacerbated by the paucity of useful data. . . . Despite the fact that abolitionists have not proved nondeterrence beyond a reasonable doubt, they have succeeded in showing by clear and convincing evidence that capital punishment is not necessary as a deterrent to crime in our society. This is all that they must do. We would shirk our judicial responsibilities if we failed to accept the presently existing statistics and demanded more proof. It may be that we now possess all the proof that anyone could ever hope to assemble on the subject. But, even if further proof were to be forthcoming, I believe there is more than enough evidence presently available for a decision in this case. In light of the massive amount of evidence before us, I see no alternative but to conclude that capital punishment cannot be justified on the basis of its deterrent effect. C.  Much of what must be said about the death penalty as a device to prevent recidivism is obvious—if a murderer is executed, he cannot possibly commit

Concurring Opinion of Justice Marshall

another offense. The fact is, however, that murderers are extremely unlikely to commit other crimes either in prison or upon their release. For the most part, they are first offenders, and when released from prison they are known to become model citizens. Furthermore, most persons who commit capital crimes are not executed. With respect to those who are sentenced to die, it is critical to note that the jury is never asked to determine whether they are likely to be recidivists. In light of these facts, if capital punishment were justified purely on the basis of preventing recidivism, it would have to be considered to be excessive; no general need to obliterate all capital offenders could have been demonstrated, nor any specific need in individual cases. . . . E.  There is but one conclusion that can be drawn from all of this—i.e., the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment. . . .

VI In addition, even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history. . . . While a public opinion poll obviously is of some assistance in indicating public acceptance or rejection of a specific penalty, its utility cannot be very great. This is because whether or not a punishment is cruel and unusual depends, not on whether its mere mention “shocks the conscience and sense of justice of the people,” but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable. . . . Some of the conclusions arrived at in the preceding section and the supporting evidence would be critical to an informed judgment on the morality of the death penalty: e.g., that the death penalty is no more effective a deterrent than life imprisonment, that convicted murderers are rarely executed, but are usually sentenced to a term in prison; that convicted murderers usually are model prisoners, and that they almost always become law-abiding citizens upon their release from prison; that the costs of executing a capital offender exceed the costs of imprisoning him for life; that while in prison, a convict under sentence of death performs none of the useful functions that life prisoners perform; that no attempt is made in the sentencing process to ferret out likely recidivists for execution; and that the death penalty may actually stimulate criminal activity. This information would almost surely convince the average citizen that the death penalty was unwise, but a problem arises as to whether it would convince him that the penalty was morally reprehensible. This problem arises from the fact that the public’s desire for retribution, even though this is a goal

53

54

Chapter 2:  Cruel and Unusual as Applied

that the legislature cannot constitutionally pursue as its sole justification for capital punishment, might influence the citizenry’s view of the morality of capital punishment. The solution to the problem lies in the fact that no one has ever seriously advanced retribution as a legitimate goal of our society. Defenses of capital punishment are always mounted on deterrent or other similar theories. This should not be surprising. It is the people of this country who have urged in the past that prisons rehabilitate as well as isolate offenders, and it is the people who have injected a sense of purpose into our penology. I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance. Thus, I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional. But, if this information needs supplementing, I believe that the following facts would serve to convince even the most hesitant of citizens to condemn death as a sanction: capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved; and the death penalty wreaks havoc with our entire criminal justice system. . . . Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone capital punishment cannot stand.

Dissenting opinion of chief justice burger, joined by justices powell, blackmun, and rehnquist III There are no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned. It is not a punishment such as burning at the stake that everyone would ineffably find to be repugnant to all civilized standards. Nor is it a punishment so roundly condemned that only a few aberrant legislatures have retained it on the statute books. Capital punishment is authorized by statute in 40 States, the District of Columbia, and in the federal courts for the commission of certain crimes. On four occasions in the last 11 years Congress has added to the list of federal crimes punishable by death. In looking for reliable indicia of contemporary attitude, none more trustworthy has been advanced. One conceivable source of evidence that legislatures have abdicated their essentially barometric role with respect to community values would be public

Dissenting Opinion of Chief Justice Burger

opinion polls, of which there have been many in the past decade addressed to the question of capital punishment. Without assessing the reliability of such polls, or intimating that any judicial reliance could ever be placed on them, it need only be noted that the reported results have shown nothing approximating the universal condemnation of capital punishment that might lead us to suspect that the legislatures in general have lost touch with current social values. Counsel for petitioners rely on a different body of empirical evidence. They argue, in effect, that the number of cases in which the death penalty is imposed, as compared with the number of cases in which it is statutorily available, reflects a general revulsion toward the penalty that would lead to its repeal if only it were more generally and widely enforced. It cannot be gainsaid, that by the choice of juries—and sometimes judges—the death penalty is imposed in far fewer than half the cases in which it is available. To go further and characterize the rate of imposition as “freakishly rare,” as petitioners insist, is unwarranted hyperbole. And regardless of its characterization, the rate of imposition does not impel the conclusion that capital punishment is now regarded as intolerably cruel or uncivilized. It is argued that in those capital cases where juries have recommended mercy, they have given expression to civilized values and effectively renounced the legislative authorization for capital punishment. At the same time, it is argued that, where juries have made the awesome decision to send men to their deaths, they have acted arbitrarily and without sensitivity to prevailing standards of decency. This explanation for the infrequency of imposition of capital punishment is unsupported by known facts, and is inconsistent in principle with everything this Court has ever said about the functioning of juries in capital cases. . . . The selectivity of juries in imposing the punishment of death is properly viewed as a refinement on, rather than a repudiation of, the statutory authorization for that penalty. Legislatures prescribe the categories of crimes for which the death penalty should be available, and, acting as “the conscience of the community,” juries are entrusted to determine in individual cases that the ultimate punishment is warranted. Juries are undoubtedly influenced in this judgment by myriad factors. The motive or lack of motive of the perpetrator, the degree of injury or suffering of the victim or victims, and the degree of brutality in the commission of the crime would seem to be prominent among these factors. Given the general awareness that death is no longer a routine punishment for the crimes for which it is made available, it is hardly surprising that juries have been increasingly meticulous in their imposition of the penalty. But to assume from the mere fact of relative infrequency that only a random assortment of pariahs are sentenced to death, is to cast grave doubt on the basic integrity of our jury system.

55

56

Chapter 2:  Cruel and Unusual as Applied

It would, of course, be unrealistic to assume that juries have been perfectly consistent in choosing the cases where the death penalty is to be imposed, for no human institution performs with perfect consistency. There are doubtless prisoners on death row who would not be there had they been tried before a different jury or in a different State. In this sense, their fate has been controlled by a fortuitous circumstance. However, this element of fortuity does not stand as an indictment either of the general functioning of juries in capital cases or of the integrity of jury decisions in individual cases. There is no empirical basis for concluding that juries have generally failed to discharge in good faith the responsibility described in Witherspoon—that of choosing between life and death in individual cases according to the dictates of community values. The rate of imposition of death sentences falls far short of providing the requisite unambiguous evidence that the legislatures of 40 States and the Congress have turned their backs on current or evolving standards of decency in continuing to make the death penalty available. For, if selective imposition evidences a rejection of capital punishment in those cases where it is not imposed, it surely evidences a correlative affirmation of the penalty in those cases where it is imposed. Absent some clear indication that the continued imposition of the death penalty on a selective basis is violative of prevailing standards of civilized conduct, the Eighth Amendment cannot be said to interdict its use. . . .

IV Capital punishment has also been attacked as violative of the Eighth Amend­ ment on the ground that it is not needed to achieve legitimate penal aims and is thus “unnecessarily cruel.” As a pure policy matter, this approach has much to recommend it, but it seeks to give a dimension to the Eighth Amendment that it was never intended to have and promotes a line of inquiry that this Court has never before pursued. The Eighth Amendment, as I have noted, was included in the Bill of Rights to guard against the use of torturous and inhuman punishments, not those of limited efficacy. . . . Apart from . . . isolated uses of the word “unnecessary,” nothing in the cases suggests that it is for the courts to make a determination of the efficacy of punishments. . . . By pursuing the necessity approach, it becomes even more apparent that it involves matters outside the purview of the Eighth Amendment. Two of the several aims of punishment are generally associated with capital punishment— retribution and deterrence. It is argued that retribution can be discounted because that, after all, is what the Eighth Amendment seeks to eliminate. There is no authority suggesting that the Eighth Amendment was intended to purge the law of its retributive elements, and the Court has consistently assumed

Dissenting Opinion of Chief Justice Burger

that retribution is a legitimate dimension of the punishment of crimes. See Williams v. New York, 337 U.S. 241, 248 (1949); United States v. Lovett, 328 U.S. 303, 324 (1946) (Frankfurter, J., concurring). Furthermore, responsible legal thinkers of widely varying persuasions have debated the sociological and philosophical aspects of the retribution question for generations, neither side being able to convince the other. It would be reading a great deal into the Eighth Amendment to hold that the punishments authorized by legislatures cannot constitutionally reflect a retributive purpose. The less esoteric but no less controversial question is whether the death penalty acts as a superior deterrent. Those favoring abolition find no evidence that it does. Those favoring retention start from the intuitive notion that capital punishment should act as the most effective deterrent, and note that there is no convincing evidence that it does not. Escape from this empirical stalemate is sought by placing the burden of proof on the States and concluding that they have failed to demonstrate that capital punishment is a more effective deterrent than life imprisonment. Numerous justifications have been advanced for shifting the burden, and they are not without their rhetorical appeal. However, these arguments are not descended from established constitutional principles, but are born of the urge to bypass an unresolved factual question. Comparative deterrence is not a matter that lends itself to precise measurement; to shift the burden to the states is to provide an illusory solution to an enormously complex problem. If it were proper to put the States to the test of demonstrating the deterrent value of capital punishment, we could just as well ask them to prove the need for life imprisonment or any other punishment. Yet I know of no convincing evidence that life imprisonment is a more effective deterrent than 20 years’ imprisonment, or even that a $10 parking ticket is a more effective deterrent than a $5 parking ticket. In fact, there are some who go so far as to challenge the notion that any punishments deter crime. If the States are unable to adduce convincing proof rebutting such assertions, does it then follow that all punishments are suspect as being “cruel and unusual” within the meaning of the Constitution? On the contrary, I submit that the questions raised by the necessity approach are beyond the pale of judicial inquiry under the Eighth Amendment.

V . . . As I have earlier stated, the Eighth Amendment forbids the imposition of punishments that are so cruel and inhumane as to violate society’s standards of civilized conduct. The Amendment does not prohibit all punishments the States are unable to prove necessary to deter or control crime. The Amendment is not concerned with the process by which a State determines that a particular punishment is to be imposed in a particular case. And the Amendment most assuredly does not speak to the power of legislatures to confer sentencing discretion on juries, rather than to fix all sentences by statute.

57

58

Chapter 2:  Cruel and Unusual as Applied

The critical factor in the concurring opinions of both Mr. Justice Stewart and Mr. Justice White is the infrequency with which the penalty is imposed. This factor is taken not as evidence of society’s abhorrence of capital punishment— the inference that petitioners would have the Court draw—but as the earmark of deteriorated system of sentencing. It is concluded that petitioners’ sentences must be set aside, not because the punishment is impermissibly cruel, but because juries and judges have failed to exercise their sentencing discretion in acceptable fashion. . . . The decisive grievance of the opinions—not translated into Eighth Amendment terms—is that the present system of discretionary sentencing in capital cases has failed to produce evenhanded justice; the problem is not that too few have been sentenced to die, but that the selection process has followed no rational pattern. This claim of arbitrariness is not only lacking in empirical support, but also it manifestly fails to establish that the death penalty is a “cruel and unusual” punishment. The Eighth Amendment was included in the Bill of Rights to assure that certain types of punishments would never be imposed, not to channelize the sentencing process. The approach of these concurring opinions has no antecedent in the Eighth Amendment cases. It is essentially and exclusively a procedural due process argument. This ground of decision is plainly foreclosed as well as misplaced. Only one year ago, in McGautha v. California, the Court upheld the prevailing system of sentencing in capital cases. . . . While I would not undertake to make a definitive statement as to the parameters of the Court’s ruling, it is clear that if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made. Since the two pivotal concurring opinions turn on the assumption that the punishment of death is now meted out in a random and unpredictable manner, legislative bodies may seek to bring their laws into compliance with the Court’s ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed. If such standards can be devised or the crimes more meticulously defined, the result cannot be detrimental. However, Mr. Justice Harlan’s opinion for the Court in McGautha convincingly demonstrates that all past efforts “to identify before the fact” the cases in which the penalty is to be imposed have been “uniformly unsuccessful.” 402 U.S., at 197. One problem is that “the factors which determine whether the sentence of death is the appropriate penalty in particular cases are too complex to be compressed within the limits of a simple formula . . .” Report of Royal Commission on Capital Punishment (1949–1953). Real change could clearly be brought about if legislatures provided mandatory death sentences in such a way as to deny juries the opportunity to bring in a verdict on a lesser charge; under such a system, the death sentence could only

Dissenting Opinion of Justice Powell

be avoided by a verdict of acquittal. If this is the only alternative that the legislatures can safely pursue under today’s ruling, I would have preferred that the Court opt for total abolition. It seems remarkable to me that with our basic trust in lay jurors as the keystone in our system of criminal justice, it should now be suggested that we take the most sensitive and important of all decisions away from them. I could more easily be persuaded that mandatory sentences of death, without the intervening and ameliorating impact of lay jurors, are so arbitrary and doctrinaire that they violate the Constitution. . . . [The dissenting opinion of Justice Blackmun is omitted.]

Dissenting opinion of justice powell, joined by chief justice burger and justices blackmun and rehnquist IV . . . Although determining the range of available punishments for a particular crime is a legislative function, the very presence of the Cruel and Unusual Punishments Clause within the Bill of Rights requires, in the context of a specific case, that courts decide whether particular acts of the Congress offend that Amendment. The Due Process Clause of the Fourteenth Amendment imposes on the judiciary a similar obligation to scrutinize state legislation. But the proper exercise of that constitutional obligation in the cases before us today must be founded on a full recognition of the several considerations set forth above—the affirmative references to capital punishment in the Constitution, the prevailing precedents of this Court, the limitations on the exercise of our power imposed by tested principles of judicial self-restraint, and the duty to avoid encroachment on the powers conferred upon state and federal legislatures. In the face of these considerations, only the most conclusive of objective demonstrations could warrant this Court in holding capital punishment per se unconstitutional. The burden of seeking so sweeping a decision against such formidable obstacles is almost insuperable. Viewed from this perspective, as I believe it must be, the case against the death penalty falls far short. Petitioners’ contentions are premised, as indicated above, on the long-accepted view that concepts embodied in the Eighth and Fourteenth Amendments evolve. They present, with skill and persistence, a list of “objective indicators” which are said to demonstrate that prevailing standards of human decency have progressed to the final point of requiring the Court to hold, for all cases and for all time, that capital punishment is unconstitutional. Briefly summarized, these proffered indicia of contemporary standards of decency include the following: (i) a worldwide trend toward the disuse of the death penalty; (ii) the reflection in the scholarly literature of a

59

60

Chapter 2:  Cruel and Unusual as Applied

progressive ­rejection of capital punishment founded essentially on moral opposition to such treatment; (iii) the decreasing numbers of executions over the last 40 years and especially over the last decade; (iv) the small number of death sentences rendered in relation to the number of cases in which they might have been imposed; and (v) the indication of public abhorrence of the penalty reflected in the circumstance that executions are no longer public affairs. The foregoing is an incomplete summary but it touches the major bases of petitioners’ presentation. Although they are not appropriate for consideration as objective evidence, petitioners strongly urge two additional propositions. They contend, first, that the penalty survives public condemnation only through the infrequency, arbitrariness, and discriminatory nature of its application, and, second, that there no longer exists any legitimate justification for the utilization of the ultimate penalty. These contentions, which have proved persuasive to several of the Justices constituting the majority, deserve separate consideration and will be considered in the ensuing sections. Before turning to those arguments, I first address the argument based on “objective” factors. Any attempt to discern contemporary standards of decency through the review of objective factors must take into account several overriding considerations which petitioners choose to discount or ignore. In a democracy the first indicator of the public’s attitude must always be found in the legislative judgments of the people’s chosen representatives. Mr. Justice Marshall’s opinion today catalogues the salient statistics. Forty States, the District of Columbia, and the Federal Government still authorize the death penalty for a wide variety of crimes. That number has remained relatively static since the end of World War I. That does not mean, however, that capital punishment has become a forgotten issue in the legislative arena. . . . [After discussing recent federal, state, and foreign legislative activity on the death penalty, Justice Powell concludes as follows:]

This recent history of activity with respect to legislation concerning the death penalty abundantly refutes the abolitionist position. The second and even more direct source of information reflecting the public’s attitude toward capital punishment is the jury. . . . Any attempt to discern, therefore, where the prevailing standards of decency lie must take careful account of the jury’s response to the question of capital punishment. During the 1960’s juries returned in excess of a thousand death sentences, a rate of approximately two per week. Whether it is true that death sentences were returned in less than 10% of the cases, as petitioners estimate, or whether some higher percentage is more accurate, these totals simply do not support petitioners’ assertion at oral argument that “the death penalty is virtually unanimously repudiated and condemned by the conscience of contemporary society.” It is also worthy of note

Dissenting Opinion of Justice Powell

that the annual rate of death sentences has remained relatively constant over the last 10 years and that the figure for 1970—127 sentences—is the highest annual total since 1961. It is true that the sentencing rate might be expected to rise, rather than remain constant, when the number of violent crimes increases as it has in this country. And it may be conceded that the constancy in these statistics indicates the unwillingness of juries to demand the ultimate penalty in many cases where it might be imposed. But these considerations fall short of indicating that juries are imposing the death penalty with such rarity as to justify this Court in reading into this circumstance a public rejection of capital punishment. One must conclude, contrary to petitioners’ submission, that the indicators most likely to reflect the public’s view—legislative bodies, state referenda and the juries which have the actual responsibility—do not support the contention that evolving standards of decency require total abolition of capital punishment. Indeed, the weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess the amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery—not the core—of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, not a judicial, function.

V Petitioners seek to salvage their thesis by arguing that the infrequency and discriminatory nature of the actual resort to the ultimate penalty tend to diffuse public opposition. We are told that the penalty is imposed exclusively on uninfluential minorities—“the poor and powerless, personally ugly and socially unacceptable.” It is urged that this pattern of application assures that large segments of the public will be either uninformed or unconcerned and will have no reason to measure the punishment against prevailing moral standards. . . . Apart from the impermissibility of basing a constitutional judgment of this magnitude on such speculative assumptions, the argument suffers from other defects. If, as petitioners urge, we are to engage in speculation, it is not at all certain that the public would experience deep-felt revulsion if the States were to execute as many sentenced capital offenders this year as they executed in the mid-1930’s. It seems more likely that public reaction, rather than being characterized by undifferentiated rejection, would depend upon the facts and circumstances surrounding each particular case. Members of this Court know, from the petitions and appeals that come before us regularly, that brutish and revolting murders continue to occur with disquieting frequency. Indeed, murders are so commonplace in our society

61

62

Chapter 2:  Cruel and Unusual as Applied

that only the most sensational receive significant and sustained publicity. It could hardly be suggested that in any of these highly publicized murder cases—the several senseless assassinations or the too numerous shocking multiple murders that have stained this country’s recent history—the public has exhibited any signs of “revulsion” at the thought of executing the convicted murderers. The public outcry, as we all know, has been quite to the contrary. . . . Nor is there any rational basis for arguing that the public reaction to any of these crimes would be muted if the murderer were “rich and powerful.” The demand for the ultimate sanction might well be greater, as a wealthy killer is hardly a sympathetic figure. While there might be specific cases in which capital punishment would be regarded as excessive and shocking to the conscience of the community, it can hardly be argued that the public’s dissatisfaction with the penalty in particular cases would translate into a demand for absolute abolition. . . . But the discrimination argument does not rest alone on a projection of the assumed effect on public opinion of more frequent executions. Much also is made of the undeniable fact that the death penalty has a greater impact on the lower economic strata of society, which include a relatively higher percentage of persons of minority racial and ethnic group backgrounds. The argument drawn from this fact is two-pronged. In part it is merely an extension of the speculative approach pursued by petitioners, i.e., that public revulsion is suppressed in callous apathy because the penalty does not affect persons from the white middle class which constitutes the majority in this country. This aspect, however, adds little to the infrequency rationalization for public apathy which I have found unpersuasive. As Mr. Justice Marshall’s opinion today demonstrates, the argument does have a more troubling aspect. It is his contention that if the average citizen were aware of the disproportionate burden of capital punishment borne by the “poor, the ignorant, and the underprivileged,” he would find the penalty “shocking to his conscience and sense of justice” and would not stand for its further use. . . . Certainly the claim is justified that this criminal sanction falls more heavily on the relatively impoverished and underprivileged elements of society. The “have-nots” in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens. This is, indeed, a tragic by-product of social and economic deprivation, but it is not an argument of constitutional proportions under the Eighth or Fourteenth Amendment. The same discriminatory impact argument could be made with equal force and logic with respect to those sentenced to prison terms. The Due Process Clause admits of no distinction between the deprivation of “life” and the deprivation of “liberty.” If discriminatory impact renders capital punishment cruel and unusual, it likewise renders invalid most of

Dissenting Opinion of Justice Powell

the prescribed penalties for crimes of violence. The root causes of the higher incidence of criminal penalties on “minorities and the poor” will not be cured by abolishing the system of penalties. Nor, indeed, could any society have a viable system of criminal justice if sanctions were abolished or ameliorated because most of those who commit crimes happen to be underprivileged. The basic problem results not from the penalties imposed for criminal conduct but from social and economic factors that have plagued humanity since the beginning of recorded history, frustrating all efforts to create in any country at any time the perfect society in which there are no “poor,” no “minorities” and no “underprivileged.” The causes underlying this problem are unrelated to the constitutional issue before the Court. . . .

VI [Petitioners] . . . urge that capital punishment is cruel and unusual because it no longer serves any rational legislative interests. Before turning to consider whether any of the traditional aims of punishment justify the death penalty, I should make clear the context in which I approach this aspect of the cases. First, I find no support—in the language of the Constitution, in its history, or in the cases arising under it—for the view that this Court may invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology. While the cases affirm our authority to prohibit punishments that are cruelly inhumane (e.g., Wilkerson v. Utah; In re Kemmler), and punishments that are cruelly excessive in that they are disproportionate to particular crimes, the precedents of this Court afford no basis for striking down a particular form of punishment because we may be persuaded that means less stringent would be equally efficacious. Secondly, if we were free to question the justifications for the use of capital punishment, a heavy burden would rest on those who attack the legislatures’ judgments to prove the lack of rational justifications. This Court has long held that legislative decisions in this area, which lie within the special competency of that branch, are entitled to a presumption of validity. I come now to consider, subject to the reservations above expressed, the two justifications most often cited for the retention of capital punishment. The concept of retribution—though popular for centuries—is now criticized as unworthy of a civilized people. Yet this Court has acknowledged the existence of a retributive element in criminal sanctions and has never heretofore found it impermissible. . . . While retribution alone may seem an unworthy justification in a moral sense, its utility in a system of criminal justice requiring public support has long been recognized. Lord Justice Denning, now Master of the Rolls of the

63

64

Chapter 2:  Cruel and Unusual as Applied

Court of Appeal in England, testified on this subject before the British Royal Commission on Capital Punishment: Many are inclined to test the efficacy of punishment solely by its value as a deterrent: but this is too narrow a view. Punishment is the way in which society expresses its denunciation of wrong doing; and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive, and nothing else. If this were so, we should not send to prison a man who was guilty of motor manslaughter, but only disqualify him from driving; but would public opinion be content with this? The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.

The view expressed by Lord Denning was cited approvingly in the Royal Commission’s Report, recognizing “a strong and widespread demand for retribution.” Mr. Justice Stewart makes much the same point in his opinion today when he concludes that expression of man’s retributive instincts in the sentencing process “serves an important purpose in promoting the stability of a society governed by law.” The view, moreover, is not without respectable support in the jurisprudential literature in this country, despite a substantial body of opinion to the contrary. And it is conceded on all sides that, not infrequently, cases arise that are so shocking or offensive that the public demands the ultimate penalty for the transgressor. Deterrence is a more appealing justification, although opinions again differ widely. Indeed, the deterrence issue lies at the heart of much of the debate between the abolitionists and retentionists. Statistical studies, based primarily on trends in States that have abolished the penalty, tend to support the view that the death penalty has not been proved to be a superior deterrent. Some dispute the validity of this conclusion, pointing out that the studies do not show that the death penalty has no deterrent effect on any categories of crimes. On the basis of the literature and studies currently available, I find myself in agreement with the conclusions drawn by the Royal Commission following its exhaustive study of this issue: The general conclusion which we reach, after careful review of all the evidence we have been able to obtain as to the deterrent effect of capital punishment, may be stated as follows. Prima facie, the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this

Dissenting Opinion of Justice Powell

is in fact so. But this effect does not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. It is accordingly important to view this question in a just perspective and not base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty.

. . . As I noted at the outset of this section, legislative judgments as to the efficacy of particular punishments are presumptively rational and may not be struck down under the Eighth Amendment because this Court may think that some alternative sanction would be more appropriate. Even if such judgments were within the judicial prerogative, petitioners have failed to show that there exist no justifications for the legislative enactments challenged in these cases. While the evidence and arguments advanced by petitioners might have proved profoundly persuasive if addressed to a legislative body, they do not approach the showing traditionally required before a court declares that the legislature has acted irrationally. . . .

VIII I now return to the overriding question in these cases: whether this Court, acting in conformity with the Constitution, can justify its judgment to abolish capital punishment as heretofore known in this country. It is important to keep in focus the enormity of the step undertaken by the Court today. Not only does it invalidate hundreds of state and federal laws, it deprives those jurisdictions of the power to legislate with respect to capital punishment in the future, except in a manner consistent with the cloudily outlined views of those Justices who do not purport to undertake total abolition. . . . With deference and respect for the views of the Justices who differ, it seems to me that . . . as a matter of policy and precedent, this is a classic case for the exercise of our oft-announced allegiance to judicial restraint. I know of no case in which greater gravity and delicacy have attached to the duty that this Court is called on to perform whenever legislation—state or federal—is challenged on constitutional grounds. It seems to me that the sweeping judicial action undertaken today reflects a basic lack of faith and confidence in the democratic process. Many may regret, as I do, the failure of some legislative bodies to address the capital punishment issue with greater frankness or effectiveness. Many might decry their failure either to abolish the penalty entirely or selectively, or to establish standards for its enforcement. But impatience with the slowness, and even the unresponsiveness, of legislatures is no justification for judicial intrusion upon their historic powers. . . . [The dissenting opinion of Justice Rehnquist is omitted.]

65

66

Chapter 2:  Cruel and Unusual as Applied

Editors’ Questions The main concern of the Furman Court was the arbitrary distribution of death penalties—that is, that the most heinous crimes and offenders did not necessarily get death whereas less reprehensible crimes and offenders often did. This violated the retributive principle that like cases should be treated alike. Did it also violate the Eighth Amendment? Was it cruel and unusual punishment to put A to death (assuming A deserved it) when B got life (assuming B committed the “worse” crime)? If your answer is affirmative, shouldn’t the non-arbitrariness principle apply to all sentences? Aren’t all sentences, to a certain extent, imposed unevenly?

Chap ter 3

Not Inherently Unconstitutional— ­Gregg v. Georgia (1976) Editors’ Comment Furman v. Georgia, 408 U.S. 238 (1972), invalidated most of the capital punishment statutes in this country and sowed great confusion for a number of years. Death penalty statutes were rewritten in 35 states in an effort to conform to Supreme Court guidelines—if anyone could determine what those guidelines were. Some states enacted mandatory death penalty laws, but these were declared unconstitutional in Woodson v. North Carolina, 428 U.S. 280 (1976) (Chapter 4). Death sentences were no longer imposed in some states (New York, for example) where the statutes were not revised; in states where they were imposed, they were often not carried out because of lengthy legal challenges and uncertainties regarding capital punishment law. Four years after Furman, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court, over the protests of Justices Brennan and Marshall, rejected the view that the death penalty is per se cruel and unusual. Gregg upheld a Georgia capital punishment law that employed certain trial procedures and appeals designed to prevent the penalty from being imposed arbitrarily. (Recall that arbitrariness was the main objection to the death penalty voiced by Justices Stewart and White, the pivotal votes in the Furman case.) The concept—adopted from the Model Penal Code (see Chapter 1 and Appendix B)—was that trial judges and juries would be permitted to sentence a defendant to death only for homicides having certain characteristics, called aggravating factors, and only where there were insufficient mitigating factors. Aggravating factors make a murder more reprehensible than other homicides and thus support the death penalty. Mitigating factors are circumstances of the crime or characteristics of the defendant that make the offense less reprehensible and therefore support a less harsh punishment. The Georgia statute approved in Gregg provided that aggravating and mitigating factors must be proven at a separate penalty proceeding, conducted after (and only if) the defendant is found guilty. Such two-part proceedings are called bifurcated trials. Georgia also provided for direct appeal of a capital conviction to the state’s highest court. The Georgia statute became the model for death penalty laws in the United States.

Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976) (7–2, the death penalty is not a per se violation of the Eighth Amendment; and Georgia’s “guided discretion” statute is constitutional.) Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

67

68

Chapter 3: Not Inherently Unconstitutional

Opinion of Justice Stewart, Joined by justices Powell and Stevens The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.

I The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that, on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 P.M. A short time later the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby. . . . The jury found the petitioner guilty of two counts of armed robbery and two counts of murder. At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner’s lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. The judge further charged the jury that, in determining what sentence was appropriate, the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation. Finally, the judge instructed the jury that it “would not be authorized to ­consider [imposing] the penalty of death” unless it first found beyond a ­reasonable doubt one of these aggravating circumstances: One—That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore]. Two—That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.

Opinion of Justice Stewart

Three—The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of [the] mind of the defendant. Finding the first and second of these circumstances, the jury returned verdicts of death on each count. The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder.

II Before considering the issues presented, it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty. The Georgia statute, as amended after our decision in Furman v. Georgia, retains the death penalty for six categories of crime: murder, kidnapping for ransom or where the victim is harmed, armed robbery, rape, treason, and aircraft hijacking. The capital defendant’s guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial. . . . After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing: [T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting attorney . . . regarding the punishment to be imposed.

The defendant is accorded substantial latitude as to the types of evidence that he may introduce. Evidence considered during the guilt stage may be considered during the sentencing stage without being resubmitted. In the assessment of the appropriate sentence to be imposed the judge is also required to consider or to include in his instructions to the jury “any mitigating ­circumstances or aggravating circumstances otherwise authorized by law and any of [10] ­statutory aggravating circumstances which may be supported by the evidence. . . .”

69

70

Chapter 3: Not Inherently Unconstitutional

The scope of the nonstatutory aggravating or mitigating circumstances is not delineated in the statute. Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute.9 The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to impose that sentence. If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. In jury cases, the trial judge is bound by the jury’s ­recommended sentence. In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the ­particular case. The court is directed to consider “the punishment as well as any errors enumerated by way of appeal,” and to determine:

The statute provides in part The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case. (b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence: (1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions. (2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree. (3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person. (4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value. (5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty. (6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person. (7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. (8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties. (9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement. (10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.

9

(a)

Opinion of Justice Stewart

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance . . ., and (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration. A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. The report is in the form of a 6½-page questionnaire, designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant’s representation, whether race played a role in the trial, and, whether, in the trial court’s judgment, there was any doubt about the defendant’s guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed there remains the possibility of executive clemency.

III We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. . . . The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. The most marked indication of society’s endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress

71

72

Chapter 3: Not Inherently Unconstitutional

of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death. These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by making the death penalty mandatory for specified crimes. But all of the post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people. . . . The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. . . . The Court has said that one of the most important functions any jury can perform in making . . . a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system.

Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15 (1968). It may be true that evolving standards have influenced juries in recent decades to be more discriminating in imposing the sentence of death. But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most ­irrevocable of sanctions should be reserved for a small number of extreme cases. . . . Indeed, the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974 at least 254 persons had been sentenced to death since Furman, and by the end of March 1976, more than 460 persons were subject to death sentences. As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment. Trop v. Dulles, 356 U.S., at 100 (plurality opinion). Although we cannot “invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology,” Furman v. Georgia, 408 U.S., at 451 (Powell, J., dissenting), the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah; In re Kemmler. The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders. In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it

Opinion of Justice Stewart

is essential in an ordered society that asks its citizens to rely on legal processes, rather than self-help, to vindicate their wrongs. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law. Furman v. Georgia, 408 U.S., at 308 (Stewart, J., concurring).

“Retribution is no longer the dominant objective of the criminal law,” Williams v. New York, 337 U.S. 241, 248 (1949), but neither is it a forbidden objective, nor one inconsistent with our respect for the dignity of men. . . . Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive. As one opponent of capital punishment has said: [A]fter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and, for systematic and easily visible reasons, cannot know, what the truth about this “deterrent” effect may be. . . . The inescapable flaw is . . . that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large) then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A “scientific”—that is to say, a soundly based—conclusion is simply impossible, and no methodological path out of this tangle suggests itself. C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 25–26 (1974).

Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent. There are carefully

73

74

Chapter 3: Not Inherently Unconstitutional

contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act. And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate. The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. . . . Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent. In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe. Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. . . . When a defendant’s life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. . . . But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes. We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.

IV We now consider whether Georgia may impose the death penalty on the petitioner in this case. A.  While Furman did not hold that the infliction of the death penalty per se violates the Constitution’s ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness

Opinion of Justice Stewart

of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. . . . Furman mandates that, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. . . . Jury sentencing has been considered desirable in capital cases in order “to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’” But it creates special problems. Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure—one in which the question of sentence is not considered until the determination of guilt has been made—is the best answer. . . . When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman. But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. . . . To the extent that this problem is inherent in jury sentencing, it may not be totally correctable. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision. . . . While some have suggested that standards to guide a capital jury’s sentencing deliberations are impossible to formulate, the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded “that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are presented in a concrete case.” ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in original). While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious

75

76

Chapter 3: Not Inherently Unconstitutional

or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner. In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. We do not intend to suggest that only the above-described procedures would be permissible under Furman, or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns. B.  We now turn to consideration of the constitutionality of Georgia’s capitalsentencing procedures. . . . The petitioner contends . . . that the changes in the Georgia sentencing procedures are only cosmetic, that the arbitrariness and capriciousness condemned by Furman continue to exist in Georgia—both in traditional practices that still remain and in the new sentencing procedures adopted in response to Furman. First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial, the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles. The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a ­capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a

Concurring Opinion of Justice White

capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant. . . .

V The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here. For the reasons expressed in this opinion, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed. It is so ordered.

Concurring opinion of justice white, joined by chief justice burger and justice rehnquist III . . . Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that, since prosecutors have the power not to charge capital felonies, they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging

77

78

Chapter 3: Not Inherently Unconstitutional

decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor’s charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any of which are truly “similar.” If the cases really were “similar” in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary. Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be, in final analysis, an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society’s most basic tasks is that of protecting the lives of its citizens, and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner. [Justice Blackmun concurred in the judgment, referring to his dissenting opinion in Furman v. Georgia.]

Dissenting opinion of justice brennan In Furman v. Georgia, I read “evolving standards of decency” as requiring focus upon the essence of the death penalty itself and not primarily or solely upon the procedures under which the determination to inflict the penalty upon a particular person was made. . . . That continues to be my view. . . . My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and that therefore the punishment of death, for whatever crime and under all circumstances, is “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion. I emphasize only that foremost among the “moral concepts” recognized in our cases and ­inherent in the Clause is the primary moral principle that the State, even as it ­punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings—a punishment must not be so severe as to be degrading to human dignity.

Dissenting Opinion of Justice Marshall

Dissenting opinion of justice marshall In Furman v. Georgia, I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view. I have no intention of retracing the “long and tedious journey” that led to my conclusion in Furman. My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for my Brethren’s holding that the extinction of life is a permissible form of punishment under the Cruel and Unusual Punishments Clause. In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. And second, the American people, fully informed as to the purpose of the death penalty and its liabilities, would, in my view, reject it as morally unacceptable. Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed ­citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that, if they were better informed, they would consider it shocking, unjust, and unacceptable. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty.1 Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed ­citizenry an uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause “even though popular sentiment may favor” it. [Furman, 408 U.S.] at 331 [Marshall, J., concurring.]. . . Sarat and Vidmar, “Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis,” 1976 Wis. L. Rev. 171.

1

79

80

Chapter 3: Not Inherently Unconstitutional

The inquiry there, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty—life imprisonment—would do as well. The two purposes that sustain the death penalty as nonexcessive in the Court’s view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent effect of capital punishment. . . . The available evidence, I concluded in Furman, was convincing that “capital punishment is not necessary as a deterrent to crime in our society.” The Solicitor General in his amicus brief in these cases relies heavily on a study by Isaac Ehrlich,4 reported a year after Furman, to support the contention that the death penalty does deter murder. Since the Ehrlich study was not available at the time of Furman and since it is the first scientific study to suggest that the death penalty may have a deterrent effect, I will briefly consider its import. The Ehrlich study focused on the relationship in the Nation as a whole between the homicide rate and “execution risk”—the fraction of persons convicted of murder who were actually executed. Comparing the differences in homicide rate and execution risk for the years 1933 to 1969, Ehrlich found that increases in execution risk were associated with increases in the homicide rate. But when he employed the statistical technique of multiple regression analysis to control for the influence of other variables posited to have an impact on the homicide rate, Ehrlich found a negative correlation between changes in the homicide rate and changes in execution risk. His tentative conclusion was that for the period from 1933 to 1967 each additional execution in the United States might have saved eight lives. The methods and conclusions of the Ehrlich study have been severely criticized on a number of grounds. It has been suggested, for example, that the study is defective because it compares execution and homicide rates on a nationwide, rather than a state-by-state, basis. The aggregation of data from all States— including those that have abolished the death penalty—obscures the relationship between murder and execution rates. Under Ehrlich’s methodology, a decrease in the execution risk in one State combined with an increase in the murder rate in another State would, all other things being equal, suggest a deterrent effect that quite obviously would not exist. Indeed, a deterrent effect would be suggested if, once again all other things being equal, one State abolished the death penalty and experienced no change in the murder rate, while another State experienced an increase in the murder rate.

I. Ehrlich, “The Deterrent Effect of Capital Punishment: A Question of Life and Death” (Working Paper No. 18, National Bureau of Economic Research, Nov. 1973); Ehrlich, “The Deterrent Effect of Capital Punishment: A Question of Life and Death,” 65 Am. Econ. Rev. 397 (June 1975).

4

Dissenting Opinion of Justice Marshall

The most compelling criticism of the Ehrlich study is that its conclusions are extremely sensitive to the choice of the time period included in the regression analysis. Analysis of Ehrlich’s data reveals that all empirical support for the deterrent effect of capital punishment disappears when the five most recent years are removed from his time series—that is to say, whether a decrease in the execution risk corresponds to an increase or a decrease in the murder rate depends on the ending point of the sample period. This finding has cast severe doubts on the reliability of Ehrlich’s tentative conclusions. Indeed, a recent regression study, based on Ehrlich’s theoretical model but using cross-section state data for the years 1950 and 1960 found no support for the conclusion that executions act as a deterrent. The Ehrlich study, in short, is of little, if any, assistance in assessing the deterrent impact of the death penalty. . . . The evidence I reviewed in Furman remains convincing, in my view, that “capital punishment is not necessary as a deterrent to crime in our society.” The justification for the death penalty must be found elsewhere. The other principal purpose said to be served by the death penalty is retribution. The notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my Brothers Stewart, Powell, and Stevens. . . . It is this notion that I find to be the most disturbing aspect of today’s unfortunate decisions. The concept of retribution is a multifaceted one, and any discussion of its role in the criminal law must be undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis of our insistence that only those who have broken the law be punished, and, in this sense, the notion is quite obviously central to a just system of criminal sanctions. But our recognition that retribution plays a crucial role in determining who may be punished by no means requires approval of retribution as a general justification for punishment. It is the question whether retribution can provide a moral justification for punishment—in particular, capital punishment—that we must consider. . . . As my Brother Brennan stated in Furman, “[t]here is no evidence whatever that utilization of imprisonment rather than death encourages private blood feuds and other disorders.” 408 U.S., at 303. It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands. In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values—that it marks some crimes as particularly offensive and therefore to be avoided. The argument is akin to a deterrence argument, but differs in that it

81

82

Chapter 3: Not Inherently Unconstitutional

contemplates the individual’s shrinking from antisocial conduct, not because he fears punishment, but because he has been told in the strongest possible way that the conduct is wrong. This contention, like the previous one, provides no support for the death penalty. It is inconceivable that any individual concerned about conforming his conduct to what society says is “right” would fail to realize that murder is “wrong” if the penalty were simply life imprisonment. The foregoing contentions—that society’s expression of moral outrage through the imposition of the death penalty preempts the citizenry from taking the law into its own hands and reinforces moral values—are not retributive in the ­purest sense. They are essentially utilitarian in that they portray the death ­penalty as valuable because of its beneficial results. These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results. There remains for consideration, however, what might be termed the purely retributive justification for the death penalty—that the death penalty is appropriate not because of its beneficial effect on society, but because the taking of the murderer’s life is itself morally good. Some of the language of the opinion of my Brothers Stewart, Powell, and Stevens . . . appears positively to embrace this notion of retribution for its own sake as a justification for capital ­punishment. . . . Of course, it may be that these statements are intended as no more than observations as to the popular demands that it is thought must be responded to in order to prevent anarchy. But the implication of the statements appears to me to be quite different—namely, that society’s judgment that the murderer “deserves” death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out. It is this latter notion, in particular, that I consider to be fundamentally at odds with the Eighth Amendment. . . . The mere fact that the community demands the murderer’s life in return for the evil he has done cannot sustain the death penalty, for as Justices Stewart, Powell, and Stevens remind us, “the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society.” To be sustained under the Eighth Amendment, the death penalty must “compor[t] with the basic concept of human dignity at the core of the Amendment;” the objective in imposing it must be “[consistent] with our respect for the dignity of [other] men.” . . . Under these standards, the taking of life “because the wrongdoer deserves it” surely must fall, for such a punishment has as its very basis the total denial of the wrong-doer’s dignity and worth. The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court’s judgment upholding the sentences of death imposed upon the petitioners in these cases.

Editors’ Questions

Editors’ Questions Did Gregg solve the arbitrariness problem? What good does it do to limit death sentences to aggravated murder (or an equally heinous crime) if in heinous cases prosecutors can offer prison sentences in exchange for guilty pleas? Won’t that produce arbitrariness by “underpunishing?”

83

Chap ter 4

Mandatory Death Penalty— Woodson v. North Carolina (1976) Editors’ Comment In the wake of Furman, about half of the state legislatures that reenacted death penalty statutes apparently believed that a mandatory death penalty for certain types of murder would avoid the problem of inconsistent application of the ultimate punishment. The Supreme Court disagreed and held that the Eighth Amendment forbade the mandatory imposition of death sentences. Woodson was decided on the same day as Gregg and Roberts v. Louisiana, 428 U.S. 325 (1976), which is cited in Justice White’s Woodson dissent. In Roberts, the Court voided a Louisiana mandatory death law similar to the North Carolina statute. After Woodson and Roberts, North Carolina and Louisiana, as well as the other states whose mandatory death penalty statutes were struck down, enacted new statutes patterned after the Georgia statute upheld in Gregg. In addition to holding mandatory death penalty statutes unconstitutional, Woodson established three bases of relevance for penalty phase evidence: “the character and record of the individual offender and the circumstances of the particular offense” (emphasis added). A fourth basis— victim impact evidence—was approved by the Court in Payne v. Tennessee (Chapter 14).

Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed.2d 944 (1976) (5–4, mandatory death penalty for all first-degree murderers violates the Eighth Amendment.)

Opinion of Justice Stewart, Joined by Justices Powell and Stevens The question in this case is whether the imposition of a death sentence for the crime of first-degree murder under the law of North Carolina violates the Eighth and Fourteenth Amendments.

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

85

86

Chapter 4: Mandatory Death Penalty

I The petitioners were convicted of first-degree murder as the result of their participation in an armed robbery of a convenience food store, in the course of which the cashier was killed and a customer was seriously wounded. . . .

III . . . The [North Carolina murder] statute now reads as follows: Murder in the first and second degree defined; punishment.—A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State’s prison.

It was under this statute that the petitioners, who committed their crime on June 3, 1974, were tried, convicted, and sentenced to death. North Carolina, unlike Florida, Georgia, and Texas, has thus responded to the Furman decision by making death the mandatory sentence for all persons convicted of firstdegree murder. In ruling on the constitutionality of the sentences imposed on the petitioners under this North Carolina statute, the Court now addresses for the first time the question whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses7 constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments. The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death. A.  . . . Central to the application of the [Eighth] Amendment is the determination of contemporary standards regarding the infliction of punishment. As discussed in Gregg v. Georgia, . . . indicia of societal values identified in prior opinions include history and traditional usage, legislative enactments, and jury determinations. In order to provide a frame for assessing the relevancy of these factors in this case we begin by sketching the history of mandatory death penalty statutes in This case does not involve a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender. We thus express no opinion regarding the constitutionality of such a statute. . . .

7

Opinion of Justice Stewart

the United States. At the time the Eighth Amendment was adopted in 1791, the States uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses. Although the range of capital offenses in the American Colonies was quite limited in comparison to the more than 200 offenses then punishable by death in England, the Colonies at the time of the Revolution imposed death sentences on all persons convicted of any of a considerable number of crimes, typically including at a minimum, murder, treason, piracy, arson, rape, robbery, burglary, and sodomy. As at common law, all homicides that were not involuntary, provoked, justified, or excused constituted murder and were automatically punished by death. Almost from the outset jurors reacted unfavorably to the harshness of mandatory death sentences. The States initially responded to this expression of public dissatisfaction with mandatory statutes by limiting the classes of capital offenses. This reform, however, left unresolved the problem posed by the not infrequent refusal of juries to convict murderers rather than subject them to automatic death sentences. In 1794, Pennsylvania attempted to alleviate the undue severity of the law by confining the mandatory death penalty to “murder of the first degree” encompassing all “willful, deliberate and premeditated” killings. . . . Other jurisdictions, including Virginia and Ohio, soon enacted similar measures, and within a generation the practice spread to most of the States. Despite the broad acceptance of the division of murder into degrees, the reform proved to be an unsatisfactory means of identifying persons appropriately punishable by death. Although its failure was due in part to the amorphous nature of the controlling concepts of willfulness, deliberateness, and premeditation, a more fundamental weakness of the reform soon became apparent. Juries continued to find the death penalty inappropriate in a significant number of firstdegree murder cases and refused to return guilty verdicts for that crime. The inadequacy of distinguishing between murderers solely on the basis of legislative criteria narrowing the definition of the capital offense led the States to grant juries sentencing discretion in capital cases. Tennessee, in 1838, followed by Alabama, in 1841, and Louisiana, in 1846, were the first States to abandon mandatory death sentences in favor of discretionary death penalty statutes. This flexibility remedied the harshness of mandatory statutes by permitting the jury to respond to mitigating factors by withholding the death penalty. By the turn of the century, 23 States and the Federal Government had made death sentences discretionary for first-degree murder and other capital offenses. During the next two decades 14 additional States replaced their mandatory death penalty statutes. Thus, by the end of World War I, all but eight States, Hawaii, and the District of Columbia either had adopted discretionary death penalty schemes or abolished the death penalty altogether. By 1963, all

87

88

Chapter 4: Mandatory Death Penalty

of these remaining jurisdictions had replaced their automatic death penalty statutes with discretionary jury sentencing.25 The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society—jury determinations and legislative enactments—both point conclusively to the repudiation of automatic death sentences. At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict. As we have seen, the initial movement to reduce the number of capital offenses and to separate murder into degrees was prompted in part by the reaction of jurors as well as by reformers who objected to the imposition of death as the penalty for any crime. Nineteenth century journalists, statesmen, and jurists repeatedly observed that jurors were often deterred from convicting palpably guilty men of first-degree murder under mandatory statutes. Thereafter, continuing evidence of jury reluctance to convict persons of capital offenses in mandatory death penalty jurisdictions resulted in legislative authorization of discretionary jury sentencing—by Congress for federal crimes in 1897, by North Carolina in 1949, and by Congress for the District of Columbia in 1962. As we have noted today in Gregg v. Georgia, legislative measures adopted by the people’s chosen representatives weigh heavily in ascertaining contemporary standards of decency. The consistent course charted by the state legislatures and by Congress since the middle of the past century demonstrates that the aversion of jurors to mandatory death penalty statutes is shared by society at large. Still further evidence of the incompatibility of mandatory death penalties with contemporary values is provided by the results of jury sentencing under discretionary statutes. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Court observed that “one of the most important functions any jury can perform” in exercising its discretion to choose “between life imprisonment and capital punishment” is “to maintain a link between contemporary community values and the penal system.” Id., at 519. Various studies indicate that, even in ­first-degree . . . The only category of mandatory death sentence statutes that appears to have had any relevance to the actual administration of the death penalty in the years preceding Furman concerned the crimes of murder or assault with a deadly weapon by a life-term prisoner. Statutes of this type apparently existed in five States in 1964. . . . In 1970, only five of the more than 550 prisoners under death sentence across the country had been sentenced under a mandatory death penalty statute. Those prisoners had all been convicted under the California statute applicable to assaults by life-term prisoners. We have no occasion in this case to examine the constitutionality of mandatory death sentence statutes applicable to prisoners serving life sentences.

25

Opinion of Justice Stewart

murder cases, juries with sentencing discretion do not impose the death penalty “with any great frequency.” H. Kalven and H. Zeisel, The American Jury 436 (1966). The actions of sentencing juries suggest that under contemporary standards of decency, death is viewed as an inappropriate punishment for a substantial portion of convicted first-degree murderers. Although the Court has never ruled on the constitutionality of mandatory death penalty statutes, on several occasions dating back to 1899, it has commented upon our society’s aversion to automatic death sentences. . . . Although it seems beyond dispute that, at the time of the Furman decision in 1972, mandatory death penalty statutes had been renounced by American juries and legislatures, there remains the question whether the mandatory statutes adopted by North Carolina and a number of other States following Furman evince a sudden reversal of societal values regarding the imposition of capital punishment. In view of the persistent and unswerving legislative rejection of mandatory death penalty statutes beginning in 1838 and continuing for more than 130 years until Furman, it seems evident that the post-Furman enactments reflect attempts by the States to retain the death penalty in a form consistent with the Constitution, rather than a renewed societal acceptance of mandatory death sentencing. The fact that some States have adopted mandatory measures following Furman, while others have legislated standards to guide jury discretion appears attributable to diverse readings of this Court’s multi-opinioned decision in that case. . . . It is now well established that the Eighth Amendment draws much of its meaning from “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S., at 101. As the above discussion makes clear, one of the most significant developments in our society’s treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina’s mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death, and thus cannot be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State’s power to punish “be exercised within the limits of civilized standards.” Id., at 100.36 Dissenting opinions . . . argue that this conclusion is “simply mistaken” because the American rejection of mandatory death sentence statutes might possibly be ascribable to “some maverick juries or jurors.” . . . Since acquittals no less than convictions required unanimity, and citizens with moral reservations concerning the death penalty were regularly excluded from capital juries, it seems hardly conceivable that the persistent refusal of American juries to convict palpably guilty defendants of capital offenses under mandatory death sentence statutes merely “represented the intransigence of only a small minority” of jurors. . . . Moreover, the dissenting opinions simply ignore the experience under discretionary death sentence statutes indicating that juries reflecting contemporary community values . . . found the death penalty appropriate for only a small minority of convicted first-degree murderers. . . .

36

89

90

Chapter 4: Mandatory Death Penalty

B.  A separate deficiency of North Carolina’s mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman’s rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. . . . It is argued that North Carolina has remedied the inadequacies of the death penalty statutes held unconstitutional in Furman by withdrawing all sentencing discretion from juries in capital cases. But when one considers the long and consistent American experience with the death penalty in first-degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury discretion. As we have noted in Part III-A, supra, there is general agreement that American juries have persistently refused to convict a significant portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes. . . . In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict. North Carolina’s mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury’s willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman’s basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death. C.  A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledge what cannot fairly be denied—that death is a punishment different from all other sanctions in kind rather than degree. . . . A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Dissenting Opinion of Justice White

This Court has previously recognized that, [f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.

. . . Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. . . . While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that, in capital cases, the fundamental respect for humanity underlying the Eighth Amendment. . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. For the reasons stated, we conclude that the death sentences imposed upon the petitioners under North Carolina’s mandatory death sentence statute violated the Eighth and Fourteenth Amendments and therefore must be set aside. [The concurring opinions of Justices Brennan and Marshall and the dissenting opinion of Justice Blackmun are omitted.]

Dissenting Opinion of Justice White, Joined by Chief Justice Burger and Justice Rehnquist . . . The issues in the case are very similar, if not identical, to those in Roberts v. Louisiana, 428 U.S. 325 [1976]. For the reasons stated in my dissenting opinion in that case, I reject petitioners’ arguments that the death penalty in any circumstances is a violation of the Eighth Amendment and that the North Carolina statute, although making the imposition of the death penalty mandatory upon proof of guilt and a verdict of first-degree murder, will nevertheless result in the death penalty’s being imposed so seldom and arbitrarily that it is void under Furman v. Georgia. As is also apparent from my dissenting opinion in Roberts v. Louisiana, I also disagree with the two additional grounds which the plurality sua sponte offers for invalidating the North Carolina statute. I would affirm the judgment of the North Carolina Supreme Court.

91

92

Chapter 4: Mandatory Death Penalty

Dissenting Opinion of Justice Rehnquist I . . . The plurality relies first upon its conclusion that society has turned away from the mandatory imposition of death sentences, and second upon its conclusion that the North Carolina system has “simply papered over” the problem of unbridled jury discretion which two of the separate opinions in Furman v. Georgia identified as the basis for the judgment rendering the death sentences there reviewed unconstitutional. The third “constitutional shortcoming” of the North Carolina statute is said to be “its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.” I do not believe that any one of these reasons singly, or all of them together, can withstand careful analysis. Contrary to the plurality’s assertions, they would import into the Cruel and Unusual Punishments Clause procedural requirements which find no support in our cases. Their application will result in the invalidation of a death sentence imposed upon a defendant convicted of firstdegree murder under the North Carolina system, and the upholding of the same sentence imposed on an identical defendant convicted on identical evidence of first-degree murder under the Florida, Georgia, or Texas systems—a result surely as “freakish” as that condemned in the separate opinions in Furman.

II The plurality is simply mistaken in its assertion that [t]he history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid.

This conclusion is purportedly based on two historic developments: the first a series of legislative decisions during the 19th century narrowing the class of offenses punishable by death; the second a series of legislative decisions during both the 19th and 20th centuries, through which mandatory imposition of the death penalty largely gave way to jury discretion in deciding whether or not to impose this ultimate sanction. The first development may have some relevance to the plurality’s argument in general but has no bearing at all upon this case. The second development, properly analyzed, has virtually no relevance even to the plurality’s argument. There can be no question that the legislative and other materials discussed in the plurality’s opinion show a widespread conclusion on the part of state legislatures during the 19th century that the penalty of death was being required for too broad a range of crimes, and that these legislatures proceeded to narrow the

Dissenting Opinion of Justice Rehnquist

range of crimes for which such penalty could be imposed. If this case involved the imposition of the death penalty for an offense such as burglary or sodomy the virtually unanimous trend in the legislatures of the States to exclude such offenders from liability for capital punishment might bear on the plurality’s Eighth Amendment argument. But petitioners were convicted of first-degree murder, and there is not the slightest suggestion in the material relied upon by the plurality that there had been any turning away at all, much less any such unanimous turning away, from the death penalty as a punishment for those guilty of first-degree murder. The legislative narrowing of the spectrum of capital crimes, therefore, while very arguably representing a general societal judgment, since the trend was so widespread, simply never reached far enough to exclude the sort of aggravated homicide of which petitioners stand convicted. The second string to the plurality’s analytical bow is that legislative change from mandatory to discretionary imposition of the death sentence likewise evidences societal rejection of mandatory death penalties. The plurality simply does not make out this part of its case, however, in large part because it treats as being of equal dignity with legislative judgments the judgments of particular juries and of individual jurors. There was undoubted dissatisfaction, from more than one sector of 19th century society, with the operation of mandatory death sentences. One segment of that society was totally opposed to capital punishment, and was apparently willing to accept the substitution of discretionary imposition of that penalty for its mandatory imposition as a halfway house on the road to total abolition. Another segment was equally unhappy with the operation of the mandatory system, but for an entirely different reason. As the plurality recognizes, this second segment of society was unhappy with the operation of the mandatory system, not because of the death sentences imposed under it, but because people obviously guilty of criminal offenses were not being convicted under it. Change to a discretionary system was accepted by these persons not because they thought mandatory imposition of the death penalty was cruel and unusual, but because they thought that if jurors were permitted to return a sentence other than death upon the conviction of a capital crime, fewer guilty defendants would be acquitted. See McGautha, 402 U.S., at 199. So far as the action of juries is concerned, the fact that, in some cases, juries operating under the mandatory system refused to convict obviously guilty defendants does not reflect any “turning away” from the death penalty, or the mandatory death penalty, supporting the proposition that it is “cruel and unusual.” Given the requirement of unanimity with respect to jury verdicts in capital cases, a requirement which prevails today in States which accept a nonunanimous verdict in the case of other crimes, . . . it is apparent that a single juror could prevent a jury from returning a verdict of conviction. Occasional refusals to convict, therefore, may just as easily have represented the ­intransigence of only a small

93

94

Chapter 4: Mandatory Death Penalty

­ inority of 12 jurors as well as the unanimous judgment of all 12. The fact that m the presence of such jurors could prevent conviction in a given case, even though the majority of society, speaking through legislatures, had decreed that it should be imposed, certainly does not indicate that society as a whole rejected mandatory punishment for such offenders; it does not even indicate that those few members of society who serve on juries, as a whole, had done so. The introduction of discretionary sentencing likewise creates no inference that contemporary society had rejected the mandatory system as unduly severe. Legislatures enacting discretionary sentencing statutes had no reason to think that there would not be roughly the same number of capital convictions under the new system as under the old. The same subjective juror responses which resulted in juror nullification under the old system were legitimized, but, in the absence of those subjective responses to a particular set of facts, a capital sentence could as likely be anticipated under the discretionary system as under the mandatory. And at least some of those who would have been acquitted under the mandatory system would be subjected to at least some punishment under the discretionary system, rather than escaping altogether a penalty for the crime of which they were guilty. That society was unwilling to accept the paradox presented to it by the actions of some maverick juries or jurors—the acquittal of palpably guilty defendants—hardly reflects the sort of an “evolving standard decency” to which the plurality professes obeisance. Nor do the opinions in Furman which indicate a preference for discretionary sentencing in capital cases suggest in the slightest that a mandatory sentencing procedure would be cruel and unusual. The plurality concedes, as it must, that, following Furman, 10 States enacted laws providing for mandatory capital punishment. . . . These enactments the plurality seeks to explain as due to a wrongheaded reading of the holding in Furman. But this explanation simply does not wash. While those States may be presumed to have preferred their prior systems reposing sentencing discretion in juries or judges, they indisputably preferred mandatory capital punishment to no capital punishment at all. Their willingness to enact statutes providing that penalty is utterly inconsistent with the notion that they regarded mandatory capital sentencing as beyond “evolving standards of decency.” The plurality’s glib rejection of these legislative decisions as having little weight on the scale which it finds in the Eighth Amendment seems to me more an instance of its desire to save the people from themselves than a conscientious effort to ascertain the content of any “evolving standard of decency.”

III The second constitutional flaw which the plurality finds in North Carolina’s mandatory system is that it has simply “papered over” the problem of unchecked jury discretion. The plurality states that

Dissenting Opinion of Justice Rehnquist

there is general agreement that American juries have persistently refused to convict a significant portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes.

The plurality also states, that as a matter of historic fact, juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first-degree murder cases.

The basic factual assumption of the plurality seems to be that, for any given number of first-degree murder defendants subject to capital punishment, there will be a certain number of jurors who will be unwilling to impose the death penalty even though they are entirely satisfied that the necessary elements of the substantive offense are made out. In North Carolina, jurors unwilling to impose the death penalty may simply hang a jury, or they may so assert themselves that a verdict of not guilty is brought in; in Louisiana they will have a similar effect in causing some juries to bring in a verdict of guilty of a lesser included offense even though all the jurors are satisfied that the elements of the greater offense are made out. Such jurors, of course, are violating their oath, but such violation is not only consistent with the majority’s hypothesis; the majority’s hypothesis is bottomed on its occurrence. For purposes of argument, I accept the plurality’s hypothesis; but it seems to me impossible to conclude from it that a mandatory death sentence statute such as North Carolina enacted is any less sound constitutionally than are the systems enacted by Georgia, Florida, and Texas which the Court upholds. In Georgia juries are entitled to return a sentence of life, rather than death, for no reason whatever, simply based upon their own subjective notions of what is right and what is wrong. In Florida the judge and jury are required to weigh legislatively enacted aggravating factors against legislatively enacted mitigating factors, and then base their choice between life or death on an estimate of the result of that weighing. Substantial discretion exists here, too, though it is somewhat more canalized than it is in Georgia. Why these types of discretion are regarded by the plurality as constitutionally permissible, while that which may occur in the North Carolina system is not readily apparent. . . .

IV . . . The plurality also relies upon the indisputable proposition that “death is different” for the result which it reaches in Part III-C. But the respects in which death is “different” from other punishment which may be imposed upon convicted criminals do not seem to me to establish the proposition that the Constitution requires individualized sentencing.

95

96

Chapter 4: Mandatory Death Penalty

One of the principal reasons why death is different is because it is irreversible; an executed defendant cannot be brought back to life. This aspect of the difference between death and other penalties would undoubtedly support statutory provisions for especially careful review of the fairness of the trial, the accuracy of the fact-finding process, and the fairness of the sentencing procedure where the death penalty is imposed. But none of those aspects of the death sentence is at issue here. Petitioners were found guilty of the crime of first-degree murder in a trial the constitutional validity of which is unquestioned here. And since the punishment of death is conceded by the plurality not to be a cruel and unusual punishment for such a crime, the irreversible aspect of the death penalty has no connection whatever with any requirement for individualized consideration of the sentence. The second aspect of the death penalty which makes it “different” from other penalties is the fact that it is indeed an ultimate penalty, which ends a human life, rather than simply requiring that a living human being be confined for a given period of time in a penal institution. This aspect of the difference may enter into the decision of whether or not it is a “cruel and unusual” penalty for a given offense. But since, in this case, the offense was first-degree murder, that particular inquiry need proceed no further. The plurality’s insistence on individualized consideration of the sentencing, therefore, does not depend upon any traditional application of the prohibition against cruel and unusual punishment contained in the Eighth Amendment. The punishment here is concededly not cruel and unusual, and that determination has traditionally ended judicial inquiry in our cases construing the Cruel and Unusual Punishments Clause. Trop v. Dulles; Robinson v. California; Louisiana ex rel. Francis v. Resweber; Wilkerson v. Utah. What the plurality opinion has actually done is to import into the Due Process Clause of the Fourteenth Amendment what it conceives to be desirable procedural guarantees where the punishment of death, concededly not cruel and unusual for the crime of which the defendant was convicted, is to be imposed. This is squarely contrary to McGautha, and unsupported by any other decision of this Court. I agree with the conclusion of the plurality, and with that of Mr. Justice White, that death is not a cruel and unusual punishment for the offense of which these petitioners were convicted. Since no member of the Court suggests that the trial which led to those convictions in any way fell short of the standards mandated by the Constitution, the judgments of conviction should be affirmed. The Fourteenth Amendment, giving the fullest scope to its “majestic generalities,” . . . is conscripted, rather than interpreted, when used to permit one, but not another, system for imposition of the death penalty.

Editors’ Questions

Editors’ Questions 1. Do you agree with the majority that death “differs more from life imprisonment than a 100-year prison term differs from one of only a year or two”? Some people believe that life without parole is actually harsher than a death sentence. Don’t the overwhelming majority of death row inmates disagree, as indicated by their repeated appeals? Does one’s position on this depend on whether one believes in an afterlife? 2. The majority opinion states that because death is “qualitatively different” from any other punishment, there is “a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case” (emphasis added). Presumably, of course, a death sentence would be unreliable if the defendant were actually innocent, but the majority seem to assume that even for a guilty defendant a death sentence could still be “unreliable.” What does this mean?

97

Chap ter 5

Mitigating Evidence—Lockett v. Ohio (1978) and Jurek v. Texas (1976) Editors’ Comment Woodson v. North Carolina (Chapter 4) held that the sentencer (usually the jury) in a capital trial must consider the character and record of the defendant and the circumstances of the crime before imposing sentence. This virtually required the consideration of mitigating evidence. The issue resolved by the first case in this Chapter—Lockett v. Ohio—was whether the state can limit jury consideration to a list of possible mitigating circumstances written into the death penalty statute (like North Carolina, Connecticut, and Pennsylvania had such statutes). The Court’s negative answer meant that any mitigating evidence offered by the defense that related to Woodson factors would have to be admitted. The Lockett dissenters contended that such wideopen admissibility would return the vice of arbitrariness to the system. For an elaboration of this position, see Justice Scalia’s concurring opinion in Walton v. Arizona, 497 U.S. 639 (1990). The second case in this Chapter—Jurek v. Texas—introduces the Texas death penalty statute. Jurek was decided on the same day as Gregg v. Georgia (Chapter 3) and Woodson v. North Carolina (Chapter 4). Texas procedures are of particular interest because that state has executed about four times as many prisoners as any other jurisdiction in the post-Furman era. (See Appendix A.) The Texas statute differed significantly from most other statutes (although the Oregon and Virginia statutes resembled it). Rather than directing the jury to weigh aggravating and mitigating evidence, it contained no reference to mitigating evidence at all. Instead, the statute required the jury to answer “yes” or “no” to three “special issue” questions—and if the answers to all three were “yes,” a death sentence was required. The Court upheld the constitutionality of the statute in Jurek, reasoning that Texas courts seemed to be willing to construe the special issues so as to permit full consideration of mitigating evidence. Texas amended its statute in 1991 to explicitly permit the consideration of mitigating evidence, so its process since that time has more closely resembled those of other jurisdictions. But many defendants who were sentenced before the amendment claimed that the special issues had not been construed in their cases so as to permit mitigating evidence full consideration. The Supreme Court, from 1988 through 2007, handed down nine decisions in such cases— more than on any other death penalty issue. These post-Jurek cases are examined in a note after the Jurek opinion.

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

99

100

Chapter 5: Mitigating Evidence

Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed.2d 973 (1978) (6–2, defendant has an Eighth Amendment right to present, in the penalty phase of a capital trial, any mitigating evidence relevant to his character or the circumstances of the crime.)

Opinion of Chief Justice Burger, Joined by Justices Stewart, Powell, and Stevens III . . . Lockett challenges the constitutionality of Ohio’s death penalty statute on a number of grounds. We find it necessary to consider only her contention that her death sentence is invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime. . . . Essentially she contends that the Eighth and Fourteenth Amendments require that the sentencer be given a full opportunity to consider mitigating circumstances in capital cases and that the Ohio statute does not comply with that requirement. . . . We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country. Consistent with that concept, sentencing judges traditionally have taken a wide range of factors into account. That States have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony-murder statutes is beyond constitutional challenge. But the definition of crimes generally has not been thought automatically to dictate what should be the proper penalty. And where sentencing discretion is granted, it generally has been agreed that the sentencing judge’s “possession of the fullest information possible concerning the defendant’s life and characteristics” is “[h]ighly relevant—if not essential—[to the] selection of an appropriate sentence. . . .” The opinions of this Court going back many years in dealing with sentencing in capital cases have noted the strength of the basis for individualized sentencing. . . . Although legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases, the plurality opinion in Woodson, after reviewing the historical repudiation of mandatory sentencing in capital cases, concluded that in capital cases the fundamental respect for humanity underlying the Eighth Amendment. . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

Opinion of Chief Justice Burger

That declaration rested “on the predicate that the penalty of death is qualitatively different” from any other sentence. We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of “relevant facets of the character and record of the individual offender or the circumstances of the particular offense.” The plurality did not attempt to indicate, however, which facets of an offender or his offense it deemed “relevant” in capital sentencing or what degree of consideration of “relevant facets” it would require. We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.12 We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentences in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques—probation, parole, work furloughs, to name a few—and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence. There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.

Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.

12

101

102

Chapter 5: Mitigating Evidence

The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors we now hold to be required by the Eighth and Fourteenth Amendments in capital cases. Its constitutional infirmities can best be understood by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek.a. . . None of the statutes we sustained in Gregg and the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor. In this regard, the statute now before us is significantly different. Once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless, considering “the nature and circumstances of the offense and the history, character, and condition of the offender,” the sentencing judge determines that at least one of the following mitigating circumstances is established by a preponderance of the evidence: (1) The victim of the offense induced or facilitated it. (2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation. (3) The offense was primarily the product of the offender’s psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity. The Ohio Supreme Court has concluded that there is no constitutional distinction between the statute approved in Proffitt and Ohio’s statute, . . . because the mitigating circumstances in Ohio’s statute are “liberally construed in favor of the accused,” . . . and because the sentencing judge or judges may consider factors such as the age and criminal record of the defendant in determining whether any of the mitigating circumstances is established. . . . But even under the Ohio court’s construction of the statute, only the three factors specified in the statute can be considered in mitigation of the defendant’s sentence. We see, therefore, that once it is determined that the victim did not induce or facilitate the offense, that the defendant did not act under duress or coercion, and that the offense was not primarily the product of the defendant’s mental deficiency, the Ohio statute mandates the sentence of death. The absence of direct proof that the defendant intended to cause the death of the victim is relevant for mitigating purposes only if it is determined that it sheds some light on one of the three statutory mitigating factors. Similarly, consideration of a defendant’s comparatively minor role in the offense, or age, would generally not be permitted, as such, to affect the sentencing decision. Editor’s note: Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), were companion cases to Gregg, in which the Florida and Texas death penalty statutes, respectively, were upheld. a

Dissenting Opinion of Justice White

The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors. . . .

Dissenting Opinion of Justice White . . . The Court has now completed its about-face since Furman v. Georgia. Furman held that as a result of permitting the sentencer to exercise unfettered discretion to impose or not to impose the death penalty for murder, the penalty was then being imposed discriminatorily, wantonly and freakishly, and so infrequently that any given death sentence was cruel and unusual. The Court began its retreat in Woodson v. North Carolina 428 U.S. 280 (1976) and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976), where a plurality held that statutes which imposed mandatory death sentences even for firstdegree murders were constitutionally invalid because the Eighth Amendment required that consideration be given by the sentencer to aspects of character of the individual offender and the circumstances of the particular offense in deciding whether to impose the punishment of death. Today it is held, again through a plurality, that the sentencer may constitutionally impose the death penalty only as an exercise of his unguided discretion after being presented with all circumstances which the defendant might believe to be conceivably relevant to the appropriateness of the penalty for the individual offender. With all due respect, I dissent. I continue to be of the view, for the reasons set forth in my dissenting opinion in Roberts, that it does not violate the Eighth Amendment for a State to impose the death penalty on a mandatory basis when the defendant has been found guilty beyond a reasonable doubt of committing a deliberate, unjustified killing. Moreover, I greatly fear that the effect of the Court’s decision today will be to compel constitutionally a restoration of the state of affairs at the time Furman was decided, where the death penalty is imposed so erratically and the threat of execution is so attenuated for even the most atrocious murders that “its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” Furman v. Georgia, [408 U.S.] at 312 (White, J., concurring). By requiring as a matter of constitutional law that sentencing authorities be permitted to consider, and, in their discretion, to act upon, any and all mitigating circumstances, the Court permits them to refuse to impose the death penalty no matter what the circumstances of the crime. This invites a return to the pre-Furman days when the death penalty was generally reserved for those very few for whom society has least consideration. I decline to extend Woodson and Roberts in this respect. . . .

103

104

Chapter 5: Mitigating Evidence

Dissenting Opinion of Justice Rehnquist I . . . As a practical matter, I doubt that today’s opinion will make a great deal of difference in the manner in which trials in capital cases are conducted, since I would suspect that it has been the practice of most trial judges to permit a defendant to offer virtually any sort of evidence in his own defense as he wished. But as my Brother White points out in his dissent, the theme of today’s opinion, far from supporting those views expressed in Furman which did appear to be carried over to the Woodson cases, tends to undercut those views. If a defendant, as a matter of constitutional law, is to be permitted to offer as evidence in the sentencing hearing any fact, however bizarre, which he wishes, even though the most sympathetically disposed trial judge could conceive of no basis upon which the jury might take it into account in imposing a sentence, the new constitutional doctrine will not eliminate arbitrariness or freakishness in the imposition of sentences, but will codify and institutionalize it. By encouraging defendants in capital cases, and presumably sentencing judges and juries, to take into consideration anything under the sun as a “mitigating circumstance,” it will not guide sentencing discretion but will totally unleash it. . . . [Justice Brennan took no part in the case. The opinions of Justices Blackmun, concurring in part and concurring in the judgment, and Marshall, concurring in the judgment, were omitted.]

Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed.2d 929 (1976) (7–2, procedure that does not explicitly provide for consideration of mitigating circumstances, but provides a mechanism under which they can be considered, does not violate the Eighth Amendment.)

Opinion of Justice Stevens, Joined by Justices Stewart and Powell The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Texas violates the Eighth and Fourteenth Amendments to the Constitution.

I The petitioner in this case, Jerry Lane Jurek, was charged by indictment with the killing of Wendy Adams “by choking and strangling her with his hands, and by drowning her in water by throwing her into a river in the course of committing and attempting to commit kidnapping of and forcible rape upon the said Wendy Adams.”

Opinion of Justice Stevens

The evidence at his trial consisted of incriminating statements made by the petitioner, the testimony of several people who saw the petitioner and the deceased during the day she was killed, and certain technical evidence. This evidence established that the petitioner, 22 years old at the time, had been drinking beer in the afternoon. He and two young friends later went driving together in his old pickup truck. The petitioner expressed a desire for sexual relations with some young girls they saw, but one of his companions said the girls were too young. The petitioner then dropped his two friends off at a pool hall. He was next seen talking to Wendy, who was 10 years old, at a public swimming pool where her grandmother had left her to swim. Other witnesses testified that they later observed a man resembling the petitioner driving an old pickup truck through town at a high rate of speed, with a young blond girl standing screaming in the bed of the truck. The last witness who saw them heard the girl crying, “Help me, help me.” The witness tried to follow them, but lost them in traffic. According to the petitioner’s statement, he took the girl to the river, choked her, and threw her unconscious body in the river. Her drowned body was found downriver two days later. At the conclusion of the trial the jury returned a verdict of guilty. Texas law requires that if a defendant has been convicted of a capital offense, the trial court must conduct a separate sentencing proceeding before the same jury that tried the issue of guilt. Any relevant evidence may be introduced at this proceeding, and both prosecution and defense may present argument for or against the sentence of death. The jury is then presented with two (sometimes three) questions, the answers to which determine whether a death sentence will be imposed. During the punishment phase of the petitioner’s trial, several witnesses for the State testified to the petitioner’s bad reputation in the community. The petitioner’s father countered with testimony that the petitioner had always been steadily employed since he had left school and that he contributed to his family’s support. The jury then considered the two statutory questions relevant to this case: (1) whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result, and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The jury unanimously answered “yes” to both questions, and the judge, therefore, in accordance with the statute, sentenced the petitioner to death. The Court of Criminal Appeals of Texas affirmed the judgment.

105

106

Chapter 5: Mitigating Evidence

We granted certiorari to consider whether the imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments of the United States Constitution.

II The petitioner argues that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia.

III A.  After this Court held Texas’ system for imposing capital punishment unconstitutional in Branch v. Texas, decided with Furman v. Georgia, the Texas Legislature narrowed the scope of its laws relating to capital punishment. The new Texas Penal Code limits capital homicides to intentional and knowing murders committed in five situations: murder of a peace officer or fireman; murder committed in the course of kidnapping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder committed by a prison inmate when the victim is a prison employee. In addition, Texas adopted a new capital-sentencing procedure. That procedure requires the jury to answer three questions in a proceeding that takes place subsequent to the return of a verdict finding a person guilty of one of the above categories of murder. The questions the jury must answer are these: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. If the jury finds that the State has proved beyond a reasonable doubt that the answer to each of the three questions is yes, then the death sentence is imposed. If the jury finds that the answer to any question is no, then a sentence of life imprisonment results. The law also provides for an expedited review by the Texas Court of Criminal Appeals. . . .

Opinion of Justice Stevens

While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. For example, the Texas statute requires the jury at the guilt-determining stage to consider whether the crime was committed in the course of a particular felony, whether it was committed for hire, or whether the defendant was an inmate of a penal institution at the time of its commission. Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option—even potentially—for a smaller class of murders in Texas. Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime. But a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed. Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital sentencing system must allow the sentencing authority to consider mitigating circumstances. In Gregg v. Georgia, we today hold constitutionally valid a capital-sentencing system that directs the jury to consider any mitigating factors, and, in Proffitt v. Florida, we likewise hold constitutional a system that directs the judge and advisory jury to consider certain enumerated mitigating circumstances. The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors. The second Texas statutory question asks the jury to determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” if he were not sentenced to death. The Texas Court of Criminal Appeals has yet to define precisely the

107

108

Chapter 5: Mitigating Evidence

meanings of such terms as “criminal acts of violence” or “continuing threat to society.” In the present case, however, it indicated that it will interpret this second question so as to allow a defendant to bring to the jury’s attention whatever mitigating circumstances he may be able to show: In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not, at the time of the commission of the offense, he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.

In the only other case in which the Texas Court of Criminal Appeals has upheld a death sentence, it focused on the question of whether any mitigating factors were present in the case. In that case the state appellate court examined the sufficiency of the evidence to see if a “yes” answer to question 2 should be sustained. In doing so it examined the defendant’s prior conviction on narcotics charges, his subsequent failure to attempt to rehabilitate himself or obtain employment, the fact that he had not acted under duress or as a result of mental or emotional pressure, his apparent willingness to kill, his lack of remorse after the killing, and the conclusion of a psychiatrist that he had a sociopathic personality and that his patterns of conduct would be the same in the future as they had been in the past. Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that, in considering whether to impose a death sentence, the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death. B.  As in the Georgia and Florida cases, however, the petitioner contends that the substantial legislative changes that Texas made in response to this Court’s Furman decision are no more than cosmetic in nature, and have, in fact, not eliminated the arbitrariness and caprice of the system held in Furman to violate the Eighth and Fourteenth Amendments. (1) The petitioner first asserts that arbitrariness still pervades the entire criminal justice system of Texas—from the prosecutor’s decision whether

Opinion of Justice Stevens

to charge a capital offense in the first place and then whether to engage in plea bargaining, through the jury’s consideration of lesser included offenses, to the Governor’s ultimate power to commute death sentences. This contention fundamentally misinterprets the Furman decision, and we reject it for the reasons set out in our opinion today in Gregg v. Georgia. (2) Focusing on the second statutory question that Texas requires a jury to answer in considering whether to impose a death sentence, the petitioner argues that it is impossible to predict future behavior and that the question is so vague as to be meaningless. It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge’s prediction of the defendant’s future conduct. And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.

IV We conclude that Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution. Furman v. Georgia. Accordingly, the judgment of the Texas Court of Criminal Appeals is affirmed. It is so ordered.

109

110

Chapter 5: Mitigating Evidence

[Chief Justice Burger and Justice Blackmun concurred in the judgment. Justices Brennan and Marshall dissented for the reasons expressed in their opinions in Gregg v. Georgia.]

Concurring Opinion of Justice White, Joined by Chief Justice Burger and Justice Rehnquist For the reasons stated in my dissent in Roberts v. Louisiana, I cannot conclude that the Eighth Amendment forbids the death penalty under any and all circumstances. I also cannot agree with petitioner’s other major contention that under the new Texas statute and the State’s criminal justice system in general, the criminal jury and other law enforcement officers exercise such a range of discretion that the death penalty will be imposed so seldom, so arbitrarily, and so freakishly that the new statute suffers from the infirmities which Branch v. Texas found in its predecessor. Under the revised law, the substantive crime of murder is defined, and, when a murder occurs in one of the five circumstances set out in the statute, the death penalty must be imposed if the jury also makes the certain additional findings against the defendant. Petitioner claims that the additional questions upon which the death sentence depends are so vague that, in essence, the jury possesses standardless sentencing power; but I agree with Justices Stewart, Powell, and Stevens that the issues posed in the sentencing proceeding have a commonsense core of meaning and that criminal juries should be capable of understanding them. The statute does not extend to juries discretionary power to dispense mercy, and it should not be assumed that juries will disobey or nullify their instructions. As of February of this year, 33 persons, including petitioner, had been sentenced to death under the Texas murder statute. I cannot conclude at this juncture that the death penalty under this system will be imposed so seldom and arbitrarily as to serve no useful penological function, and hence fall within reach of the decision announced by five Members of the Court in Furman v. Georgia. Nor, for the reasons I have set out in Roberts and Gregg, am I convinced that this conclusion should be modified because of the alleged discretion which is exercisable by other major functionaries in the State’s criminal justice system. Furthermore, as Justices Stewart, Powell, and Stevens state and as the Texas Court of Criminal Appeals has noted, the Texas capital punishment statute limits the imposition of the death penalty to a narrowly defined group of the most brutal crimes, and aims at limiting its imposition to similar offenses occurring under similar circumstances. I concur in the judgment of affirmance.

Editors’ Question

Editors’ Question The special issue applicable to all Texas capital cases is “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” How great a “probability” is required? What is the “society” to which the continuing threat should be assessed—society at large or society within the prison? (Until mid-2005 in Texas, the alternative to a death sentence was a “hard 40”—that is, life without chance of parole for 40 years; since mid-2005 the alternative sentence has been life without parole.) Note on Post-Jurek Cases Between 1988 and 2007, the U.S. Supreme Court decided nine cases on the issue of the sufficiency of opportunity for a jury to consider defendants’ mitigating evidence under the pre-1991 Texas statute. This body of law was complicated because it was particularly sensitive to the composition of the Court at the time of the decision and because many of the cases came to the Court via federal habeas corpus review, to which special principles applied. This line of litigation is at or near its end, however, because while there are still (in 2010) about 40 inmates in Texas whose original death sentences predate the 1991 amendment, almost all of them have received sentence reversals and have been resentenced under the post-1991 statute. Accordingly, a brief overview of this line of authority will suffice for current death penalty students. The line of decisions began promisingly for the state in Franklin v. Lynaugh, 487 U.S. 164 (1988) (upholding a jury instruction limiting consideration of the defendant’s record of good conduct in prison to the issue of continuing threat). This was followed by a defendant-favorable decision in Penry v. Lynaugh, 492 U.S. 302 (1989) (finding that the special issues instruction had not permitted sufficient consideration of a defendant’s mitigating evidence of mental retardation and childhood abuse). Note that this case is outdated as to the effect of a finding of mental retardation. Under Penry, such a finding was simply a mitigating circumstance, whereas in Atkins v. Virginia (2002) (Chapter 10), the Court ruled that mental retardation makes one deathineligible. Penry was followed by two prosecution-favorable rulings—Graham v. Collins, 506 U.S. 461 (1993) (opportunity for jury consideration of a defendant’s mitigating evidence of youth, childhood abuse, and positive character traits was sufficient under habeas corpus standards of review); and Johnson v. Texas, 509 U.S. 350 (1993) (finding sufficient opportunity for a jury to consider mitigating evidence of youth). The five most recent decisions, though, were all in favor of defendants: Penry v. Johnson, 532 U.S. 782 (2001) (insufficient opportunity for a jury to consider mental retardation and childhood abuse); Tennard v. Dretke, 542 U.S. 274 (2004) (habeas petitioner entitled to a Certificate of Appealability on the issue of whether there was sufficient opportunity for the jury to consider his evidence of low IQ); Smith v. Texas, 543 U.S. 37 (2004) (insufficient opportunity for the jury to consider mental retardation and childhood abuse); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (insufficient opportunity for the jury to consider childhood abuse and neurological damage); and Brewer v. Quarterman, 550 U.S. 286 (2007) (insufficient opportunity for the jury to consider depression and teenage abuse).

111

Chap ter 6

Racial Bias—McCleskey v. Kemp (1987) Editors’ Comment Defendant McCleskey, a black man convicted and sentenced to death in Georgia for a robbery-murder in which he killed a white police officer, argued that the Georgia capital punishment scheme violated both the Fourteenth Amendment Equal Protection Clause and the Eighth Amendment. His claim was based solely on an elaborate statistical study by Professor David Baldus of murder cases in Georgia from 1973 through 1978. Unlike studies of the death penalty prior to the 1970s, which showed race discrimination against black defendants,* Baldus’s study offered proof of discrimination based on the race of murder victims: Killers of blacks were statistically less likely to receive the death sentence than those of whites, and death sentences were especially likely where the murderers of whites were black. The U.S. District Court found the Baldus study flawed and suggested that racial disparities could be explained by the greater incidence of aggravating factors in white-victim cases and of mitigating factors in black-victim cases. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984). The Eleventh Circuit Court of Appeals accepted Baldus’s findings, but nevertheless rejected McCleskey’s constitutional contentions. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985). Like the Circuit Court, the Supreme Court assumed the validity of the study, but disallowed the constitutional claims. To understand the “equal protection of the laws” issue, students should know that the Supreme Court had, in some contexts, demanded proof of purposeful or intentional discrimination. Mere racially disproportionate impact was not enough. The leading case establishing this was Washington v. Davis, 426 U.S. 229 (1976), in which the fact that a higher percentage of blacks than whites failed a police officer’s test was held insufficient to prove the discriminatory racial purpose essential to demonstrate an equal protection violation. Although statistical evidence of different treatment of blacks and whites could sometimes be acceptable proof of discriminatory intent, the Baldus statistics were judged insufficient in this case. For additional statistics on race and the death penalty, see Appendix A. *For example, M. Wolfgang and M. Reidel, Race, Judicial Discretion, and the Death Penalty, Vol. 407, Annals of the American Academy of Political and Social Science, 119–133 (1973), which studied rape cases in 11 southern states during the period 1945 to 1965.

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

113

114

Chapter 6: Racial Bias

McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262 (1987) (5–4, study showing that, in Georgia, black defendants who killed whites have the greatest likelihood of receiving the death penalty does not prove discrimination in violation of the Equal Protection Clause or arbitrariness in violation of the Eighth Amendment.)

Opinion of Justice Powell for the Court This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that petitioner McCleskey’s capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.

I McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978. McCleskey’s convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. . . . In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970’s. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants. Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white ­victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white ­defendants

Opinion of Justice Powell for the Court

and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims. Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.5. . .

II McCleskey’s first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.7 He argues that race has infected the administration of Georgia’s statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers. As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey’s claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect

Baldus’ 230-variable model divided cases into eight different ranges, according to the estimated aggravation level of the offense. Baldus argued in his testimony to the District Court that the effects of racial bias were most striking in the mid-range cases. “[W]hen the cases become tremendously aggravated, so that everybody would agree that, if we’re going to have a death sentence, these are the cases that should get it, the race effects go away. It’s only in the mid-range of cases where the decisionmakers have a real choice as to what to do. If there’s room for the exercise of discretion, then the [racial] factors begin to play a role.”. . . Under this model, Baldus found that 14.4% of the black-victim mid-range cases received the death penalty, and 34.4% of the white-victim cases received the death penalty. . . . According to Baldus, the facts of McCleskey’s case placed it within the mid-range. . . . 7 Although the District Court rejected the findings of the Baldus study as flawed, the Court of Appeals assumed that the study is valid and reached the constitutional issues. Accordingly, those issues are before us. As did the Court of Appeals, we assume the study is valid statistically, without reviewing the factual findings of the District Court. Our assumption that the Baldus study is statistically valid does not include the assumption that the study shows that racial considerations actually enter into any sentencing decisions in Georgia. Even a sophisticated multiple-regression analysis such as the Baldus study can only demonstrate a risk that the factor of race entered into some capital sentencing decisions and a necessarily lesser risk that race entered into any particular sentencing decision. 5

115

116

Chapter 6: Racial Bias

despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge, that this claim must fail. A. Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.” . . . A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination “had a discriminatory effect” on him. . . . Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey’s claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black. The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a “stark” pattern to be accepted as the sole proof of discriminatory intent under the Constitution, . . . “[b]ecause of the nature of the jury-selection task, . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes.” . . . Second, this Court has accepted statistics in the form of multiple regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. Bazemore v. Friday, 478 U.S. 385 400–401 (1986). But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire selection or Title VII cases. Most importantly, each ­particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. . . . Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII case. In those

Opinion of Justice Powell for the Court

cases, the statistics relate to fewer entities, and fewer variables are relevant to the challenged decisions.15 Another important difference between the cases in which we have accepted statistics as proof of discriminatory intent and this case is that, in the venire-selection and Title VII contexts, the decision maker has an opportunity to explain the statistical disparity. . . . Here, the State has no practical opportunity to rebut the Baldus study. “[Controlling considerations of . . . public policy,” . . . dictate that jurors “cannot be called . . . to testify to the motives and influences that led to their verdict.” . . . Similarly, the policy considerations behind a prosecutor’s traditionally “wide discretion” suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, “often years after they were made.” . . . Moreover, absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty. Finally, McCleskey’s statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State’s criminal justice system. “[O]ne of society’s most basic tasks is that of protecting the lives of its citizens, and one of the most basic ways in which it achieves the task is through criminal laws against murder.” Gregg. v. Georgia . . . Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose. B. McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal Protection Clause by adopting the capital punishment 15 . . . The Baldus study seeks to deduce a state “policy” by studying the combined effects of the decisions of hundreds of juries that are unique in their composition. It is incomparably more difficult to deduce a consistent policy by studying the decisions of these many unique entities. It is also questionable whether any consistent policy can be derived by studying the decisions of prosecutors. The District Attorney is elected by the voters in a particular county. Since decisions whether to prosecute and what to charge necessarily are individualized, and involve infinite factual variations, coordination among district attorney offices across a State would be relatively meaningless. Thus, any inference from statewide statistics to a prosecutorial “policy” is of doubtful relevance. Moreover, the statistics in Fulton County alone represent the disposition of far fewer cases than the statewide statistics. Even assuming the statistical validity of the Baldus study as a whole, the weight to be given the results gleaned from this small sample is limited.

117

118

Chapter 6: Racial Bias

statute and allowing it to remain in force despite its allegedly discriminatory application. But ‘[d]iscriminatory purpose’. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.

. . . For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. In Gregg v. Georgia, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose.20 Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment, see Gregg, we will not infer a discriminatory purpose on the part of the State of Georgia. Accordingly, we reject McCleskey’s equal protection claims.

III McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment. . . .

IV A. In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is “disproportionate to the crime in the traditional sense.” See Pulley v. Harris, 465 U.S. 37, 43 (1984). He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed Gregg. . . . His disproportionality claim “is of a different sort.” Pulley v. Harris. McCleskey argues that the sentence in his case is disproportionate to the s­ entences in other murder cases. 20 McCleskey relies on “historical evidence” to support his claim of purposeful discrimination by the State. This evidence focuses on Georgia laws in force during and just after the Civil War. Of course, the “historical background of the decision is one evidentiary source” for proof of intentional discrimination. . . . But unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value. . . . Although the history of racial discrimination in this country is undeniable, we cannot accept official actions taken long ago as evidence of current intent.

Opinion of Justice Powell for the Court

On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. On automatic appeal, the Georgia Supreme Court found that McCleskey’s death sentence was not disproportionate to other death sentences imposed in the State. . . . The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders. . . . Moreover, where the statutory procedures adequately channel the sentencer’s discretion, such proportionality review is not constitutionally required. Pulley. On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. . . . Because McCleskey’s sentence was imposed under Georgia sentencing procedures that focus discretion “on the particularized nature of the crime and the particularized characteristics of the individual defendant, ”. . . we lawfully may presume that McCleskey’s death sentence was not “wantonly and freakishly” imposed, . . . and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment. B. Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey’s disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. We now address this claim. To evaluate McCleskey’s challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions, or that race was a factor in McCleskey’s particular case. Statistics, at most, may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. The question “is at what point that risk becomes constitutionally unacceptable.” Turner v. Murray. McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do. Because of the risk that the factor of race may enter the criminal justice process, we have engaged in “unceasing efforts” to eradicate racial prejudice from our criminal justice system. . . . Our efforts have been guided by our recognition that “the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice,” . . . Thus, it is the jury that is

119

120

Chapter 6: Racial Bias

a criminal defendant’s fundamental “protection of life and liberty against race or color prejudice.” . . . Specifically, a capital sentencing jury representative of a criminal defendant’s community assures a “‘diffused impartiality, ’”. . . in the jury’s task of “express[ing] the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois. Individual jurors bring to their deliberations “qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” . . . The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury’s function to make the difficult and uniquely human judgments that defy codification and that “buil[d] discretion, equity, and flexibility into a legal system.” H. Kalven and H. Zeisel, The American Jury 498 (1966). McCleskey’s argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant’s interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable. Similarly, the capacity of prosecutorial discretion to provide individualized justice is “firmly entrenched in American law.” . . . As we have noted, a prosecutor can decline to charge, offer a plea bargain, or decline to seek a death sentence in any particular case. . . . Of course, “the power to be lenient [also] is the power to discriminate,” . . . but a capital punishment system that did not allow for discretionary acts of leniency “would be totally alien to our notions of criminal justice.” . . . C. At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is “a far cry from the major systemic defects identified in Furman,” Pulley v. Harris. As this Court has recognized, any mode for determining guilt or punishment “has its weaknesses and the potential for misuse.” . . . Specifically, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.’”. . . Despite these imperfections, our consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” . . . Where the discretion that is fundamental to our criminal ­process is involved, we decline to assume that what is ­unexplained

Opinion of Justice Powell for the Court

is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.37 Justice Brennan’s eloquent dissent of course reflects his often repeated opposition to the death sentence. His views, that also are shared by Justice Marshall, are principled, and entitled to respect. Nevertheless, since Gregg was decided in 1976, seven Members of this Court consistently have upheld sentences of death under Gregg-type statutes providing for meticulous review of each sentence in both state and federal courts. The ultimate thrust of Justice Brennan’s dissent is that Gregg and its progeny should be overruled. He does not, however, expressly call for the overruling of any prior decision. Rather, relying on the Baldus study, Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, questions the very heart of our criminal justice system: the traditional discretion that prosecutors and juries necessarily must have. We have held that discretion in a capital punishment system is necessary to satisfy the Constitution. Woodson v. North Carolina. . . . Yet the dissent now claims that the “discretion afforded prosecutors and jurors in the Georgia capital sentencing system” violates the Constitution by creating “opportunities for racial considerations to influence criminal proceedings.” . . . The dissent contends that in Georgia “[n]o guidelines govern prosecutorial decisions . . . and [that] Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another.” . . . Prosecutorial decisions necessarily involve both judgmental and factual decisions that vary from case to case. . . . Thus, it is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice. Indeed, the dissent suggests no such guidelines for prosecutorial discretion. The reference to the failure to provide juries with the list of aggravating and mitigating factors is curious. The aggravating circumstances are set forth in detail in the Georgia statute. . . . The jury is not provided with a list of aggravating circumstances because not all of them are relevant to any particular crime. Instead, the prosecutor must choose the relevant circumstances, and the State must prove to the jury that at least one exists beyond a reasonable doubt before the jury can even consider imposing the death sentence. It would be improper, and often prejudicial, to allow jurors to speculate as to aggravating circumstances wholly without support in the evidence. The dissent’s argument that a list of mitigating factors is required is particularly anomalous. We have held that the Constitution requires that juries be allowed to consider “any relevant mitigating factor,” even if it is not included in a statutory list. Eddings v. Oklahoma. See Lockett v. Ohio. The dissent does not attempt to harmonize its criticism with this constitutional principle. The dissent also does not suggest any standard, much less a workable one, for balancing aggravating and mitigating factors. If capital defendants are to be treated as “uniquely individual human beings,” Woodson, then discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed is essential. The dissent repeatedly emphasizes the need for “a uniquely high degree of rationality in imposing the death penalty.” . . . Again, no suggestion is made as to how greater “rationality” could be achieved under any type of statute that authorizes capital punishment. The Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment. These include: (i) a bifurcated sentencing proceeding; (ii) the threshold requirement of one or more aggravating circumstances; and (iii) mandatory State Supreme Court review. All of these are administered pursuant to this Court’s decisions interpreting the limits of the Eighth Amendment on the imposition of the death penalty, and all are subject to ultimate review by this Court. These ensure a degree of care in the imposition of the sentence of death that can be described only as unique. Given these safeguards already inherent in the imposition and review of capital sentences, the dissent’s call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution. As we reiterate, infra, the requirement of heightened rationality in the imposition of capital punishment does not “plac[e] totally unrealistic conditions on its use.” Gregg.

37

121

122

Chapter 6: Racial Bias

V Two additional concerns inform our decision in this case. First, McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Solem v. Helm . . . Thus, if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey’s claims relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could—at least in theory—be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not “plac[e] totally unrealistic conditions on its use.” Gregg. Second, McCleskey’s arguments are best presented to the legislative bodies. It is not the responsibility—or indeed even the right—of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are “constituted to respond to the will and consequently the moral values of the people.” Furman v. Georgia, 408 U.S., at 383 (Burger, C.J., dissenting). Legislatures also are better qualified to weigh and “evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts,” Gregg. Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey’s wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether, in his case, the law of Georgia was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case. . . .

Dissenting Opinion of Justice Brennan

Dissenting Opinion of Justice Brennan, Joined by Justices Marshall, Blackmun, and Stevens II At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. . . . Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. . . . In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. . . . Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. . . . The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died. The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot “prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case.” . . . Since, according to Professor Baldus, we cannot say “to a moral certainty” that race influenced a decision, we can identify only “a likelihood that a particular factor entered into some decisions,” and “a discrepancy that appears to correlate with race.” . . . This “likelihood” and “discrepancy,” holds the Court, is insufficient to establish a constitutional violation. The Court reaches this conclusion by placing four factors on the scales opposite McCleskey’s evidence: The desire to encourage sentencing discretion, the existence of “statutory safeguards” in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role. The Court’s evaluation of the significance of petitioner’s evidence is fundamentally at odds with our consistent concern for rationality in capital sentencing, and the considerations that the majority invokes to discount that evidence cannot justify ignoring its force.

123

124

Chapter 6: Racial Bias

III A. It is important to emphasize at the outset that the Court’s observation that McCleskey cannot prove the influence of race on any particular sentencing decision is irrelevant in evaluating his Eighth Amendment claim. Since Furman v. Georgia, the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty “may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” . . . This emphasis on risk acknowledges the difficulty of divining the jury’s motivation in an individual case. In addition, it reflects the fact that concern for arbitrariness focuses on the rationality of the system as a whole, and that a system that features a significant probability that sentencing decisions are influenced by impermissible considerations cannot be regarded as rational. As we said in Gregg v. Georgia, “the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today)”: a constitutional violation is established if a plaintiff demonstrates a “pattern of arbitrary and capricious sentencing.” Id. . . . The Court assumes the statistical validity of the Baldus study, and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia. . . . Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey’s sentence is intolerable by any imaginable standard. B. The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey’s life had his victim been black. The study distinguishes between those cases in which (1) the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate; and (2) cases reflecting an “intermediate” level of aggravation, in which the jury has considerable discretion in choosing a sentence. McCleskey’s case falls into the intermediate range. In such cases, death is imposed in 34% of white-victim crimes and 14% of black-­victim crimes, a difference of 139% in the rate of imposition of the death penalty. . . . In other words, just under 59%—almost 6 in 10—defendants comparable to McCleskey would not have received the death penalty if their victims had been black. Furthermore, even examination of the sentencing system as a whole, factoring in those cases in which the jury exercises little discretion, indicates the

Dissenting Opinion of Justice Brennan

i­ nfluence of race on capital sentencing. For the Georgia system as a whole, race accounts for a 6 percentage point difference in the rate at which capital punishment is imposed. Since death is imposed in 11% of all white-victim cases, the rate in comparably aggravated black-victim cases is 5%. The rate of capital sentencing in a white-victim case is thus 120% greater than the rate in a blackvictim case. Put another way, over half—55%—of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates—as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide. These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia. Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all whitevictim cases was almost 11 times greater than the rate for black-victim cases. . . . Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. . . . In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. . . . Since our decision upholding the Georgia capital sentencing system in Gregg, the State has executed seven persons. All of the seven were convicted of killing whites, and six of the seven executed were black. Such execution figures are especially striking in light of the fact that, during the period encompassed by the Baldus study, only 9.2% of Georgia homicides involved black defendants and white victims, while 60.7% involved black victims. McCleskey’s statistics have particular force because most of them are the product of sophisticated multiple-regression analysis. Such analysis is designed ­precisely to identify patterns in the aggregate, even though we may not be able to reconstitute with certainty any individual decision that goes to make up that pattern. Multiple-regression analysis is particularly well suited to identify the influence of impermissible considerations in sentencing, since it is able to control for permissible factors that may explain an apparent arbitrary pattern. While the decisionmaking process of a body such as a jury may be complex, the Baldus study provides a massive compilation of the details that are most relevant to that decision. As we held in the context of Title VII of the Civil Rights Act of 1964 last term in Bazemore v. Friday, 478 U.S. 385 (1986), a multiple-regression analysis need not include every conceivable variable to establish a party’s case, as long as it includes those variables that account for the major factors that are likely to influence decisions. In this case, Professor Baldus in

125

126

Chapter 6: Racial Bias

fact conducted additional regression analyses in response to criticisms and suggestions by the District Court, all of which confirmed, and some of which even strengthened, the study’s original conclusions. The statistical evidence in this case thus relentlessly documents the risk that McCleskey’s sentence was influenced by racial considerations. This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in whitevictim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that “[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence,” Turner v. Murray, and that “[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349 (1977). In determining the guilt of a defendant, a State must prove its case beyond a reasonable doubt. That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person’s life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner’s statistics, on their face, are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned. C. Evaluation of McCleskey’s evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia’s legacy of a race-conscious criminal justice system, as well as this Court’s own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey’s claim is not a fanciful product of mere statistical artifice. For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. During the colonial period, black slaves who killed whites in Georgia, regardless of whether in self-defense or in defense of another, were automatically executed. . . . The discretion afforded prosecutors and jurors in the Georgia capital sentencing system creates . . . opportunities [for racial considerations]. No guidelines govern prosecutorial decisions to seek the death penalty, and Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another. Once a jury identifies one ­aggravating

Dissenting Opinion of Justice Brennan

f­ actor, it has complete discretion in choosing life or death, and need not articulate its basis for selecting life imprisonment. The Georgia sentencing system therefore provides considerable opportunity for racial considerations, however subtle and unconscious, to influence charging and sentencing decisions. History and its continuing legacy thus buttress the probative force of McCleskey’s statistics. Formal dual criminal laws may no longer be in effect, and intentional discrimination may no longer be prominent. Nonetheless, as we acknowledged in Turner, “subtle, less consciously held racial attitudes” continue to be of concern, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey’s statistical evidence are therefore consistent with the lessons of social experience. The majority thus misreads our Eighth Amendment jurisprudence in concluding that McCleskey has not demonstrated a degree of risk sufficient to raise constitutional concern. The determination of the significance of his evidence is at its core an exercise in human moral judgment, not a mechanical statistical analysis. It must first and foremost be informed by awareness of the fact that death is irrevocable, and that, as a result, “the qualitative difference of death from all other punishments requires a greater degree of scrutiny of the capital sentencing determination.” . . . For this reason, we have demanded a uniquely high degree of rationality in imposing the death penalty. A capital sentencing system in which race more likely than not plays a role does not meet this standard. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Sentencing data, history, and experience all counsel that Georgia has provided insufficient assurance of the heightened rationality we have required in order to take a human life.

IV The Court cites four reasons for shrinking from the implications of McCleskey’s evidence: the desirability of discretion for actors in the criminal justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role. While these concerns underscore the need for sober deliberation, they do not justify rejecting evidence as convincing as McCleskey has presented. The Court maintains that petitioner’s claim “is antithetical to the fundamental role of discretion in our criminal justice system.” It states that “[w]here the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious.” . . .

127

128

Chapter 6: Racial Bias

Reliance on race in ­imposing capital punishment, however, is antithetical to the very rationale for granting sentencing discretion. Discretion is a means, not an end. It is bestowed in order to permit the sentencer to “trea[t] each defendant in a capital case with that degree of respect due the uniqueness of the individual.” Lockett. The decision to impose the punishment of death must be based on a “particularized consideration of relevant aspects of the character and record of each convicted defendant.” Woodson. Failure to conduct such an individualized moral inquiry “treats all persons convicted of a designated offense not as unique individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.” Id. Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. Enhanced willingness to impose the death sentence on black defendants, or diminished willingness to render such a sentence when blacks are victims, reflects a devaluation of the lives of black persons. When confronted with evidence that race more likely than not plays such a role in a capital sentencing system, it is plainly insufficient to say that the importance of discretion demands that the risk be higher before we will act—for in such a case, the very end that discretion is designed to serve is being undermined. Our desire for individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes. Since such decisions are not reducible to mathematical formulae, we are willing to assume that a certain degree of variation reflects the fact that no two defendants are completely alike. There is thus a presumption that actors in the criminal justice system exercise their discretion in responsible fashion, and we do not automatically infer that sentencing patterns that do not comport with ideal rationality are suspect. As we made clear in Batson v. Kentucky, 476 U.S. 79 (1986), however, that presumption is rebuttable. Batson dealt with another arena in which considerable discretion traditionally has been afforded, the exercise of peremptory challenges. Those challenges are normally exercised without any indication whatsoever of the grounds for doing so. The rationale for this deference has been a belief that the unique characteristics of particular prospective jurors may raise concern on the part of the prosecution or defense, despite the fact that counsel may not be able to articulate that concern in a manner sufficient to support exclusion for cause. As with sentencing, therefore, peremptory challenges are justified as an occasion for particularized determinations related to specific individuals, and, as with sentencing, we presume that such ­challenges

Dissenting Opinion of Justice Brennan

­ ormally are not made on the basis of a factor such as race. As we said in Batson, n however, such features do not justify imposing a “crippling burden of proof,” id., in order to rebut that presumption. The Court in this case apparently seeks to do just that. On the basis of the need for individualized decisions, it rejects evidence, drawn from the most sophisticated capital sentencing analysis ever performed, that reveals that race more likely than not infects capital sentencing decisions. The Court’s position converts a rebuttable presumption into a virtually conclusive one. The Court also declines to find McCleskey’s evidence sufficient in view of “the safeguards designed to minimize racial bias in the [capital sentencing] process.” . . . It is clear that Gregg bestowed no permanent approval on the Georgia system. It simply held that the State’s statutory safeguards were assumed sufficient to channel discretion without evidence otherwise. It has now been over 13 years since Georgia adopted the provisions upheld in Gregg. Professor Baldus and his colleagues have compiled data on almost 2,500 homicides committed during the period 1973–1979. They have taken into account the influence of 230 nonracial variables, using a multitude of data from the State itself, and have produced striking evidence that the odds of being sentenced to death are significantly greater than average if a defendant is black or his or her victim is white. The challenge to the Georgia system is not speculative or theoretical; it is empirical. As a result, the Court cannot rely on the statutory safeguards in discounting McCleskey’s evidence, for it is the very effectiveness of those safeguards that such evidence calls into question. While we may hope that a model of procedural fairness will curb the influence of race on sentencing, “we cannot simply assume that the model works as intended; we must critique its performance in terms of its results.” . . . The Court next states that its unwillingness to regard petitioner’s evidence as sufficient is based in part on the fear that recognition of McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing. . . . Taken on its face, such a statement seems to suggest a fear of too much justice. Yet surely the majority would acknowledge that, if striking evidence indicated that other minority groups, or women, or even persons with blond hair, were disproportionately sentenced to death, such a state of affairs would be repugnant to deeply rooted conceptions of fairness. The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law. In fairness, the Court’s fear that McCleskey’s claim is an invitation to descend a slippery slope also rests on the realization that any humanly imposed

129

130

Chapter 6: Racial Bias

s­ ystem of penalties will exhibit some imperfection. Yet to reject McCleskey’s powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination, considerations which may properly be taken into account in determining whether various punishments are “cruel and unusual.” Furthermore, it fails to take account of the unprecedented refinement and strength of the Baldus study. It hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. Death, in its finality, differs more from life imprisonment than a 100year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment.  Woodson

Furthermore, the relative interests of the state and the defendant differ dramatically in the death penalty context. The marginal benefits accruing to the state from obtaining the death penalty, rather than life imprisonment, are considerably less than the marginal difference to the defendant between death and life in prison. Such a disparity is an additional reason for tolerating scant arbitrariness in capital sentencing. Even those who believe that society can impose the death penalty in a manner sufficiently rational to justify its continuation must acknowledge that the level of rationality that is considered satisfactory must be uniquely high. As a result, the degree of arbitrariness that may be adequate to render the death penalty “cruel and unusual” punishment may not be adequate to invalidate lesser penalties. What these relative degrees of arbitrariness might be in other cases need not concern us here; the point is that the majority’s fear of wholesale invalidation of criminal sentences is unfounded. The Court also maintains that accepting McCleskey’s claim would pose a threat to all sentencing because of the prospect that a correlation might be demonstrated between sentencing outcomes and other personal characteristics. Again, such a view is indifferent to the considerations that enter into a determination whether punishment is “cruel and unusual.” Race is a consideration whose influence is expressly constitutionally proscribed. We have expressed a moral commitment, as embodied in our fundamental law, that this specific characteristic should not be the basis for allotting burdens and benefits. Three constitutional amendments, and numerous statutes, have been prompted ­specifically by the desire to address the effects of racism. “Over the years, this Court has consistently repudiated ‘[distinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon

Dissenting Opinion of Justice Brennan

the doctrine of equality.’”. . . Furthermore, we have explicitly acknowledged the illegitimacy of race as a consideration in capital sentencing. Zant v. Stephens, 462 U.S. 862, 885 (1983). That a decision to impose the death penalty could be influenced by race is thus a particularly repugnant prospect, and evidence that race may play even a modest role in levying a death sentence should be enough to characterize that sentence as “cruel and unusual.” Certainly, a factor that we would regard as morally irrelevant, such as hair color, at least theoretically could be associated with sentencing results to such an extent that we would regard as arbitrary a system in which that factor played a significant role. As I have said above, however, the evaluation of evidence suggesting such a correlation must be informed not merely by statistics, but by history and experience. One could hardly contend that this Nation has, on the basis of hair color, inflicted upon persons deprivation comparable to that imposed on the basis of race. Recognition of this fact would necessarily influence the evaluation of data suggesting the influence of hair color on sentencing, and would require evidence of statistical correlation even more powerful than that presented by the Baldus study. Furthermore, the Court’s fear of the expansive ramifications of a holding for McCleskey in this case is unfounded, because it fails to recognize the uniquely sophisticated nature of the Baldus study. McCleskey presents evidence that is far and away the most refined data ever assembled on any system of punishment, data not readily replicated through casual effort. Moreover, that evidence depicts not merely arguable tendencies, but striking correlations, all the more powerful because nonracial explanations have been eliminated. Acceptance of petitioner’s evidence would therefore establish a remarkably stringent standard of statistical evidence unlikely to be satisfied with any frequency. The Court’s projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. The Court can indulge in such speculation only by ignoring its own jurisprudence demanding the highest scrutiny on issues of death and race. As a result, it fails to do justice to a claim in which both those elements are intertwined—an occasion calling for the most sensitive inquiry a court can conduct. Despite its acceptance of the validity of Warren McCleskey’s evidence, the Court is willing to let his death sentence stand because it fears that we cannot successfully define a different standard for lesser punishments. This fear is baseless. Finally, the Court justifies its rejection of McCleskey’s claim by cautioning against usurpation of the legislatures’ role in devising and monitoring criminal punishment. The Court is, of course, correct to emphasize the gravity of constitutional intervention and the importance that it be sparingly employed. The fact that “[c]apital punishment is now the law in more than two thirds of our States,” ante, however, does not diminish the fact that capital punishment

131

132

Chapter 6: Racial Bias

is the most awesome act that a State can perform. The judiciary’s role in this society counts for little if the use of governmental power to extinguish life does not elicit close scrutiny. . . . Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of “sober second thought.” . . .

V . . . Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present. It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. “The destinies of the two races in this country are indissolubly linked together,” . . . and the way in which we choose those who will die reveals the depth of moral commitment among the living. The Court’s decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey’s evidence will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today’s decision may be rendered, these painful conversations will serve as the most eloquent dissents of all. [The dissenting opinions of Justice Blackmun and Justice Stevens are omitted.]

Editors’ Questions

Editors’ Questions 1. The majority said that “defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.” The dissent agreed. As it turns out, both may have been mistaken. According to Professor Baldus and colleagues, the Justices were confusing odds with probabilities. They gave this example of how a 4.3:1 odds multiplier works: [I]f the odds of receiving the death sentence faced by defendants with black victims in a given category of cases are 1:2 (one death sentence in three cases, or a 33% probability), then the odds faced by defendants with white victims in this category of cases will be 4.3:2 or 2.15:1 (4.3 death sentences in 6.3 cases, or a 68% probability).*

Clearly, a 68% probability of a death sentence is not “4.3 times as likely” as a 33% probability. Did the Justices’ misunderstanding make McCleskey’s statistical case seem better or worse than it actually was? Would a better understanding have had any impact on the Court’s decision? 2. If McCleskey had won, which death-sentenced defendants in Georgia would have benefitted from the victory? Black defendants who had killed white victims? All defendants who had killed white victims? All death-sentenced defendants? Could capital defendants in other states have relied on McCleskey? 3. Do you find it odd that the Georgia criminal justice system discriminated against black victims (by underpunishing their killers) but not against black defendants (by giving them more death sentences)? *David C. Baldus, George Woodworth, & Charles A. Pulaski, Equal Justice and the Death Penalty: A Legal and Empirical Analysis, Northeastern University Press (1990), p. 384.

133

Chap ter 7

Rape and Other Nonhomicide Crimes—Coker v. Georgia (1977) Editors’ Comment A small but significant proportion of executions in the United States in the 20th century were for nonhomicide crimes. From 1930 to 1967, About 3300 persons were executed for homicide, 455 for rape, and 70 for other crimes. In 1977, the U. S. Supreme Court banned execution for most nonhomicide crimes in its rulings in Coker v. Georgia (1977) and two accompanying cases. In Coker, the Court held the death penalty disproportionate punishment for the rape of an adult woman and, in two other cases decided that same day, ruled, in one-paragraph per curiam opinions citing Coker, that death was also a disproportionate punishment for kidnapping, Eberheart v. Georgia, 433 U.S. 917 (1977), and armed robbery, Hooks v. Georgia, 433 U.S. 917 (1977). From these decisions it could be readily inferred that the Court would not permit a death sentence for most nonhomicide crimes that states had made death-eligible, such as burglary, attempted murder, and assault by a life-term prisoner. There remained, however, one nonhomicide crime against an individual for which death might be a proportional punishment—rape of a child—which the Court finally addressed in Kennedy v. Louisiana (2008) (Chapter 11). There also remain crimes against the government, such as treason and espionage, for which a death sentence might be proportional. The Court has yet to address the proportionality of death for these crimes because no death sentence has been imposed for them in the post-Furman era.

Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed.2d 982 (1977) (7–2, a sentence of death for the rape of an adult woman is grossly disproportionate and excessive punishment forbidden by the Eighth Amendment.)

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

135

136

Chapter 7: Rape and Other Nonhomicide Crimes

Opinion of Justice White, Joined by Justices Stewart, Blackmun, and Stevens I While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga., on September 2, 1974. At approximately 11 o’clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a “board,” he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver’s money and the keys to the family car. Brandishing the knife and saying “you know what’s going to happen to you if you try anything, don’t you,” Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed. Petitioner was charged with escape, armed robbery, motor vehicle theft, kidnaping, and rape. Counsel was appointed to represent him. Having been found competent to stand trial, he was tried. The jury returned a verdict of guilty, rejecting his general plea of insanity. A sentencing hearing was then conducted in accordance with the procedures dealt with at length in Gregg v. Georgia, where this Court sustained the death penalty for murder when imposed pursuant to the statutory procedures. The jury was instructed that it could consider as aggravating circumstances whether the rape had been committed by a person with a prior record of conviction for a capital felony and whether the rape had been committed in the course of committing another capital felony, namely, the armed robbery of Allen Carver. The court also instructed, pursuant to statute, that, even if aggravating circumstances were present, the death penalty need not be imposed if the jury found they were outweighed by mitigating circumstances, that is, circumstances not constituting justification or excuse for the offense in question, “but which, in fairness and mercy, may be considered as extenuating or reducing the degree” of moral culpability or punishment. The jury’s verdict on the rape count was death by electrocution. Both aggravating circumstances on which the court instructed were found to be present by the jury.

II . . . In sustaining the imposition of the death penalty in Gregg, . . . the Court firmly embraced the holdings and dicta from prior cases, Furman v. Georgia; Robinson v. California; Trop v. Dulles; and Weems v. United States, to the effect that the Eighth Amendment bars not only those punishments that are “barbaric,” but also those that are “excessive” in relation to the crime committed. Under Gregg, a punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment, and hence

Opinion of Justice White

is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted. In Gregg, after giving due regard to such sources, the Court’s judgment was that the death penalty for deliberate murder was neither the purposeless imposition of severe punishment nor a punishment grossly disproportionate to the crime. But the Court reserved the question of the constitutionality of the death penalty when imposed for other crimes.

III That question, with respect to rape of an adult woman, is now before us. We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment. A.  As advised by recent cases, we seek guidance in history and from the objective evidence of the country’s present judgment concerning the acceptability of death as a penalty for rape of an adult woman. At no time in the last 50 years have a majority of the States authorized death as a punishment for rape. In 1925, 18 States, the District of Columbia, and the Federal Government authorized capital punishment for the rape of an adult female. By 1971 just prior to the decision in Furman v. Georgia, that number had declined, but not substantially, to 16 States plus the Federal Government. Furman then invalidated most of the capital punishment statutes in this country, including the rape statutes, because, among other reasons, of the manner in which the death penalty was imposed and utilized under those laws. With their death penalty statutes for the most part invalidated, the States were faced with the choice of enacting modified capital punishment laws in an attempt to satisfy the requirements of Furman or of being satisfied with life imprisonment as the ultimate punishment for any offense. Thirty-five States immediately reinstituted the death penalty for at least limited kinds of crime. . . . This public judgment as to the acceptability of capital punishment, evidenced by the immediate, post-Furman legislative reaction in a large majority of the States, heavily influenced the Court to sustain the death penalty for murder in Gregg v. Georgia. But if the “most marked indication of society’s endorsement of the death ­ enalty for murder is the legislative response to Furman” Gregg v. Georgia at p 179–180, it should also be a telling datum that the public judgment with respect to

137

138

Chapter 7: Rape and Other Nonhomicide Crimes

rape, as reflected in the statutes providing the punishment for that crime, has been dramatically different. In reviving death penalty laws to satisfy Furman’s mandate, none of the States that had not previously authorized death for rape chose to include rape among capital felonies. Of the 16 States in which rape had been a capital offense, only three provided the death penalty for rape of an adult woman in their revised statute—Georgia, North Carolina, and Louisiana. In the latter two States, the death penalty was mandatory for those found guilty, and those laws were invalidated by Woodson and Roberts. When Louisiana and North Carolina, responding to those decisions, again revised their capital punishment laws, they reenacted the death penalty for murder but not for rape; none of the seven other legislatures that to our knowledge have amended or replaced their death penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to Furman with mandatory statutes, included rape among the crimes for which death was an authorized punishment. Georgia argues that 11 of the 16 States that authorized death for rape in 1972 attempted to comply with Furman by enacting arguably mandatory death penalty legislation, and that it is very likely that, aside from Louisiana and North Carolina, these States simply chose to eliminate rape as a capital offense rather than to require death for each and every instance of rape. The argument is not without force, but 4 of the 16 States did not take the mandatory course, and also did not continue rape of an adult woman as a capital offense. Further, as we have indicated, the legislatures of 6 of the 11 arguably mandatory States have revised their death penalty laws since Woodson and Roberts without enacting a new death penalty for rape. And this is to say nothing of 19 other States that enacted nonmandatory, post-Furman statutes and chose not to sentence rapists to death. It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in some rape cases, but only where the victim was a child and the rapist an adult. The Tennessee statute has since been invalidated because the death sentence was mandatory. . . . The upshot is that Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman, and only two other jurisdictions provide capital punishment when the victim is a child. The current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman. B.  It was also observed in Gregg that “[t]he jury . . . is a significant and reliable objective index of contemporary values because it is so directly involved,” and that it is thus important to look to the sentencing decisions that juries have

Opinion of Justice White

made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried. Of course, the jury’s judgment is meaningful only where the jury has an appropriate measure of choice as to whether the death penalty is to be imposed. As far as execution for rape is concerned, this is now true only in Georgia and in Florida; and in the latter State, capital punishment is authorized only for the rape of children. According to the factual submissions in this Court, out of all rape convictions in Georgia since 1973—and that total number has not been tendered—63 cases had been reviewed by the Georgia Supreme Court as of the time of oral argument; and of these, 6 involved a death sentence, 1 of which was set aside, leaving 5 convicted rapists now under sentence of death in the State of Georgia. Georgia juries have thus sentenced rapists to death six times since 1973. This obviously is not a negligible number; and the State argues that, as a practical matter, juries simply reserve the extreme sanction for extreme cases of rape and that recent experience surely does not prove that jurors consider the death penalty to be a disproportionate punishment for every conceivable instance of rape, no matter how aggravated. Nevertheless, it is true that in the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence.

IV These recent events evidencing the attitude of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that, in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. Nevertheless, the legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman. We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter’s privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the “ultimate violation of self.” It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community’s sense of security, there is public injury as well. Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape, by definition, does

139

140

Chapter 7: Rape and Other Nonhomicide Crimes

not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” Gregg, is an excessive penalty for the rapist who, as such, does not take human life. This does not end the matter, for, under Georgia law, death may not be imposed for any capital offense, including rape, unless the jury or judge finds one of the statutory aggravating circumstances and then elects to impose that sentence. . . . For the rapist to be executed in Georgia, it must therefore be found not only that he committed rape but also that one or more of the following aggravating circumstances were present: (1) that the rape was committed by a person with a prior record of conviction for a capital felony; (2) that the rape was committed while the offender was engaged in the commission of another capital felony, or aggravated battery; or (3) [that] the rape “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim.” Here, the first two of these aggravating circumstances were alleged and found by the jury. Neither of these circumstances, nor both of them together, change our conclusion that the death sentence imposed on Coker is a disproportionate punishment for rape. Coker had prior convictions for capital felonies—rape, murder, and kidnaping—but these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life. It is also true that the present rape occurred while Coker was committing armed robbery, a felony for which the Georgia statutes authorize the death penalty. But Coker was tried for the robbery offense as well as for rape and received a separate life sentence for this crime; the jury did not deem the robbery itself deserving of the death penalty, even though accompanied by the aggravating circumstance, which was stipulated, that Coker had been convicted of a prior capital crime. We note finally that, in Georgia, a person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. He also commits that crime when, in the commission of a felony, he causes the death of another human being, irrespective of malice. But even where the killing is deliberate, it is not punishable by death absent proof of aggravating circumstances. It is difficult to accept the notion, and we do not, that the rapist, with or without aggravating circumstances, should be punished more heavily than the deliberate killer as long as the rapist does not himself take the life of his victim. The judgment of the Georgia Supreme Court

Opinion of Justice Powell

upholding the death sentence is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. . . . [Justices Brennan and Marshall concurred in the judgment.].

Opinion of Justice Powell, Concurring in the Judgment in Part and Dissenting in Part I concur in the judgment of the Court on the facts of this case, and also in the plurality’s reasoning supporting the view that, ordinarily, death is disproportionate punishment for the crime of raping an adult woman. Although rape invariably is a reprehensible crime, there is no indication that petitioner’s offense was committed with excessive brutality or that the victim sustained serious or lasting injury. The plurality, however, does not limit its holding to the case before us, or to similar cases. Rather, in an opinion that ranges well beyond what is necessary, it holds that capital punishment always—regardless of the circumstances—is a disproportionate penalty for the crime of rape. . . . Today, . . . the plurality draws a bright line between murder and all rapes—­regardless of the degree of brutality of the rape or the effect upon the victim. I dissent because I am not persuaded that such a bright line is appropriate. As noted in Snider v. Peyton, 356 F.2d 626, 627 (CA4 1966), “[t]here is extreme variation in the degree of culpability of rapists.” The deliberate viciousness of the rapist may be greater than that of the murderer. Rape is never an act committed accidentally. Rarely can it be said to be unpremeditated. There also is wide variation in the effect on the victim. The plurality opinion says that “[l]ife is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.” But there is indeed “extreme variation” in the crime of rape. Some victims are so grievously injured physically or psychologically that life is beyond repair. Thus, it may be that the death penalty is not disproportionate punishment for the crime of aggravated rape. Final resolution of the question must await careful inquiry into objective indicators of society’s “evolving standards of decency,” particularly legislative enactments and the responses of juries in capital cases. . . . The plurality properly examines these indicia, which do support the conclusion that society finds the death penalty unacceptable for the crime of rape in the absence of excessive brutality or severe injury. But it has not been shown that society finds the penalty disproportionate for all rapes. In a proper case, a more discriminating inquiry than the plurality undertakes well might discover that both juries and legislatures have reserved the ultimate penalty for the case of an outrageous rape resulting in serious, lasting harm to the victim. I would not prejudge the issue. To this extent, I respectfully dissent.

141

142

Chapter 7: Rape and Other Nonhomicide Crimes

Dissenting Opinion of Chief Justice Burger, Joined by Justice Rehnquist . . . The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court’s holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court’s holding assures that petitioner—as well as others in his position—will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself. To what extent we have left States “elbowroom” to protect innocent persons from depraved human beings like Coker remains in doubt. My first disagreement with the Court’s holding is its unnecessary breadth. The narrow issue here presented is whether the State of Georgia may constitutionally execute this petitioner for the particular rape which he has committed, in light of all the facts and circumstances shown by this record. The plurality opinion goes to great lengths to consider societal mores and attitudes toward the generic crime of rape and the punishment for it; however, the opinion gives little attention to the special circumstances which bear directly on whether imposition of the death penalty is an appropriate societal response to Coker’s criminal acts: (a) On account of his prior offenses, Coker is already serving such lengthy prison sentences that imposition of additional periods of imprisonment would have no incremental punitive effect; (b) by his life pattern Coker has shown that he presents a particular danger to the safety, welfare, and chastity of women, and, on his record, the likelihood is therefore great that he will repeat his crime at the first opportunity; (c) petitioner escaped from prison only a year and a half after he commenced serving his latest sentences; he has nothing to lose by further escape attempts; and (d) should he again succeed in escaping from prison, it is reasonably predictable that he will repeat his pattern of attacks on women—and with impunity, since the threat of added prison sentences will be no deterrent. . . . The question of whether the death penalty is an appropriate punishment for rape is surely an open one. It is arguable that many prospective rapists would be deterred by the possibility that they could suffer death for their offense; it is also arguable that the death penalty would have only minimal deterrent effect. It may well be that rape victims would become more willing to report the crime and aid in the apprehension of the criminals if they knew that community disapproval of rapists was sufficiently strong to inflict the extreme penalty; or perhaps they would be reluctant to cooperate in the prosecution of rapists if they knew that a conviction might result in the imposition of the death penalty.

Editors’ Questions

Quite possibly, the occasional, well-publicized execution of egregious rapists may cause citizens to feel greater security in their daily lives; or, on the contrary, it may be that members of a civilized community will suffer the pangs of a heavy conscience because such punishment will be perceived as excessive. We cannot know which among this range of possibilities is correct, but today’s holding forecloses the very exploration we have said federalism was intended to foster. It is difficult to believe that Georgia would long remain alone in punishing rape by death if the next decade demonstrated a drastic reduction in its incidence of rape, an increased cooperation by rape victims in the apprehension and prosecution of rapists, and a greater confidence in the rule of law on the part of the populace. . . . The clear implication of today’s holding appears to be that the death penalty may be properly imposed only as to crimes resulting in death of the victim. This casts serious doubt upon the constitutional validity of statutes imposing the death penalty for a variety of conduct which, though dangerous, may not necessarily result in any immediate death, e.g., treason, airplane hijacking, and kidnaping. In that respect, today’s holding does even more harm than is ­initially apparent. We cannot avoid taking judicial notice that crimes such as airplane hijacking, kidnaping, and mass terrorist activity constitute a ­serious and increasing danger to the safety of the public. It would be unfortunate indeed if the effect of today’s holding were to inhibit States and the Federal Government from experimenting with various remedies—including possibly imposition of the penalty of death—to prevent and deter such crimes. . . . [Opinions of Justices Brennan and Marshall, concurring in the judgment on the basis that the death penalty violates the Eighth Amendment under all circumstances, are omitted.]

Editors’ Questions 1. In Chapter 1, we noted that in the 1970s some members of the Supreme Court—Justices Brennan, Douglas, Marshall, and Stewart, for example—were concerned that the death penalty was discriminatorily applied against blacks. Coker was white, but his brief cited a study documenting that, of the 455 men executed for rape between 1930 and 1967, 405 (85%) were black. All of those executions occurred in southern or border states, and over one-third of black defendants convicted of raping white victims received death sentences compared with 2% for all other defendant/victim racial combinations. The Court, however, did not mention race at all in Coker. Do you think the Justices considered those statistics irrelevant? 2. The Court also did not mention that the rape victim, Mrs. Carver (who the Court says was “unharmed”), was 16 years old and had had a baby only three weeks before Coker attacked her. Are these additional facts relevant? If so, why didn’t the Court present them?

143

Chap ter 8

Murder—Godfrey v. Georgia (1980) Editors’ Comment One of the principles derived from Gregg v. Georgia (Chapter 3) is that it would be unconstitutional for a statute to make every murder death-eligible. As the Supreme Court later explained, an aggravating circumstance “may not apply to every defendant convicted of murder; it must apply only to a subclass of defendants convicted of murder.” Tuilaepa v. California, 512 U.S. 967 (1994). The aggravating circumstance at issue in the case in this chapter—Godfrey v. Georgia—was that the murder “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” The Court held this aggravating circumstance unconstitutional on the grounds that it was overly inclusive. In two other cases, one from Oklahoma, the other from Mississippi, similar aggravating circumstances were also held invalid. Maynard v. Cartwright, 486 U.S. 356 (1988); Shell v. Mississippi, 498 U.S. 1 (1990) (per curiam). These provisions, like those of many jurisdictions, were taken verbatim from the Model Penal Code. (See Appendix B.) The Godfrey result appears puzzling at first glance because what the defendant did—shotgun his wife and mother-in-law to death with premeditation in front of his young daughter—was certainly highly aggravated. The key to understanding the case is to recognize that the prosecution made a strange choice in selecting charges. Rather than allege the obvious aggravating circumstance of a multiple homicide—aggravator b(2) of the Georgia statute (see footnote 9 of Gregg, Chapter 3)—the prosecutor instead alleged the b(7) aggravator, that the murders were “outrageously or wantonly vile, horrible and inhuman.” The Supreme Court observed that for many jurors any murder would meet this definition. Thus, it equated a vague aggravating circumstance with no aggravating circumstance at all, which meant that the jury could act arbitrarily in violation of Furman (Chapter 2). The Georgia Supreme Court itself had recognized in earlier cases that the b(7) aggravator, to be valid, needed to be narrowed through a jury instruction, but the trial court in Godfrey’s case had failed to instruct the jury with that narrowed definition. By contrast with Godfrey, in some later cases the Court found a vague aggravating circumstance to have been saved by an acceptable state court interpretation. In Walton v. Arizona, 497 U.S. 639 (1990) (overruled in part on other grounds in Ring v. Arizona (2002), Chapter 12), the Court upheld the aggravating circumstance that the murder was “especially heinous, cruel or depraved” because the state courts narrowly interpreted it. The words “especially cruel” were interpreted to mean that the perpetrator “inflicts mental anguish or physical abuse before the victim’s death”; “especially depraved” meant that the killer “relishes the murder, evidencing

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

145

146

Chapter 8: Murder

Editors’ Comment—cont’d debasement or perversion” or “shows an indifference to the suffering of the victim and evidences a sense of pleasure” in the killing. Similarly, in Arave v. Creech, 507 U.S. 463 (1993), the Idaho aggravator providing that the murder “exhibited utter disregard for human life” was saved by the state court’s explanation that this applied to “the cold-blooded, pitiless slayer.” Aggravators like these had provoked much litigation before Godfrey and did so in its wake. But jurisdictions after Godfrey quickly remedied possible constitutional vagueness either by rewriting the statutes to require some form of physical or mental torture before the victim’s death, or by applying state court narrowing interpretations to the same effect. Such aggravators are still much used in many jurisdictions and rarely raise constitutional problems in their narrowed form.

Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed.2d 398 (1980) (6–3, the death penalty may not be imposed where the aggravating factor is too broad and vague.)

Opinion of Justice Stewart, Joined by Justices Blackmun, Powell, and Stevens In Gregg v. Georgia the Court held that this statutory aggravating circumstance (§ (b)(7)) is not unconstitutional on its face. Responding to the argument that the language of the provision is “so broad that capital punishment could be imposed in any murder case,” the joint opinion said: It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction. . . .

Nearly four years have passed since the Gregg decision, and during that time many death sentences based in whole or in part on § (b)(7) have been affirmed by the Supreme Court of Georgia. The issue now before us is whether, in affirming the imposition of the sentences of death in the present case, the Georgia Supreme Court has adopted such a broad and vague construction of the § (b)(7) aggravating circumstance as to violate the Eighth and Fourteenth Amendments to the United States Constitution.

I On a day in early September in 1977, the petitioner and his wife of 28 years had a heated argument in their home. During the course of this altercation, the petitioner, who had consumed several cans of beer, threatened his wife with

Opinion of Justice Stewart

a knife and damaged some of her clothing. At this point, the petitioner’s wife declared that she was going to leave him, and departed to stay with relatives. That afternoon she went to a Justice of the Peace and secured a warrant charging the petitioner with aggravated assault. A few days later, while still living away from home, she filed suit for divorce. Summons was served on the petitioner, and a court hearing was set on a date some two weeks later. Before the date of the hearing, the petitioner on several occasions asked his wife to return to their home. Each time his efforts were rebuffed. At some point during this period, his wife moved in with her mother. The petitioner believed that his mother-in-law was actively instigating his wife’s determination not to consider a possible reconciliation. In the early evening of September 20, according to the petitioner, his wife telephoned him at home. Once again they argued. She asserted that reconciliation was impossible and allegedly demanded all the proceeds from the planned sale of their house. The conversation was terminated after she said that she would call back later. This she did in an hour or so. The ensuing conversation was, according to the petitioner’s account, even more heated than the first. His wife reiterated her stand that reconciliation was out of the question, said that she still wanted all proceeds from the sale of their house, and mentioned that her mother was supporting her position. Stating that she saw no further use in talking or arguing, she hung up. At this juncture, the petitioner got out his shotgun and walked with it down the hill from his home to the trailer where his mother-in-law lived. Peering through a window, he observed his wife, his mother-in-law, and his 11-year-old daughter playing a card game. He pointed the shotgun at his wife through the window and pulled the trigger. The charge from the gun struck his wife in the forehead and killed her instantly. He proceeded into the trailer, striking and injuring his fleeing daughter with the barrel of the gun. He then fired the gun at his mother-in-law, striking her in the head and killing her instantly. The petitioner then called the local sheriff’s office, identified himself, said where he was, explained that he had just killed his wife and mother-in-law, and asked that the sheriff come and pick him up. Upon arriving at the trailer, the law enforcement officers found the petitioner seated on a chair in open view near the driveway. He told one of the officers that “they’re dead, I killed them” and directed the officer to the place where he had put the murder weapon. Later the petitioner told a police officer: “I’ve done a hideous crime . . . but I have been thinking about it for eight years . . . I’d do it again.”

Editors’ note: In its entirety, the statutory aggravator reads as follows: “The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”

a

147

148

Chapter 8: Murder

The petitioner was subsequently indicted on two counts of murder and one count of aggravated assault. He pleaded not guilty and relied primarily on a defense of temporary insanity at his trial. The jury returned verdicts of guilty on all three counts. The sentencing phase of the trial was held before the same jury. No further evidence was tendered, but counsel for each side made arguments to the jury. Three times during the course of his argument, the prosecutor stated that the case involved no allegation of “torture” or of an “aggravated battery.” When counsel had completed their arguments, the trial judge instructed the jury orally and in writing on the standards that must guide them in imposing sentence. Both orally and in writing, the judge quoted to the jury the statutory language of the § (b)(7) aggravating circumstance in its entirety.a The jury imposed sentences of death on both of the murder convictions. As to each, the jury specified that the aggravating circumstance they had found beyond a reasonable doubt was “that the offense of murder was outrageously or wantonly vile, horrible and inhuman.” In accord with Georgia law in capital cases, the trial judge prepared a report in the form of answers to a questionnaire for use on appellate review. One question on the form asked whether or not the victim had been “physically harmed or tortured.” The trial judge’s response was “No, as to both victims, excluding the actual murdering of the two victims.” The Georgia Supreme Court affirmed the judgments of the trial court in all respects. With regard to the imposition of the death sentence for each of the two murder convictions, the court rejected the petitioner’s contention that § (b)(7) is unconstitutionally vague. The court noted that Georgia’s death penalty legislation had been upheld in Gregg v. Georgia, and cited its prior decisions upholding § (b)(7) in the face of similar vagueness challenges. As to the petitioner’s argument that the jury’s phraseology was, as a matter of law, an inadequate statement of § (b)(7), the court responded by simply observing that the language “was not objectionable.” The court found no evidence that the sentence had been “imposed under the influence of passion, prejudice, or any other arbitrary factor,” held that the sentence was neither excessive nor disproportionate to the penalty imposed in similar cases, and stated that the evidence supported the jury’s finding of the § (b)(7) statutory aggravating circumstance. Two justices dissented.

II In Furman v. Georgia, the Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the

Opinion of Justice Stewart

punishment will be inflicted in an arbitrary and capricious manner. Gregg v. Georgia reaffirmed this holding: [W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. . . .

A capital sentencing scheme must, in short, provide a “‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’”. . . This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standardless [sentencing] discretion.” Gregg. . . . It must channel the sentencer’s discretion by “clear and objective standards” that provide “specific and detailed guidance,” and that “make rationally reviewable the process for imposing a sentence of death.” As was made clear in Gregg, a death penalty “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” . . . In the case before us the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was “outrageously or wantonly vile, horrible and inhuman.” There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.” Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, their preconceptions were not dispelled by the trial judge’s sentencing instructions. These gave the jury no guidance concerning the meaning of any of § (b)(7)’s terms. In fact, the jury’s interpretation of § (b)(7) can only be the subject of sheer speculation. The standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury in this case was in no way cured by the affirmance of those sentences by the Georgia Supreme Court. Under state law that court may not affirm a judgment of death until it has independently assessed the evidence of record and determined that such evidence supports the trial judge’s or jury’s finding of an aggravating circumstance.

149

150

Chapter 8: Murder

In past cases the State Supreme Court has apparently understood this obligation as carrying with it the responsibility to keep § (b)(7) within constitutional bounds. . . . The . . . Georgia Supreme Court had by 1977 reached three separate but consistent conclusions respecting the § (b)(7) aggravating circumstance. The first was that the evidence that the offense was “outrageously or wantonly vile, horrible or inhuman” had to demonstrate “torture, depravity of mind, or an aggravated battery to the victim.” The second was that the phrase, “depravity of mind,” comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim. The third, . . . was that the word, “torture,” must be construed in pari materia with “aggravated battery” so as to require evidence of serious physical abuse of the victim before death.b. . . The Georgia courts did not, however, so limit § (b)(7) in the present case. No claim was made, and nothing in the record before us suggests, that the petitioner committed an aggravated battery upon his wife or mother-in-law or, in fact, caused either of them to suffer any physical injury preceding their deaths. Moreover, in the trial court, the prosecutor repeatedly told the jury—and the trial judge wrote in his sentencing report—that the murders did not involve “torture.” Nothing said on appeal by the Georgia Supreme Court indicates that it took a different view of the evidence. The circumstances of this case, therefore, do not satisfy the criteria laid out by the Georgia Supreme Court itself. . . . In holding that the evidence supported the jury’s § (b)(7) finding, the State Supreme Court simply asserted that the verdict was “factually substantiated.” Thus, the validity of the petitioner’s death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of committing, the Georgia Supreme Court can be said to have applied a constitutional construction of the phrase “outrageously or wantonly vile, horrible or inhuman in that [they] involved . . . depravity of mind. . . .” We conclude that the answer must be no. The petitioner’s crimes cannot be said to have reflected a consciousness materially more “depraved” than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma. Shortly after the killings, he acknowledged his responsibility and the heinous nature of his crimes. These factors certainly did not remove the criminality from the petitioner’s acts. But, . . . it “is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”

b Editors’ note: That is, torture and aggravated battery both require “evidence of serious physical abuse of the victim before death.”

Dissenting Opinion of Justice White

That cannot be said here. There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not. Accordingly, the judgment of the Georgia Supreme Court insofar as it leaves standing the petitioner’s death sentences is reversed, and the case is remanded to that court for further proceedings. [The concurring opinions of Justices Brennan and Marshall and the dissenting opinion of Chief Justice Burger are omitted.]

Dissenting Opinion of Justice White, Joined by Justice Rehnquist IV The question remains whether the facts of this case bear sufficient relation to § (b)(7) to conclude that the Georgia Supreme Court responsibly and constitutionally discharged its review function. I believe that they do. As described earlier, petitioner, in a cold blooded executioner’s style, murdered his wife and his mother-in-law and, in passing, struck his young daughter on the head with the barrel of his gun. The weapon, a shotgun, is hardly known for the surgical precision with which it perforates its target. The murder scene, in consequence, can only be described in the most unpleasant terms. Petitioner’s wife lay prone on the floor. Mrs. Godfrey’s head had a hole described as “[approximately] the size of a silver dollar” on the side where the shot entered, and much less decipherable and more extensive damage on the side where the shot exited. Pellets that had passed through Mrs. Godfrey’s head were found embedded in the kitchen cabinet. It will be remembered that after petitioner inflicted this much damage, he took out time not only to strike his daughter on the head, but also to reload his single-shot shotgun and to enter the house. Only then did he get around to shooting his mother-in-law, Mrs. Wilkerson whose last several moments as a sentient being must have been as terrifying as the human mind can imagine. The police eventually found her face-down on the floor with a substantial portion of her head missing and her brain, no longer cabined by her skull, protruding for some distance onto the floor. Blood not only covered the floor and table, but dripped from the ceiling as well. The Georgia Supreme Court held that these facts supported the jury’s finding of the existence of statutory aggravating circumstance § (b)(7). A ­majority of this Court disagrees. But this disagreement, founded as it is on the notion that the lower court’s construction of the provision was overly broad, in fact reveals a conception of this Court’s role in backstopping the Georgia Supreme Court that is itself overly broad. Our role is to correct

151

152

Chapter 8: Murder

genuine errors of constitutional significance resulting from the application of Georgia’s capital sentencing procedures; our role is not to peer majestically over the lower court’s shoulder so that we might second-guess its interpretation of facts that quite reasonably—perhaps even quite plainly— fit within the statutory language. Who is to say that the murders of Mrs. Godfrey and Mrs. Wilkerson were not “vile,” or “inhuman,” or “horrible”? In performing his murderous chore, petitioner employed a weapon known for its disfiguring effects on targets, human or other, and he succeeded in creating a scene so macabre and revolting that, if anything, “vile,” “horrible,” and “inhuman” are descriptively inadequate. And who among us can honestly say that Mrs. Wilkerson did not feel “torture” in her last sentient moments. Her daughter, an instant ago a living being sitting across the table from Mrs. Wilkerson, lay prone on the floor, a bloodied and mutilated corpse. The seconds ticked by; enough time for her son-in-law to reload his gun, to enter the home, and to take a gratuitous swipe at his daughter. What terror must have run through her veins as she first witnessed her daughter’s hideous demise and then came to terms with the imminence of her own. Was this not torture? And if this was not torture, can it honestly be said that petitioner did not exhibit a “depravity of mind” in carrying out this cruel drama to its mischievous and murderous conclusion? I should have thought, moreover, that the Georgia court could reasonably have deemed the scene awaiting the investigating policemen as involving “an aggravated battery to the victim[s].” . . . The point is not that, in my view, petitioner’s crimes were definitively vile, horrible, or inhuman, or that, as I assay the evidence, they beyond any doubt involved torture, depravity of mind, or an aggravated battery to the victims. Rather, the lesson is a much more elementary one, an instruction that, I should have thought, this Court would have taken to heart long ago. Our mandate does not extend to interfering with factfinders in state criminal proceedings or with state courts that are responsibly and consistently interpreting state law, unless that interference is predicated on a violation of the Constitution. No convincing showing of such a violation is made here, for, as Mr. Justice Stewart has written in another place, the issue here is not what our verdict would have been, but whether “any rational factfinder” could have found the existence of aggravating circumstance § (b)(7). . . .

V Under the present statutory regime, adopted in response to Furman, the Georgia Supreme Court has responsibly and consistently performed its review function pursuant to the Georgia capital-sentencing procedures. The State reports that, at the time its brief was written, the Georgia Supreme Court had reviewed some 99 cases in which the death penalty has been imposed. Of these, 66 had been affirmed; 5 had been reversed for errors in the guilt phase;

Editors’ Questions

and 22 had been reversed for errors in the sentencing phase. . . . This reversal rate of over 27% is not substantially lower than the historic reversal rate of state supreme courts. See Courting Reversal: The Supervisory Role of State Supreme Courts, 87 Yale L. J. 1191, 1198, 1209 (1978), where it is indicated that 16 state supreme courts over a 100-year period, in deciding 5,133 cases, had a reversal rate of 38.5%; for criminal cases, the reversal rate was 35.6%. To the extent that the reversal rate is lower than the historic level, it doubtless can be attributed to the great and admirable extent to which discretion and uncertainty have been removed from Georgia’s capital-sentencing procedures since our decision in Furman and to the fact that review is mandatory. . . .

VI In the circumstances of this case, the majority today endorses the argument that I thought we had rejected in Gregg: namely, “that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it.” 428 U.S., at 226 (opinion of White, J.). The Georgia Supreme Court, faced with a seemingly endless train of macabre scenes, has endeavored in a responsible, rational, and consistent fashion to effectuate its statutory mandate as illuminated by our judgment in Gregg. Today, a majority of this Court, its arguments shredded by its own illogic, informs the Georgia Supreme Court that, to some extent, its efforts have been outside the Constitution. I reject this as an unwarranted invasion into the realm of state law, for, as in Gregg, “I decline to interfere with the manner in which Georgia has chosen to enforce [its] laws” until a genuine error of constitutional magnitude surfaces. [Ibid.] I would affirm the judgment of the Supreme Court of Georgia.

Editors’ Questions 1. Nevada has an aggravating circumstance that the murder was committed “at random and without apparent motive.” Does this describe murders that are aggravated above the norm? Is this circumstance unconstitutionally vague without a narrowing interpretation? What might an acceptable narrowing interpretation be? 2. Death penalty opponents have argued that a jurisdiction’s aggravating circumstances can collectively render too great a proportion of murders death-eligible, thereby not sufficiently identifying murders that are worse than the norm. For example, researchers have concluded that about 76% of intentional homicides in Missouri are death-eligible and about 87% of California’s first-degree murders are.* If accepted as correct, do these figures provide a basis for a plausible Eighth Amendment argument? * See Katherine Barnes, David Sloss, & Stephen Thaman, Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases, 51 Ariz. L. Rev. 305 (2009); Steven F. Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman? 72 N.Y.U. L. Rev. 1283, 1331 (1997).

153

Chap ter 9

Felony-Murder—Enmund v. Florida (1982) and Tison v. Arizona (1987) Editors’ Comment In a homicide case the mens rea (the ancient common law term for “culpable mental state”) may be crucial in determining the seriousness of the charge. Homicide offenses are typically graded from most serious to least serious depending on the mental blameworthiness of the killer at the time of the offense. Although jurisdictions vary considerably, a typical pattern defines firstdegree murder by a culpable mental state of “intentional, premeditated, and deliberated” conduct; second-degree murder, by “intentional” or “extremely reckless” conduct (also known as “depraved indifference to human life”); manslaughter, by “reckless” conduct; and negligent homicide, by “negligence”—in essence, unjustifiable carelessness. This accords with the common understanding that a criminal who intended death is more blameworthy than one who was merely negligent, with the extremely reckless and somewhat reckless offenders in-between. A separate line of analysis is available in most jurisdictions, however, when the victim is killed during the commission of a specified felony—typically robbery, burglary, kidnapping, rape, or arson. Such a “felony-murder” is usually treated as first-degree murder, and in almost all death penalty jurisdictions any of the specified felonies, if committed at the time of the murder, constitute aggravating circumstances that make the murder death-eligible. The key benefit to the prosecution from a felony-murder charge is that there is no need to prove a culpable mental state as to the killing in order to convict a defendant. The culpable mental state for the accompanying felony is sufficient to support the murder conviction. Beyond this, the felony-murder rule acts as a doctrine of complicity, extending murder charges to all actors who participated in the felony regardless of their level of involvement in the killing itself. The lack of a culpable mental state requirement combined with the complicity rule has caused the Supreme Court to impose some additional requirements to ensure that a ­felony-murderer in a multiple-perpetrator scenario is sufficiently blameworthy to warrant a death sentence. The Court’s two primary decisions on this issue make up this chapter. First, in Enmund v. Florida (1982) the Court held that a robbery getaway driver who was not at the scene of the killing was insufficiently blameworthy to be sentenced to death. But in Tison v. Arizona (1987), the Court held that defendants who broke two murderers out of prison, helped them kidnap the victims, and were at the scene when the victims were killed were sufficiently blameworthy to be sentenced to death. The two-part test derived from Tison is that a felony-murderer in a ­multiple-perpetrator scenario who is a major participant in the felony and who acted with reckless indifference to human life is sufficiently blameworthy to receive a death sentence. Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

155

156

Chapter 9:  Felony-Murder

Editors’ Comment—cont’d The issue of the relative responsibility of multiple perpetrators in felony-murders is of great practical importance. Robbery at the time of the killing is the most commonly occurring aggravating circumstance, and burglary, kidnapping, and rape are three of the next six most common (see Appendix B). Further, a sizeable proportion of felony-murders are committed by multiple perpetrators.

Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed.2d 1140 (1982) (5–4, the participant in a felony-murder who does not kill or intend to kill may not be executed.)

Opinion of Justice White for the Court I The facts of this case, taken principally from the opinion of the Florida Supreme Court, are as follows. On April 1, 1975, at approximately 7:45 a.m., Thomas and Eunice Kersey, aged 86 and 74, were robbed and fatally shot at their farmhouse in central Florida. The evidence showed that Sampson and Jeanette Armstrong had gone to the back door of the Kersey house and asked for water for an overheated car. When Mr. Kersey came out of the house, Sampson Armstrong grabbed him, pointed a gun at him, and told Jeanette Armstrong to take his money. Mr. Kersey cried for help, and his wife came out of the house with a gun and shot Jeanette Armstrong, wounding her. Sampson Armstrong, and perhaps Jeanette Armstrong, then shot and killed both of the Kerseys, dragged them into the kitchen, and took their money and fled. Two witnesses testified that they drove past the Kersey house between 7:30 and 7:40 a.m. and saw a large cream- or yellow-colored car parked beside the road about 200 yards from the house, and that a man was sitting in the car. Another witness testified that at approximately 6:45 a.m. he saw Ida Jean Shaw, petitioner’s commonlaw wife and Jeanette Armstrong’s mother, driving a yellow Buick with a vinyl top which belonged to her and petitioner Earl Enmund. Enmund was a passenger in the car along with an unidentified woman. At about 8 a.m. the same witness saw the car return at a high rate of speed. Enmund was driving, Ida Jean Shaw was in the front seat, and one of the other two people in the car was lying down across the back seat. Enmund, Sampson Armstrong, and Jeanette Armstrong were indicted for the first-degree murder and robbery of the Kerseys. Enmund and Sampson

Opinion of Justice White for the Court

Armstrong were tried together. The prosecutor maintained in his closing argument that “Sampson Armstrong killed the old people.” The judge instructed the jury that “[t]he killing of a human being while engaged in the perpetration of or in the attempt to perpetrate the offense of robbery is murder in the first degree even though there is no premeditated design or intent to kill.” [Defendant was convicted of murder in the first degree and robbery, and was sentenced to death.]

II As recounted above, the Florida Supreme Court held that the record supported no more than the inference that Enmund was the person in the car by the side of the road at the time of the killings, waiting to help the robbers escape. This was enough under Florida law to make Enmund a constructive aider and abettor and hence a principal in first-degree murder upon whom the death penalty could be imposed. It was thus irrelevant to Enmund’s challenge to the death sentence that he did not himself kill and was not present at the killings; also beside the point was whether he intended that the Kerseys be killed or anticipated that lethal force would or might be used if necessary to effectuate the robbery or a safe escape. We have concluded that imposition of the death penalty in these circumstances is inconsistent with the Eighth and Fourteenth Amendments. B.  . . . Thirty-six state and federal jurisdictions presently authorize the death penalty. Of these, only eight jurisdictions authorize imposition of the death penalty solely for participation in a robbery in which another robber takes life. Of the remaining 28 jurisdictions, in 4, felony murder is not a capital crime. Eleven States require some culpable mental state with respect to the homicide as a prerequisite to conviction of a crime for which the death penalty is authorized. Of these 11 States, 8 make knowing, intentional, purposeful, or premeditated killing an element of capital murder. Three other States require proof of a culpable mental state short of intent, such as recklessness or extreme indifference to human life, before the death penalty may be imposed. In these 11 States, therefore, the actors in a felony murder are not subject to the death penalty without proof of their mental state, proof which was not required with respect to Enmund either under the trial court’s instructions or under the law announced by the Florida Supreme Court. Four additional jurisdictions do not permit a defendant such as Enmund to be put to death. Of these, one State flatly prohibits capital punishment in cases where the defendant did not actually commit murder. Two jurisdictions preclude the death penalty in cases, such as this one, where the defendant “was a principal in the offense, which was committed by another, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.” One other State limits the death penalty in felony murders to narrow circumstances not involved here.

157

158

Chapter 9:  Felony-Murder

Nine of the remaining States deal with the imposition of the death penalty for a vicarious felony murder in their capital sentencing statutes. In each of these States, a defendant may not be executed solely for participating in a felony in which a person was killed if the defendant did not actually cause the victim’s death. For a defendant to be executed in these States, typically the statutory aggravating circumstances which are present must outweigh mitigating factors. To be sure, a vicarious felony murderer may be sentenced to death in these jurisdictions absent an intent to kill if sufficient aggravating circumstances are present. However, six of these nine States make it a statutory mitigating circumstance that the defendant was an accomplice in a capital felony committed by another person and his participation was relatively minor. By making minimal participation in a capital felony committed by another person a mitigating circumstance, these sentencing statutes reduce the likelihood that a person will be executed for vicarious felony murder. The remaining three jurisdictions exclude felony murder from their lists of aggravating circumstances that will support a death sentence. In each of these nine States, a nontriggerman guilty of felony murder cannot be sentenced to death for the felony murder absent aggravating circumstances above and beyond the felony murder itself. Thus only a small minority of jurisdictions—eight—allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed. Even if the nine States are included where such a defendant could be executed for an unintended felony murder if sufficient aggravating circumstances are present to outweigh mitigating circumstances—which often include the defendant’s minimal participation in the murder—only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die. Moreover, of the eight States which have enacted new death penalty statutes since 1978, none authorize capital punishment in such circumstances. While the current legislative judgment with respect to imposition of the death penalty where a defendant did not take life, attempt to take it, or intend to take life is neither “wholly unanimous among state legislatures,” nor as compelling as the legislative judgments considered in Coker, it nevertheless weighs on the side of rejecting capital punishment for the crime at issue. C. Society’s rejection of the death penalty for accomplice liability in felony murders is also indicated by the sentencing decisions that juries have made. As we have previously observed, “‘[t]he jury . . . is a significant and reliable objective index of contemporary values because it is so directly involved.’”. . . The evidence is overwhelming that American juries have repudiated imposition of the death penalty for crimes such as petitioner’s. First, according to the petitioner, a search of all reported appellate court decisions since 1954 in cases where a defendant was executed for homicide shows that, of the 362 executions, in 339, the person executed personally committed a homicidal assault. In 2 cases the person executed had another person commit the

Opinion of Justice White for the Court

homicide for him, and, in 16 cases, the facts were not reported in sufficient detail to determine whether the person executed committed the homicide. The survey revealed only 6 cases out of 362 where a nontriggerman felony murderer was executed. All six executions took place in 1955. By contrast, there were 72 executions for rape in this country between 1955 and this Court’s decision in Coker v. Georgia in 1977. That juries have rejected the death penalty in cases, such as this one, where the defendant did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder is also shown by petitioner’s survey of the Nation’s death-row population. As of October 1, 1981, there were 796 inmates under sentences of death for homicide. Of the 739 for whom sufficient data are available, only 41 did not participate in the fatal assault on the victim. Of the 40 among the 41 for whom sufficient information was available, only 16 were not physically present when the fatal assault was committed. These 16 prisoners included only 3, including petitioner, who were sentenced to die absent a finding that they hired or solicited someone else to kill the victim or participated in a scheme designed to kill the victim. The figures for Florida are similar. . . . The dissent criticizes these statistics on the ground that they do not reveal the percentage of homicides that were charged as felony murders or the percentage of cases where the State sought the death penalty for an accomplice guilty of felony murder. We doubt whether it is possible to gather such information, and at any rate, it would be relevant if prosecutors rarely sought the death penalty for accomplice felony murder, for it would tend to indicate that prosecutors, who represent society’s interest in punishing crime, consider the death penalty excessive for accomplice felony murder. The fact remains that we are not aware of a single person convicted of felony murder over the past quarter century who did not kill or attempt to kill, and did not intend the death of the victim, who has been executed, and that only three persons in that category are presently sentenced to die. Nor can these figures be discounted by attributing to petitioner the argument that “death is an unconstitutional penalty absent an intent to kill,” and observing that the statistics are incomplete with respect to intent. Petitioner’s argument is that, because he did not kill, attempt to kill, and he did not intend to kill, the death penalty is disproportionate as applied to him, and the statistics he cites are adequately tailored to demonstrate that juries—and perhaps prosecutors as well—consider death a disproportionate penalty for those who fall within his category.

III Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and

159

160

Chapter 9:  Felony-Murder

abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not. We have no doubt that robbery is a serious crime deserving serious punishment. It is not, however, a crime “so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg. [I]t does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, [robbery], by definition, does not include the death of or even the serious injury to another person. The murderer kills; the [robber], if no more than that, does not. Life is over for the victim of the murderer; for the [robbery] victim, life . . . is not over and normally is not beyond repair.  Coker

As was said of the crime of rape in Coker, we have the abiding conviction that the death penalty, which is “unique in its severity and irrevocability,” is an excessive penalty for the robber who, as such, does not take human life. Here the robbers did commit murder; but they were subjected to the death penalty only because they killed as well as robbed. The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund’s own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on “individualized consideration as a constitutional requirement in imposing the death sentence,” which means that we must focus on “relevant facets of the character and record of the individual offender.” Enmund himself did not kill or attempt to kill; and, as construed by the Florida Supreme Court, the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder. Yet under Florida law, death was an authorized penalty because Enmund aided and abetted a robbery in the course of which murder was committed. It is fundamental that “causing harm intentionally must be punished more severely than causing the same harm unintentionally.” H. Hart, Punishment and Responsibility 162 (1968). Enmund did not kill or intend to kill, and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. This was impermissible under the Eighth Amendment. In Gregg v. Georgia the opinion announcing the judgment observed that “[t]he death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.” Unless the death penalty when applied to those in Enmund’s position measurably contributes to one or both of these goals, it “is nothing more than the purposeless and needless imposition of

Opinion of Justice White for the Court

pain and suffering,” and hence an unconstitutional punishment. We are quite unconvinced, however, that the threat that the death penalty will be imposed for murder will measurably deter one who does not kill and has no intention or purpose that life will be taken. Instead, it seems likely that “capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,” for if a person does not intend that life be taken or contemplate that lethal force will be employed by others, the possibility that the death penalty will be imposed for vicarious felony murder will not “enter into the cold calculus that precedes the decision to act.” It would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony. But competent observers have concluded that there is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself. Model Penal Code §210.2, Comment. This conclusion was based on three comparisons of robbery statistics, each of which showed that only about onehalf of one percent of robberies resulted in homicide. The most recent national crime statistics strongly support this conclusion. In addition to the evidence that killings only rarely occur during robberies is the fact, already noted, that however often death occurs in the course of a felony such as robbery, the death penalty is rarely imposed on one only vicariously guilty of the murder, a fact which further attenuates its possible utility as an effective deterrence. As for retribution as a justification for executing Enmund, we think this very much depends on the degree of Enmund’s culpability—what Enmund’s intentions, expectations, and actions were. American criminal law has long considered a defendant’s intention—and therefore his moral guilt—to be critical to “the degree of [his] criminal culpability,” and the Court has found criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing. . . . For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.

IV Because the Florida Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund killed or attempted to kill, and regardless

161

162

Chapter 9:  Felony-Murder

of whether Enmund intended or contemplated that life would be taken, we reverse the judgment upholding the death penalty and remand for further proceedings not inconsistent with this opinion.

Dissenting Opinion of Justice O’connor, Joined by Chief Justice Burger and Justices Powell and Rehnquist I . . . The evidence at trial showed that at approximately 7:30 a.m. on April 1, 1975, Sampson and Jeanette Armstrong approached the back door of Thomas and Eunice Kersey’s farmhouse on the pretext of obtaining water for their overheated car. When Thomas Kersey retrieved a water jug to help the Armstrongs, Sampson Armstrong grabbed him, held a gun to him, and told Jeanette Armstrong to take his wallet. Hearing her husband’s cries for help, Eunice Kersey came around the side of the house with a gun and shot Jeanette Armstrong. Sampson Armstrong, and perhaps Jeanette Armstrong, returned the fire, killing both of the Kerseys. The Armstrongs dragged the bodies into the kitchen, took Thomas Kersey’s money, and fled to a nearby car, where the petitioner, Earl Enmund, was waiting to help the Armstrongs escape. . . . In his closing argument, the prosecutor did not argue that Earl Enmund had killed the Kerseys. Instead, he maintained that the petitioner had initiated and planned the armed robbery, and was in the car during the killings. According to the prosecutor, “Sampson Armstrong killed the old people.” . . . Most notably, the [trial] court concluded that the evidence clearly showed that the petitioner was an accomplice to the capital felony and that his participation had not been “relatively minor,” but had been major in that he “planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons.” . . .

II Earl Enmund’s claim in this Court is that the death sentence imposed by the Florida trial court, and affirmed by the Florida Supreme Court, is unconstitutionally disproportionate to the role he played in the robbery and murders of the Kerseys. In particular, he contends that, because he had no actual intent to kill the victims—in effect, because his behavior and intent were no more blameworthy than that of any robber—capital punishment is too extreme a penalty. . . . A.  In sum, in considering the petitioner’s challenge, the Court should decide not only whether the petitioner’s sentence of death offends contemporary

Dissenting Opinion of Justice O’Connor

standards as reflected in the responses of legislatures and juries, but also whether it is disproportionate to the harm that the petitioner caused and to the ­petitioner’s involvement in the crime, as well as whether the procedures under which the petitioner was sentenced satisfied the constitutional requirement of individualized consideration set forth in Lockett. . . . B.­  The Court’s curious method of counting the States that authorize ­imposition of the death penalty for felony murder cannot hide the fact that 23 States permit a sentencer to impose the death penalty even though the felony murderer has neither killed nor intended to kill his victim. While the Court acknowledges that eight state statutes follow the Florida death penalty scheme, it also concedes that 15 other statutes permit imposition of the death penalty where the defendant neither intended to kill or actually killed the victims. Not all of the statutes list the same aggravating circumstances. Nevertheless, the question before the Court is not whether a particular species of death penalty statute is unconstitutional, but whether a scheme that permits imposition of the death penalty, absent a finding that the defendant either killed or intended to kill the victims, is unconstitutional. In short, the Court’s peculiar statutory analysis cannot withstand closer scrutiny. Thus, in nearly half of the States, and in two-thirds of the States that permit the death penalty for murder, a defendant who neither killed the victim nor specifically intended that the victim die may be sentenced to death for his participation in the robbery-murder. Far from “weigh[ing] very heavily on the side of rejecting capital punishment as a suitable penalty for” felony murder, these legislative judgments indicate that our “evolving standards of decency” still embrace capital punishment for this crime. For this reason, I conclude that the petitioner has failed to meet the standards in Coker and Woodson that the “two crucial indicators of evolving standards of decency . . .—jury determinations and legislative enactments—both point conclusively to the repudiation” of capital punishment for felony murder. In short, the death penalty for felony murder does not fall short of our national “standards of decency.” C.  As I noted earlier, the Eighth Amendment concept of proportionality involves more than merely a measurement of contemporary standards of decency. It requires in addition that the penalty imposed in a capital case be proportional to the harm caused and the defendant’s blameworthiness. Critical to the holding in Coker, for example, was that, “in terms of moral depravity and of the injury to the person and to the public, [rape] does not compare with murder, which . . . involve[s] the unjustified taking of human life.” Although the Court disingenuously seeks to characterize Enmund as only a “robber,” it cannot be disputed that he is responsible, along with Sampson and Jeanette Armstrong, for the murders of the Kerseys. There is no dispute that

163

164

Chapter 9:  Felony-Murder

their lives were unjustifiably taken, and that the petitioner, as one who aided and abetted the armed robbery, is legally liable for their deaths.40 Quite unlike the defendant in Coker, the petitioner cannot claim that the penalty imposed is “grossly out of proportion” to the harm for which he admittedly is at least partly responsible. The Court’s holding today is especially disturbing because it makes intent a matter of federal constitutional law, requiring this Court both to review highly subjective definitional problems customarily left to state criminal law and to develop an Eighth Amendment meaning of intent. As Justice Blackmun pointed out in his concurring opinion in Lockett, the Court’s holding substantially “interfere[s] with the States’ individual statutory categories for assessing legal guilt.” . . . Although the Court’s opinion suggests that intent can be ascertained as if it were some historical fact, in fact, it is a legal concept, not easily defined. Thus, while proportionality requires a nexus between the punishment imposed and the defendant’s blameworthiness, the Court fails to explain why the Eighth Amendment concept of proportionality requires rejection of standards of blameworthiness based on other levels of intent, such as, for example, the intent to commit an armed robbery coupled with the knowledge that armed robberies involve substantial risk of death or serious injury to other persons. Moreover, the intent-to-kill requirement is crudely crafted; it fails to take into account the complex picture of the defendant’s knowledge of his accomplice’s intent and whether he was armed, the defendant’s contribution to the planning and success of the crime, and the defendant’s actual participation during the commission of the crime. Under the circumstances, the determination of the degree of blameworthiness is best left to the sentencer, who can sift through the facts unique to each case. Consequently, while the type of mens rea of the defendant must be considered carefully in assessing the proper penalty, it is not so critical a factor in determining blameworthiness as to require a finding of intent to kill in order to impose the death penalty for felony murder.

The Court’s attempt to downplay the significance of Enmund’s role in the murders does not square with the facts of this case. The trial court expressly found that, because Enmund had planned the robbery, his role was not minor, and that therefore no statutory mitigating circumstances applied. The Florida Supreme Court affirmed the finding of no mitigating circumstances, thereby affirming the underlying factual predicate—Enmund had planned the armed robbery. Moreover, even Enmund’s trial counsel conceded at the sentencing hearing that Enmund initiated the armed robbery and drove the getaway car. The Court misreads the opinion below [in the Florida Supreme Court] in suggesting that the State Supreme Court deduced from the sentencing hearing that Enmund’s only participation was as the getaway driver. In fact, the court made that statement with respect to the guilt phase of the trial. As I mentioned above, Enmund’s counsel conceded at the sentencing hearing that Enmund had initiated the armed robbery.

40

Opinion of Justice O’Connor for the Court

In sum, the petitioner and the Court have failed to show that contemporary standards, as reflected in both jury determinations and legislative enactments, preclude imposition of the death penalty for accomplice felony murder. Moreover, examination of the qualitative factors underlying the concept of proportionality do not show that the death penalty is disproportionate as applied to Earl Enmund. In contrast to the crime in Coker, the petitioner’s crime involves the very type of harm that this Court has held justifies the death penalty. Finally, because of the unique and complex mixture of facts involving a defendant’s actions, knowledge, motives, and participation during the commission of a felony murder, I believe that the factfinder is best able to assess the defendant’s blameworthiness. Accordingly, I conclude that the death penalty is not disproportionate to the crime of felony murder, even though the defendant did not actually kill or intend to kill his victims.

Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed.2d 127 (1987) (5–4, a felony-murderer who does not kill or intend to kill but who is a “major participant” in the felony, and who has a mental state of “reckless indifference to human life” may be sentenced to death.)

Opinion of Justice O’connor for the Court The question presented is whether the petitioners’ participation in the events leading up to and following the murder of four members of a family makes the sentences of death imposed by the Arizona courts constitutionally permissible although neither petitioner specifically intended to kill the victims and neither inflicted the fatal gunshot wounds. We hold that the Arizona Supreme Court applied an erroneous standard in making the findings required by Enmund v. Florida, and, therefore, vacate the judgments below and remand the case for further proceedings not inconsistent with this opinion.

I Gary Tison was sentenced to life imprisonment as the result of a prison escape during the course of which he had killed a guard. After he had been in prison a number of years, Gary Tison’s wife, their three sons Donald, Ricky, and Raymond, Gary’s brother Joseph, and other relatives made plans to help Gary Tison escape again. The Tison family assembled a large arsenal of weapons for this purpose. Plans for escape were discussed with Gary Tison, who insisted that his cellmate, Randy Greenawalt, also a convicted murderer, be included in the prison break. The following facts are largely evidenced by petitioners’ detailed confessions given as part of a plea bargain according to the terms of

165

166

Chapter 9:  Felony-Murder

which the State agreed not to seek the death sentence. The Arizona courts interpreted the plea agreement to require that petitioners testify to the planning stages of the breakout. When they refused to do so, the bargain was rescinded and they were tried, convicted, and sentenced to death. On July 30, 1978, the three Tison brothers entered the Arizona State Prison at Florence carrying a large ice chest filled with guns. The Tisons armed Greenawalt and their father, and the group, brandishing their weapons, locked the prison guards and visitors present in a storage closet. The five men fled the prison grounds in the Tisons’ Ford Galaxy automobile. No shots were fired at the prison. After leaving the prison, the men abandoned the Ford automobile and proceeded on to an isolated house in a white Lincoln automobile that the brothers had parked at a hospital near the prison. At the house, the Lincoln automobile had a flat tire; the only spare tire was pressed into service. After two nights at the house, the group drove toward Flagstaff. As the group traveled on back roads and secondary highways through the desert, another tire blew out. The group decided to flag down a passing motorist and steal a car. Raymond stood out in front of the Lincoln; the other four armed themselves and lay in wait by the side of the road. One car passed by without stopping, but a second car, a Mazda occupied by John Lyons, his wife Donnelda, his 2-year-old son Christopher, and his 15-year-old niece, Theresa Tyson, pulled over to render aid. As Raymond showed John Lyons the flat tire on the Lincoln, the other Tisons and Greenawalt emerged. The Lyons family was forced into the backseat of the Lincoln. Raymond and Donald drove the Lincoln down a dirt road off the highway and then down a gas line service road farther into the desert; Gary Tison, Ricky Tison, and Randy Greenawalt followed in the Lyons’ Mazda. The two cars were parked trunk to trunk and the Lyons family was ordered to stand in front of the Lincoln’s headlights. The Tisons transferred their belongings from the Lincoln into the Mazda. They discovered guns and money in the Mazda which they kept, and they put the rest of the Lyons’ possessions in the Lincoln. Gary Tison then told Raymond to drive the Lincoln still farther into the desert. Raymond did so, and, while the others guarded the Lyons and Theresa Tyson, Gary fired his shotgun into the radiator, presumably to completely disable the vehicle. The Lyons and Theresa Tyson were then escorted to the Lincoln and again ordered to stand in its headlights. Ricky Tison reported that John Lyons begged, in comments “more or less directed at everybody,” “Jesus, don’t kill me.” Gary Tison said he was “thinking about it.” John Lyons asked the Tisons and Greenawalt to “[g]ive us some water . . . just leave us out here, and you all go home.” Gary Tison then told his sons to go back to the Mazda and get some water. Raymond later explained that his father “was like in conflict with himself. . . . What it was, I think it was the baby being there and all this, and he wasn’t sure about what to do.”

Opinion of Justice O’Connor for the Court

The petitioners’ statements diverge to some extent, but it appears that both of them went back towards the Mazda, along with Donald, while Randy Greenawalt and Gary Tison stayed at the Lincoln guarding the victims. Raymond recalled being at the Mazda filling the water jug “when we started hearing the shots.” Ricky said that the brothers gave the water jug to Gary Tison who then, with Randy Greenawalt, went behind the Lincoln, where they spoke briefly, then raised the shotguns and started firing. In any event, petitioners agree they saw Greenawalt and their father brutally murder their four captives with repeated blasts from their shotguns. Neither made an effort to help the victims, though both later stated they were surprised by the shooting. The Tisons got into the Mazda and drove away, continuing their flight. Physical evidence suggested that Theresa Tyson managed to crawl away from the bloodbath, severely injured. She died in the desert after the Tisons left. Several days later the Tisons and Greenawalt were apprehended after a shootout at a police roadblock. Donald Tison was killed. Gary Tison escaped into the desert where he subsequently died of exposure. Raymond and Ricky Tison and Randy Greenawalt were captured and tried jointly for the crimes associated with the prison break itself and the shootout at the roadblock; each was convicted and sentenced. The State then individually tried each of the petitioners for capital murder of the four victims as well as for the associated crimes of armed robbery, kidnaping, and car theft. The capital murder charges were based on Arizona felony-murder law providing that a killing occurring during the perpetration of robbery or kidnaping is capital murder, and that each participant in the kidnaping or robbery is legally responsible for the acts of his accomplices. Each of the petitioners was convicted of the four murders under these accomplice liability and felony-murder statutes. Arizona law also provided for a capital sentencing proceeding, to be conducted without a jury, to determine whether the crime was sufficiently aggravated to warrant the death sentence. The statute set out six aggravating and four mitigating factors. The judge found three statutory aggravating factors: (1) the Tisons had created a grave risk of death to others (not the victims); (2) the murders had been committed for pecuniary gain; (3) the murders were especially heinous. The judge found no statutory mitigating factor. Importantly, the judge specifically found that the crime was not mitigated by the fact that each of the petitioners’ “participation was relatively minor.” Rather, he found that the “participation of each [petitioner] in the crimes giving rise to the application of the felony murder rule in this case was very substantial.” The trial judge also specifically found that each “could reasonably have foreseen that

167

168

Chapter 9:  Felony-Murder

his conduct . . . would cause or create a grave risk of . . . death.” He did find, however, three nonstatutory mitigating factors: (1) the petitioners’ youth—Ricky was 20 and Raymond was 19; (2) neither had prior felony records; (3) each had been convicted of the murders under the felony-murder rule. Nevertheless, the judge sentenced both petitioners to death. On direct appeal, the Arizona Supreme Court affirmed. . . .

II . . . Enmund [v. Florida] explicitly dealt with two distinct subsets of all felony murders in assessing whether Enmund’s sentence was disproportional under the Eighth Amendment. At one pole was Enmund himself: the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state. Only a small minority of States even authorized the death penalty in such circumstances and even within those jurisdictions the death penalty was almost never exacted for such a crime. The Court held that capital punishment was disproportional in these cases. Enmund also clearly dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill. The Court clearly held that the equally small minority of jurisdictions that limited the death penalty to these circumstances could continue to exact it in accordance with local law when the circumstances warranted. The Tison brothers’ cases fall into neither of these neat categories. Petitioners argue strenuously that they did not “intend to kill” as that concept has been generally understood in the common law. We accept this as true. Traditionally, “one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.” W. LaFave and A. Scott, Criminal Law §28, p. 196 (1972). . . . As petitioners point out, there is no evidence that either Ricky or Raymond Tison took any act which he desired to, or was substantially certain would, cause death. The Arizona Supreme Court did not attempt to argue that the facts of this case supported an inference of “intent” in the traditional sense. Instead, the Arizona Supreme Court attempted to reformulate “intent to kill” as a species of foreseeability. The Arizona Supreme Court wrote: Intend [sic] to kill includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken in accomplishing the underlying felony.

Opinion of Justice O’Connor for the Court

This definition of intent is broader than that described by the Enmund Court. Participants in violent felonies like armed robberies can frequently “[anticipate] that lethal force . . . might be used . . . in accomplishing the underlying felony.” Enmund himself may well have so anticipated. Indeed, the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen; it is one principal reason that felons arm themselves. The Arizona Supreme Court’s attempted reformulation of intent to kill amounts to little more than a restatement of the felony-murder rule itself. Petitioners do not fall within the “intent to kill” category of felony murderers for which Enmund explicitly finds the death penalty permissible under the Eighth Amendment. On the other hand, it is equally clear that petitioners also fall outside the category of felony murderers for whom Enmund explicitly held the death penalty disproportional: their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life. We take the facts as the Arizona Supreme Court has given them to us. Raymond Tison brought an arsenal of lethal weapons into the Arizona State Prison which he then handed over to two convicted murderers, one of whom he knew had killed a prison guard in the course of a previous escape attempt. By his own admission he was prepared to kill in furtherance of the prison break. He performed the crucial role of flagging down a passing car occupied by an innocent family whose fate was then entrusted to the known killers he had previously armed. He robbed these people at their direction and then guarded the victims at gunpoint while they considered what next to do. He stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. Instead, he chose to assist the killers in their continuing criminal endeavors, ending in a gun battle with the police in the final showdown. Ricky Tison’s behavior differs in slight details only. Like Raymond, he intentionally brought the guns into the prison to arm the murderers. He could have foreseen that lethal force might be used, particularly since he knew that his father’s previous escape attempt had resulted in murder. He, too, participated fully in the kidnaping and robbery and watched the killing after which he chose to aid those whom he had placed in the position to kill rather than their victims. These facts not only indicate that the Tison brothers’ participation in the crime was anything but minor; they also would clearly support a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life. The issue raised by this case is whether the Eighth Amendment prohibits the death penalty in the intermediate case of the defendant whose

169

170

Chapter 9:  Felony-Murder

participation is major and whose mental state is one of reckless indifference to the value of human life. Enmund does not specifically address this point. We now take up the task of determining whether the Eighth Amendment proportionality requirement bars the death penalty under these circumstances. Like the Enmund Court, we find the state legislatures’ judgment as to proportionality in these circumstances relevant to this constitutional inquiry. The largest number of States still fall into the two intermediate categories discussed in Enmund. Four States authorize the death penalty in felony-murder cases upon a showing of culpable mental state such as recklessness or extreme indifference to human life. Two jurisdictions require that the defendant’s participation be substantial and the statutes of at least six more, including Arizona, take minor participation in the felony expressly into account in mitigation of the murder. These requirements significantly overlap both in this case and in general, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. At a minimum, however, it can be said that all these jurisdictions, as well as six States which Enmund classified along with Florida as permitting capital punishment for felony murder simpliciter, and the three States which simply require some additional aggravation before imposing the death penalty upon a felony murderer, specifically authorize the death penalty in a felony-murder case where, though the defendant’s mental state fell short of intent to kill, the defendant was a major actor in a felony in which he knew death was highly likely to occur. On the other hand, even after Enmund, only 11 States authorizing capital punishment forbid imposition of the death penalty even though the defendant’s participation in the felony murder is major and the likelihood of killing is so substantial as to raise an inference of extreme recklessness. This substantial and recent legislative authorization of the death penalty for the crime of felony murder regardless of the absence of a finding of an intent to kill powerfully suggests that our society does not reject the death penalty as grossly excessive under these circumstances. Moreover, a number of state courts have interpreted Enmund to permit the imposition of the death penalty in such aggravated felony murders. We do not approve or disapprove the judgments as to proportionality reached on the particular facts of these cases, but we note the apparent consensus that substantial participation in a violent felony under circumstances likely to result in the loss of innocent human life may justify the death penalty even absent an “intent to kill.” Against this backdrop, we now consider the proportionality of the death penalty in these midrange felony-murder cases for which the majority of American jurisdictions clearly authorize capital punishment and for which American courts have not been nearly so reluctant to impose death as they are in the case of felony murder simpliciter.

Opinion of Justice O’Connor for the Court

A critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime. Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished. The ancient concept of malice aforethought was an early attempt to focus on mental state in order to distinguish those who deserved death from those who through “Benefit of. . . Clergy” would be spared.a Over time, malice aforethought came to be inferred from the mere act of killing in a variety of circumstances; in reaction, Pennsylvania became the first American jurisdiction to distinguish between degrees of murder, reserving capital punishment to “willful, deliberate and premeditated” killings and felony murders. More recently, in Lockett v. Ohio, the plurality opinion made clear that the defendant’s mental state was critical to weighing a defendant’s culpability under a system of guided discretion, vacating a death sentence imposed under an Ohio statute that did not permit the sentencing authority to take into account “[t]he absence of direct proof that the defendant intended to cause the death of the victim.” In Enmund v. Florida, the Court recognized again the importance of mental state, explicitly permitting the death penalty in at least those cases where the felony murderer intended to kill and forbidding it in the case of a minor actor not shown to have had any culpable mental state. A narrow focus on the question of whether or not a given defendant “intended to kill,” however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all—those who act in self-defense or with other justification or excuse. Other intentional homicides, though criminal, are often felt undeserving of the death penalty—those that are the result of provocation. On the other hand, some nonintentional murderers may be among the most dangerous and inhumane of all—the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an “intent to kill.” Indeed it is for this very reason that the common law and modern criminal codes alike have

Editor’s note: “Benefit of Clergy” began as an immunity for English clergymen from secular court jurisdiction. It then became a death penalty exemption and was eventually extended to anyone working for the church and then to anyone who could read. Benefit of Clergy was used to soften the harshness of the British common law with respect to the death penalty. Benefit of Clergy was, along with the common law, exported to America, where it was subject to such abuse that Congress banned it for federal capital crimes in 1790. It no longer exists.

a

171

172

Chapter 9:  Felony-Murder

classified behavior such as occurred in this case along with intentional murders. Enmund held that when “intent to kill” results in its logical though not inevitable consequence—the taking of human life—the Eighth Amendment permits the State to exact the death penalty after a careful weighing of the aggravating and mitigating circumstances. Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. The petitioners’ own personal involvement in the crimes was not minor, but rather, as specifically found by the trial court, “substantial.” Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each petitioner was actively involved in every element of the kidnaping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight. The Tisons’ high level of participation in these crimes further implicates them in the resulting deaths. Accordingly, they fall well within the overlapping second intermediate position which focuses on the defendant’s degree of participation in the felony. Only a small minority of those jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and we do not find this minority position constitutionally required. We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here. Rather, we simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement. The Arizona courts have clearly found that the former exists; we now vacate the judgments below and remand for determination of the latter in further proceedings not inconsistent with this opinion.

Dissenting Opinion of Justice Brennan, Joined by Justices Marshall, Blackmun, and Stevens The murders that Gary Tison and Randy Greenawalt committed revolt and grieve all who learn of them. When the deaths of the Lyons family and Theresa Tyson were first reported, many in Arizona erupted “in a towering yell” for retribution and justice. Yet Gary Tison, the central figure in this tragedy, the man who had his family arrange his and Greenawalt’s escape from prison, and the man who chose, with Greenawalt, to murder this family while his sons stood

Dissenting Opinion of Justice Brennan

by, died of exposure in the desert before society could arrest him and bring him to trial. The question this case presents is what punishment Arizona may constitutionally exact from two of Gary Tison’s sons for their role in these events. Because our precedents and our Constitution compel a different answer than the one the Court reaches today, I dissent.

I Under the felony-murder doctrine, a person who commits a felony is liable for any murder that occurs during the commission of that felony, regardless of whether he or she commits, attempts to commit, or intended to commit that murder. The doctrine thus imposes liability on felons for killings committed by cofelons during a felony. This curious doctrine is a living fossil from a legal era in which all felonies were punishable by death; in those circumstances, the state of mind of the felon with respect to the murder was understandably superfluous, because he or she could be executed simply for intentionally committing the felony. Today, in most American jurisdictions and in virtually all European and Commonwealth countries, a felon cannot be executed for a murder that he or she did not commit or specifically intend or attempt to commit. In some American jurisdictions, however, the authority to impose death in such circumstances still persists. Arizona is such a jurisdiction. . . . The Court has chosen . . . to announce a new substantive standard for capital liability: a defendant’s “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” . . . I join no part of this. First, the Court’s dictum that its new category of mens rea is applicable to these petitioners is not supported by the record. Second, even assuming petitioners may be so categorized, objective evidence and this Court’s Eighth Amendment jurisprudence demonstrate that the death penalty is disproportionate punishment for this category of defendants. Finally, the fact that the Court reaches a different conclusion is illustrative of the profound problems that continue to plague capital sentencing.

II The facts on which the Court relies are not sufficient, in my view, to support the Court’s conclusion that petitioners acted with reckless disregard for human life. But even if they were, the Court’s decision to restrict its vision to the limited set of facts that “the Arizona Supreme Court has given . . . to us,” is improper . . . The evidence in the record overlooked today regarding petitioners’ mental states with respect to the shootings is not trivial. For example, while the Court has found that petitioners made no effort prior to the shooting to assist the

173

174

Chapter 9:  Felony-Murder

victims, the uncontradicted statements of both petitioners are that just prior to the shootings they were attempting to find a jug of water to give to the family. While the Court states that petitioners were on the scene during the shooting and that they watched it occur, Raymond stated that he and Ricky were still engaged in repacking the Mazda after finding the water jug when the shootings occurred. Ricky stated that they had returned with the water, but were still some distance (“farther than this room”) from the Lincoln when the shootings started, and that the brothers then turned away from the scene and went back to the Mazda. Neither stated that they anticipated that the shootings would occur, or that they could have done anything to prevent them or to help the victims afterward. Both, however, expressed feelings of surprise, helplessness, and regret. This statement of Raymond’s is illustrative: Well, I just think you should know when we first came into this we had an agreement with my dad that nobody would get hurt because we [the brothers] wanted no one hurt. And when this [killing of the kidnap victims] came about we were not expecting it. And it took us by surprise as much as it took the family [the victims] by surprise because we were not expecting this to happen. And I feel bad about it happening. I wish we could [have done] something to stop it, but by the time it happened it was too late to stop it. And it’s just something we are going to live with the rest of our lives. It will always be there.

III Notwithstanding the Court’s unwarranted observations on the applicability of its new standard to this case, the basic flaw in today’s decision is the Court’s failure to conduct the sort of proportionality analysis that the Constitution and past cases require. Creation of a new category of culpability is not enough to distinguish this case from Enmund. The Court must also establish that death is a proportionate punishment for individuals in this category. In other words, the Court must demonstrate that major participation in a felony with a state of mind of reckless indifference to human life deserves the same punishment as intending to commit a murder or actually committing a murder. The Court does not attempt to conduct a proportionality review of the kind performed in past cases raising a proportionality question, e.g., Solem v. Helm, 463 U.S. 277 (1983); Enmund; Coker, but instead offers two reasons in support of its view. A.  One reason the Court offers for its conclusion that death is proportionate punishment for persons falling within its new category is that limiting the death penalty to those who intend to kill “is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers.” To illustrate that intention cannot be dispositive, the Court offers as examples “the person who tortures another not caring whether the victim lives or dies,

Dissenting Opinion of Justice Brennan

or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property.” Influential commentators and some States have approved the use of the death penalty for persons, like those given in the Court’s examples, who kill others in circumstances manifesting an extreme indifference to the value of human life. Thus an exception to the requirement that only intentional murders be punished with death might be made for persons who actually commit an act of homicide; Enmund, by distinguishing from the accomplice case “those who kill,” clearly reserved that question. But the constitutionality of the death penalty for those individuals is no more relevant to this case than it was to Enmund, because this case, like Enmund, involves accomplices who did not kill. Thus, although some of the “most culpable and dangerous of murderers” may be those who killed without specifically intending to kill, it is considerably more difficult to apply that rubric convincingly to those who not only did not intend to kill, but who also have not killed. It is precisely in this context—where the defendant has not killed—that a finding that he or she nevertheless intended to kill seems indispensable to establishing capital culpability. It is important first to note that such a defendant has not committed an act for which he or she could be sentenced to death. The applicability of the death penalty therefore turns entirely on the defendant’s mental state with regard to an act committed by another. Factors such as the defendant’s major participation in the events surrounding the killing or the defendant’s presence at the scene are relevant insofar as they illuminate the defendant’s mental state with regard to the killings. They cannot serve, however, as independent grounds for imposing the death penalty. Second, when evaluating such a defendant’s mental state, a determination that the defendant acted with intent is qualitatively different from a determination that the defendant acted with reckless indifference to human life. The difference lies in the nature of the choice each has made. The reckless actor has not chosen to bring about the killing in the way the intentional actor has. The person who chooses to act recklessly and is indifferent to the possibility of fatal consequences often deserves serious punishment. But because that person has not chosen to kill, his or her moral and criminal culpability is of a different degree than that of one who killed or intended to kill. The importance of distinguishing between these different choices is rooted in our belief in the “freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette v. United States, 342 U.S. 246, 250 (1952). To be faithful to this belief, which is “universal and persistent in mature systems of law,” ibid., the criminal law must ensure that the punishment an individual receives conforms to the choices

175

176

Chapter 9:  Felony-Murder

that ­individual has made. Differential punishment of reckless and intentional actions is therefore essential if we are to retain “the relation between criminal liability and moral culpability” on which criminal justice depends. . . . The State’s ultimate sanction—if it is ever to be used—must be reserved for those whose culpability is greatest. . . . Distinguishing intentional from reckless action in assessing culpability is particularly important in felony-murder cases. . . . In Enmund, the Court explained at length the reasons a finding of intent is a necessary prerequisite to the imposition of the death penalty. In any given case, the Court said, the death penalty must “measurably contribut[e]” to one or both of the two “social purposes”— deterrence and retribution—which this Court has accepted as justifications for the death penalty. . . . If it does not so contribute, it “‘is nothing more than the purposeless and needless imposition of pain and suffering’ and hence an unconstitutional punishment.” . . . Enmund’s lack of intent to commit the murder—rather than the lack of evidence as to his mental state—was the decisive factor in the Court’s decision that the death penalty served neither of the two purposes. With regard to deterrence, the Court was quite unconvinced . . . that the threat that the death penalty will be imposed for murder will measurably deter one who does not kill and has no intention or purpose that life will be taken. Instead, it seems likely that “capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation”. . . .

As for retribution, the Court again found that Enmund’s lack of intent, together with the fact that he did not kill the victims, was decisive. “American criminal law has long considered a defendant’s intention—and therefore his moral guilt—to be critical to the ‘degree of [his] criminal culpability.’”. . . The Court concluded that “[p]utting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts.” . . . Thus, in Enmund the Court established that a finding of an intent to kill was a constitutional prerequisite for the imposition of the death penalty on an accomplice who did not kill. The Court has since reiterated that “Enmund . . . imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death.” Cabana v. Bullock, 474 U.S. [376], at 386 [1986]. The Court’s decision today to approve the death penalty for accomplices who lack this mental state is inconsistent with Enmund and with the only justifications this Court has put forth for imposing the death penalty in any case. B.  The Court’s second reason for abandoning the intent requirement is based on its survey of state statutes authorizing the death penalty for felony murder,

Dissenting Opinion of Justice Brennan

and on a handful of state cases. On this basis, the Court concludes that “[o]nly a small minority of those jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and we do not find this minority position constitutionally required.” The Court would thus have us believe that “the majority of American jurisdictions clearly authorize capital punishment” in cases such as this. This is not the case. First, the Court excludes from its survey those jurisdictions that have abolished the death penalty and those that have authorized it only in circumstances different from those presented here. When these jurisdictions are included, and are considered with those jurisdictions that require a finding of intent to kill in order to impose the death sentence for felony murder, one discovers that approximately three-fifths of American jurisdictions do not authorize the death penalty for a non-triggerman absent a finding that he intended to kill. Thus, contrary to the Court’s implication that its view is consonant with that of “the majority of American jurisdictions,” the Court’s view is itself distinctly the minority position. Second, it is critical to examine not simply those jurisdictions that authorize the death penalty in a given circumstance, but those that actually impose it. Evidence that a penalty is imposed only infrequently suggests not only that jurisdictions are reluctant to apply it but also that, when it is applied, its imposition is arbitrary and therefore unconstitutional. Furman. Thus, the Court in Enmund examined the relevant statistics on the imposition of the death penalty for accomplices in a felony murder. The Court found that of all executions between 1954 and 1982, there were “only 6 cases out of 362 where a nontriggerman felony murderer was executed. All six executions took place in 1955.” This evidence obviously militates against imposing the death penalty on petitioners as powerfully as it did against imposing it on Enmund. The Court in Enmund also looked at the imposition of the death penalty for felony murder within Florida, the State that had sentenced Enmund. Of the 45 murderers then on death row, 36 had been found to have “intended” to take life, and 8 of the 9 for which there was no finding of intent had been the triggerman. Thus in only one case—Enmund—had someone (such as the Tisons) who had neither killed nor intended to kill received the death sentence. Finally, the Court noted that in no Commonwealth or European country could Enmund have been executed, since all have either abolished or never employed a felony-murder doctrine. The Court today neither reviews nor updates this evidence. Had it done so, it would have discovered that, even including the 65 executions since Enmund, “[t]he fact remains that we are not aware of a single person convicted of felony murder over the past quarter century who did not kill or attempt to kill,

177

178

Chapter 9:  Felony-Murder

and did not intend the death of the victim, who has been executed. . . .” Of the 64 persons on death row in Arizona, all of those who have raised and lost an Enmund challenge in the Arizona Supreme Court have been found either to have killed or to have specifically intended to kill. Thus, like Enmund, the Tisons’ sentence appears to be an aberration within Arizona itself as well as nationally and internationally. The Court’s objective evidence that the statutes of roughly 20 States appear to authorize the death penalty for defendants in the Court’s new category is therefore an inadequate substitute for a proper proportionality analysis, and is not persuasive evidence that the punishment that was unconstitutional for Enmund is constitutional for the Tisons. C.  The Court’s failure to examine the full range of relevant evidence is troubling not simply because of what that examination would have revealed, but because until today such an examination has been treated as constitutionally required whenever the Court undertakes to determine whether a given punishment is disproportionate to the severity of a given crime. Enmund is only one of a series of cases that have framed the proportionality inquiry in this way. See, e.g., Coker. In the most recent such case, Solem v. Helm, 463 U.S. 277, 292 (1983), the Court summarized the essence of the inquiry: In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. (Emphasis added.)

By addressing at best only the first of these criteria, the Court has ignored most of the guidance this Court has developed for evaluating the proportionality of punishment. Such guidance is essential in determining the constitutional limits on the State’s power to punish. These limits must be defined with care, not simply because the death penalty is involved, but because the social purposes that the Court has said justify the death penalty—retribution and deterrence—are justifications that possess inadequate self-limiting principles. As Professor Packer observed, under a theory of deterrence the state may justify such punishments as “boiling people in oil; a slow and painful death may be thought more of a deterrent to crime than a quick and painless one.” Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1076 (1964). Retribution, which has as its core logic the crude proportionality of “an eye for an eye,” has been regarded as a constitutionally valid basis for punishment only when the punishment is consistent with an “individualized consideration” of the defendant’s ­culpability, Lockett,

Dissenting Opinion of Justice Brennan

and when “the administration of criminal justice” works to “channe[l]” society’s “instinct for retribution.” Furman (Stewart, J., concurring). Without such channeling, a State could impose a judgment of execution by torture as appropriate retribution for murder by torture. Thus, under a simple theory either of deterrence or retribution, unfettered by the Constitution, results disturbing to civil sensibilities and inconsistent with “the evolving standards of decency” in our society become rationally defensible. . . . The Framers provided in the Eighth Amendment the limiting principles otherwise absent in the prevailing theories of punishment. One such principle is that the States may not impose punishment that is disproportionate to the severity of the offense or to the individual’s own conduct and culpability. Because the proportionality inquiry in this case overlooked evidence and considerations essential to such an inquiry, it is not surprising that the result appears incongruous. Ricky and Raymond Tison are similarly situated with Earl Enmund in every respect that mattered to the decision in Enmund. Like Enmund, the Tisons neither killed nor attempted or intended to kill anyone. Like Enmund, the Tisons have been sentenced to death for the intentional acts of others which the Tisons did not expect, which were not essential to the felony, and over which they had no control. Unlike Enmund, however, the Tisons will be the first individuals in over 30 years to be executed for such behavior. I conclude that the proportionality analysis and result in this case cannot be reconciled with the analyses and results of previous cases. On this ground alone, I would dissent. But the fact that this Court’s death penalty jurisprudence can validate different results in analytically indistinguishable cases suggests that something more profoundly disturbing than faithlessness to precedent is at work in capital sentencing.

IV A.  . . . What makes this a difficult case is the challenge of giving substantive content to the concept of criminal culpability. Our Constitution demands that the sentencing decision itself, and not merely the procedures that produce it, respond to the reasonable goals of punishment. But the decision to execute these petitioners, . . . like other decisions to kill, appears responsive less to reason than to other, more visceral, demands. The urge to employ the felony-murder doctrine against accomplices is undoubtedly strong when the killings stir public passion and the actual murderer is beyond human grasp. And an intuition that sons and daughters must sometimes be punished for the sins of the father may be deeply rooted in our consciousness. Yet punishment that conforms more closely to such retributive instincts than to the Eighth Amendment is tragically anachronistic in a society governed by our Constitution. . . .

179

180

Chapter 9:  Felony-Murder

Editors’ Questions Justice O’Connor dissented in Enmund and pointed out that Enmund was far more than just the getaway driver; he had planned the robbery and recruited the cofelons who had killed the victims. Yet in writing the majority opinion in Tison, Justice O’Connor characterized Enmund as a “minor actor.” What is going on here? Had a case with facts identical to those in Enmund arisen after Tison, would the defendant have met the two-part test from Tison?

Chap ter 1 0

The Mentally Retarded and Juveniles— Atkins v. Virginia (2002) and Roper v. Simmons (2005) Editors’ Comment As we have seen, death eligibility is a function of two variables: first, the gravity of the crime (the “circumstances of the offense” element from Woodson v. North Carolina, Chapter 4); second, the degree of the defendant’s depravity (the “character” and “record” elements from Woodson). In earlier chapters, we examined cases involving the first variable in which the Court decided whether there was any constitutional minimum degree of gravity for a crime to be death-eligible. The upshot of those decisions was that, with the possible exception of crimes with wide public impact, such as treason and espionage, only murder was grave enough to warrant a death sentence and, further, that not every murder was grave enough but only those that were, in a statutorily specified manner, aggravated above the norm of murders. In this chapter we move to cases addressing the second variable: Is there a constitutional minimum degree of depravity that is necessary for death eligibility? The cases here show that the Court has held two categories of defendants to be insufficiently depraved: the mentally retarded (Atkins) and juveniles—those whose crimes were committed before their eighteenth birthday (Roper). As to both categories, the Court found a national consensus against a sentence of death, and its own judgment was that such defendants were insufficiently blameworthy to be death-eligible. Thus, in terms of Woodson, no matter how reprehensible their crimes, the mentally retarded and juveniles were deemed to have an insufficiently depraved “character” to warrant the ultimate sentence. Roper abrogated Stanford v. Kentucky, 492 U.S. 361 (1989), which had upheld death sentences for murderers who were 16 or 17 at the time of the crime.

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed.2d 335 (2002) (6–3, executions of mentally retarded criminals are cruel and unusual punishments in violation of the Eighth Amendment.)

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

181

182

Chapter 10:  The Mentally Retarded and Juveniles

Opinion of Justice Stevens for the Court Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U.S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed. Jones and Atkins both testified in the guilt phase of Atkins’ trial. Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report. In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.”3 His conclusion was based on interviews

Opinion of Justice Stevens for the Court

with people who knew Atkins, a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59. The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. The jury again sentenced Atkins to death. The Supreme Court of Virginia affirmed the imposition of the death penalty. Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” The majority of the state court rejected this contention, relying on our holding in Penry. The Court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes

The American Association of Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70. Id., at 42–43.

3

183

184

Chapter 10:  The Mentally Retarded and Juveniles

itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case.

II The Eighth Amendment succinctly prohibits “excessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U.S. 349 (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957 (1991). Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U.S. 660, 666 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U.S. 86 (1958): “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Proportionality review under those evolving standards should be informed by “‘objective factors to the maximum possible extent.’” We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures”. . . . We also acknowledged in Coker [v. Georgia] that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” . . .

Opinion of Justice Stevens for the Court

Thus, in cases involving a consensus, our own judgment is “brought to bear” by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators. Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions. In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” In 1989, Maryland enacted a similar prohibition. It was in that year that we decided Penry, and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. Nebraska followed suit in 1998. There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession. The Texas Legislature unanimously adopted a similar bill, and bills have passed at least one house in other States, including Virginia and Nevada. It is not so much the number of these States that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically

185

186

Chapter 10:  The Mentally Retarded and Juveniles

less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry. The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.21 To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, “we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”

IV This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards. Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al.; Brief for AAMR et al. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.

21

Opinion of Justice Stevens for the Court

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund. With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U.S. 420 (1980), we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate. With respect to deterrence—the interest in preventing capital crimes by prospective offenders—“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.’”

187

188

Chapter 10:  The Mentally Retarded and Juveniles

Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence. The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty” is enhanced, not only by the possibility of false confessions,25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. Mentally retarded defendants in the aggregate face a special risk of wrongful execution. Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit.

25

Dissenting Opinion of Chief Justice Rehnquist

“evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Dissenting opinion of chief justice rehnquist, joined by justices scalia and thomas The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. I agree with Justice Scalia that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U.S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

189

190

Chapter 10:  The Mentally Retarded and Juveniles

In my view, these two sources—the work product of legislatures and sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments. In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner. Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders. I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. . . . To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. . . . In my view, none should be accorded any weight on the Eighth Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. . . . For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat—at the behest of private organizations speaking only for themselves—a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States. Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. . . .

Dissenting Opinion of Justice Scalia

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Believing this view to be seriously mistaken, I dissent.

Dissenting Opinion of Justice Scalia, Joined by Chief Justice Rehnquist and Justice Thomas Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

II . . . [P]etitioner’s mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence. “In upsetting this particularized judgment on the basis of a constitutional absolute,” the Court concludes that no one who is even slightly mentally retarded can have sufficient “moral responsibility to be subjected to capital punishment for any crime. As a sociological and moral conclusion that is implausible; and it is doubly implausible as an interpretation of the United States Constitution.” Thompson v. Oklahoma, 487 U.S. 815, 863–864 (1988) (Scalia, J., dissenting). Under our Eighth Amendment jurisprudence, a punishment is “cruel and unusual” if it falls within one of two categories: “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted,” and modes of punishment that are inconsistent with modern “standards of decency,” as evinced by objective indicia, the most important of which is “legislation enacted by the country’s legislatures.” The Court makes no pretense that execution of the mildly mentally retarded would have been considered “cruel and unusual” in 1791. Only the severely or profoundly mentally retarded, commonly known as “idiots,” enjoyed any

191

192

Chapter 10:  The Mentally Retarded and Juveniles

special status under the law at that time. They, like lunatics, suffered a “deficiency in will” rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769). . . . Due to their incompetence, idiots were “excused from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses.” Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from “going loose, to the terror of the king’s subjects.” Mentally retarded offenders with less severe impairments—those who were not “idiots”—suffered criminal prosecution and punishment, including capital punishment. . . . The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the “evolving standards of decency that mark the progress of a maturing society.” Trop. Before today, our opinions consistently emphasized that Eighth Amendment judgments regarding the existence of social “standards” “should be informed by objective factors to the maximum possible extent” and “should not be, or appear to be, merely the subjective views of individual Justices.” Coker. “First” among these objective factors are the “statutes passed by society’s elected representatives,” Stanford; because it “will rarely if ever be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives.” Thompson. The Court pays lipservice to these precedents as it miraculously extracts a “national consensus” forbidding execution of the mentally retarded from the fact that 18 States—less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)—have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. If one is to say, as the Court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national “standards of decency,” surely the “consensus” it points to must be one that has set its righteous face against all such executions. Not 18 States, but only seven—18% of death penalty jurisdictions—have legislation of that scope. Eleven of those that the Court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation; those already on death row, or consigned there before the statute’s effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded; New York permits execution of the mentally retarded who commit murder in a correctional facility.

Dissenting Opinion of Justice Scalia

But let us accept, for the sake of argument, the Court’s faulty count. That bare number of States alone—18—should be enough to convince any reasonable person that no “national consensus” exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to “consensus”? Our prior cases have generally required a much higher degree of agreement before finding a punishment cruel and unusual on “evolving standards” grounds. In Coker, we proscribed the death penalty for rape of an adult woman after finding that only one jurisdiction, Georgia, authorized such a punishment. In Enmund, we invalidated the death penalty for mere participation in a robbery in which an accomplice took a life, a punishment not permitted in 28 of the death penalty States (78%). In Ford, we supported the common-law prohibition of execution of the insane with the observation that “[t]his ancestral legacy has not outlived its time,” since not a single State authorizes such punishment. In Solem v. Helm, we invalidated a life sentence without parole under a recidivist statute by which the criminal “was treated more severely than he would have been in any other State.” What the Court calls evidence of “consensus” in the present case (a fudged 47%) more closely resembles evidence that we found inadequate to establish consensus in earlier cases. Tison v. Arizona upheld a state law authorizing capital punishment for major participation in a felony with reckless indifference to life where only 11 of the 37 death penalty States (30%) prohibited such punishment. Stanford upheld a state law permitting execution of defendants who committed a capital crime at age 16 where only 15 of the 36 death penalty States (42%) prohibited death for such offenders. Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old; five were enacted last year; over half were enacted within the past eight years. Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term. It is “myopic to base sweeping constitutional principles upon the narrow experience of [a few] years.” Coker (Burger, C. J., dissenting). The Court attempts to bolster its embarrassingly feeble evidence of “consensus” with the following: “It is not so much the number of these States that is significant, but the consistency of the direction of change.” But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus. That is to say, to be accurate the Court’s “consistency-of-the-direction-of-change” point should be recast into the following unimpressive observation: “No State has yet undone its exemption of the mentally retarded, one for as long as 14 whole years.” In any event, reliance upon “trends,” even those of much longer duration than a mere 14 years, is a perilous basis for constitutional adjudication, as Justice O’Connor eloquently explained in Thompson:

193

194

Chapter 10:  The Mentally Retarded and Juveniles

In 1846, Michigan became the first State to abolish the death penalty. . . . In succeeding decades, other American States continued the trend towards abolition. . . . Later, and particularly after World War II, there ensued a steady and dramatic decline in executions. . . . In the 1950’s and 1960’s, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968. . . . In 1972, when this Court heard arguments on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus. . . . We now know that any inference of a societal consensus rejecting the death penalty would have been mistaken. But had this Court then declared the existence of such a consensus, and outlawed capital punishment, legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law, making it difficult to refute and even more difficult to reject.

Her words demonstrate, of course, not merely the peril of riding a trend, but also the peril of discerning a consensus where there is none. The Court’s thrashing about for evidence of “consensus” includes reliance upon the margins by which state legislatures have enacted bans on execution of the retarded. Presumably, in applying our Eighth Amendment “evolving-standards-of-decency” jurisprudence, we will henceforth weigh not only how many States have agreed, but how many States have agreed by how much. Of course if the percentage of legislators voting for the bill is significant, surely the number of people represented by the legislators voting for the bill is also significant: the fact that 49% of the legislators in a State with a population of 60 million voted against the bill should be more impressive than the fact that 90% of the legislators in a state with a population of 2 million voted for it. (By the way, the population of the death penalty States that exclude the mentally retarded is only 44% of the population of all death penalty States.) This is quite absurd. What we have looked for in the past to “evolve” the Eighth Amendment is a consensus of the same sort as the consensus that adopted the Eighth Amendment: a consensus of the sovereign States that form the Union, not a nose count of Americans for and against. Even less compelling (if possible) is the Court’s argument that evidence of “national consensus” is to be found in the infrequency with which retarded persons are executed in States that do not bar their execution. To begin with, what the Court takes as true is in fact quite doubtful. It is not at all clear that execution of the mentally retarded is “uncommon,” as even the sources cited by the Court suggest. If, however, execution of the mentally retarded is

Dissenting Opinion of Justice Scalia

“uncommon”; and if it is not a sufficient explanation of this that the retarded comprise a tiny fraction of society (1% to 3%), then surely the explanation is that mental retardation is a constitutionally mandated mitigating factor at sentencing. For that reason, even if there were uniform national sentiment in favor of executing the retarded in appropriate cases, one would still expect execution of the mentally retarded to be “uncommon.” To adapt to the present case what the Court itself said in Stanford: “[I]t is not only possible, but ­overwhelmingly probable, that the very considerations which induce [today’s majority] to believe that death should never be imposed on [mentally retarded] offenders . . . cause prosecutors and juries to believe that it should rarely be imposed.” But the Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called “world community,” and respondents to opinion polls. I agree with the Chief Justice that the views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. “We must never forget that it is a Constitution for the United States of America that we are expounding. . . . [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.” Thompson (Scalia, J., dissenting).

III Beyond the empty talk of a “national consensus,” the Court gives us a brief glimpse of what really underlies today’s decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. “[T]he Constitution,” the Court says, “contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” (The unexpressed reason for this unexpressed “contemplation” of the Constitution is ­presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one’s breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all. “[I]n the end,” it is the feelings and intuition of a majority of the Justices that count— “the perceptions of decency, or of penology, or of mercy, entertained . . . by a majority of the small and unrepresentative segment of our society that sits on this Court.” Thompson (Scalia, J., dissenting).

195

196

Chapter 10:  The Mentally Retarded and Juveniles

The genuinely operative portion of the opinion, then, is the Court’s statement of the reasons why it agrees with the contrived consensus it has found, that the “diminished capacities” of the mentally retarded render the death penalty excessive. The Court’s analysis rests on two fundamental assumptions: (1) that the Eighth Amendment prohibits excessive punishments, and (2) that sentencing juries or judges are unable to account properly for the “diminished capacities” of the retarded. The first assumption is wrong, as I explained at length in Harmelin v. Michigan. The Eighth Amendment is addressed to always-and-everywhere “cruel” punishments, such as the rack and the thumbscrew. But where the punishment is in itself permissible, “[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions.” Id. The second assumption—inability of judges or juries to take proper account of mental retardation—is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters: [I]t is very difficult to define the indivisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great an indulgence given to great crimes. . . . 1 Hale, Pleas of the Crown, at 30.

Proceeding from these faulty assumptions, the Court gives two reasons why the death penalty is an excessive punishment for all mentally retarded offenders. First, the “diminished capacities” of the mentally retarded raise a “serious question” whether their execution contributes to the “social purposes” of the death penalty, viz., retribution and deterrence. (The Court conveniently ignores a third “social purpose” of the death penalty—“incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future,” Gregg. But never mind; its discussion of even the other two does not bear analysis.) Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty, see Godfrey v. Georgia. Who says so? Is there an established correlation between mental acuity and the ability to conform one’s conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality. Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis

Dissenting Opinion of Justice Scalia

can possibly show that a mildly retarded individual who commits an exquisite torture-killing is “no more culpable” than the “average” murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime—which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today imposes upon all trials, but rather by the sentencer’s weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders. By what principle of law, science, or logic can the Court pronounce that this is wrong? There is none. Once the Court admits (as it does) that mental retardation does not render the offender morally blameless, there is no basis for saying that the death penalty is never appropriate retribution, no matter how heinous the crime. As long as a mentally retarded offender knows “the difference between right and wrong,” only the sentencer can assess whether his retardation reduces his culpability enough to exempt him from the death penalty for the particular murder in question. As for the other social purpose of the death penalty that the Court discusses, deterrence: That is not advanced, the Court tells us, because the mentally retarded are “less likely” than their non-retarded counterparts to “process the information of the possibility of execution as a penalty and . . . control their conduct based upon that information.” Of course this leads to the same conclusion discussed earlier—that the mentally retarded (because they are less deterred) are more likely to kill—which neither I nor the society at large believes. In any event, even the Court does not say that all mentally retarded individuals cannot “process the information of the possibility of execution as a penalty and . . . control their conduct based upon that information”; it merely asserts that they are “less likely” to be able to do so. But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class. Virginia’s death penalty, for example, does not fail of its deterrent effect simply because some criminals are unaware that Virginia has the death penalty. In other words, the supposed fact that some retarded criminals cannot fully appreciate the death penalty has nothing to do with the deterrence rationale, but is simply an echo of the arguments denying a retribution rationale, discussed and rejected above. I am not sure that a murderer is somehow less blameworthy if (though he knew his act was wrong) he did not fully appreciate that he could die for it; but if so, we should treat a

197

198

Chapter 10:  The Mentally Retarded and Juveniles

mentally retarded murderer the way we treat an offender who may be “less likely” to respond to the death penalty because he was abused as a child. We do not hold him immune from capital punishment, but require his background to be considered by the sentencer as a mitigating factor. The Court throws one last factor into its grab bag of reasons why execution of the retarded is “excessive” in all cases: Mentally retarded offenders “face a special risk of wrongful execution” because they are less able “to make a persuasive showing of mitigation,” “to give meaningful assistance to their counsel,” and to be effective witnesses. “Special risk” is pretty flabby language (even ­flabbier than “less likely”)—and I suppose a similar “special risk” could be said to exist for just plain stupid people, inarticulate people, even ugly people. If this unsupported claim has any substance to it (which I doubt) it might support a due process claim in all criminal prosecutions of the mentally retarded; but it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual. We have never before held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative. Today’s opinion adds one more to the long list of substantive and procedural requirements impeding imposition of the death penalty imposed under this Court’s assumed power to invent a death-is-different jurisprudence. None of those requirements existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus. They include prohibition of the death penalty for “ordinary” murder, Godfrey, for rape of an adult woman, Coker, and for felony murder absent a showing that the defendant possessed a sufficiently culpable state of mind, Enmund; prohibition of the death penalty for any person under the age of 16 at the time of the crime, Thompson; prohibition of the death penalty as the mandatory punishment for any crime, Woodson v. North Carolina, Sumner v. Shuman; a requirement that the sentencer not be given unguided discretion, Furman; a requirement that the sentencer be empowered to take into account all mitigating circumstances, Lockett v. Ohio, Eddings v. Oklahoma; and a requirement that the accused receive a judicial evaluation of his claim of insanity before the sentence can be executed, Ford. There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court. This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he

Opinion of Justice Kennedy for the Court

can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all. The mere pendency of the present case has brought us petitions by death row inmates claiming for the first time, after multiple habeas petitions, that they are retarded. Perhaps these practical difficulties will not be experienced by the minority of capital-punishment States that have very recently changed mental retardation from a mitigating factor (to be accepted or rejected by the sentencer) to an absolute immunity. Time will tell—and the brief time those States have had the new disposition in place (an average of 6.8 years) is surely not enough. But if the practical difficulties do not appear, and if the other States share the Court’s perceived moral consensus that all mental retardation renders the death penalty inappropriate for all crimes, then that majority will presumably follow suit. But there is no justification for this Court’s pushing them into the experiment—and turning the experiment into a permanent practice—on constitutional pretext. Nothing has changed the accuracy of Matthew Hale’s endorsement of the common law’s traditional method for taking account of guilt-reducing factors, written over three centuries ago: [Determination of a person’s incapacity] is a matter of great difficulty, partly from the easiness of counterfeiting this disability . . . and partly from the variety of the degrees of this infirmity, whereof some are sufficient, and some are insufficient to excuse persons in capital offenses. . . . Yet the law of England hath afforded the best method of trial, that is possible, of this and all other matters of fact, namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses . . ., and by the inspection and direction of the judge. 1 Hale, Pleas of the Crown, at 32–33.

Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed.2d 1 (2005) (5–4, a defendant who commits murder before his eighteenth birthday is not death-eligible.)

Opinion of Justice Kennedy for the Court This case requires us to address, for the second time in a decade and a half, whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older

199

200

Chapter 10:  The Mentally Retarded and Juveniles

than 15 but younger than 18 when he committed a capital crime. In Stanford v. Kentucky, 492 U.S. 361 (1989), a divided Court rejected the proposition that the Constitution bars capital punishment for juvenile offenders in this age group. We reconsider the question.

I At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons ­proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors. The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, “Who’s there?” In response Simmons entered Mrs. Crook’s bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her. Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim’s body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman “because the bitch seen my face.” The next day, after receiving information of Simmons’ involvement, police arrested him at his high school and took him to the police station in Fenton, Missouri. They read him his Miranda rights. Simmons waived his right to an attorney and agreed to answer questions. After less than two hours of

Opinion of Justice Kennedy for the Court

i­ nterrogation, Simmons confessed to the murder and agreed to perform a videotaped reenactment at the crime scene. The State charged Simmons with burglary, kidnaping, stealing, and murder in the first degree. As Simmons was 17 at the time of the crime, he was outside the criminal jurisdiction of Missouri’s juvenile court system. He was tried as an adult. At trial the State introduced Simmons’ confession and the videotaped reenactment of the crime, along with testimony that Simmons discussed the crime in advance and bragged about it later. The defense called no witnesses in the guilt phase. The jury having returned a verdict of murder, the trial proceeded to the penalty phase. The State sought the death penalty. As aggravating factors, the State submitted that the murder was committed for the purpose of receiving money; was committed for the purpose of avoiding, interfering with, or preventing lawful arrest of the defendant; and involved depravity of mind and was outrageously and wantonly vile, horrible, and inhuman. The State called Shirley Crook’s husband, daughter, and two sisters, who presented moving evidence of the devastation her death had brought to their lives. In mitigation Simmons’ attorneys first called an officer of the Missouri juvenile justice system, who testified that Simmons had no prior convictions and that no previous charges had been filed against him. Simmons’ mother, father, two younger half brothers, a neighbor, and a friend took the stand to tell the jurors of the close relationships they had formed with Simmons and to plead for mercy on his behalf. Simmons’ mother, in particular, testified to the responsibility Simmons demonstrated in taking care of his two younger half brothers and of his grandmother and to his capacity to show love for them. During closing arguments, both the prosecutor and defense counsel addressed Simmons’ age, which the trial judge had instructed the jurors they could consider as a mitigating factor. Defense counsel reminded the jurors that juveniles of Simmons’ age cannot drink, serve on juries, or even see certain movies, because “the legislatures have wisely decided that individuals of a certain age aren’t responsible enough.” Defense counsel argued that Simmons’ age should make “a huge difference to [the jurors] in deciding just exactly what sort of punishment to make.” In rebuttal, the prosecutor gave the following response: “Age, he says. Think about age. Seventeen years old. Isn’t that scary? Doesn’t that scare you? Mitigating? Quite the contrary I submit. Quite the contrary.” The jury recommended the death penalty after finding the State had proved each of the three aggravating factors submitted to it. Accepting the jury’s recommendation, the trial judge imposed the death penalty. . . . After these proceedings in Simmons’ case had run their course, this Court held that the Eighth and Fourteenth Amendments prohibit the execution of

201

202

Chapter 10:  The Mentally Retarded and Juveniles

a ­mentally retarded person. Atkins v. Virginia, 536 U.S. 304. Simmons filed a new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. The Missouri Supreme Court agreed. . . .

II In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of the Court determined that our standards of decency do not permit the execution of any offender under the age of 16 at the time of the crime. . . . The next year, in Stanford v. Kentucky, the Court, over a dissenting opinion joined by four Justices, referred to contemporary standards of decency in this ­country and concluded the Eighth and Fourteenth Amendments did not proscribe the execution of juvenile offenders over 15 but under 18. The Court noted that 22 of the 37 death penalty States permitted the death penalty for 16-year-old offenders, and, among these 37 States, 25 permitted it for 17-year-old offenders. These numbers, in the Court’s view, indicated there was no national consensus “sufficient to label a particular punishment cruel and unusual.” . . . The same day the Court decided Stanford, it held that the Eighth Amendment did not mandate a categorical exemption from the death penalty for the mentally retarded. Penry v. Lynaugh, 492 U.S. 302 (1989). In reaching this conclusion it stressed that only two States had enacted laws banning the imposition of the death penalty on a mentally retarded person convicted of a capital offense. According to the Court, “the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, [did] not provide sufficient evidence at present of a national consensus.” Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. . . . Just as the Atkins Court reconsidered the issue decided in Penry, we now reconsider the issue decided in Stanford. The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. This data gives us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.

III A.  The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient

Opinion of Justice Kennedy for the Court

to demonstrate a national consensus against the death penalty for the mentally retarded. When Atkins was decided, 30 States prohibited the death penalty for the mentally retarded. This number comprised 12 that had abandoned the death penalty altogether, and 18 that maintained it but excluded the mentally retarded from its reach. By a similar calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. Atkins emphasized that even in the 20 States without formal prohibition, the practice of executing the mentally retarded was infrequent. Since Penry, only five States had executed offenders known to have an IQ under 70. In the present case, too, even in the 20 States without a formal prohibition on executing juveniles, the practice is infrequent. Since Stanford, six States have executed prisoners for crimes committed as juveniles. In the past 10 years, only three have done so: Oklahoma, Texas, and Virginia. . . . There is, to be sure, at least one difference between the evidence of consensus in Atkins and in this case. Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded. Sixteen States that permitted the execution of the mentally retarded at the time of Penry had prohibited the practice by the time we heard Atkins. By contrast, the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been slower. Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years—four through legislative enactments and one through judicial decision. Though less dramatic than the change from Penry to Atkins (“telling,” to borrow the word Atkins used to describe this difference), we still consider the change from Stanford to this case to be significant. As noted in Atkins, with respect to the States that had abandoned the death penalty for the mentally retarded since Penry, “[i]t is not so much the number of these States that is significant, but the consistency of the direction of change.” In particular we found it significant that, in the wake of Penry, no State that had already prohibited the execution of the mentally retarded had passed legislation to reinstate the penalty. The number of States that have abandoned capital punishment for juvenile offenders since Stanford is smaller than the number of States that abandoned capital punishment for the mentally retarded after Penry; yet we think the same consistency of direction of change has been demonstrated. Since Stanford, no State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death penalty, carries special force in light of the general popularity of anticrime legislation, and in light of the particular trend in recent years toward cracking down on juvenile crime in other respects. Any difference between this case and Atkins with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change.

203

204

Chapter 10:  The Mentally Retarded and Juveniles

The slower pace of abolition of the juvenile death penalty over the past 15 years, moreover, may have a simple explanation. When we heard Penry, only two death penalty States had already prohibited the execution of the mentally retarded. When we heard Stanford, by contrast, 12 death penalty States had already prohibited the execution of any juvenile under 18, and 15 had prohibited the execution of any juvenile under 17. If anything, this shows that the impropriety of executing juveniles between 16 and 18 years of age gained wide recognition earlier than the impropriety of executing the mentally retarded. In the words of the Missouri Supreme Court: “It would be the ultimate in irony if the very fact that the inappropriateness of the death penalty for juveniles was broadly recognized sooner than it was recognized for the mentally retarded were to become a reason to continue the execution of juveniles now that the execution of the mentally retarded has been barred.” Petitioner cannot show national consensus in favor of capital punishment for juveniles but still resists the conclusion that any consensus exists against it. Petitioner supports this position with, in particular, the observation that when the Senate ratified the International Covenant on Civil and Political Rights (ICCPR), (entered into force Mar. 23, 1976), it did so subject to the President’s proposed reservation regarding Article 6(5) of that treaty, which prohibits capital punishment for juveniles. This reservation at best provides only faint support for petitioner’s argument. First, the reservation was passed in 1992; since then, five States have abandoned capital punishment for juveniles. Second, Congress considered the issue when enacting the Federal Death Penalty Act in 1994, and determined that the death penalty should not extend to juveniles. The reservation to Article 6(5) of the ICCPR provides minimal evidence that there is not now a national consensus against juvenile executions. As in Atkins, the objective indicia of consensus in this case—the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice—provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal.” B.  A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” Atkins. . . .

Opinion of Justice Kennedy for the Court

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” Johnson [v. Texas, 509 U.S. 350 (1993)]. It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behavior.” Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Rev. 339 (1992). In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003) (“[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting”). The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Johnson. In Thompson, a plurality of the Court recognized the import of these characteristics with respect to juveniles under 16, and relied on them to hold that the

205

206

Chapter 10:  The Mentally Retarded and Juveniles

Eighth Amendment prohibited the imposition of the death penalty on juveniles below that age. We conclude the same reasoning applies to all juvenile offenders under 18. Once the diminished culpability of juveniles is recognized, it is evident that the penological justifications for the death penalty apply to them with lesser force than to adults. We have held there are two distinct social purposes served by the death penalty: “‘retribution and deterrence of capital crimes by prospective offenders.’” Atkins. As for retribution, we remarked in Atkins that “[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution.” The same conclusions follow from the lesser culpability of the juvenile offender. Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity. As for deterrence, it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles, as counsel for petitioner acknowledged at oral argument. In general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes. Here, however, the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. In particular, as the plurality observed in Thompson, “[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.” To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. In concluding that neither retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders, we cannot deny or overlook the brutal crimes too many juvenile offenders have committed. Certainly it can be argued, although we by no means concede the point, that a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death. Indeed, this possibility is the linchpin of one contention pressed by petitioner and his amici. They assert that even assuming the truth of the observations we have made about juveniles’ diminished culpability in general, jurors nonetheless should be allowed to consider mitigating arguments related to youth on a case-by-case basis, and in some cases to impose

Opinion of Justice Kennedy for the Court

the death penalty if justified. A central feature of death penalty sentencing is a particular assessment of the circumstances of the crime and the characteristics of the offender. The system is designed to consider both aggravating and mitigating circumstances, including youth, in every case. Given this Court’s own insistence on individualized consideration, petitioner maintains that it is both arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on any offender under 18 years of age. We disagree. The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant’s youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons’ youth was aggravating rather than mitigating. While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns. . . . Stanford v. Kentucky should be deemed no longer controlling on this issue. To the extent Stanford was based on review of the objective indicia of consensus that obtained in 1989, it suffices to note that those indicia have changed. It should be observed, furthermore, that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty; a State’s decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles. Last, to the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions. . . .

IV Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop [v. Dulles, 356

207

208

Chapter 10:  The Mentally Retarded and Juveniles

U.S. 86 (1958)], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” . . . Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. . . . [O]nly seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these ­countries has either abolished capital punishment for juveniles or made public disavowal of the practice. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty. . . . It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. . . . The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed.

Concurring opinion of justice stevens, joined by justice ginsburg Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court’s interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join Justice Kennedy’s opinion for the Court. In all events, I do so without hesitation.

Dissenting Opinion of Justice O’Connor

Dissenting Opinion of Justice O’Connor The Court’s decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court’s moral proportionality analysis, nor the two in tandem suffice to justify this ruling. Although the Court finds support for its decision in the fact that a majority of the States now disallow capital punishment of 17-year-old offenders, it refrains from asserting that its holding is compelled by a genuine national consensus. Indeed, the evidence before us fails to demonstrate conclusively that any such consensus has emerged in the brief period since we upheld the constitutionality of this practice in Stanford. Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant’s maturity or of giving due weight to the mitigating characteristics associated with youth. On this record—and especially in light of the fact that so little has changed since our recent decision in Stanford—I would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgments of the Nation’s legislatures. Rather, I would demand a clearer showing that our society truly has set its face against this practice before reading the Eighth Amendment categorically to forbid it. . . .

II C.  . . . For purposes of proportionality analysis, 17-year-olds as a class are qualitatively and materially different from the mentally retarded. “Mentally retarded” offenders, as we understood that category in Atkins, are defined by precisely the characteristics which render death an excessive punishment. A mentally retarded person is, “by definition,” one whose cognitive and behavioral capacities have been proved to fall below a certain minimum. Accordingly, for purposes of our decision in Atkins, the mentally retarded are not merely less blameworthy for their misconduct or less likely to be deterred

209

210

Chapter 10:  The Mentally Retarded and Juveniles

by the death penalty than others. Rather, a mentally retarded offender is one whose demonstrated impairments make it so highly unlikely that he is culpable enough to deserve the death penalty or that he could have been deterred by the threat of death, that execution is not a defensible punishment. There is no such inherent or accurate fit between an offender’s chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are somehow equivalent to mentally retarded persons with regard to culpability or susceptibility to deterrence. Seventeenyear-olds may, on average, be less mature than adults, but that lesser maturity simply cannot be equated with the major, lifelong impairments suffered by the mentally retarded. . . .

Dissenting Opinion of Justice Scalia, Joined by Chief Justice Rehnquist and Justice Thomas In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78. But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency” of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” The Court thus proclaims itself sole arbiter of our Nation’s moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Dissenting Opinion of Justice Scalia

I In determining that capital punishment of offenders who committed murder before age 18 is “cruel and unusual” under the Eighth Amendment, the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a “national consensus,” that laws allowing such executions contravene our modern “standards of decency.” We have held that this determination should be based on “objective indicia that reflect the public attitude toward a given sanction”—namely, “statutes passed by society’s elected representatives.” Stanford v. Kentucky. As in Atkins, the Court dutifully recites this test and claims halfheartedly that a national consensus has emerged since our decision in Stanford, because 18 States—or 47% of States that ­permit capital punishment—now have legislation prohibiting the execution of offenders under 18, and because all of four States have adopted such legislation since Stanford. Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time. . . . None of our cases dealing with an alleged constitutional limitation upon the death penalty has counted, as States supporting a consensus in favor of that limitation, States that have eliminated the death penalty entirely. And with good reason. Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing—absolutely nothing—about consensus that offenders under 18 deserve special immunity from such a penalty. In repealing the death penalty, those 12 States considered none of the factors that the Court puts forth as determinative of the issue before us today—lower culpability of the young, inherent recklessness, lack of capacity for considered judgment, etc. What might be relevant, perhaps, is how many of those States permit 16- and 17-year-old offenders to be treated as adults with respect to noncapital offenses. (They all do; indeed, some even require that juveniles as young as 14 be tried as adults if they are charged with murder.) The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation. . . .

II Of course, the real force driving today’s decision is not the actions of four state legislatures, but the Court’s “‘“own judgment”’” that murderers younger than 18 can never be as morally culpable as older counterparts. . . .

211

212

Chapter 10:  The Mentally Retarded and Juveniles

Today’s opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding. As The Chief Justice has explained: [M]ethodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. Atkins.

In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends. We need not look far to find studies contradicting the Court’s conclusions. As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a “rich body of research” showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. The APA brief, citing psychology treatises and studies too numerous to list here, asserted: “[B]y middle adolescence (age 14–15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems.” Given the nuances of scientific methodology and conflicting views, courts—which can only consider the limited evidence on the record before them—are ill equipped to determine which view of science is the right one. Legislatures “are better qualified to weigh and ‘evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.’” McCleskey v. Kemp. Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes.

Dissenting Opinion of Justice Scalia

Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are—at least sometimes—just as culpable as adults. . . . That “almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent,” is patently irrelevant—and is yet another resurrection of an argument that this Court gave a decent burial in Stanford. (What kind of Equal Justice under Law is it that—without so much as a “Sorry about that”—gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?) As we explained in Stanford, it is “absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is ­profoundly wrong, and to conform one’s conduct to that most minimal of all civilized standards.” Serving on a jury or entering into marriage also involve[s] decisions far more sophisticated than the simple decision not to take another’s life. Moreover, the age statutes the Court lists “set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests.” Ibid. The criminal justice system, by contrast, provides for individualized consideration of each defendant. In capital cases, this Court requires the sentencer to make an individualized determination, which includes weighing aggravating factors and mitigating factors, such as youth. . . . The Court concludes, however, that juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime. This startling conclusion undermines the very foundations of our capital sentencing system, which entrusts juries with “mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’” McCleskey. The Court says that juries will be unable to appreciate the significance of a defendant’s youth when faced with details of a brutal crime. This assertion is based on no evidence; to the contrary, the Court itself acknowledges that the execution of under-18 offenders is “infrequent” even in the States “without a formal prohibition on executing juveniles,” suggesting that juries take seriously their responsibility to weigh youth as a mitigating factor. . . . The Court’s contention that the goals of retribution and deterrence are not served by executing murderers under 18 is also transparently false. The argument that “[r]etribution is not proportional if the law’s most severe penalty is

213

214

Chapter 10:  The Mentally Retarded and Juveniles

imposed on one whose culpability or blameworthiness is diminished,” is simply an extension of the earlier, false generalization that youth always defeats culpability. The Court claims that “juveniles will be less susceptible to deterrence,” because “[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.” The Court unsurprisingly finds no support for this astounding proposition, save its own case law. The facts of this very case show the proposition to be false. Before committing the crime, Simmons encouraged his friends to join him by assuring them that they could “get away with it” because they were minors. . . .

III Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage. . . . [T]he basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law—including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. . . . The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry. . . .

Editors’ Questions Since Atkins and Roper, arguments have been made that defendants who were severely mentally ill, but legally sane, at the time they committed murder should not be eligible for execution. Can this category of defendants be distinguished from the mentally retarded and juveniles? Can you think of any other category that could be declared ineligible for a death sentence?

Chap ter 1 1

Child Rape—Kennedy v. Louisiana (2008) Editors’ Comment So far in Part II, we have seen that the Supreme Court, from 1977 to 1987, limited death eligibility in two ways. First, it held that certain crimes were not death-eligible—most nonhomicides, including rape (Coker, Chapter 7), and insufficiently aggravated murders (Godfrey, Chapter 8). Second, the Court held that some felony-murderers in multiple-perpetrator situations were insufficiently blameworthy to be death-eligible (Enmund and Tison, Chapter 9). After these decisions, the Court took a long hiatus from death eligibility, not issuing an opinion on the topic for a decade and a half. That hiatus ended with two cases in which the Court focused on ineligible categories of defendants, holding in 2002 that the mentally retarded would not be death-­eligible (Atkins, Chapter 10) and in holding in 2005 the same as to juveniles (Roper, Chapter 10). In the following case the Court returned to the long-dormant topic of death-eligible crimes to address the permissibility of a death sentence for the rape of a child who was not also murdered. Coker had involved the rape of an adult woman, and it was not clear whether the forcible rape of a child, which many would consider a more horrific crime, would be death-ineligible as well.

Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed.2d 525 (2008) (5–4, death penalty for child rape when the victim is not killed violates the Eighth Amendment.)

Opinion of Justice Kennedy for the Court The National Government and, beyond it, the separate States are bound by the proscriptive mandates of the Eighth Amendment to the Constitution of the United States, and all persons within those respective jurisdictions may invoke its protection. Patrick Kennedy, the petitioner here, seeks to set aside

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

215

216

Chapter 11:  Child Rape

his death sentence under the Eighth Amendment. He was charged by the respondent, the State of Louisiana, with the aggravated rape of his then-8year-old stepdaughter. After a jury trial petitioner was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age. See La. Stat. Ann. §14:42. This case presents the question whether the Constitution bars respondent from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. We hold the Eighth Amendment prohibits the death penalty for this offense. The Louisiana statute is unconstitutional.

I Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death. At 9:18 a.m. on March 2, 1998, petitioner called 911 to report that his stepdaughter, referred to here as L. H., had been raped. He told the 911 operator that L. H. had been in the garage while he readied his son for school. Upon hearing loud screaming, petitioner said, he ran outside and found L. H. in the side yard. Two neighborhood boys, petitioner told the operator, had dragged L. H. from the garage to the yard, pushed her down, and raped her. Petitioner claimed he saw one of the boys riding away on a blue 10-speed bicycle. . . . L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. . . . The injuries required emergency surgery. . . . Eight days after the crime, and despite L. H.’s insistence that petitioner was not the offender, petitioner was arrested for the rape. The State’s investigation had drawn the accuracy of petitioner and L. H.’s story into question. . . . About a month after petitioner’s arrest L. H. was removed from the custody of her mother, who had maintained until that point that petitioner was not involved in the rape. On June 22, 1998, L. H. was returned home and told her mother for the first time that petitioner had raped her. And on December 16, 1999, about 21 months after the rape, L. H. recorded her accusation in a videotaped interview with the Child Advocacy Center. The State charged petitioner with aggravated rape of a child under La. Stat. Ann. §14:42 and sought the death penalty. At all times relevant to petitioner’s case, the statute provided:

Opinion of Justice Kennedy for the Court

“A. Aggravated rape is a rape committed . . . where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: ... “(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense. ... “D. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. “(1) However, if the victim was under the age of twelve years, as provided by Paragraph A(4) of this Section: “(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury.”

(Since petitioner was convicted and sentenced, the statute has been amended to include oral intercourse within the definition of aggravated rape and to increase the age of the victim from 12 to 13.) Aggravating circumstances are set forth in La. Code Crim. Proc. Ann., Art. 905.4. In pertinent part and at all times relevant to petitioner’s case, the provision stated: “A. The following shall be considered aggravating circumstances: “(1) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, or simple robbery. ... “(10) The victim was under the age of twelve years or sixty-five years of age or older.”

The trial began in August 2003. L. H. was then 13 years old. She testified that she “‘woke up one morning and Patrick was on top of [her].’” She remembered petitioner bringing her “[a] cup of orange juice and pills chopped up in it” after the rape and overhearing him on the telephone saying she had become

217

218

Chapter 11:  Child Rape

a “young lady.” L. H. acknowledged that she had accused two neighborhood boys but testified petitioner told her to say this and that it was untrue. The jury having found petitioner guilty of aggravated rape, the penalty phase ensued. The State presented the testimony of S. L., who is the cousin and ­goddaughter of petitioner’s ex-wife. S. L. testified that petitioner sexually abused her three times when she was eight years old and that the last time involved sexual intercourse. She did not tell anyone until two years later and did not pursue legal action. The jury unanimously determined that petitioner should be sentenced to death. The Supreme Court of Louisiana affirmed. ...

III A.  The existence of objective indicia of consensus against making a crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow the approach of those cases here. The history of the death penalty for the crime of rape is an instructive beginning point. In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult. Between 1930 and 1964, 455 people were executed for those crimes. To our knowledge the last individual executed for the rape of a child was Ronald Wolfe in 1964. In 1972, Furman [v. Georgia] invalidated most of the state statutes authorizing the death penalty for the crime of rape; and in Furman’s aftermath only six States reenacted their capital rape provisions. Three States—Georgia, North Carolina, and Louisiana—did so with respect to all rape offenses. Three States—Florida, Mississippi, and Tennessee—did so with respect only to child rape. All six statutes were later invalidated under state or federal law. Louisiana reintroduced the death penalty for rape of a child in 1995. Under the current statute, any anal, vaginal, or oral intercourse with a child under the age of 13 constitutes aggravated rape and is punishable by death. Mistake of age is not a defense, so the statute imposes strict liability in this regard. Five States have since followed Louisiana’s lead: Georgia, Montana, Oklahoma, South Carolina, and Texas. Four of these States’ statutes are more narrow than Louisiana’s in that only offenders with a previous rape conviction are death eligible. Georgia’s statute makes child rape a capital offense only when aggravating circumstances are present, including but not limited to a prior conviction.

Opinion of Justice Kennedy for the Court

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. Under 18 U.S.C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim’s death. . . . It is . . . true that some States, including States that have addressed the issue in just the last few years, have made child rape a capital offense. The summary recited here, however, does allow us to make certain comparisons with the data cited in the Atkins, Roper, and Enmund cases. When Atkins was decided in 2002, 30 States, including 12 noncapital jurisdictions, prohibited the death penalty for mentally retarded offenders; 20 permitted it. When Roper was decided in 2005, the numbers disclosed a similar division among the States: 30 States prohibited the death penalty for juveniles, 18 of which permitted the death penalty for other offenders; and 20 States authorized it. Both in Atkins and in Roper, we noted that the practice of executing mentally retarded and juvenile offenders was infrequent. Only five States had executed an offender known to have an IQ below 70 between 1989 and 2002, and only three States had executed a juvenile offender between 1995 and 2005. The statistics in Enmund bear an even greater similarity to the instant case. There eight jurisdictions had authorized imposition of the death penalty solely for participation in a robbery during which an accomplice committed murder, and six defendants between 1954 and 1982 had been sentenced to death for felony murder where the defendant did not personally commit the homicidal assault. These facts, the Court concluded, “weigh[ed] on the side of rejecting capital punishment for the crime.” The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered. B.  At least one difference between this case and our Eighth Amendment proportionality precedents must be addressed. Respondent and its amici suggest that some States have an “erroneous understanding of this Court’s Eighth

219

220

Chapter 11:  Child Rape

Amendment jurisprudence.” They submit that the general propositions set out in Coker, contrasting murder and rape, have been interpreted in too expansive a way, leading some state legislatures to conclude that Coker applies to child rape when in fact its reasoning does not, or ought not, apply to that specific crime. This argument seems logical at first, but in the end it is unsound. . . . The Coker plurality framed the question as whether, “with respect to rape of an adult woman,” the death penalty is disproportionate punishment. And it repeated the phrase “an adult woman” or “an adult female” in discussing the act of rape or the victim of rape eight times in its opinion. The distinction between adult and child rape was not merely rhetorical; it was central to the Court’s reasoning. . . . Still, respondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. . . . C. Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. . . . Respondent and its amici identify five States where, in their view, legislation authorizing capital punishment for child rape is pending. It is not our practice, nor is it sound, to find contemporary norms based upon state legislation that has been proposed but not yet enacted. . . . Aside from pending legislation, it is true that in the last 13 years there has been change towards making child rape a capital offense. This is evidenced by six new death penalty statutes, three enacted in the last two years. But this showing is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. Respondent argues the instant case is like Roper because, there, only five States had shifted their positions between 1989 and 2005, one less State than here. But in Roper, we emphasized that, though the pace of abolition was not as great as in Atkins, it was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. When we decided Stanford v. Kentucky, 492 U.S. 361 (1989), 12 death penalty States already prohibited the execution of any juvenile under 18, and 15 prohibited the execution of any juvenile under 17. Here, the total number of States to have made child rape a capital offense after Furman is six. This is not an indication of a trend or change in direction comparable to the one supported by data in Roper. The evidence here bears a closer resemblance to the evidence of state activity in Enmund, where we

Opinion of Justice Kennedy for the Court

found a national consensus against the death penalty for vicarious felony murder despite eight jurisdictions having authorized the practice. ... D.  There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society. These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape. Nine States—Florida, Georgia, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Tennessee, and Texas—have permitted capital punishment for adult or child rape for some length of time between the Court’s 1972 decision in Furman and today. Yet no individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963. Louisiana is the only State since 1964 that has sentenced an individual to death for the crime of child rape; and petitioner and Richard Davis, who was convicted and sentenced to death for the aggravated rape of a 5-year-old child by a Louisiana jury in December 2007, are the only two individuals now on death row in the United States for a nonhomicide offense. After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.

IV A.  As we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Coker. We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures. It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack

221

222

Chapter 11:  Child Rape

was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, “life may not be nearly so happy as it was” but it is not beyond repair. Rape has a permanent psychological, emotional, and sometimes physical impact on the child. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish “be exercised within the limits of civilized standards.” Trop [v. Dulles], 356 U.S., at 99. Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment. . . . Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken. We said in Coker of adult rape: We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim. . . . Short of homicide, it is the ‘ultimate violation of self.’ . . . [But] [t]he murderer kills; the rapist, if no more than that, does not . . . We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life.

The same distinction between homicide and other serious violent offenses against the individual informed the Court’s analysis in Enmund, where the Court held that the death penalty for the crime of vicarious felony murder is disproportionate to the offense. The Court repeated there the fundamental, moral distinction between a “murderer” and a “robber,” noting that while “robbery is a serious crime deserving serious punishment,” it is not like death in its “severity and irrevocability.” Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape,

Opinion of Justice Kennedy for the Court

on the other. The latter crimes may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” Coker, they cannot be compared to murder in their “severity and irrevocability.” In reaching our conclusion we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period. See Inter-University Consortium for Political and Social Research, National Incident-Based Reporting System, 2005, Study No. 4720. Although we have no reliable statistics on convictions for child rape, we can surmise that, each year, there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment. As a result of existing rules, only 2.2% of convicted first-degree murderers are sentenced to death. But under respondent’s approach, the 36 States that permit the death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty. It might be said that narrowing aggravators could be used in this context, as with murder offenses, to ensure the death penalty’s restrained application. We find it difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way. Even were we to forbid, say, the execution of first-time child rapists, or require as an aggravating factor a finding that the perpetrator’s instant rape offense involved multiple victims, the jury still must balance, in its discretion, those aggravating factors against mitigating circumstances. In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be “freakis[h],” Furman. We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. . . . Starting with Gregg, we have spent more than 32 years articulating limiting factors that channel the jury’s discretion to avoid the death penalty’s arbitrary imposition in the case of capital murder. Though that practice remains sound, beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.

223

224

Chapter 11:  Child Rape

B.  Our decision is consistent with the justifications offered for the death penalty. Gregg instructs that capital punishment is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes. As in Coker, here it cannot be said with any certainty that the death penalty for child rape serves no deterrent or retributive function. . . . This argument does not overcome other objections, however. The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional ruling that the death penalty can be expanded to include this offense. The goal of retribution, which reflects society’s and the victim’s interests in seeing that the offender is repaid for the hurt he caused does not justify the harshness of the death penalty here. In measuring retribution, as well as other objectives of criminal law, it is appropriate to distinguish between a particularly depraved murder that merits death as a form of retribution and the crime of child rape. There is an additional reason for our conclusion that imposing the death penalty for child rape would not further retributive purposes. . . . In considering the death penalty for nonhomicide offenses this inquiry necessarily also must include the question whether the death penalty balances the wrong to the victim. It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution, especially when guilt and sentencing determinations are in multiple proceedings. In cases like this the key testimony is not just from the family but from the victim herself. During formative years of her adolescence, made all the more daunting for having to come to terms with the brutality of her experience, L. H. was required to discuss the case at length with law enforcement personnel. In a public trial she was required to recount once more all the details of the crime to a jury as the State pursued the death of her stepfather. And in the end the State made L. H. a central figure in its decision to seek the death penalty, telling the jury in closing statements: “[L. H.] is asking you, asking you to set up a time and place when he dies.” Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the administration and enforcement of laws proscribing child rape.

Opinion of Justice Kennedy for the Court

There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. Atkins. This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. And the question in a capital case is not just the fact of the crime, including, say, proof of rape as distinct from abuse short of rape, but details bearing upon brutality in its commission. These matters are subject to fabrication or exaggeration, or both. Although capital punishment does bring retribution, and the legislature here has chosen to use it for this end, its judgment must be weighed, in deciding the constitutional question, against the special risks of unreliable testimony with respect to this crime. With respect to deterrence, if the death penalty adds to the risk of nonreporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse. Although we know little about what differentiates those who report from those who do not report, one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member. The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting. As a result, punishment by death may not result in more deterrence or more effective enforcement. In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes.

225

226

Chapter 11:  Child Rape

Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.

V Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court’s own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensusmaking process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges. These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop. Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim. The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed. . . .

Dissenting Opinion of Justice Alito, Joined by Chief Justice Roberts and Justices Scalia and Thomas The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the

Dissenting Opinion of Justice Alito

child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death ­penalty for child rape is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’” Because neither of these justifications is sound, I respectfully dissent.

I A.  I turn first to the Court’s claim that there is “a national consensus” that it is never acceptable to impose the death penalty for the rape of a child. The Eighth Amendment’s requirements, the Court writes, are “determined not by the standards that prevailed” when the Amendment was adopted but “by the norms that ‘currently prevail.’” In assessing current norms, the Court relies primarily on the fact that only 6 of the 50 States now have statutes that permit the death penalty for this offense. But this statistic is a highly unreliable indicator of the views of state lawmakers and their constituents. As I will explain, dicta in this Court’s decision in Coker has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators—regardless of their own values and those of their constituents—from supporting the enactment of such legislation. As the Court correctly concludes, the holding in Coker was that the Eighth Amendment prohibits the death penalty for the rape of an “‘adult woman,’” and thus Coker does not control our decision here. . . . The implications of the Coker plurality opinion were plain. Justice Powell, who concurred in the judgment overturning the death sentence in the case at hand, did not join the plurality opinion because he understood it to draw “a bright line between murder and all rapes—regardless of the degree of brutality of the rape or the effect upon the victim.” If Justice Powell read Coker that way, it was reasonable for state legislatures to do the same. ... C.  . . . When state lawmakers believe that their decision will prevail on the question whether to permit the death penalty for a particular crime or class of offender, the legislators’ resolution of the issue can be interpreted as an

227

228

Chapter 11:  Child Rape

expression of their own judgment, informed by whatever weight they attach to the values of their constituents. But when state legislators think that the enactment of a new death penalty law is likely to be futile, inaction cannot reasonably be interpreted as an expression of their understanding of prevailing societal values. In that atmosphere, legislative inaction is more likely to evidence acquiescence. D.  If anything can be inferred from state legislative developments, the message is very different from the one that the Court perceives. In just the past few years, despite the shadow cast by the Coker dicta, five States have enacted ­targeted capital child-rape laws. If, as the Court seems to think, our society is “[e]volving” toward ever higher “standards of decency,” these enactments might represent the beginning of a new evolutionary line. Such a development would not be out of step with changes in our society’s thinking since Coker was decided. During that time, reported instances of child abuse have increased dramatically; and there are many indications of growing alarm about the sexual abuse of children. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, which requires States receiving certain federal funds to establish registration systems for convicted sex offenders and to notify the public about persons convicted of the sexual abuse of minors. All 50 States have now enacted such statutes. In addition, at least 21 States and the District of Columbia now have statutes permitting the involuntary commitment of sexual predators, and at least 12 States have enacted residency restrictions for sex offenders. Seeking to counter the significance of the new capital child-rape laws enacted during the past two years, the Court points out that in recent months efforts to enact similar laws in five other States have stalled. These developments, however, all took place after our decision to grant certiorari in this case, which gave state legislators reason to delay the enactment of new legislation until the constitutionality of such laws was clarified. And there is no evidence of which I am aware that these legislative initiatives failed because the proposed laws were viewed as inconsistent with our society’s standards of decency. ... F.  In light of the points discussed above, I believe that the “objective indicia” of our society’s “evolving standards of decency” can be fairly summarized as follows. Neither Congress nor juries have done anything that can plausibly be interpreted as evidencing the “national consensus” that the Court perceives. State legislatures, for more than 30 years, have operated under the ominous shadow of the Coker dicta and thus have not been free to express their own understanding of our society’s standards of decency. And in the months following

Dissenting Opinion of Justice Alito

our grant of certiorari in this case, state legislatures have had an additional reason to pause. Yet despite the inhibiting legal atmosphere that has prevailed since 1977, six States have recently enacted new, targeted child-rape laws. I do not suggest that six new state laws necessarily establish a “national consensus” or even that they are sure evidence of an ineluctable trend. In terms of the Court’s metaphor of moral evolution, these enactments might have turned out to be an evolutionary dead end. But they might also have been the beginning of a strong new evolutionary line. We will never know, because the Court today snuffs out the line in its incipient stage.

II A.  The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision. In the next section of this opinion, I will attempt to weed out the arguments that are not germane to the Eighth Amendment inquiry, and in the final section, I will address what remains. B.  A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for childrape victims to testify when the prosecution is seeking the death penalty. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” and may discourage the reporting of child rape. These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins, but the Court forgets that warning here.

229

230

Chapter 11:  Child Rape

The Court also contends that laws permitting the death penalty for the rape of a child create serious procedural problems. Specifically, the Court maintains that it is not feasible to channel the exercise of sentencing discretion in childrape cases, and that the unreliability of the testimony of child victims creates a danger that innocent defendants will be convicted and executed. Neither of these contentions provides a basis for striking down all capital child-rape laws no matter how carefully and narrowly they are crafted. The Court’s argument regarding the structuring of sentencing discretion is hard to comprehend. The Court finds it “difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way.” Even assuming that the age of a child is not alone a sufficient factor for limiting sentencing discretion, the Court need only examine the child-rape laws recently enacted in Texas, Oklahoma, Montana, and South Carolina, all of which use a concrete factor to limit quite drastically the number of cases in which the death penalty may be imposed. In those States, a defendant convicted of the rape of a child may be sentenced to death only if the defendant has a prior conviction for a specified felony sex offense. . . . Moreover, it takes little imagination to envision other limiting factors that a State could use to structure sentencing discretion in child rape cases. Some of these might be: whether the victim was kidnapped, whether the defendant inflicted severe physical injury on the victim, whether the victim was raped multiple times, whether the rapes occurred over a specified extended period, and whether there were multiple victims. The Court refers to limiting standards that are “indefinite and obscure,” but there is nothing indefinite or obscure about any of the above-listed aggravating factors. Indeed, they are far more definite and clear-cut than aggravating factors that we have found to be adequate in murder cases. For these reasons, concerns about limiting sentencing discretion provide no support for the Court’s blanket condemnation of all capital child-rape statutes. That sweeping holding is also not justified by the Court’s concerns about the reliability of the testimony of child victims. First, the Eighth Amendment provides a poor vehicle for addressing problems regarding the admissibility or reliability of evidence, and problems presented by the testimony of child victims are not unique to capital cases. Second, concerns about the reliability of the testimony of child witnesses are not present in every child-rape case. In the case before us, for example, there was undisputed medical evidence that the victim was brutally raped, as well as strong independent evidence that petitioner was the perpetrator. Third, if the Court’s evidentiary concerns have Eighth Amendment relevance, they could be addressed by allowing the death

Dissenting Opinion of Justice Alito

penalty in only those child-rape cases in which the independent evidence is sufficient to prove all the elements needed for conviction and imposition of a death sentence. There is precedent for requiring special corroboration in certain criminal cases. For example, some jurisdictions do not allow a conviction based on the uncorroborated testimony of an accomplice. A State wishing to permit the death penalty in child-rape cases could impose an analogous corroboration requirement. C.  After all the arguments noted above are put aside, what is left? What remaining grounds does the Court provide to justify its independent judgment that the death penalty for child rape is categorically unacceptable? I see two. 1. The first is the proposition that we should be “most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty.” But holding that the Eighth Amendment does not categorically prohibit the death penalty for the rape of a young child would not “extend” or “expand” the death penalty. Laws enacted by the state legislatures are presumptively constitutional, and until today, this Court has not held that capital child rape laws are unconstitutional. Consequently, upholding the constitutionality of such a law would not “extend” or “expand” the death penalty; rather, it would confirm the status of presumptive constitutionality that such laws have enjoyed up to this point. And in any event, this Court has previously made it clear that “[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Harmelin v. Michigan, 501 U.S. 957, 990 (1991). 2. The Court’s final—and, it appears, principal—justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. But the Court makes little attempt to defend these conclusions. With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

231

232

Chapter 11:  Child Rape

The Court’s decision here stands in stark contrast to Atkins and Roper, in which the Court concluded that characteristics of the affected defendants—mental retardation in Atkins and youth in Roper—diminished their culpability. Nor is this case comparable to Enmund, in which the Court held that the Eighth Amendment prohibits the death penalty where the defendant participated in a robbery during which a murder was committed but did not personally intend for lethal force to be used. I have no doubt that, under the prevailing standards of our society, robbery, the crime that the petitioner in Enmund intended to commit, does not evidence the same degree of moral depravity as the brutal rape of a young child. Indeed, I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity. With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient. The Court takes pains to limit its holding to “crimes against individual persons” and to exclude “offenses against the State,” a category that the Court stretches—without explanation—to include “drug kingpin activity.” But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court’s acknowledgment that “[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child.” As the Court aptly recognizes, “[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape.” The rape of any victim inflicts great injury, and “[s]ome victims are so grievously injured physically or psychologically that life is beyond repair.” Coker, 433 U. S., at 603 (opinion of Powell, J.). . . . It has been estimated that as many as 40% of 7- to 13-year-old sexual assault victims are considered “seriously disturbed.” Psychological problems include sudden school failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares, feelings of guilt and inferiority, and selfdestructive behavior, including an increased incidence of suicide. The deep problems that afflict child-rape victims often become society’s problems as well. Commentators have noted correlations between childhood sexual abuse and later problems such as substance abuse, dangerous sexual behaviors or dysfunction, inability to relate to others on an interpersonal level, and psychiatric illness. Victims of child rape are nearly 5 times more likely than nonvictims to be arrested for sex crimes and nearly 30 times more likely to be arrested for prostitution.

Editors’ Questions

The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden. Conclusory references to “decency,” “moderation,” “restraint,” “full progress,” and “moral judgment” are not enough. . . .

Editors’ Questions The Opinion of the Court claimed that extending the death penalty to child rape would have the potential for dramatically increasing the number of death sentences. In support, the Justices relied on data from the National Incident-Based Reporting System (NIBRS). NIBRS is an FBI data collection program designed to obtain more detail on each criminal incident. However, there is not yet nationwide participation in the program. As of 2007, data from law enforcement agencies represented about one-quarter of the U.S. population, and the FBI cautioned that these data “are not a representative sample of crime in the United States.” On the basis of the NIBRS data, the Court said there were approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 reported “nationwide” in 2005, almost twice the total incidents of intentional murder (3,405). Did the Court mislead by presenting this statistic as national data? Does it matter if the actual figures are significantly bigger, so long as the proportions are similar? Consider that the Bureau of Justice Statistics of the U.S. Justice Department estimated that nationwide about 17,000 girls under age 12 were raped in 1992. (See http://bjs.ojp.usdoj.gov/content/pub/pdf/CRV92.PDF.)

233

Chap ter 1 2

Appropriate Decision Makers— Spaziano v. Florida (1984) and Ring v. Arizona (2002) Editors’ comment Three decisions must be made for a sentence of death to be imposed: (1) that the defendant is guilty of murder; (2) that the murder meets a criterion that elevates it into a category for which death is an authorized punishment (in most jurisdictions, that an aggravating circumstance exists); and (3) that the defendant deserves a sentence of death rather than imprisonment. In the post-Furman era, all jurisdictions have required the guilt decision to be made by a jury, which is obviously required by the Sixth Amendment right to a jury trial (unless the defendant waives that right). Most jurisdictions also have required that the jury make the aggravating circumstance and sentencing decisions, which likewise poses no Sixth Amendment question. A few states, however, have developed other procedures for the aggravating circumstance and sentencing decisions. The two cases in this chapter examine the constitutionality of alternative systems permitting a judge rather than a jury to determine an aggravating circumstance or to choose the sentence. One alternative is a jury recommendation system, which Alabama, Delaware, and Florida have had throughout the post-Furman era; Indiana had such a system as well until 2002, when it switched to one in which the jury decides sentence. In a jury recommendation system, the jury decides whether an aggravating circumstance exists and makes a recommendation to the judge regarding the sentence. The judge then decides which sentence to impose and must give “great weight” to the jury recommendation, but has the power to “override” it in either direction: to impose imprisonment even though the jury recommended death, or to impose death even though the jury recommended imprisonment. Studies indicate that most overrides involve judges imposing death sentences against the jury’s imprisonment recommendation. In Proffitt v. Florida, 428 U.S. 242 (1976), the Supreme Court upheld the jury recommendation system where the trial judge followed the jury’s recommendation of a death sentence. The first case in this chapter—Spaziano v. Florida (1984)—addressed whether it was permissible for the judge to override a jury recommendation of imprisonment in favor of death. In upholding the constitutionality of this procedure, the Court reaffirmed that it is permissible for a judge to make the sentencing decision.

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

235

236

Chapter 12: Appropriate Decision Makers

Editors’ comment—cont’d Another procedural alternative is one in which a judge decides whether an aggravating circumstance exists and, if so, which sentence to impose. Arizona, Colorado, Idaho, Montana, and Nebraska adopted this alternative. In Walton v. Arizona, 497 U.S. 639 (1990), the Supreme Court upheld the Arizona system. In the second case in this chapter, however, Ring v. Arizona (2002), the Court overruled Walton, holding that the Sixth Amendment right to a jury trial required that the determination of an aggravating circumstance be made by a jury, although the decision on sentence could be made by a judge. In the wake of Ring, Arizona, Colorado, Idaho, and Montana switched to systems in which juries decide both aggravating circumstances and sentence; Nebraska switched to one in which a jury decides aggravating circumstances and a three-judge panel chooses the sentence.

Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed.2d 340 (1984) (6–3, death penalty law permitting the judge to override a jury recommendation of life imprisonment is not unconstitutional.)

Opinion of Justice Blackmun for the Court III . . . Petitioner’s . . . challenge concerns the trial judge’s imposition of a sentence of death after the jury had recommended life imprisonment. Petitioner urges that allowing a judge to override a jury’s recommendation of life violates the Eighth Amendment’s proscription against “cruel and unusual punishments.” . . . Petitioner’s primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to make reliable capital-sentencing decisions and that a jury’s decision for life should be inviolate. The reason for that recognition, petitioner urges, is that the nature of the decision whether a defendant should live or die sets capital sentencing apart and requires that a jury have the ultimate word. Noncapital sentences are imposed for various reasons, including rehabilitation, incapacitation, and deterrence. In contrast, the primary justification for the death penalty is retribution. As has been recognized, “the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg. The imposition of the death penalty, in other words, is an expression of community outrage. Since the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community’s response must be death. If the answer is no, that decision should be final.

Opinion of Justice Blackmun for the Court

Petitioner’s argument obviously has some appeal. But it has two fundamental flaws. First, the distinctions between capital and non-capital sentences are not so clear as petitioner suggests. Petitioner acknowledges, for example, that deterrence may be a justification for capital as well as for noncapital sentences. He suggests only that deterrence is not a proper consideration for particular sentencers who are deciding whether the penalty should be imposed in a given case. The same is true, however, in noncapital cases. Whatever the sentence, its deterrent function is primarily a consideration for the legislature. Gregg. Similar points can be made about the other purposes of capital and noncapital punishment. Although incapacitation has never been embraced as a sufficient justification for the death penalty, it is a legitimate consideration in a capital sentencing proceeding. While retribution clearly plays a more prominent role in a capital case, retribution is an element of all punishments society imposes, and there is no suggestion as to any of these that the sentence may not be imposed by a judge. Second, even accepting petitioner’s premise that the retributive purpose behind the death penalty is the element that sets the penalty apart, it does not follow that the sentence must be imposed by a jury. Imposing the sentence in individual cases is not the sole or even the primary vehicle through which the community’s voice can be expressed. This Court’s decisions indicate that the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. The sentencer is responsible for weighing the specific aggravating and mitigating circumstances the legislature has determined are necessary touchstones in determining whether death is the appropriate penalty. Thus, even if it is a jury that imposes the sentence, the “community’s voice” is not given free rein. The community’s voice is heard at least as clearly in the legislature when the death penalty is authorized and the particular circumstances in which death is appropriate are defined. We do not denigrate the significance of the jury’s role as a link between the community and the penal system and as a bulwark between the accused and the State. The point is simply that the purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge. We also acknowledge the presence of the majority view that capital sentencing, unlike other sentencing, should be performed by a jury. As petitioner points out, 30 out of 37 jurisdictions with a capital sentencing statute give the life-ordeath decision to the jury, with only 3 of the remaining 7 allowing a judge to override a jury’s recommendation of life. The fact that a majority of jurisdictions have adopted a different practice, however, does not establish that contemporary standards of decency are offended by the jury override. The Eighth Amendment is not violated every time a State

237

238

Chapter 12: Appropriate Decision Makers

reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. “Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment” is violated by a challenged practice. In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional. As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. The Court twice has concluded that Florida has struck a reasonable balance between sensitivity to the individual and his circumstances and ensuring that the penalty is not imposed arbitrarily or discriminatorily. . . . We are not persuaded that placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision. . . .

Opinion of Justice Stevens, Concurring in Part and Dissenting in Part, Joined by Justices Brennan and Marshall In this case, as in 82 others arising under the capital punishment statute enacted by Florida in 1972, the trial judge sentenced the defendant to death after a jury had recommended a sentence of life imprisonment. The question presented is whether the Constitution of the United States permits petitioner’s execution when the prosecution has been unable to persuade a jury of his peers that the death penalty is the appropriate punishment for his crime. . . . Because it is the one punishment that cannot be prescribed by a rule of law as judges normally understand such rules, but rather is ultimately understood only as an expression of the community’s outrage—its sense that an individual has lost his moral entitlement to live—I am convinced that the danger of an excessive response can only be avoided if the decision to impose the death penalty is made by a jury rather than by a single governmental official. This conviction is consistent with the judgment of history and the current consensus of opinion that juries are better equipped than judges to make capital sentencing decisions. The basic explanation for that consensus lies in the fact that the question whether a sentence of death is excessive in the particular circumstances of any case is one that must be answered by the decisionmaker that is best able to “express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) (footnote omitted). . . .

Opinion of Justice Stevens

IV The Court correctly notes that sentencing has traditionally been a question with which the jury is not concerned. Deciding upon the appropriate sentence for a person who has been convicted of a crime is the routine work of judges. By reason of this experience, as well as their training, judges presumably perform this function well. But, precisely because the death penalty is unique, the normal presumption that a judge is the appropriate sentencing authority does not apply in the capital context. The decision whether or not an individual must die is not one that has traditionally been entrusted to judges. This tradition, which has marked a sharp distinction between the usual evaluations of judicial competence with respect to capital and noncapital sentencing, not only eliminates the general presumption that judicial sentencing is appropriate in the capital context, but also in itself provides reason to question whether assigning this role to governmental officials and not juries is consistent with the community’s moral sense. While tradition and contemporary practice in most American jurisdictions indicate that capital sentencing by judges offends a moral sense that this unique kind of judgment must be made by a more authentic voice of the community, nevertheless the Court is correct to insist that these factors cannot be conclusive, or the Eighth Amendment would prevent any innovation or variation in the administration of the criminal law. Therefore, a more focused inquiry into the Eighth Amendment implications of the decision to put an accused to death, and the jury’s relationship to those implications, is essential.

V Punishment may be “cruel and unusual” because of its barbarity or because it is “excessive” or “disproportionate” to the offense. In order to evaluate a claim that a punishment is excessive, one must first identify the reasons for imposing it. In general, punishment may rationally be imposed for four reasons: (1) to rehabilitate the offender; (2) to incapacitate him from committing offenses in the future; (3) to deter others from committing offenses; or (4) to assuage the victim’s or the community’s desire for revenge or retribution. The first of these purposes is obviously inapplicable to the death sentence. The second would be served by execution, but in view of the availability of imprisonment as an alternative means of preventing the defendant from violating the law in the future, the death sentence would clearly be an excessive response to this concern. We are thus left with deterrence and retribution as the justifications for capital punishment. A majority of the Court has concluded that the general deterrence rationale adequately justifies the imposition of capital punishment at least for certain classes of offenses for which the legislature may reasonably conclude that the

239

240

Chapter 12: Appropriate Decision Makers

death penalty has a deterrent effect. However, in reaching this conclusion we have stated that this is a judgment peculiarly within the competence of legislatures and not the judiciary. Thus, the deterrence rationale cannot be used to support the use of judicial as opposed to jury discretion in capital sentencing, at least absent some finding, which the Florida Legislature has not purported to make, that judges are better at gauging the general deterrent effect of a capital sentence than are juries. Moreover, the deterrence rationale in itself argues only for ensuring that the death sentence be imposed in a significant number of cases and remain as a potential social response to the defined conduct. Since the decision whether to employ jury sentencing does not change the number of cases for which death is a possible punishment, the use of judicial sentencing cannot have sufficient impact on the deterrent effect of the statute to justify its use; a murderer’s calculus will not be affected by whether the death penalty is imposed by a judge or jury. Finally, even though the deterrence rationale may provide a basis for identifying the defendants eligible for the death penalty, our cases establish that the decision whether to condemn a man to death in a given case may not be the product of deterrence considerations alone. Despite the fact that a legislature may rationally conclude that mandatory capital punishment will have a deterrent effect for a given class of aggravated crimes significantly greater than would discretionary capital sentencing, we have invalidated mandatory capital punishment statutes, as well as statutes that do not permit the trier of fact to consider any mitigating circumstance, even if unrelated to or perhaps inconsistent with the deterrent purposes of the penalty. It is now well settled that the trier of fact in a capital case must be permitted to weigh any consideration— indeed any aspect of the defendant’s crime or character—relevant to the question whether death is an excessive punishment for the offense. Thus, particular capital sentencing decisions cannot rest entirely on deterrent considerations. In the context of capital felony cases, therefore, the question whether the death sentence is an appropriate, nonexcessive response to the particular facts of the case will depend on the retribution justification. The nature of that justification was described in Gregg: In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs. 428 U.S., at 183–184 (opinion of Stewart, Powell, and Stevens, JJ).

Thus, in the final analysis, capital punishment rests on not a legal but an ethical judgment—an assessment of what we called in Enmund the “moral guilt” of the defendant. And if the decision that capital punishment is the

Opinion of Justice Ginsburg for the Court

a­ ppropriate sanction in extreme cases is justified because it expresses the community’s moral sensibility—its demand that a given affront to humanity requires retribution—it follows, I believe, that a representative cross section of the community must be given the responsibility for making that decision. In no other way can an unjustifiable risk of an excessive response be avoided. . . .

VII . . . That the jury provides a better link to community values than does a single judge is supported not only by our cases, but also by common sense. Juries—comprised as they are of a fair cross section of the community—are more representative institutions than is the judiciary; they reflect more accurately the composition and experiences of the community as a whole, and inevitably make decisions based on community values more reliably, than can that segment of the community that is selected for service on the bench. Indeed, as the preceding discussion demonstrates, the belief that juries more accurately reflect the conscience of the community than can a single judge is the central reason that the jury right has been recognized at the guilt stage in our jurisprudence. This same belief firmly supports the use of juries in capital sentencing, in order to address the Eighth Amendment’s concern that capital punishment be administered consistently with community values. In fact, the available empirical evidence indicates that judges and juries do make sentencing decisions in capital cases in significantly different ways, thus supporting the conclusion that entrusting the capital decision to a single judge creates an unacceptable risk that the decision will not be consistent with community values. . . .

Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.2d 556 (2002) (7–2, pursuant to the Sixth Amendment right to a jury trial, a finding of an aggravating circumstance making a defendant death-eligible must be made by a jury, not a judge.)

Opinion of Justice Ginsburg for the Court This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.

241

242

Chapter 12: Appropriate Decision Makers

In Walton v. Arizona, 497 U.S. 639 (1990), this Court held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Ten years later, however, we decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as “sentencing factor[s].” Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.

I At the trial of petitioner Timothy Ring for murder, armed robbery, and related charges, the prosecutor presented evidence sufficient to permit the jury to find the facts here recounted. On November 28, 1994, a Wells Fargo armored van pulled up to the Dillard’s department store at Arrowhead Mall in Glendale, Arizona. Courier Dave Moss left the van to pick up money inside the store. When he returned, the van, and its driver, John Magoch, were gone. Later that day, Maricopa County Sheriff’s Deputies found the van—its doors locked and its engine running—in the parking lot of a church in Sun City, Arizona. Inside the vehicle they found Magoch, dead from a single gunshot to the head. According to Wells Fargo records, more than $562,000 in cash and $271,000 in checks were missing from the van. [Investigation led to charges against Ring and two others]. . . . The trial judge instructed the jury on alternative charges of premeditated murder and felony murder. The jury deadlocked on premeditated murder, with 6 of 12 jurors voting to acquit, but convicted Ring of felony murder occurring in the course of armed robbery. As later summed up by the Arizona Supreme Court, “the evidence admitted at trial failed to prove, beyond a reasonable doubt, that [Ring] was a major participant in the armed robbery or that he actually murdered Magoch.” Although clear evidence connected Ring to the robbery’s proceeds, nothing submitted at trial put him at the scene of the robbery. Furthermore, “[f]or all we know from the trial evidence,” the Arizona court stated, “[Ring] did not participate in, plan, or even expect the killing. This lack of evidence no doubt explains why the jury found [Ring] guilty of felony, but not premeditated, murder.”

Opinion of Justice Ginsburg for the Court

Under Arizona law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made. The State’s first-degree murder statute prescribes that the offense “is punishable by death or life imprisonment as provided by §13-703.” The cross-referenced section, §13-703, directs the judge who presided at trial to “conduct a separate sentencing hearing to determine the existence or nonexistence of [certain enumerated] circumstances . . . for the purpose of determining the sentence to be imposed.” The statute further instructs: “The hearing shall be conducted before the court alone. The court alone shall make all factual determinations required by this section or the constitution of the United States or this state.” At the conclusion of the sentencing hearing, the judge is to determine the presence or absence of the enumerated “aggravating circumstances” and any “mitigating circumstances.” The State’s law authorizes the judge to sentence the defendant to death only if there is at least one aggravating circumstance and “there are no mitigating circumstances sufficiently substantial to call for ­leniency.” . . . On October 29, 1997, the trial judge entered his “Special Verdict” sentencing Ring to death. Because Ring was convicted of felony murder, not premeditated murder, the judge recognized that Ring was eligible for the death penalty only if he was Magoch’s actual killer or if he was “a major participant in the armed robbery that led to the killing and exhibited a reckless disregard or indifference for human life.” See Enmund v. Florida, Tison v. Arizona. Citing . . . testimony at the sentencing hearing, the judge concluded that Ring “is the one who shot and killed Mr. Magoch.” The judge also found that Ring was a major participant in the robbery and that armed robbery “is unquestionably a crime which carries with it a grave risk of death.” The judge then turned to the determination of aggravating and mitigating circumstances. He found two aggravating factors. First, the judge determined that Ring committed the offense in expectation of receiving something of “pecuniary value,” as described in §13-703; “[t]aking the cash from the armored car was the motive and reason for Mr. Magoch’s murder and not just the result.” Second, the judge found that the offense was committed “in an especially heinous, cruel or depraved manner.” In support of this finding, he cited Ring’s comment, as reported . . . at the sentencing hearing, expressing pride in his marksmanship. The judge found one nonstatutory mitigating factor: Ring’s “minimal” criminal record. In his judgment, that mitigating circumstance did not “call for leniency”; he therefore sentenced Ring to death. On appeal, Ring argued that Arizona’s capital sentencing scheme violates the Sixth and Fourteenth Amendments to the U.S. Constitution because it entrusts to a judge the finding of a fact raising the defendant’s maximum penalty.

243

244

Chapter 12: Appropriate Decision Makers

Apprendi v. New Jersey. The State, in response, noted that this Court had upheld Arizona’s system in Walton v. Arizona, and had stated in Apprendi that Walton remained good law. . . . We granted Ring’s petition for a writ of certiorari to allay uncertainty in the lower courts caused by the manifest tension between Walton and the reasoning of Apprendi. We now reverse the judgment of the Arizona Supreme Court.

II Based solely on the jury’s verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. This was so because, in Arizona, a “death sentence may not legally be imposed . . . unless at least one aggravating factor is found to exist beyond a reasonable doubt.” The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial guarantee, made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.4 As earlier indicated, this is not the first time we have considered the constitutionality of Arizona’s capital sentencing system. In Walton v. Arizona we upheld Arizona’s scheme against a charge that it violated the Sixth Amendment. The Court had previously denied a Sixth Amendment challenge to Florida’s capital sentencing system, in which the jury recommends a sentence but makes no explicit findings on aggravating circumstances; we so ruled, Walton noted, on the ground that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.” . . . [In 2000] the Court decided Apprendi v. New Jersey. The defendant-petitioner in that case was convicted of, inter alia, second-degree possession of a firearm, an offense carrying a maximum penalty of ten years under New Jersey law. On the prosecutor’s motion, the sentencing judge found by a preponderance of the evidence that Apprendi’s crime had been motivated by racial animus.

Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. He makes no Sixth Amendment claim with respect to mitigating circumstances. See Apprendi v. New Jersey (noting “the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation”). Nor does he argue that the Sixth Amendment required the jury to make the ultimate determination whether to impose the death penalty. See Proffitt v. Florida, 428 U.S. 242, 252 (1976) (plurality opinion) (“[I]t has never [been] suggested that jury sentencing is constitutionally required.”). . . .

4

Opinion of Justice Ginsburg for the Court

That finding triggered application of New Jersey’s “hate crime enhancement,” which doubled Apprendi’s maximum authorized sentence. The judge sentenced Apprendi to 12 years in prison, 2 years over the maximum that would have applied but for the enhancement. We held that Apprendi’s sentence violated his right to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” That right attached not only to Apprendi’s weapons offense but also to the “hate crime” aggravating circumstance. New Jersey, the Court observed, “threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race.” “Merely using the label ‘sentence enhancement’ to describe the [second act] surely does not provide a principled basis for treating [the two acts] differently.” The dispositive question, we said, “is one not of form, but of effect.” If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt. A defendant may not be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Walton could be reconciled with Apprendi, the Court finally asserted. The key distinction, according to the Apprendi Court, was that a conviction of firstdegree murder in Arizona carried a maximum sentence of death. “[O]nce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.” . . . In an effort to reconcile its capital sentencing system with the Sixth Amendment as interpreted by Apprendi, Arizona first restates the Apprendi majority’s portrayal of Arizona’s system: Ring was convicted of first-degree murder, for which Arizona law specifies “death or life imprisonment” as the only sentencing options; Ring was therefore sentenced within the range of punishment authorized by the jury verdict. This argument overlooks Apprendi’s instruction that “the relevant inquiry is one not of form, but of effect.” In effect, “the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.” The Arizona first-degree murder statute “authorizes a maximum penalty of death only in a formal sense,” for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. If Arizona prevailed on its opening argument, Apprendi would be reduced to a “meaningless and formalistic” rule of statutory drafting.

245

246

Chapter 12: Appropriate Decision Makers

Arizona also supports the distinction relied upon in Walton between elements of an offense and sentencing factors. As to elevation of the maximum punishment, however, Apprendi renders the argument untenable; Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as an “element” or a “sentencing factor” is not determinative of the question “who decides,” judge or jury. . . . Apart from the Eighth Amendment provenance of aggravating factors, Arizona presents “no specific reason for excepting capital defendants from the constitutional protections . . . extend[ed] to defendants generally, and none is readily apparent.” Apprendi, 530 U.S. at 539. The notion “that the Eighth Amendment’s restriction on a state legislature’s ability to define capital crimes should be compensated for by permitting States more leeway under the Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence . . . is without precedent in our constitutional jurisprudence.” Ibid. . . . Arizona suggests that judicial authority over the finding of aggravating factors “may . . . be a better way to guarantee against the arbitrary imposition of the death penalty.” The Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders. Entrusting to a judge the finding of facts necessary to support a death sentence might be an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. . . . The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free. Apprendi, 530 U.S., at 498 (Scalia, J., concurring).

In any event, the superiority of judicial factfinding in capital cases is far from evident. Unlike Arizona, the great majority of States responded to this Court’s Eighth Amendment decisions requiring the presence of aggravating circumstances in capital cases by entrusting those determinations to the jury.6 . . . For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death Of the 38 States with capital punishment, 29 generally commit sentencing decisions to juries. Other than Arizona, only four States commit both capital sentencing factfinding and the ultimate sentencing decision entirely to judges. Four States have hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations.

6

Concurring Opinion of Justice Scalia

penalty. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” the Sixth Amendment requires that they be found by a jury. The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. . . . If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Duncan v. Louisiana, 391 U.S. 145, 155–156 (1968).

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. The judgment of the Arizona Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Concurring Opinion of Justice Scalia, Joined by Justice Thomas The question whether Walton v. Arizona survives our decision in Apprendi v. New Jersey confronts me with a difficult choice. What compelled Arizona (and many other States) to specify particular “aggravating factors” that must be found before the death penalty can be imposed, was the line of this Court’s cases beginning with Furman v. Georgia. In my view, that line of decisions had no proper foundation in the Constitution. I am therefore reluctant to magnify the burdens that our Furman jurisprudence imposes on the States. Better for the Court to have invented an evidentiary requirement that a judge can find by a preponderance of the evidence, than to invent one that a unanimous jury must find beyond a reasonable doubt. On the other hand, . . . I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt. The quandary is apparent: Should I continue to apply the last-stated principle when I know that the only reason the fact is essential is that this Court has mistakenly said that the Constitution requires state law to impose such “aggravating factors”? . . . [M]y observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing

247

248

Chapter 12: Appropriate Decision Makers

the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it. Accordingly, whether or not the States have been erroneously coerced into the adoption of “aggravating factors,” wherever those factors exist they must be subject to the usual requirements of the common law, and to the requirement enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a reasonable doubt. I add one further point, lest the holding of today’s decision be confused by the separate concurrence. Justice Breyer, who refuses to accept Apprendi, nonetheless concurs in today’s judgment because he “believe[s] that jury sentencing in capital cases is mandated by the Eighth Amendment.” While I am, as always, pleased to travel in Justice Breyer’s company, the unfortunate fact is that today’s judgment has nothing to do with jury sentencing. What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so—by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which Justice Breyer can travel with the happy band that reaches today’s result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.

Concurring opinion of justice kennedy Though it is still my view that Apprendi v. New Jersey was wrongly decided, Apprendi is now the law, and its holding must be implemented in a principled way. As the Court suggests, no principled reading of Apprendi would allow Walton v. Arizona to stand.

Opinion of justice breyer concurring in the judgment I Given my views in Apprendi v. New Jersey, 530 U. S. 466, 555 (2000) (dissenting opinion), . . . I cannot join the Court’s opinion. I concur in the judgment, however, because I believe that jury sentencing in capital cases is mandated by the Eighth Amendment.

Opinion of Justice Breyer Concurring in the Judgment

II This Court has held that the Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty. Otherwise, the constitutional prohibition against “cruel and unusual punishments” would forbid its use. Justice Stevens has written that those safeguards include a requirement that a jury impose any sentence of death. Harris v. Alabama, 513 U.S. 504, 515–526 (1995) (dissenting opinion). Although I joined the majority in Harris v. Alabama, I have come to agree with the dissenting view, and with the related views of others upon which it in part relies. I therefore conclude that the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death. I am convinced by the reasons that Justice Stevens has given. These include (1) his belief that retribution provides the main justification for capital punishment, and (2) his assessment of the jury’s comparative advantage in determining, in a particular case, whether capital punishment will serve that end. As to the first, I note the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to incapacitate offenders, or to rehabilitate criminals. Studies of deterrence are, at most, inconclusive. As to incapacitation, few offenders sentenced to life without parole (as an alternative to death) commit further crimes. And rehabilitation, obviously, is beside the point. In respect to retribution, jurors possess an important comparative advantage over judges. In principle, they are more attuned to “the community’s moral sensibility,” Spaziano, 486 U.S., at 481, because they “reflect more accurately the composition and experiences of the community as a whole,” id., at 486. Hence they are more likely to “express the conscience of the community on the ultimate question of life or death,” Witherspoon v. Illinois, 391 U.S. 510, 519 (1968), and better able to determine in the particular case the need for retribution, namely, “an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg v. Georgia, 428 U.S. at 184. Nor is the fact that some judges are democratically elected likely to change the jury’s comparative advantage in this respect. Even in jurisdictions where judges are selected directly by the people, the jury remains uniquely capable of determining whether, given the community’s views, capital punishment is appropriate in the particular case at hand. The importance of trying to translate a community’s sense of capital punishment’s appropriateness in a particular case is underscored by the continued division of opinion as to whether capital punishment is in all circumstances, as currently administered, “cruel and unusual.” Those who

249

250

Chapter 12: Appropriate Decision Makers

make this claim point, among other things, to the fact that death is not reversible, and to death sentences imposed upon those whose convictions proved unreliable. They point to the potentially arbitrary application of the death penalty, adding that the race of the victim and socio-economic factors seem to matter. They argue that the delays that increasingly accompany sentences of death make those sentences unconstitutional because of “the suffering inherent in a prolonged wait for execution.” They point to the inadequacy of representation in capital cases, a fact that aggravates the other failings. And they note that other nations have increasingly abandoned capital punishment. Many communities may have accepted some or all of these claims, for they do not impose capital sentences. Leaving questions of arbitrariness aside, this diversity argues strongly for procedures that will help assure that, in a particular case, the community indeed believes application of the death penalty is appropriate, not “cruel,” “unusual,” or otherwise unwarranted. For these reasons, the danger of unwarranted imposition of the penalty cannot be avoided unless “the decision to impose the death penalty is made by a jury rather than by a single governmental official.” And I conclude that the Eighth Amendment requires individual jurors to make, and to take responsibility for, a decision to sentence a person to death.

Dissenting Opinion of Justice O’connor, Joined by Chief Justice Rehnquist I understand why the Court holds that the reasoning of Apprendi v. New Jersey is irreconcilable with Walton v. Arizona. Yet in choosing which to overrule, I would choose Apprendi, not Walton. I continue to believe, for the reasons I articulated in my dissent in Apprendi, that the decision in Apprendi was a serious mistake. As I argued in that dissent, Apprendi’s rule that any fact that increases the maximum penalty must be treated as an element of the crime is not required by the Constitution, by history, or by our prior cases. Indeed, the rule directly contradicts several of our prior cases. And it ignores the “significant history in this country of . . . discretionary sentencing by judges.” Apprendi, 530 U.S. at 544 (O’Connor, J., dissenting). The Court has failed, both in Apprendi and in the decision announced today, to “offer any meaningful justification for deviating from years of cases both suggesting and holding that application of the ‘increase in the maximum penalty’ rule is not required by the Constitution.” Id. at 539. . . .

Dissenting Opinion of Justice O’Connor

The Court effectively declares five States’ capital sentencing schemes unconstitutional (identifying Colorado, Idaho, Montana, and Nebraska as having sentencing schemes like Arizona’s). There are 168 prisoners on death row in these States, each of whom is now likely to challenge his or her death sentence. I believe many of these challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless error or plain error review, or because, having completed their direct appeals, they will be barred from taking advantage of today’s holding on federal collateral review. Nonetheless, the need to evaluate these claims will greatly burden the courts in these five States. In addition, I fear that the prisoners on death row in Alabama, Delaware, Florida, and Indiana, which the Court identifies as having hybrid sentencing schemes in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determination, may also seize on today’s decision to challenge their sentences. There are 529 prisoners on death row in these States. By expanding on Apprendi, the Court today exacerbates the harm done in that case. Consistent with my dissent, I would overrule Apprendi rather than Walton.

251

Chap ter 1 3

Selecting Jurors—Witherspoon v. Illinois (1968), Turner v. Murray (1986), and Uttecht v. Brown (2007) Editors’ Comment In most states providing capital punishment, the jury has the burden of deciding guilt or innocence and of imposing sentence. Further, in every death penalty jurisdiction in which the jury imposes sentence, the jurors must be unanimous for death. If they are not, in most jurisdictions a life sentence is automatically imposed. (In a few, including Arizona, California, and Kentucky, the prosecution has the option of retrying the penalty phase with a new jury; in Indiana and Missouri the judge decides sentence if the jury deadlocks.) For this reason, jury selection becomes more significant than in noncapital cases, where jurors are not involved in sentencing, except in six states (Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia). For the selection process, potential jurors, collectively called a venire (pronounced ven-EYEree), are drawn from residents in the county of the crime. They are questioned by the prosecutor and defense attorney (or sometimes by the judge) to determine their suitability to serve. This questioning is called voir dire. A venireperson considered unsuitable by either attorney may be challenged or stricken from the venire and excused. Such challenges are of two types: for cause and peremptory. Those for cause involve disqualifying conditions listed in state law, such as blood relationship to the litigants, a financial interest in the case, or the inability to impartially consider the case; they are unlimited in number. In contrast, peremptory challenges may be exercised for any reason except on the three bases the Supreme Court has found to be unconstitutional: race, gender, and national origin. They are limited by statute to a certain number, for example, 20 for each side. Because the jury consists of the venirepersons who remain after each party has exercised all its challenges, the term “jury selection” is something of a misnomer—the parties have no power to select persons they want to have on the jury; they can only reject by challenges those they least favor. The issue in the first case in this chapter—Witherspoon v. Illinois (1968)—was whether a state could permit excusal for cause because of scruples against the death penalty. The defendant contended that juries stripped of those with such scruples were biased in two ways. First, they were more likely to find the accused guilty. This argument, which assumed that favorable attitudes toward capital punishment would predispose a juror toward a guilty verdict, was not accepted by the Court.

Death Penalty Casses. . Copyright © 2011 by Academic Press. Inc.

253

254

Chapter 13: Selecting Jurors

Editors’ Comment—cont’d Witherspoon’s second argument was that such a jury was biased in favor of death as a sentence. The Court agreed with the second claim, but also seemed to suggest that a state could still excuse for cause venirepersons who were so opposed to the death penalty that they would be unable to consider it as a sentencing option. And, of course, the prosecutor could still use peremptories, which need not be explained, to strike scrupled jurors. As for those venirepersons who would always impose the death penalty upon conviction, Morgan v. Illinois, 504 U.S. 719 (1992), held that the accused had a right to have any potential juror asked whether she held such a view—and to excuse her for cause if she did. The second case in this chapter—Turner v. Murray (1986)—raised another voir dire issue: Would the judge be required (by the Impartial Jury Clause of the Sixth Amendment) to permit questions to determine if venirepersons harbored racial prejudice simply because the murder was interracial? Previous Supreme Court cases gave mixed signals. Ham v. South Carolina, 409 U.S. 524 (1973), established a right to inquire about prejudice where the facts of the case suggested that bias might be a problem. (Ham was a civil rights activist who claimed that he was framed on charges of marijuana possession.) But Ristaino v. Ross, 424 U.S. 589 (1976), which, significantly, was not a death penalty case, held that there was no constitutional right to ask bias questions whenever the defendant and victim were of different races. Rosales-Lopez v. United States, 451 U.S. 182 (1981) was contrary to Ristaino, but the right (to ask about anti-Mexican bias) was based on the Supreme Court’s authority to supervise lower federal courts and did not apply to state courts. Turner created an exception to Ristaino, illustrating the Supreme Court’s preference for special trial procedures in capital cases. The third case here—Uttecht v. Brown (2007)—shows the Court returning to the issue first raised in Witherspoon: When may a juror with scruples against the death penalty be excused for cause? Between Witherspoon and Uttecht, the Court had articulated the test in Wainwright v. Witt, 469 U.S. 412 (1985): “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” In Uttecht, in upholding a trial court ruling excluding a prospective juror for cause, the Court stressed that this test must be applied by appeals courts with deference to the trial judge, who would be in a better position to observe the venireperson. Uttecht also illustrates how elaborate and timeconsuming jury selection in a capital case can be, and how high the stakes are for the improper exclusion for cause of even one acceptable venireperson—automatic reversal of the sentence on appeal.

Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed.2d 776 (1968) (6–3, during the jury selection, a prospective juror may not be removed from the panel “for cause” simply because he voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.)

Opinion of Justice Stewart for the Court

Opinion of Justice Stewart for the Court The petitioner was brought to trial in 1960 in Cook County, Illinois, upon a charge of murder. The jury found him guilty and fixed his penalty at death. At the time of his trial an Illinois statute provided: In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.

Through this provision the State of Illinois armed the prosecution with unlimited challenges for cause in order to exclude those jurors who, in the words of the State’s highest court, “might hesitate to return a verdict inflicting [death].” At the petitioner’s trial, the prosecution eliminated nearly half the venire of prospective jurors by challenging, under the authority of this statute, any venire-man who expressed qualms about capital punishment. From those who remained were chosen the jurors who ultimately found the petitioner guilty and sentenced him to death. The Supreme Court of Illinois denied postconviction relief, and we granted certiorari to decide whether the Constitution permits a State to execute a man pursuant to the verdict of a jury so composed.

I The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. Nor does it involve the State’s assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it. In the present case the tone was set when the trial judge said early in the voir dire, “Let’s get these conscientious objectors out of the way, without wasting any time on them.” In rapid succession, 47 veniremen were successfully challenged for cause on the basis of their attitudes toward the death penalty. Only 5 of the 47 explicitly stated that under no circumstances would they vote to impose capital punishment. Six said that they did not “believe in the death penalty” and were excused without any attempt to determine whether they could nonetheless return a verdict of death. Thirty-nine veniremen, including four of the six who indicated that they did not believe in capital punishment, acknowledged having “conscientious or religious

255

256

Chapter 13: Selecting Jurors

scruples against the infliction of the death penalty” or against its infliction “in a proper case” and were excluded without any effort to find out whether their scruples would invariably compel them to vote against capital punishment. . . .

II The petitioner contends that a State cannot confer upon a jury selected in this manner the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant’s innocence, accept the prosecution’s version of the facts, and return a verdict of guilt. To support this view, the petitioner refers to what he describes as “competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.”10 The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.

III It does not follow, however, that the petitioner is entitled to no relief. For in this case the jury was entrusted with two distinct responsibilities: first, to determine whether the petitioner was innocent or guilty, and second, if guilty, to

In his brief, the petitioner cites two surveys, one involving 187 college students, W. C. Wilson, Belief in Capital Punishment and Jury Performance (Unpublished Manuscript, University of Texas, 1964), and the other involving 200 college students, F. J. Goldberg, Attitude Toward Capital Punishment and Behavior as a Juror in Simulated Capital Cases (unpublished manuscript, Morehouse College, undated). In his petition for certiorari, he cited a study based upon interviews with 1,248 jurors in New York and Chicago. A preliminary, unpublished summary of the results of that study stated that “a jury consisting only of jurors who have no scruples against the death penalty is likely to be more prosecution prone than a jury on which objectors to the death penalty sit,” and that “the defendant’s chances of acquittal are somewhat reduced if the objectors are excluded from the jury.” H. Zeisel, Some Insights into the Operation of Criminal Juries 42 (Confidential First Draft, University of Chicago, November 1957). 10

Opinion of Justice Stewart for the Court

determine whether his sentence should be imprisonment or death. It has not been shown that this jury was biased with respect to the petitioner’s guilt. But it is self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments. The only justification the State has offered for the jury-selection technique it employed here is that individuals who express serious reservations about capital punishment cannot be relied upon to vote for it even when the laws of the State and the instructions of the trial judge would make death the proper penalty. But in Illinois, as in other States, the jury is given broad discretion to decide whether or not death is “the proper penalty” in a given case, and a juror’s general views about capital punishment play an inevitable role in any such decision. A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Guided by neither rule nor standard, “free to select or reject as it [sees] fit,” a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death. Yet, in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment—of all who would be reluctant to pronounce the extreme penalty—such a jury can speak only for a distinct and dwindling minority. If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply “neutral” with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die. It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal “organized to convict.” It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general

257

258

Chapter 13: Selecting Jurors

objections to the death penalty or expressed conscientious or religious scruples against its infliction.21 No defendant can constitutionally be put to death at the hands of a tribunal so selected. Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law. Reversed.

Dissenting Opinion of Justice Black, Joined by Justices Harlan and White . . . As I see the issue in this case, it is a question of plain bias. A person who has conscientious or religious scruples against capital punishment will seldom if ever vote to impose the death penalty. This is just human nature, and no amount of semantic camouflage can cover it up. In the same manner, I would not dream of foisting on a criminal defendant a juror who admitted that he had conscientious or religious scruples against not inflicting the death sentence on any person convicted of murder (a juror who claims, for example, that he adheres literally to the Biblical admonition of “an eye for an eye”). Yet the logical result of the majority’s holding is that such persons must be allowed so that the “conscience of the community” will be fully represented when it decides “the ultimate question of life or death.” While I have always advocated that the jury be as fully representative of the community as possible, I would

Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion. We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.

21

Dissenting Opinion of Justice Black

never carry this so far as to require that those biased against one of the critical issues in a trial should be represented on a jury. . . . The majority opinion attempts to equate those who have conscientious or religious scruples against the death penalty with those who do not in such a way as to balance the allegedly conflicting viewpoints in order that a truly representative jury can be established to exercise the community’s discretion in deciding on punishment. But for this purpose I do not believe that those who have conscientious or religious scruples against the death penalty and those who have no feelings either way are in any sense comparable. Scruples against the death penalty are commonly the result of a deep religious conviction or a profound philosophical commitment developed after much soul searching. The holders of such scruples must necessarily recoil from the prospect of making possible what they regard as immoral. On the other hand, I cannot accept the proposition that persons who do not have conscientious scruples against the death penalty are “prosecution prone.” With regard to this group, I would agree with the following statement of the Court of Appeals for the District of Columbia Circuit: No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not opposed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. . . . Turberville v. United States, 112 U.S. App. D.C. 400, 409–410, 303 F.2d 411, 420–421 (1962).

It seems to me that the Court’s opinion today must be read as holding just the opposite from what has been stated above. For no matter how the Court might try to hide it, the implication is inevitably in its opinion that people who do not have conscientious scruples against the death penalty are somehow callous to suffering, and are, as some of the commentators cited by the Court called them, “prosecution prone.” This conclusion represents a psychological foray into the human mind that I have considerable doubt about my ability to make, and I must confess that the two or three so-called “studies” cited by the Court on this subject are not persuasive to me.

259

260

Chapter 13: Selecting Jurors

Finally, I want to point out that the real holding in this case is, at least to me, very ambiguous. If we are to take the opinion literally, then I submit the Court today has decided nothing of substance, but has merely indulged itself in a semantic exercise. For, as I read the opinion, the new requirement placed upon the States is that they cease asking prospective jurors whether they have “conscientious or religious scruples against the infliction of the death penalty,” but instead ask whether “they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.” . . . I believe that this fine line the Court attempts to draw is based on a semantic illusion and that the practical effect of the Court’s new formulation of the question to be asked state juries will not produce a significantly different kind of jury from the one chosen in this case. And I might add that the States will have been put to a great deal of trouble for nothing. Yet, as I stated above, it is not clear that this is all the Court is holding. For the majority opinion goes out of its way to state that, in some future case, a defendant might well establish that a jury selected in the way the Illinois statute here provides is “less than neutral with respect to guilt.” . . . This seems to me to be but a thinly veiled warning to the States that they had better change their jury selection procedures or face a decision by this Court that their murder convictions have been obtained unconstitutionally. . . . I shall not contribute in any way to the destruction of our ancient judicial and constitutional concept of trial by an impartial jury by forcing the States through “constitutional doctrine” laid down by this Court to accept jurors who are bound to be biased. For this reason I dissent.

Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed.2d 27 (1986) (7–2, defendant in an interracial murder case has a right to question prospective jurors about racial prejudice.)

Opinion of Justice White for the Court II Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this case, a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner’s crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner’s evidence of mental disturbance as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror’s ­decision in

Opinion of Justice White for the Court

this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner’s crime, might incline a juror to favor the death penalty. The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence. “The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” . . . We have struck down capital sentences when we found that the circumstances under which they were imposed “created an unacceptable risk that ‘the death penalty [may have been] meted out arbitrarily or capriciously’ or through ‘whim . . . or mistake.’”. . . In the present case, we find the risk that racial prejudice may have infected petitioner’s capital sentencing unacceptable in light of the ease with which that risk could have been minimized. By refusing to question prospective jurors on racial prejudice, the trial judge failed to adequately protect petitioner’s constitutional right to an impartial jury. ...

III We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. The rule we propose is minimally intrusive; as in other cases involving “special circumstances,” the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. . . . Also, a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry.

IV The inadequacy of voir dire in this case requires that petitioner’s death sentence be vacated. It is not necessary, however, that he be retried on the issue of guilt. Our judgment in this case is that there was an unacceptable risk of racial prejudice infecting the capital sentencing proceeding. This judgment is based on a conjunction of three factors: the fact that the crime charged involved interracial violence, the broad discretion given the jury at the death-penalty hearing, and the special seriousness of the risk of improper sentencing in a capital case. At the guilt phase of petitioner’s trial, the jury had no greater discretion than it would have had if the crime charged had been noncapital murder. Thus, with respect to the guilt phase of petitioner’s trial, we find this case to be indistinguishable from Ristaino, to which we continue to adhere. . . .

261

262

Chapter 13: Selecting Jurors

Dissenting Opinion of Justice Powell, Joined by Justice Rehnquist . . . In effect, the Court recognizes a presumption that jurors who have sworn to decide the case impartially nevertheless are racially biased. Such a presumption is flatly contrary to our decisions in Ristaino v. Ross [424 U.S. 589 (1976)] and Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981).2 The facts of this case demonstrate why it is unnecessary and unwise for this Court to rule, as a matter of constitutional law, that a trial judge always must inquire into racial bias in a capital case involving an interracial murder, rather than leaving that decision to be made on a case-by-case basis. Before today the facts that a defendant is black and his victim was white were insufficient to raise “a constitutionally significant likelihood that, absent questioning about racial prejudice,” an impartial jury would not be seated. Ristaino v. Ross, supra, at 596.

I Nothing in this record suggests that racial bias played any role in the jurors’ deliberations. The relevant circumstances merit emphasis because they demonstrate that the fact of an interracial murder, by itself, does not create a substantial likelihood that racial issues can be expected to distort capital sentencing trials. Without further evidence that race can be expected to be a factor in such trials, there is no justification for departing from the rule of Ham and Ristaino. Petitioner committed murder in the course of an armed robbery of a jewelry store in Franklin, Virginia. The murder was brutal. Petitioner shot the store’s proprietor three times. The first shot did not kill, but caused the victim to fall helplessly to the floor, bleeding from a scalp wound. A police officer, who had arrived in answer to a silent alarm, pleaded with petitioner not to shoot again. But petitioner fired two more shots into his victim’s chest, causing his death. The officer then managed to subdue and arrest petitioner. At trial, the evidence of petitioner’s guilt was conclusive. Because the local media gave the murder extensive publicity, petitioner requested and was granted a change of venue “Although Ristaino involved an alleged criminal confrontation between a black assailant and a white victim, that fact pattern alone did not create a need of ‘constitutional dimensions’ to question the jury concerning racial prejudice. . . . There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups. As Ristaino demonstrates, there is no per se constitutional rule in such circumstances requiring inquiry as to racial prejudice. Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court’s denial of a defendant’s request to examine the jurors’ ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.” Rosales-Lopez v. United States, 451 U.S., at 190 (plurality opinion). Although Justice White’s opinion in Rosales-Lopez was for a plurality, Justice Rehnquist’s opinion concurring in the result was entirely consistent with the foregoing language.

2

Dissenting Opinion of Justice Powell

from Southampton County to Northampton County, across the Chesapeake Bay some 80 miles away from the location of the murder. No member of the jury empaneled had read or heard about the murder. Virginia law vests the trial judge with the responsibility to conduct voir dire examination of prospective jurors. Ordinarily, the judge, rather than counsel, questions members of the venire to provide a basis for the exercise of challenges. In this case, in accordance with state practice, the judge permitted the parties to propose questions to be asked during voir dire. Counsel for petitioner submitted 15 questions. As the 10th question on his list, counsel requested the following: The defendant, Willie Lloyd Turner, is a member of the Negro race. The victim, W. Jack Smith, Jr., was a white Caucasian. Will those facts prejudice you against Willie Lloyd Turner or affect your ability to render a fair and impartial verdict based solely on the evidence?

As support for this proposed question, petitioner’s counsel referred only to certain studies that were subsequently placed in the record. The studies purported to show that a black defendant who murders a white person is more likely to receive the death penalty than other capital defendants, but the studies included no statistics concerning administration of the death penalty in Virginia. Counsel then discussed their proposed questions with the judge. The prosecutor pointed out that the case presented no racial issues beyond the fact that petitioner and his victim were of different races. The trial judge declined to ask the proposed question, but he did ask general questions designed to uncover bias. For example, the prospective jurors were asked, “Do any of you know any reason whatsoever why you cannot render a fair and impartial verdict in this case, either for the defendant or for the Commonwealth of Virginia?” Each juror responded negatively. The jury of 12 persons ultimately empaneled included 4 black citizens, and a black juror was selected to act as foreman. There is nothing in the record of this trial that reflects racial overtones of any kind. From voir dire through the close of trial, no circumstance suggests that the trial judge’s refusal to inquire particularly into racial bias posed “an impermissible threat to the fair trial guaranteed by due process.” Ristaino v. Ross, 424 U.S., at 595. The Court does not purport to identify any such circumstance, or to explain why the facts that a capital defendant is of one race and his victim of another now create a significant likelihood that racial issues will distort the jurors’ consideration of the issues in the trial. Id., at 597. This case illustrates that it is unnecessary for the Court to adopt a per se rule that constitutionalizes the unjustifiable presumption that jurors are racially biased.

263

264

Chapter 13: Selecting Jurors

Uttecht v. Brown, 551 U.S. 1, 127 S. Ct. 2218, 167 L. Ed.2d 1014 (2007) (5–4, a trial court’s refusal to remove a potential juror for cause is based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.)

Opinion of Justice Kennedy for the Court Respondent Cal Coburn Brown robbed, raped, tortured, and murdered one woman in Washington. Two days later, he robbed, raped, tortured, and attempted to murder a second woman in California. Apprehended, Brown confessed to these crimes and pleaded guilty to the California offenses, for which he received a sentence of life imprisonment. The State of Washington, however, sought the death penalty and brought Brown to trial. Based on the jury’s verdicts in the guilt and sentencing phases of the trial, Brown was sentenced to death. His conviction and sentence were affirmed by the Supreme Court of the State of Washington. Brown filed a petition for writ of habeas corpus in the United States District Court for the Western District of Washington. The District Court denied the petition, but the United States Court of Appeals for the Ninth Circuit reversed. The Court of Appeals considered, among other arguments for setting aside the capital sentence, the contention that under Witherspoon v. Illinois and its progeny, the state trial court had violated Brown’s Sixth and Fourteenth Amendment rights by excusing three potential jurors—whom we refer to as Jurors X, Y, and Z—for cause. The State moved to excuse these jurors due to the concern that they could not be impartial in deciding whether to impose a death sentence. The Court of Appeals held it was proper to excuse Jurors X and Y, but agreed with the defense that it was unconstitutional to excuse Juror Z for cause. On this premise the court held that Brown’s death sentence could not stand, requiring that Brown receive a new sentencing trial more than a decade after his conviction. We granted certiorari, and we reverse the judgment of the Court of Appeals.

I When considering the controlling precedents, Witherspoon is not the final word, but it is a necessary starting point. . . . In Wainwright v. Witt, 469 U.S. 412 (1985), the Court explained that “Witherspoon is best understood in the context of its facts.” The Court noted that in Witherspoon the trial court had excused half the venire—every juror with conscientious objections to capital punishments. Furthermore, the state

Opinion of Justice Kennedy for the Court

sentencing scheme under which Witherspoon’s sentence was imposed permitted the jury “unlimited discretion in choice of sentence.” When a juror is given unlimited discretion, the Court explained, all he or she must do to follow instructions is consider the death penalty, even if in the end he or she would not be able to impose it. Rejecting the strict standard found in Witherspoon’s footnote 21, the Court recognized that the diminished discretion now given to capital jurors and the State’s interest in administering its capital punishment scheme called for a different standard. The Court relied on Adams v. Texas, 448 U.S. 38, 45 (1980), which provided the following standard: “[W]hether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” The Court in Witt instructed that, in applying this standard, reviewing courts are to accord deference to the trial court. Deference is owed regardless of whether the trial court engages in explicit analysis regarding substantial impairment; even the granting of a motion to excuse for cause constitutes an implicit finding of bias. The judgment as to “whether a veniremen is biased . . . is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province. Such determinations [are] entitled to deference even on direct review; the respect paid such findings in a habeas proceeding certainly should be no less.” And the finding may be upheld even in the absence of clear statements from the juror that he or she is impaired because “many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear’; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.” Thus, when there is ambiguity in the prospective juror’s statements, “the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to resolve it in favor of the State.” . . . These precedents establish at least four principles of relevance here. First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Witherspoon. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.

265

266

Chapter 13: Selecting Jurors

Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors. Leading treatises in the area make much of nonverbal communication. The requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), of course, provide additional, and binding, directions to accord deference. The provisions of that statute create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings. By not according the required deference, the Court of Appeals failed to respect the limited role of federal habeas relief in this area prescribed by Congress and by our cases.

II A.  In applying the principles of Witherspoon and Witt, it is instructive to consider the entire voir dire in Brown’s case. Spanning more than two weeks, the process entailed an examination of numerous prospective jurors. After the third day of the voir dire, during which few jurors were questioned, the trial court explained the process would “have to go a little bit faster.” The next day, the court reiterated this concern, for it had told the jury the trial would take no more than six weeks in order not to conflict with the Christmas holidays. Eleven days of the voir dire were devoted to determining whether the potential jurors were death qualified. During that phase alone, the defense challenged 18 members of the venire for cause. Despite objections from the State, 11 of those prospective jurors were excused. As for the State, it made 12 challenges for cause; defense counsel objected seven times; and only twice was the juror excused following an objection from the defense. Before deciding a contested challenge, the trial court gave each side a chance to explain its position and recall the potential juror for additional questioning. When issuing its decisions the court gave careful and measured explanations. Before the State challenged Juror Z, the defense moved to excuse a potential juror who had demonstrated some confusion. After argument from both counsel, the trial court explained that it would be open to further questioning if one of the parties felt the juror’s position could be clarified: “I thought at first the both of you were wanting to excuse [this juror] since he seemed kind of confused to both sides, but if there really is a question, let me know and I don’t have any hesitation about bringing the juror out here and following up.” Consistent with the need for an efficient voir dire, the court also told counsel: “Let me point something out to both sides. If you are going to agree on a challenge, . . . we can shortcut some of what happens out here.”

Opinion of Justice Kennedy for the Court

Setting aside the disputed circumstances of Juror Z’s removal, the defense refrained from objecting to the State’s challenges for cause only when the challenged juror was explicit that he or she would not impose the death penalty or could not understand the burden of proof. For other jurors, the defense objections were vigorous and, it seems, persuasive. The defense argued that the jurors’ equivocal statements reflected careful thinking and responsibility, not substantial impairment. The tenacity of Brown’s counsel was demonstrated when, long after the trial court had overruled the defense objection and excused Juror Y, the defense moved in writing to have her returned for further questioning and rehabilitation. The trial court denied this motion after argument from both parties. The defense also lodged its own challenges for cause. In defending them against the State’s objections, defense counsel argued, contrary to the position Brown takes in this Court, that a trial court cannot rely upon a potential juror’s bare promises to follow instructions and obey the law. With regard to one juror, defense counsel argued: Any time this individual was asked any questions about following the law, he will always indicate that he will. But when we look to see . . . his view[s] on the death penalty, . . . they [are] so strong that they would substantially impair his ability to follow the law and to follow his oath as a juror.

In at least two instances this argument appears to have prevailed when the trial court overruled the State’s objection to Brown’s challenge for cause. A final, necessary part of this history is the instruction the venire received from the court concerning the sentencing options in the case. Before individual oral examination, the trial court distributed a questionnaire asking jurors to explain their attitudes toward the death penalty. When distributing the questionnaire, the court explained the general structure of the trial and the burden of proof. It described how the penalty phase would function: [I]f you found Mr. Brown guilty of the crime of first degree murder with one or more aggravating circumstances, then you would be reconvened for a second phase called a sentencing phase. During that sentencing phase proceeding you could hear additional evidence [and] arguments concerning the penalty to be imposed. You would then be asked to retire to determine whether the death penalty should be imposed or whether the punishment should be life imprisonment without the possibility of parole. In making this determination you would be asked the following question: Having in mind the crime with which the defendant has been found guilty, are you convinced beyond a reasonable doubt that

267

268

Chapter 13: Selecting Jurors

there are not sufficient mitigating circumstances to merit leniency? If you unanimously answered yes to this question, the sentence would be death. . . . [Otherwise] the sentence would be life imprisonment without the possibility of release or parole.

After the questionnaires were filled out, the jurors were provided with handbooks that explained the trial process and the sentencing phase in greater depth. Small groups of potential jurors were then brought in to be questioned. Before Juror Z’s group began, the court explained once more that if Brown were convicted, “there are only two penalties that a jury could return, one is life in prison without possibility of release or parole. And that literally means exactly that, a true life in prison without release or parole.” With this background, we turn to Juror Z’s examination. B.  Juror Z was examined on the seventh day of the voir dire and the fifth day of the death-qualification phase. The State argues that Juror Z was impaired not by his general outlook on the death penalty, but rather by his position regarding the specific circumstances in which the death penalty would be appropriate. The transcript of Juror Z’s questioning reveals that, despite the preceding instructions and information, he had both serious misunderstandings about his responsibility as a juror and an attitude toward capital punishment that could have prevented him from returning a death sentence under the facts of this case. Under the voir dire procedures, the prosecution and defense alternated in commencing the examination. For Juror Z, the defense went first. When questioned, Juror Z demonstrated no general opposition to the death penalty or scruples against its infliction. In fact, he soon explained that he “believe[d] in the death penalty in severe situations.” He elaborated, “I don’t think it should never happen, and I don’t think it should happen 10 times a week either.” “[T] here [are] times when it would be appropriate.” The questioning soon turned to when that would be so. Juror Z’s first example was one in which “the defendant actually came out and said that he actually wanted to die.” Defense set this aside and sought another example. Despite having been told at least twice by the trial court that if convicted of first-degree murder, Brown could not be released from prison, the only example Juror Z could provide was when “a person is . . . incorrigible and would reviolate if released.” The defense counsel replied that there would be no possibility of Brown’s release and asked whether the lack of arguments about recidivism during the penalty phase would frustrate Juror Z. He answered, “I’m not sure.” The State began its examination of Juror Z by noting that his questionnaire indicated he was “in favor of the death penalty if it is proved beyond a shadow of a doubt if a person has killed and would kill again.” The State explained that

Opinion of Justice Kennedy for the Court

the burden of proof was beyond a reasonable doubt, not beyond a shadow of a doubt, and asked whether Juror Z understood. He answered, “[I]t would have to be in my mind very obvious that the person would reoffend.” In response the State once more explained to Juror Z, now for at least the fourth time, that there was no possibility of Brown’s being released to reoffend. Juror Z explained, “[I]t wasn’t until today that I became aware that we had a life without parole in the state of Washington,” although in fact a week earlier the trial judge had explained to Juror Z’s group that there was no possibility of parole when a defendant was convicted of aggravated first-degree murder. The prosecution then asked, “And now that you know there is such a thing . . . can you think of a time when you would be willing to impose a death penalty . . . ?” Juror Z answered, “I would have to give that some thought.” He supplied no further answer to the question. The State sought to probe Juror Z’s position further by asking whether he could “consider” the death penalty; Juror Z said he could, including under the general facts of Brown’s crimes. When asked whether he no longer felt it was necessary for the State to show that Brown would reoffend, Juror Z gave this confusing answer: “I do feel that way if parole is an option, without parole as an option. I believe in the death penalty.” Finally, when asked whether he could impose the death penalty when there was no possibility of parole, Juror Z answered, “[I]f I was convinced that was the appropriate measure.” Over the course of his questioning, he stated six times that he could consider the death penalty or follow the law, but these responses were interspersed with more equivocal statements. The State challenged Juror Z, explaining that he was confused about the conditions under which death could be imposed and seemed to believe it only appropriate when there was a risk of release and recidivism. Before the trial court could ask Brown for a response, the defense volunteered, “We have no objection.” The court then excused Juror Z.

III ... B.  From our own review of the state trial court’s ruling, we conclude the trial court acted well within its discretion in granting the State’s motion to excuse Juror Z. Juror Z’s answers, on their face, could have led the trial court to believe that Juror Z would be substantially impaired in his ability to impose the death penalty in the absence of the possibility that Brown would be released and would reoffend. And the trial court, furthermore, is entitled to deference because it had an opportunity to observe the demeanor of Juror Z. We do not know

269

270

Chapter 13: Selecting Jurors

anything about his demeanor, in part because a transcript cannot fully reflect that information but also because the defense did not object to Juror Z’s removal. Nevertheless, the State’s challenge, Brown’s waiver of an objection, and the trial court’s excusal of Juror Z support the conclusion that the interested parties present in the courtroom all felt that removing Juror Z was appropriate under the Witherspoon-Witt rule. Juror Z’s assurances that he would consider imposing the death penalty and would follow the law do not overcome the reasonable inference from his other statements that in fact he would be substantially impaired in this case because there was no possibility of release. His assurances did not require the trial court to deny the State’s motion to excuse Juror Z. The defense itself had told the trial court that any juror would make similar guarantees and that they were worth little; instead, defense counsel explained, the court should listen to arguments concerning the substance of the juror’s answers. The trial court in part relied, as diligent judges often must, upon both parties’ counsel to explain why a challenged juror’s problematic beliefs about the death penalty would not rise to the level of substantial impairment. Brown’s counsel offered no defense of Juror Z. In light of the deference owed to the trial court the position Brown now maintains does not convince us the decision to excuse Juror Z was unreasonable. It is true that in order to preserve a Witherspoon claim for federal habeas review there is no independent federal requirement that a defendant in state court object to the prosecution’s challenge; state procedural rules govern. We nevertheless take into account voluntary acquiescence to, or confirmation of, a juror’s removal. By failing to object, the defense did not just deny the conscientious trial judge an opportunity to explain his judgment or correct any error. It also deprived reviewing courts of further factual findings that would have helped to explain the trial court’s decision. . . . The defense may have chosen not to object because Juror Z seemed substantially impaired. Or defense counsel may have felt that Juror Z, a basketball referee whose stepbrother was a police officer, would have been favorable to the State. Or the failure to object may have been an attempt to introduce an error into the trial because the defense realized Brown’s crimes were horrific and the mitigating evidence was weak. Although we do not hold that, because the defense may have wanted Juror Z on the jury, any error was harmless, neither must we treat the defense’s acquiescence in Juror Z’s removal as inconsequential. The defense’s volunteered comment that there was no objection is especially significant because of frequent defense objections to the excusal of other jurors and the trial court’s request that if both parties wanted a juror removed, saying so would expedite the process. In that context the statement was not only a failure to object but also an invitation to remove Juror Z.

Dissenting Opinion of Justice Stevens

We reject the conclusion of the Court of Appeals that the excusal of Juror Z entitles Brown to federal habeas relief. The need to defer to the trial court’s ability to perceive jurors’ demeanor does not foreclose the possibility that a reviewing court may reverse the trial court’s decision where the record discloses no basis for a finding of substantial impairment. But where, as here, there is lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion. The record does not show the trial court exceeded this discretion in excusing Juror Z; indeed the transcript shows considerable confusion on the part of the juror, amounting to substantial impairment. The Supreme Court of Washington recognized the deference owed to the trial court and, contrary to the Court of Appeals’ misreading of the state court’s opinion, identified the correct standard required by federal law and found it satisfied. That decision, like the trial court’s, was not contrary to, or an unreasonable application of, clearly established federal law.

IV . . . Capital defendants have the right to be sentenced by an impartial jury. The State may not infringe this right by eliminating from the venire those whose scruples against the death penalty would not substantially impair the performance of their duties. Courts reviewing claims of Witherspoon-Witt error, however, especially federal courts considering habeas petitions, owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror. The Court of Appeals neglected to accord this deference. And on this record it was error to find that Juror Z was not substantially impaired. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Dissenting Opinion of Justice Stevens, Joined by Justices Souter, Ginsburg, and Breyer Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. An individual’s opinion that a life sentence without the possibility of parole is the severest sentence that should be imposed in all but the most heinous cases does not even arguably “‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Wainwright v. Witt. Moreover, an individual who maintains such a position, or even one who opposes the death penalty as a general matter, “‘may not be challenged for cause based on his views about capital punishment.’” Today the Court ignores these well-established principles, choosing instead to defer

271

272

Chapter 13: Selecting Jurors

blindly to a state court’s erroneous characterization of a juror’s voir dire testimony. Although this case comes to us under the standard of review imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the level of deference given by the Court to the state courts in this case is completely unwarranted based on the record before us. Because I find no justification in the record or elsewhere for the decision to strike Juror Z for cause, I must dissent.

I When the State challenged Juror Z, it argued that he was “confused about the conditions under which [the death penalty] could be imposed and seemed to believe it only appropriate when there was a risk of release and recidivism.” A more accurate characterization of Juror Z’s testimony is that although he harbored some general reservations about the death penalty, he stated that he could consider and would vote to impose the death penalty where appropriate. When asked for “an idea . . . of the underlying reason why you think the death penalty is appropriate [or] what purpose it serves,” Juror Z responded that “the type of situation” in which the death penalty would be appropriate was “if a person was incorrigible and would reviolate if released.” (emphasis added). After it was explained to Juror Z that the only two sentencing alternatives available under Washington law would be life imprisonment without the possibility of parole and a death sentence, Juror Z repeatedly confirmed that even if he knew the defendant would never be released, he would still be able to consider and vote for the death penalty. As for any general reservations Juror Z may have had about the imposition of the death penalty, it is clear from his testimony that he was in no way categorically opposed to it. When asked whether he was “a little more comfortable that it is being used some of the time,” Juror Z responded in the affirmative. While such testimony might justify a prosecutor’s peremptory challenge, until today not one of the many cases decided in the wake of Witherspoon v. Illinois has suggested that such a view would support a challenge for cause. The distinction that our cases require trial judges to draw is not between jurors who are in favor of the death penalty and those who oppose it, but rather between two sub-classes within the latter class—those who will conscientiously apply the law and those whose conscientious scruples necessarily prevent them from doing so. As then-Justice Rehnquist explained in his opinion for the Court in Lockhart v. McCree, 476 U.S. 162, 176 (1986): It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.

...

Dissenting Opinion of Justice Stevens

In the alternative, and perhaps recognizing the tenuous nature of the state court’s “ruling,” the Court relies on the fact that the trial court’s judgment is entitled to deference because it had the unique opportunity to observe Juror Z’s demeanor during voir dire. A ruling cannot be taken at face value when it is clear that the reasoning behind that ruling is erroneous in light of our prior precedents. There is absolutely nothing in the record to suggest—even in light of the trial court’s tendency to provide “careful and measured explanations” for its decisions—that anything about Juror Z’s demeanor would dull the impact of his numerous affirmative statements about his ability to impose the death penalty in any situation. In effect, the Court reads something into nothing and defers to a finding that the trial court never made, instead of relying on the finding on which the Washington Supreme Court clearly based its own ruling and which finds no support in our decisions. In its analysis, the Court places great emphasis on defense counsel’s failure to object to Juror Z’s exclusion for cause, characterizing it as “voluntary acquiescence to, or confirmation of” his removal. A closer look at the voir dire transcript . . . reveals that the Court’s interpretation of defense counsel’s statement is not necessarily accurate. Upon being asked by the judge if either party had any challenge to Juror Z, the State provided that it did and the defense responded to the judge that it had “no objection.” Although the Court reads defense counsel’s statement to mean that defense counsel had no objection to Juror Z’s exclusion, it is more clearly read to mean that the defense had no objection to Juror Z serving on the jury and therefore no reason to challenge him. In any event, whether defense counsel’s statement is taken as a failure to provide a defense of Juror Z or as acquiescence in his recusal, it is irrelevant to the ultimate disposition of this case. We said in Witt that the failure to object “in a situation later claimed to be so rife with ambiguity as to constitute constitutional error” is a factor that should be considered when assessing a defendant’s claims, but in this case there was absolutely no basis for striking Juror Z. Thus, counsel’s failure to provide an affirmative response to the State’s motion, though perhaps not strategically sound, does not doom respondent’s constitutional claim. Unlike Witt, in which there was arguably some ambiguity in the juror’s voir dire responses, here Juror Z had unambiguously asserted his full capability to follow the law.

II Even a juror who is generally opposed to the death penalty cannot permissibly be excused for cause so long as he can still follow the law as properly instructed. The Court recognizes this principle, and yet the perverse result of its opinion is that a juror who is clearly willing to impose the death penalty, but considers the severity of that decision carefully enough to recognize that there

273

274

Chapter 13: Selecting Jurors

are certain circumstances under which it is not appropriate (e.g., that it would only be appropriate in “severe situations”), is “substantially impaired.” It is difficult to imagine, under such a standard, a juror who would not be considered so impaired, unless he delivered only perfectly unequivocal answers during the unfamiliar and often confusing legal process of voir dire and was willing to state without hesitation that he would be able to vote for a death sentence under any imaginable circumstance. Today, the Court has fundamentally redefined—or maybe just misunderstood—the meaning of “substantially impaired,” and, in doing so, has gotten it horribly backwards. It appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot. The Court emphasizes that “the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes.” But that does not and cannot mean that jurors must be willing to impose a death sentence in every situation in which a defendant is eligible for that sanction. That is exactly the outcome we aimed to protect against in developing the standard that, contrary to the Court’s apparent temporary lapse, still governs today. . . .

Dissenting opinion of justice breyer, joined by justice souter I join Justice Stevens’ dissent. I write separately to emphasize that, in my opinion, the majority’s strongest piece of evidence—defense counsel’s words “no objection” (uttered in response to the court’s excusing Juror Z)—should play no role in our analysis. The words “no objection” meant in context at most what they say, namely that defense counsel did not object to the judge’s excusing Juror Z for cause. Often States treat such a failure to object as waiving a point. But that is not so here. That is because the Washington Supreme Court has told us that, under state law, counsel’s failure to object is without significant legal effect. And that means we must treat this case as if a proper objection had been made. . . .

Chap ter 1 4

Victim Impact Evidence— Payne v. Tennessee (1991) Editors’ comment In noncapital cases, most states permit the sentencing judge to take into consideration “victim impact” statements made by victims and, if relevant, their relatives and friends. Would such statements also be appropriate in the penalty phase of a capital case, where sentencing usually is determined by a jury? Or would a jury become too “emotional” to make a fair sentencing decision? At first, the Supreme Court, in Booth v. Maryland, 482 U.S. 496 (1987), held 5–4 that a victim impact statement given in the penalty phase violated the Eighth Amendment. Booth prohibited four kinds of evidence: (1) positive personal characteristics of the murder victim; (2) the negative effects of the murder on the victim’s relatives and friends; (3) pejorative characterizations of the defendant’s crime; and (4) recommendations about the appropriate sentence. Further, South Carolina v. Gathers, 490 U.S. 805 (1989), prohibited statements made by a prosecutor to the capital sentencing jury regarding the personal qualities of the victim. Booth and Gathers were overruled by Payne as to the first two kinds of victim impact evidence. The third and fourth kinds had not been presented in Payne and thus were not addressed by the Court’s opinion. Although victim impact evidence is constitutionally permissible, jurisdictions are not required to allow it. Currently Indiana and Mississippi prohibit it unless it relates to an aggravating circumstance, which is rare; and Wyoming prohibits it entirely. Connecticut and New Hampshire have not addressed the issue, and in the remaining 30 or so death penalty jurisdictions victim impact evidence is permitted either by statute or by case law. Jurisdictions vary regarding how much discretion trial judges have over whether to admit such evidence and how much to admit. In exercising that discretion the trial judge must balance the prosecution’s right to make its points against the risk of unfair prejudice to the defendant that could result in a reversal on appeal.

Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed.2d 720 (1991) (6–3, the Eighth Amendment does not prohibit victim impact evidence at a capital sentencing procedure.) Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

275

276

Chapter 14:  Victim Impact Evidence

Opinion of Chief Justice Rehnquist for The Court In this case we reconsider our holdings in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), that the Eighth Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial. Petitioner, Pervis Tyrone Payne, was convicted by a jury on two counts of firstdegree murder and one count of assault with intent to commit murder in the first degree. He was sentenced to death for each of the murders and to 30 years in prison for the assault. The victims of Payne’s offenses were 28-year-old Charisse Christopher, her 2-year-old daughter Lacie, and her 3-year-old son Nicholas. The three lived together in an apartment in Millington, Tennessee, across the hall from Payne’s girlfriend, Bobbie Thomas. . . . During the sentencing phase of the trial, Payne presented the testimony of four witnesses: his mother and father, Bobbie Thomas, and Dr. John T. Hutson, a clinical psychologist specializing in criminal court evaluation work. Bobbie Thomas testified that she met Payne at church, during a time when she was being abused by her husband. She stated that Payne was a very caring person, and that he devoted much time and attention to her three children, who were being affected by her marital difficulties. She said that the children had come to love him very much and would miss him, and that he “behaved just like a father that loved his kids.” She asserted that he did not drink, nor did he use drugs, and that it was generally inconsistent with Payne’s character to have committed these crimes. Dr. Hutson testified that based on Payne’s low score on an IQ test, Payne was “mentally handicapped.” Hutson also said that Payne was neither psychotic nor schizophrenic, and that Payne was the most polite prisoner he had ever met. Payne’s parents testified that their son had no prior criminal record and had never been arrested. They also stated that Payne had no history of alcohol or drug abuse, he worked with his father as a painter, he was good with children, and he was a good son. The State presented the testimony of Charisse’s mother, Mary Zvolanek. When asked how Nicholas had been affected by the murders of his mother and sister, she responded: He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried about my Lacie.

Opinion of Chief Justice Rehnquist for the Court

In arguing for the death penalty during closing argument, the prosecutor commented on the continuing effects of Nicholas’ experience, stating: But we do know that Nicholas was alive. And Nicholas was in the same room. Nicholas was still conscious. His eyes were open. He responded to the paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and baby sister. There is nothing you can do to ease the pain of any of the families involved in this case. There is nothing you can do to ease the pain of Bernice or Carl Payne, and that’s a tragedy. There is nothing you can do basically to ease the pain of Mr. and Mrs. Zvolanek, and that’s a tragedy. They will have to live with it the rest of their lives. There is obviously nothing you can do for Charisse and Lacie Jo. But there is something that you can do for Nicholas. Somewhere down the road Nicholas is going to grow up, hopefully. He’s going to want to know what happened. And he is going to know what happened to his baby sister and his mother. He is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer. . . .

In the rebuttal to Payne’s closing argument, the prosecutor stated: You saw the videotape this morning. You saw what Nicholas Christopher will carry in his mind forever. When you talk about cruel, when you talk about atrocious, and when you talk about heinous, that picture will always come into your mind, probably throughout the rest of your lives. . . . No one will ever know about Lacie Jo because she never had the chance to grow up. Her life was taken from her at the age of two years old. So, no there won’t be a high school principal to talk about Lacie Jo Christopher, and there won’t be anybody to take her to her high school prom. And there won’t be anybody there—there won’t be her mother there or Nicholas’ mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby. [Petitioner’s attorney] wants you to think about a good reputation, people who love the defendant and things about him. He doesn’t want you to think about the people who love Charisse Christopher, her mother and daddy who loved her. The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate

277

278

Chapter 14:  Victim Impact Evidence

is. He doesn’t have anybody to watch cartoons with him, a little one. These are the things that go into why it is especially cruel, heinous, and atrocious, the burden that that child will carry forever.

The jury sentenced Payne to death on each of the murder counts. The Supreme Court of Tennessee affirmed the conviction and sentence. The court rejected Payne’s contention that the admission of the grandmother’s testimony and the State’s closing argument constituted prejudicial violations of his rights under the Eighth Amendment as applied in Booth v. Maryland and South Carolina v. Gathers. The court characterized the grandmother’s testimony as “technically irrelevant,” but concluded that it “did not create a constitutionally unacceptable risk of an arbitrary imposition of the death penalty and was harmless beyond a reasonable doubt.” The court determined that the prosecutor’s comments during closing argument were “relevant to [Payne’s] personal responsibility and moral guilt.” The court explained that “[w]hen a person deliberately picks a butcher knife out of a kitchen drawer and proceeds to stab to death a twenty-eightyear-old mother, her two and one-half-year-old daughter and her three and one-half-year-old son, in the same room, the physical and mental condition of  the boy he left for dead is surely relevant in determining his ‘blameworthiness.’” The court concluded that any violation of Payne’s rights under Booth and Gathers “was harmless beyond a reasonable doubt.” We granted certiorari to reconsider our holdings in Booth and Gathers that the Eighth Amendment prohibits a capital sentencing jury from considering “victim impact” evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family. In Booth, the defendant robbed and murdered an elderly couple. As required by a state statute, a victim impact statement was prepared based on interviews with the victims’ son, daughter, son-in-law, and granddaughter. The statement, which described the personal characteristics of the victims, the emotional impact of the crimes on the family, and set forth the family members’ opinions and characterizations of the crimes and the defendant, was submitted to the jury at sentencing. The jury imposed the death penalty. The conviction and sentence were affirmed on appeal by the State’s highest court. This Court held by a 5-to-4 vote that the Eighth Amendment prohibits a jury from considering a victim impact statement at the sentencing phase of a capital trial. The Court made clear that the admissibility of victim impact evidence was not to be determined on a case-by-case basis, but that such evidence was per se inadmissible in the sentencing phase of a capital case except to the extent that it “relate[d] directly to the circumstances of the crime.” In Gathers, decided two years later, the Court extended the rule announced in Booth to statements

Opinion of Chief Justice Rehnquist for the Court

made by a prosecutor to the sentencing jury regarding the personal qualities of the victim. The Booth Court began its analysis with the observation that the capital defendant must be treated as a “‘uniquely individual human bein[g],’” and therefore the Constitution requires the jury to make an individualized determination as to whether the defendant should be executed based on the “‘character of the individual and the circumstances of the crime.’” The Court concluded that while no prior decision of this Court had mandated that only the defendant’s character and immediate characteristics of the crime may constitutionally be considered, other factors are irrelevant to the capital sentencing decision unless they have “some bearing on the defendant’s ‘personal responsibility and moral guilt.’” To the extent that victim impact evidence presents “factors about which the defendant was unaware, and that were irrelevant to the decision to kill,” the Court concluded, it has nothing to do with the “blameworthiness of a particular defendant.” Evidence of the victim’s character, the Court observed, “could well distract the sentencing jury from its constitutionally required task [of] determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime.” The Court concluded that, except to the extent that victim impact evidence relates “directly to the circumstances of the crime,” the prosecution may not introduce such evidence at a capital sentencing hearing because “it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” Booth and Gathers were based on two premises: that evidence relating to a particular victim or to the harm that a capital defendant causes a victim’s family do not in general reflect on the defendant’s “blameworthiness,” and that only evidence relating to “blameworthiness” is relevant to the capital sentencing decision. However, the assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment. Thus, two equally blameworthy criminal defendants may be guilty of different offenses solely because their acts cause differing amounts of harm. “If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater.” Booth, 482 U.S., at 519 (Scalia, J., dissenting). The same is true with respect to two defendants, each of whom participates in a robbery, and each of whom acts with reckless disregard for human life; if the robbery in which the first defendant participated results in the death of a victim, he may be subjected to the death penalty, but if the robbery in which the second defendant participates does not result in the death of a victim, the death penalty may not be imposed. Tison v. Arizona.

279

280

Chapter 14:  Victim Impact Evidence

The principles which have guided criminal sentencing—as opposed to criminal liability—have varied with the times. The book of Exodus prescribes the Lex talionis, “An eye for an eye, a tooth for a tooth.” Exodus 21: 22–23. In England and on the continent of Europe, as recently as the 18th century crimes which would be regarded as quite minor today were capital offenses. Writing in the 18th century, the Italian criminologist Cesare Beccaria advocated the idea that “the punishment should fit the crime.” He said that “[w]e have seen that the true measure of crimes is the injury done to society.” Gradually the list of crimes punishable by death diminished, and legislatures began grading the severity of crimes in accordance with the harm done by the criminal. The sentence for a given offense, rather than being precisely fixed by the legislature, was prescribed in terms of a minimum and a maximum, with the actual sentence to be decided by the judge. With the increasing importance of probation, as opposed to imprisonment, as a part of the penological process, some States such as California developed the “indeterminate sentence,” where the time of incarceration was left almost entirely to the penological authorities rather than to the courts. But more recently the pendulum has swung back. The Federal Sentencing Guidelines, which went into effect in 1987, provided for very precise calibration of sentences, depending upon a number of factors. These factors relate both to the subjective guilt of the defendant and to the harm caused by his acts. Wherever judges in recent years have had discretion to impose sentence, the consideration of the harm caused by the crime has been an important factor in the exercise of that discretion: The first significance of harm in Anglo-American jurisprudence is, then, as a prerequisite to the criminal sanction. The second significance of harm—one no less important to judges—is as a measure of the seriousness of the offense and therefore as a standard for determining the severity of the sentence that will be meted out. S. Wheeler, K. Mann, and A. Sarat, Sitting in Judgment: The Sentencing of White-Collar Criminals 56 (1988).

Whatever the prevailing sentencing philosophy, the sentencing authority has always been free to consider a wide range of relevant material. In the federal system, we observed that “a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” Even in the context of capital sentencing, prior to Booth the joint opinion of Justices Stewart, Powell, and Stevens in Gregg v. Georgia had rejected petitioner’s attack on the Georgia statute because of the “wide scope of evidence and argument allowed at presentence hearings.” The joint opinion stated:

Opinion of Chief Justice Rehnquist for the Court

We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. . . . So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.

The Maryland statute involved in Booth required that the presentence report in all felony cases include a “victim impact statement” which would describe the effect of the crime on the victim and his family. Congress and most of the States have, in recent years, enacted similar legislation to enable the sentencing authority to consider information about the harm caused by the crime committed by the defendant. The evidence involved in the present case was not admitted pursuant to any such enactment, but its purpose and effect were much the same as if it had been. While the admission of this particular kind of evidence—designed to portray for the sentencing authority the actual harm caused by a particular crime—is of recent origin, this fact hardly renders it unconstitutional. . . . “We have held that a State cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that the defendant proffers in support of a sentence less than death.” Eddings v. Oklahoma.a Thus we have, as the Court observed in Booth, required that the capital defendant be treated as a “‘uniquely individual human bein[g].’” But it was never held or even suggested in any of our cases preceding Booth that the defendant, entitled as he was to individualized consideration, was to receive that consideration wholly apart from the crime which he had committed. The language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received. Any doubt on the matter is dispelled by comparing the language in Woodson with the language from Gregg v. Georgia, quoted above, which was handed down the same day as Woodson. This misreading of precedent in Booth has, we think, unfairly weighted the scales in a capital trial; while virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering “a glimpse of the life” which a defendant “chose to extinguish,” Mills v. Maryland, 486 U.S. 367 (1988) (Rehnquist, C. J., dissenting), or demonstrating the loss to

Editor’s note: In Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court held that there was a right to present as mitigating evidence proof of a capital defendant’s emotional disturbance.

a

281

282

Chapter 14:  Victim Impact Evidence

the victim’s family and to society which has resulted from the defendant’s homicide. The Booth Court reasoned that victim impact evidence must be excluded because it would be difficult, if not impossible, for the defendant to rebut such evidence without shifting the focus of the sentencing hearing away from the defendant, thus creating a “‘mini-trial’ on the victim’s character.” In many cases the evidence relating to the victim is already before the jury at least in part because of its relevance at the guilt phase of the trial. But even as to additional evidence admitted at the sentencing phase, the mere fact that for tactical reasons it might not be prudent for the defense to rebut victim impact evidence makes the case no different than others in which a party is faced with this sort of a dilemma. As we explained in rejecting the contention that expert testimony on future dangerousness should be excluded from capital trials, “the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross examination and contrary evidence by the opposing party.” Payne echoes the concern voiced in Booth’s case that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be. The facts of Gathers are an excellent illustration of this: The evidence showed that the victim was an out of work, mentally handicapped individual, perhaps not, in the eyes of most, a significant contributor to society, but nonetheless a murdered human being. Under our constitutional system, the primary responsibility for defining crimes against state law, fixing punishments for the commission of these crimes, and establishing procedures for criminal trials rests with the States. The state laws respecting crimes, punishments, and criminal procedure are, of course, subject to the overriding provisions of the United States Constitution. Where the State imposes the death penalty for a particular crime, we have held that the Eighth Amendment imposes special limitations upon that process. . . . “Within the constitutional limitations defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.” Blystone v. Pennsylvania. The States remain free,

Opinion of Chief Justice Rehnquist for the Court

in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. We think the Booth Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. Courts have always taken into consideration the harm done by the defendant in imposing sentence, and the evidence adduced in this case was illustrative of the harm caused by Payne’s double murder. We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” Booth, 482 U.S., at 517 (White, J., dissenting). By turning the victim into a “faceless stranger at the penalty phase of a capital trial,” Gathers, 490 U.S., at 821 (O’Connor, J., dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder. The present case is an example of the potential for such unfairness. The capital sentencing jury heard testimony from Payne’s girlfriend that they met at church, that he was affectionate, caring, kind to her children, that he was not an abuser of drugs or alcohol, and that it was inconsistent with his character to have committed the murders. Payne’s parents testified that he was a good son, and a clinical psychologist testified that Payne was an extremely polite prisoner and suffered from a low IQ. None of this testimony was related to the circumstances of Payne’s brutal crimes. In contrast, the only evidence of the impact of Payne’s offenses during the sentencing phase was Nicholas’ grandmother’s description—in response to a single question—that the child misses his mother and baby sister. Payne argues that the Eighth Amendment commands that the jury’s death sentence must be set aside because the jury heard this testimony. But the testimony illustrated quite poignantly some of the harm that Payne’s killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence

283

284

Chapter 14:  Victim Impact Evidence

i­ ntroduced by the defendant. The Supreme Court of Tennessee in this case obviously felt the unfairness of the rule pronounced by Booth when it said: [I]t is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.

In Gathers, as indicated above, we extended the holding of Booth barring victim impact evidence to the prosecutor’s argument to the jury. Human nature being what it is, capable lawyers trying cases to juries try to convey to the jurors that the people involved in the underlying events are, or were, living human beings, with something to be gained or lost from the jury’s verdict. Under the aegis of the Eighth Amendment, we have given the broadest latitude to the defendant to introduce relevant mitigating evidence reflecting on his individual personality, and the defendant’s attorney may argue that evidence to the jury. Petitioner’s attorney in this case did just that. For the reasons discussed above, we now reject the view—expressed in Gathers—that a State may not permit the prosecutor to similarly argue to the jury the human cost of the crime of which the defendant stands convicted. We reaffirm the view expressed by Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934): “justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated. . . . [The concurring opinions of Justices O’Connor and Scalia are omitted.]

Concurring Opinion of Justice Souter, Joined by Justice Kennedy I join the Court’s opinion addressing two categories of facts excluded from consideration at capital sentencing proceedings by Booth v. Maryland and South Carolina v. Gathers: information revealing the individuality of the victim and the impact of the crime on the victim’s survivors. As to these two categories, I believe Booth and Gathers were wrongly decided. To my knowledge, our legal tradition has never included a general rule that evidence of a crime’s effects on the victim and others is, standing alone, irrelevant to

Concurring Opinion of Justice Souter

a ­sentencing determination of the defendant’s culpability. Indeed, as the Court’s opinion today, and dissents in Booth and Gathers make clear, criminal conduct has traditionally been categorized and penalized differently according to consequences not specifically intended, but determined in part by conditions unknown to a defendant when he acted. The majority opinion in Booth nonetheless characterized the consideration in a capital sentencing proceeding of a victim’s individuality and the consequences of his death on his survivors as “irrelevant” and productive of “arbitrary and capricious” results, insofar as that would allow the sentencing authority to take account of information not specifically contemplated by the defendant prior to his ultimate criminal decision. This condemnation comprehends two quite separate elements. As to one such element the condemnation is merited but insufficient to justify the rule in Booth, and as to the other it is mistaken. Evidence about the victim and survivors, and any jury argument predicated on it, can of course be so inflammatory as to risk a verdict impermissibly based on passion, not deliberation. . . . With the command of due process before us, this Court and the other courts of the state and federal systems will perform the “duty to search for constitutional error with painstaking care,” an obligation “never more exacting than it is in a capital case.” Burger v. Kemp. Booth nonetheless goes further and imposes a blanket prohibition on consideration of evidence of the victim’s individuality and the consequential harm to survivors as irrelevant to the choice between imprisonment and execution, except when such evidence goes to the “circumstances of the crime,” and probably then only when the facts in question were known to the defendant and relevant to his decision to kill. This prohibition rests on the belief that consideration of such details about the victim and survivors as may have been outside the defendant’s knowledge is inconsistent with the sentencing jury’s Eighth Amendment duty “in the unique circumstance of a capital sentencing hearing . . . to focus on the defendant as a ‘uniquely individual human bein[g].’” Woodson v. North Carolina. The assumption made is that the obligation to consider the defendant’s uniqueness limits the data about a crime’s impact, on which a defendant’s moral guilt may be calculated, to the facts he specifically knew and presumably considered. His uniqueness, in other words, is defined by the specifics of his knowledge and the reasoning that is thought to follow from it. To hold, however, that in setting the appropriate sentence a defendant must be considered in his uniqueness is not to require that only unique qualities be considered. While a defendant’s anticipation of specific consequences to the victims of his intended act is relevant to sentencing, such detailed foreknowledge does not exhaust the category of morally relevant fact. One such fact that is known to all murderers and relevant to the blameworthiness of each one was identified by the Booth majority itself when it barred the sentencing authority in capital cases from considering “the full range of foreseeable consequences of a defendant’s actions.” Murder has foreseeable consequences. When it ­happens,

285

286

Chapter 14:  Victim Impact Evidence

it is always to distinct individuals, and after it happens other victims are left behind. Every defendant knows, if endowed with the mental competence for criminal responsibility, that the life he will take by his homicidal behavior is that of a unique person, like himself, and that the person to be killed probably has close associates, “survivors,” who will suffer harms and deprivations from the victim’s death. Just as defendants know that they are not faceless human ciphers, they know that their victims are not valueless fungibles, and just as defendants appreciate the web of relationships and dependencies in which they live, they know that their victims are not human islands, but individuals with parents or children, spouses or friends or dependents. Thus, when a defendant chooses to kill, or to raise the risk of a victim’s death, this choice necessarily relates to a whole human being and threatens an association of others, who may be distinctly hurt. The fact that the defendant may not know the details of a victim’s life and characteristics, or the exact identities and needs of those who may survive, should not in any way obscure the further facts that death is always to a “unique” individual, and harm to some group of survivors is a consequence of a successful homicidal act so foreseeable as to be virtually inevitable. That foreseeability of the killing’s consequences imbues them with direct moral relevance, and evidence of the specific harm caused when a homicidal risk is realized is nothing more than evidence of the risk that the defendant originally chose to run despite the kinds of consequences that were obviously foreseeable. It is morally both defensible and appropriate to consider such evidence when penalizing a murderer, like other criminals, in light of common knowledge and the moral responsibility that such knowledge entails. Any failure to take account of a victim’s individuality and the effects of his death upon close survivors would thus more appropriately be called an act of lenity than their consideration an invitation to arbitrary sentencing. Indeed, given a defendant’s option to introduce relevant evidence in mitigation, sentencing without such evidence of victim impact may be seen as a significantly imbalanced process. I so view the relevance of the two categories of victim impact evidence at issue here, and I fully agree with the majority’s conclusion, and the opinions expressed by the dissenters in Booth and Gathers, that nothing in the Eighth Amendment’s condemnation of cruel and unusual punishment would require that evidence to be excluded. . . .

Dissenting Opinion of Justice Marshall, Joined by Justice Blackmun . . . As the majorities in Booth and Gathers recognized, the core principle of this Court’s capital jurisprudence is that the sentence of death must reflect an “‘individualized determination’” of the defendant’s “‘personal responsibility

Dissenting Opinion of Justice Marshall

and moral guilt’” and must be based upon factors that channel the jury’s discretion “‘so as to minimize the risk of wholly arbitrary and capricious action.’” . . . The State’s introduction of victim-impact evidence, Justice Powell and Justice Brennan explained, violates this fundamental principle. Where, as is ordinarily the case, the defendant was unaware of the personal circumstances of his victim, admitting evidence of the victim’s character and the impact of the murder upon the victim’s family predicates the sentencing determination on “factors . . . wholly unrelated to the blameworthiness of [the] particular defendant.” . . . And even where the defendant was in a position to foresee the likely impact of his conduct, admission of victim-impact evidence creates an unacceptable risk of sentencing arbitrariness. As Justice Powell explained in Booth, the probative value of such evidence is always outweighed by its prejudicial effect because of its inherent capacity to draw the jury’s attention away from the character of the defendant and the circumstances of the crime to such illicit considerations as the eloquence with which family members express their grief and the status of the victim in the community. . . . I continue to find these considerations wholly persuasive, and I see no purpose in trying to improve upon Justice Powell’s and Justice Brennan’s exposition of them. There is nothing new in the majority’s discussion of the supposed deficiencies in Booth and Gathers. Every one of the arguments made by the majority can be found in the dissenting opinions filed in those two cases, and, as I show in the margin, each argument was convincingly answered by Justice Powell and Justice Brennan.1. . .

The majority’s primary argument is that punishment in criminal law is frequently based on an “assessment of [the] harm caused by the defendant as a result of the crime charged.” Nothing in Booth or Gathers, however, conflicts with this unremarkable observation. These cases stand merely for the proposition that the State may not put on evidence of one particular species of harm—namely, that associated with the victim’s personal characteristics independent of the circumstances of the offense—in the course of a capital murder proceeding. . . . It may be the case that such a rule departs from the latitude of sentencers in criminal law generally “[to] tak[e] into consideration the harm done by the defendant.” But as the Booth Court pointed out, because this Court’s capital-sentencing jurisprudence is founded on the premise that “death is a ‘punishment different from all other sanctions,’” it is completely unavailing to attempt to infer from sentencing considerations in noncapital settings the proper treatment of any particular sentencing issue in a capital case. . . . The majority also discounts Justice Powell’s concern with the inherently prejudicial quality of victimimpact evidence. “[T]he mere fact that for tactical reasons it might not be prudent for the defense to rebut victim impact evidence,” the majority protests, “makes the case no different than others in which a party is faced with this sort of a dilemma.” Unsurprisingly, this tautology is completely unresponsive to Justice Powell’s argument. The Booth Court established a rule excluding introduction of victimimpact evidence not merely because it is difficult to rebut—a feature of victim-impact evidence that may be “no different” from that of many varieties of relevant, legitimate evidence—but because the effect of this evidence in the sentencing proceeding is unfairly prejudicial: “The prospect of a ‘mini-trial’ on the victim’s character is more than simply unappealing; it could well distract the sentencing jury

1

287

288

Chapter 14:  Victim Impact Evidence

Dissenting Opinion of Justice Stevens, Joined by Justice Blackmun The novel rule that the Court announces today represents a dramatic departure for the principles that have governed our capital sentencing jurisprudence for decades. . . . Our cases provide no support whatsoever for the majority’s conclusion that the prosecutor may introduce evidence that sheds no light on the defendant’s guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason. Until today our capital punishment jurisprudence has required that any decision to impose the death penalty be based solely on evidence that tends to inform the jury about the character of the offense and the character of the defendant. Evidence that serves no purpose other than to appeal to the sympathies or emotions of the jurors has never been considered admissible. Thus, if a defendant, who had murdered a convenience store clerk in cold blood in the course of an armed robbery, offered evidence unknown to him at the time of the crime about the immoral character of his victim, all would recognize immediately that the evidence was irrelevant and inadmissible. Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty. ...

II Today’s majority has obviously been moved by an argument that has strong political appeal but no proper place in a reasoned judicial opinion. Because our decision in Lockett recognizes the defendant’s right to introduce all ­­mitigating from its constitutionally required task—determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime.” . . . The law is replete with per se prohibitions of types of evidence the probative effect of which is generally outweighed by its unfair prejudice. . . . There is nothing anomalous in the notion that the Eighth Amendment would similarly exclude evidence that has an undue capacity to undermine the regime of individualized sentencing that our capital jurisprudence demands. Finally, the majority contends that the exclusion of victim-impact evidence “deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.” The majority’s recycled contention . . . begs the question. Before it is possible to conclude that the exclusion of victim-impact evidence prevents the State from making its case or the jury from considering relevant evidence, it is necessary to determine whether victim-impact evidence is consistent with the substantive standards that define the scope of permissible sentencing determinations under the Eighth Amendment. The majority offers no persuasive answer to Justice Powell and Justice Brennan’s conclusion that victim-impact evidence is frequently irrelevant to any permissible sentencing consideration and that such evidence risks exerting illegitimate “moral force” by directing the jury’s attention on illicit considerations such as the victim’s standing in the community.

Dissenting Opinion of Justice Stevens

evidence that may inform the jury about his character, the Court suggests that fairness requires that the State be allowed to respond with similar evidence about the victim. This argument is a classic non sequitur: The victim is not on trial; her character, whether good or bad, cannot therefore constitute either an aggravating or a mitigating circumstance. Even if introduction of evidence about the victim could be equated with introduction of evidence about the defendant, the argument would remain flawed in both its premise and its conclusion. The conclusion that exclusion of victim impact evidence results in a significantly imbalanced sentencing procedure is simply inaccurate. Just as the defendant is entitled to introduce any relevant mitigating evidence, so the State may rebut that evidence and may designate any relevant conduct to be an aggravating factor provided that the factor is sufficiently well defined and consistently applied to cabin the sentencer’s discretion. The premise that a criminal prosecution requires an even-handed balance between the State and the defendant is also incorrect. The Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State. Thus, the State must prove a defendant’s guilt beyond a reasonable doubt. Rules of evidence are also weighted in the defendant’s favor. For example, the prosecution generally cannot introduce evidence of the defendant’s character to prove his propensity to commit a crime, but the defendant can introduce such reputation evidence to show his law-abiding nature. . . . Even if balance were required or desirable, today’s decision, by permitting both the defendant and the State to introduce irrelevant evidence for the sentencer’s consideration without any guidance, surely does nothing to enhance parity in the sentencing process.

III Victim impact evidence, as used in this case, has two flaws, both related to the Eighth Amendment’s command that the punishment of death may not be meted out arbitrarily or capriciously. First, aspects of the character of the victim unforeseeable to the defendant at the time of his crime are irrelevant to the defendant’s “personal responsibility and moral guilt” and therefore cannot justify a death sentence. See Enmund v. Florida; Tison v. Arizona; California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring). Second, the quantity and quality of victim impact evidence sufficient to turn a verdict of life in prison into a verdict of death is not defined until after the crime has been committed and therefore cannot possibly be applied consistently in different cases. The sentencer’s unguided consideration of victim impact evidence thus conflicts with the principle central to our capital

289

290

Chapter 14:  Victim Impact Evidence

­ unishment jurisprudence that, “where discretion is afforded a sentencing p body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg. Open-ended reliance by a capital sentencer on victim impact evidence simply does not provide a “principled way to distinguish [cases], in which the death penalty [i]s imposed, from the many cases in which it [i]s not.” Godfrey v. Georgia, 446 U.S. 420, 433 (1980). The majority attempts to justify the admission of victim impact evidence by arguing that “consideration of the harm caused by the crime has been an important factor in the exercise of [sentencing] discretion.” This statement is misleading and inaccurate. It is misleading because it is not limited to harm that is foreseeable. It is inaccurate because it fails to differentiate between legislative determinations and judicial sentencing. It is true that an evaluation of the harm caused by different kinds of wrongful conduct is a critical aspect in legislative definitions of offenses and determinations concerning sentencing guidelines. There is a rational correlation between moral culpability and the foreseeable harm caused by criminal conduct. Moreover, in the capital sentencing area, legislative identification of the special aggravating factors that may justify the imposition of the death penalty is entirely appropriate. But the majority cites no authority for the suggestion that unforeseeable and indirect harms to a victim’s family are properly considered as aggravating evidence on a case-by-case basis. The dissents in Booth and Gathers and the majority today offer only the recent decision in Tison v. Arizona and two legislative examples to support their contention that harm to the victim has traditionally influenced sentencing discretion. Tison held that the death penalty may be imposed on a felon who acts with reckless disregard for human life if a death occurs in the course of the felony, even though capital punishment cannot be imposed if no one dies as a result of the crime. The first legislative example is that attempted murder and murder are classified as two different offenses subject to different punishments. The second legislative example is that a person who drives while intoxicated is guilty of vehicular homicide if his actions result in a death but is not guilty of this offense if he has the good fortune to make it home without killing anyone. These three scenarios, however, are fully consistent with the Eighth Amendment jurisprudence reflected in Booth and Gathers and do not demonstrate that harm to the victim may be considered by a capital sentencer in the ad hoc and posthoc manner authorized by today’s majority. The majority’s examples demonstrate only that harm to the victim may justify enhanced punishment if the

Dissenting Opinion of Justice Stevens

harm is both foreseeable to the defendant and clearly identified in advance of the crime by the legislature as a class of harm that should in every case result in more severe punishment. In each scenario, the defendants could reasonably foresee that their acts might result in loss of human life. In addition, in each, the decision that the defendants should be treated differently was made prior to the crime by the legislature, the decision of which is subject to scrutiny for basic rationality. Finally, in each scenario, every defendant who causes the well-defined harm of destroying a human life will be subject to the determination that his conduct should be punished more severely. The majority’s scenarios therefore provide no support for its holding, which permits a jury to sentence a defendant to death because of harm to the victim and his family that the defendant could not foresee, which was not even identified until after the crime had been committed, and which may be deemed by the jury, without any rational explanation, to justify a death sentence in one case but not in another. Unlike the rule elucidated by the scenarios on which the majority relies, the majority’s holding offends the Eighth Amendment because it permits the sentencer to rely on irrelevant evidence in an arbitrary and capricious manner. The majority’s argument that “the sentencing authority has always been free to consider a wide range of relevant material,” thus cannot justify consideration of victim impact evidence that is irrelevant because it details harms that the defendant could not have foreseen. Nor does the majority’s citation of Gregg v. Georgia concerning the “wide scope of evidence and argument allowed at presentence hearings,” support today’s holding. The Gregg ­plurality endorsed the sentencer’s consideration of a wide range of evidence “[s]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant.” . . . Irrelevant victim impact evidence that distracts the sentencer from the proper focus of sentencing and encourages reliance on emotion and other arbitrary factors necessarily prejudices the defendant. The majority’s apparent inability to understand this fact is highlighted by its misunderstanding of Justice Powell’s argument in Booth that admission of victim impact evidence is undesirable because it risks shifting the focus of the sentencing hearing away from the defendant and the circumstances of the crime and creating a “‘mini-trial’ on the victim’s character.” Booth found this risk insupportable not, as today’s majority suggests, because it creates a “tactical” “dilemma” for the defendant, but because it allows the possibility that the jury will be so distracted by prejudicial and irrelevant considerations that it will base its life-or-death decision on whim or caprice.

291

292

Chapter 14:  Victim Impact Evidence

IV The majority thus does far more than validate a State’s judgment that “the jury should see ‘a quick glimpse of the life petitioner chose to extinguish,’ Mills v. Maryland, 486 U.S. 367, 397 (1988) (Rehnquist, C.J., dissenting)”. Instead, it allows a jury to hold a defendant responsible for a whole array of harms that he could not foresee and for which he is therefore not blameworthy. Justice Souter argues that these harms are sufficiently foreseeable to hold the defendant accountable because “[e]very defendant knows, if endowed with the mental competence for criminal responsibility, that the life he will take by his homicidal behavior is that of a unique person, like himself, and that the person to be killed probably has close associates, ‘survivors,’ who will suffer harms and deprivations from the victim’s death.” But every juror and trial judge knows this much as well. Evidence about who those survivors are and what harms and deprivations they have suffered is therefore not necessary to apprise the sentencer of any information that was actually foreseeable to the defendant. Its only function can be to “divert the jury’s attention away from the defendant’s background and record, and the circumstances of the crime.” . . . Arguing in the alternative, Justice Souter correctly points out that victim impact evidence will sometimes come to the attention of the jury during the guilt phase of the trial. He reasons that the ideal of basing sentencing determinations entirely on the moral culpability of the defendant is therefore unattainable unless a different jury is empaneled for the sentencing hearing. Thus, to justify overruling Booth, he assumes that the decision must otherwise be extended far beyond its actual holding. Justice Souter’s assumption is entirely unwarranted. For as long as the contours of relevance at sentencing hearings have been limited to evidence concerning the character of the offense and the character of the offender, the law has also recognized that evidence that is admissible for a proper purpose may not be excluded because it is inadmissible for other purposes and may indirectly prejudice the jury. . . . In the case before us today, much of what might be characterized as victim impact evidence was properly admitted during the guilt phase of the trial and, given the horrible character of this crime, may have been sufficient to justify the Tennessee Supreme Court’s conclusion that the error was harmless because the jury would necessarily have imposed the death sentence even absent the error. The fact that a good deal of such evidence is routinely and properly brought to the attention of the jury merely indicates that the rule of Booth may not affect the outcome of many cases.

Dissenting Opinion of Justice Stevens

In reaching our decision today, however, we should not be concerned with the cases in which victim impact evidence will not make a difference. We should be concerned instead with the cases in which it will make a difference. In those cases, defendants will be sentenced arbitrarily to death on the basis of evidence that would not otherwise be admissible because it is irrelevant to the defendants’ moral culpability. The Constitution’s proscription against the arbitrary imposition of the death penalty must necessarily proscribe the admission of evidence that serves no purpose other than to result in such arbitrary sentences.

V The notion that the inability to produce an ideal system of justice in which every punishment is precisely married to the defendant’s blameworthiness somehow justifies a rule that completely divorces some capital sentencing determinations from moral culpability is incomprehensible to me. Also incomprehensible is the argument that such a rule is required for the jury to take into account that each murder victim is a “unique” human being. . . . The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support. What is not obvious, however, is the way in which the character or reputation in one case may differ from that of other possible victims. Evidence offered to prove such differences can only be intended to identify some victims as more worthy of protection than others. Such proof risks decisions based on the same invidious motives as a prosecutor’s decision to seek the death penalty if a victim is white but to accept a plea bargain if the victim is black. See McCleskey v. Kemp, 481 U.S. 279, 366 (1987) (Stevens, J., dissenting). Given the current popularity of capital punishment in a crime-ridden society, the political appeal of arguments that assume that increasing the severity of sentences is the best cure for the cancer of crime, and the political strength of the “victims’ rights” movement, I recognize that today’s decision will be greeted with enthusiasm by a large number of concerned and thoughtful citizens. The great tragedy of the decision, however, is the danger that the “hydraulic pressure” of public opinion that Justice Holmes once described— and that properly influences the deliberations of democratic legislatures— has played a role not only in the Court’s decision to hear this case, and in its decision to reach the constitutional question without pausing to consider affirming on the basis of the Tennessee Supreme Court’s rationale, but even in its resolution of the constitutional issue involved. Today is a sad day for a great institution.

293

294

Chapter 14:  Victim Impact Evidence

Editors’ Questions 1. Since Payne, the U.S. Supreme Court has not addressed the admissibility of victim impact evidence in characterizing the crime (“He butchered my mother and father like cattle”) or in recommending sentence (“Why should he get life when he gave my husband death?”). How do you think the Court would rule on the admissibility of such evidence? 2. Sometimes the prosecution offers victim impact evidence that is more high-tech than the typical oral testimony and still photographs. For example, in People v. Kelly, 171 P.3d 548 (2007), the defendant stabbed 19-year-old Sara Weir to death and concealed her nude body wrapped in plastic. At the penalty phase the trial judge allowed the prosecution to show a video that was admitted through the testimony of the sole victim impact witness, Sara’s mother. On appeal, the California Supreme Court described the video as follows: It lasts about 20 minutes. It consists of a montage of still photographs and video clips of Sara Weir’s life, from her infancy until shortly before she was killed at the age of 19, narrated calmly and unemotionally by her mother. Throughout much of the video, the music of Enya—with most of the words unrecognizable—plays in the background; the music is generally soft, not stirring. One segment shows Sara singing a couple of songs with a school group, including “You Light Up My Life.” Part of the time she was singing solo, with her mother explaining that every student was required to sing solo. The videotape concerns Sara’s life, not her death. It shows scenes of her swimming, horseback riding, at school and social functions, and spending time with her family and friends. The closest it comes to referring to her death is the mother’s saying near the end, without noticeable emotion, that she does not want to dwell on this “terrible crime.” There is no mention of the facts of the murder or of [the] defendant. The video ends with a brief view of Sara’s unassuming grave marker followed by a video clip of people riding horseback in Alberta, Canada, over which the mother says this was where Sara came from and was the “kind of heaven” in which she belonged.

Was the admission of this video in error? The U. S. Supreme Court declined to review the California Supreme Court’s decision in the case. You may be able to find this video online.

Chap ter 1 5

The Sentencing Decision— McKoy v. North Carolina (1990) and Kansas v. Marsh (2006) Editors’ Comment In the typical death penalty case the defendant presents mitigating evidence in the sentencing phase in the hope of avoiding a death sentence. The question for this chapter is how that mitigating evidence is perceived by the jury. In the first case, McKoy v. North Carolina (1990), the trial judge instructed the jury that it could consider evidence as mitigating only if the jurors unanimously agreed that it was. In Mills v. Maryland, 486 U.S. 367 (1988), which was referred to in McKoy, the U.S. Supreme Court had disallowed such an instruction. However, because much of Mills was taken up with a discussion of the meaning of the ambiguous Maryland law, the unanimity issue arose again in McKoy, where the Court held that a unanimity instruction was unconstitutional because it did not permit sufficient effect to be given to mitigating evidence. As a result, each juror would be empowered to find that mitigating factors existed, increasing the likelihood of a sentence of life rather than death. Whether the sentence is life or death also might depend on the relationship between aggravating and mitigating evidence. Must the jury be given detailed instructions on the way in which aggravating and mitigating evidence is weighed? In Gregg v. Georgia (1976) (Chapter 3), the Court upheld a Georgia statute that simply required the jury to “consider” the aggravating and mitigating circumstances and return a sentence. Many jurisdictions, however, give more detailed instructions, as illustrated by the second case in this chapter, Kansas v. Marsh (2006). There the Court considered the so-called “equipoise” provision of the Kansas statute, which required a death sentence if aggravating circumstances were “not outweighed by” mitigating circumstances. In an earlier case, Walton v. Arizona, 497 U.S. 639 (1990), the Court had upheld a statute requiring the defendant to prove that the mitigating circumstances outweighed the aggravating—a provision even less favorable to the defendant than the Kansas equipoise provision. In Marsh the Court upheld the Kansas statute under the authority of Walton, although by a surprisingly slim 5−4 margin. A third issue concerns sentencing instructions that the jury “shall” or “must” sentence the defendant to death if it considered the mitigating evidence and found it insufficient. The words “shall” or “must” sound like a mandatory death penalty, which was prohibited by Woodson v.

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

295

296

Chapter 15: The Sentencing Decision

Editors’ Comment—Cont’d North Carolina (Chapter 4). But the law in Woodson did not allow for consideration of mitigating evidence, and as long as the jury had the opportunity to give effect to such evidence, the Supreme Court would uphold the instruction. In Jurek v. Texas (1976) (Chapter 5), for example, the Court approved the Texas “special issues” approach in which the jury “shall” impose a death sentence if it answered all three special-issue questions in the affirmative, because the opportunity to consider mitigating evidence was there. In Blystone v. Pennsylvania, 494 U.S. 299 (1990), the Court upheld instructions that the verdict “must” be death if the jury found at least one aggravating circumstance and no mitigating circumstances. Moreover, Boyde v. California, 494 U.S. 370 (1990), permitted an instruction that the jury “shall impose” a death penalty if the aggravating circumstances outweighed the mitigating.

McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed.2d 369 (1990) (6–3, the Eighth Amendment prohibits a requirement that the jurors unanimously agree on the existence of mitigating circumstances.)

Opinion of justice marshall for the court In this case we address the constitutionality of the unanimity requirement in North Carolina’s capital sentencing scheme. That requirement prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find. We hold that under our decision in Mills v. Maryland, 486 U.S. 367 (1988), North Carolina’s unanimity requirement violates the Constitution by preventing the sentencer from considering all mitigating evidence. We therefore vacate petitioner’s death sentence and remand for resentencing.

I Petitioner Dock McKoy, Jr., was convicted in Stanly County, North Carolina, of first-degree murder. During the sentencing phase of McKoy’s trial, the trial court instructed the jury, both orally and in a written verdict form, to answer four questions in determining its sentence. Issue One asked: “Do you unanimously find from the evidence, beyond a reasonable doubt, the existence of one or more of the following aggravating circumstances?” The jury found two statutory aggravating circumstances: that McKoy “had been previously convicted of a felony involving the use or threat of violence to the person” and that the murder was committed against a deputy sheriff who was “engaged in the performance of his official duties.” The jury therefore answered “Yes” to Issue One and was instructed to proceed to the next Issue.

Opinion of Justice Marshall for the Court

Issue Two asked: “Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?” The judge submitted to the jury eight possible mitigating circumstances. With respect to each circumstance, the judge orally instructed the jury as follows: “If you do not unanimously find this mitigating circumstance by a preponderance of the evidence, so indicate by having your foreman write, ‘No,’ in that space” on the verdict form. The verdict form reiterated the unanimity requirement: “In the space after each mitigating circumstance, write ‘Yes,’ if you unanimously find that mitigating circumstance by a preponderance of the evidence. Write, ‘No,’ if you do not unanimously find that mitigating circumstance by a preponderance of the evidence.” The jury unanimously found the statutory mitigating circumstance that McKoy’s capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.” It also unanimously found the nonstatutory mitigating circumstance that McKoy had a “borderline intellectual functioning with a IQ test score of 74.” The jury did not, however, unanimously find the statutory mitigating circumstances that McKoy committed the crime while “under the influence of mental or emotional disturbance” or that McKoy’s age at the time of the crime, 65, was a mitigating factor. The jury also failed to find unanimously four nonstatutory mitigating circumstances: that for several decades McKoy exhibited signs of mental or emotional disturbance or defect that went untreated; that McKoy’s mental and emotional disturbance was aggravated by his poor physical health; that McKoy’s ability to remember the events of the day of the murder was actually impaired; and that there was any other circumstance arising from the evidence that had mitigating value. Because the jury found the existence of mitigating circumstances, it was instructed to answer Issue Three, which asked: “Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found by you is, or are, insufficient to outweigh the aggravating circumstance or circumstances found by you?” The jury answered this issue “Yes,” and so proceeded to the final issue. Issue Four asked: “Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances found by you is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by you?” The jury again responded “Yes.” Pursuant to the verdict form and the court’s instructions, the jury therefore made a binding recommendation of death. During the pendency of petitioner’s direct appeal to the North Carolina Supreme Court, this Court decided Mills v. Maryland. There, we reversed a death sentence imposed under Maryland’s capital punishment scheme because the jury

297

298

Chapter 15: The Sentencing Decision

instructions and verdict form created “a substantial probability that reasonable jurors . . . well may have thought they were precluded from ­considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” We reasoned that allowing a “holdout” juror to prevent the other jurors from considering mitigating evidence violated the principle established in Lockett v. Ohio, that a sentencer may not be precluded from giving effect to all mitigating evidence. Petitioner challenged his sentence on the basis of Mills. The North Carolina Supreme Court, in a split decision, purported to distinguish Mills on two grounds and therefore denied relief. First, it noted that “Maryland’s procedure required the jury to impose the death penalty if it ‘found’ at least one aggravating circumstance and did not ‘find’ any mitigating circumstances” or “if it unanimously found that the mitigating circumstances did not outweigh the aggravating circumstances.” In contrast, the court stated, Issue Four in North Carolina’s scheme allows the jury to recommend life imprisonment “if it feels that the aggravating circumstances are not sufficiently substantial to call for the death penalty, even if it has found several aggravating circumstances and no mitigating circumstances.” Second, the court asserted that whereas in Maryland’s scheme evidence remained “legally relevant” as long as one or more jurors found the presence of a mitigating circumstance supported by that evidence, “in North Carolina evidence in effect becomes legally irrelevant to prove mitigation if the defendant fails to prove to the satisfaction of all the jurors that such evidence supports the finding of a mitigating factor.” The North Carolina Supreme Court believed that we had found the “relevance” of the evidence in Mills a significant factor because we had stated in a footnote that “‘[n]o one has argued here, nor did the Maryland Court of Appeals suggest, that mitigating evidence can be rendered legally “irrelevant” by one holdout vote.’” The court thus interpreted Mills as allowing States to define as “irrelevant” and to exclude from jurors’ consideration any evidence introduced to support a mitigating circumstance that the jury did not unanimously find. Accordingly, the State Supreme Court upheld McKoy’s death sentence.

II Despite the state court’s inventive attempts to distinguish Mills, our decision there clearly governs this case. First, North Carolina’s Issue Four does not ameliorate the constitutional infirmity created by the unanimity requirement. Issue Four, like Issue Three, allows the jury to consider only mitigating factors that it unanimously finds under Issue Two. Although the jury may opt for life imprisonment even where it fails unanimously to find any mitigating circumstances, the fact remains that the jury is required to make its decision based only on

Opinion of Justice Marshall for the Court

those circumstances it unanimously finds. The unanimity requirement thus allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a “‘sentence less than death.’” Moreover, even if all 12 jurors agree that there are some mitigating circumstances, North Carolina’s scheme prevents them from giving effect to evidence supporting any of those circumstances in their deliberations under Issues Three and Four unless they unanimously find the existence of the same circumstance. This is the precise defect that compelled us to strike down the Maryland scheme in Mills. Our decision in Mills was not limited to cases in which the jury is required to impose the death penalty if it finds that aggravating circumstances outweigh mitigating circumstances or that no mitigating circumstances exist at all. Rather, we held that it would be the “height of arbitrariness to allow or require the imposition of the death penalty” where 1 juror was able to prevent the other 11 from giving effect to mitigating evidence. Second, the State Supreme Court’s holding that mitigating evidence is “relevant” only if the jury unanimously finds that it proves the existence of a mitigating circumstance distorts the concept of relevance. . . . Furthermore, . . . the mere declaration that evidence is “legally irrelevant” to mitigation cannot bar the consideration of that evidence if the sentencer could reasonably find that it warrants a sentence less than death. . . . Nor can the State save the unanimity requirement by characterizing it as a standard of proof intended to ensure the reliability of mitigating evidence. The State’s reliance on Patterson v. New York, 432 U.S. 197 (1977), is misplaced. In that case, this Court rejected a due process challenge to a New York law requiring a defendant charged with second-degree murder to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. The Court reasoned that a State is not constitutionally required to provide that affirmative defense. But if a State “nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, . . . the State may assure itself that the fact has been established with reasonable certainty.” Id., at 209. Patterson, however, did not involve the validity of a capital sentencing procedure under the Eighth Amendment. The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall. As we stated in Mills: Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute; by the sentencing court; or by an evidentiary ruling. The same must be true with respect to a single juror’s holdout vote against finding the presence of a mitigating circumstance. Whatever the cause, . . . the conclusion would necessarily be the same: “Because

299

300

Chapter 15: The Sentencing Decision

the [sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.”

It is no answer, of course, that the jury is permitted to “consider” mitigating evidence when it decides collectively, under Issue Two, whether any mitigating circumstances exist. Rather, Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. This requirement means that, in North Carolina’s system, each juror must be allowed to consider all mitigating evidence in deciding Issues Three and Four: whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death. Under Mills, such consideration of mitigating evidence may not be foreclosed by one or more jurors’ failure to find a mitigating circumstance under Issue Two. Finally, we reject the State’s contention that requiring unanimity on mitigating circumstances is constitutional because the State also requires un­animity on aggravating circumstances. The Maryland scheme in Mills also required unanimity on both mitigating and aggravating circumstances. Such consistent treatment did not, however, save the unanimity requirement for mitigating circumstances in that case. A State may not limit a sentencer’s consideration of mitigating evidence merely because it places the same limitation on consideration of aggravating circumstances. As the Court stated in Penry v. Lynaugh: “In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.” McCleskey v. Kemp. Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense.

III We conclude that North Carolina’s unanimity requirement impermissibly limits jurors’ consideration of mitigating evidence and hence is contrary to our decision in Mills. We therefore vacate the petitioner’s death sentence and remand this case to the North Carolina Supreme Court for further proceedings not inconsistent with this opinion.

Dissenting Opinion of Justice Scalia

Dissenting opinion of justice scalia, joined by chief justice rehnquist and justice o’connor Today the Court holds that the Eighth Amendment prohibits a State from structuring its capital sentencing scheme to channel jury discretion by requiring that mitigating circumstances be found unanimously. Because I believe that holding is without support in either the Eighth Amendment or our previous decisions, I dissent.

I . . . I think this scheme, taken as a whole, satisfies the due process and Eighth Amendment concerns enunciated by this Court. By requiring that the jury find at least one statutory aggravating circumstance, North Carolina has adequately narrowed the class of death-eligible murderers. On the other hand, by permitting the jury to consider evidence of, and find, any mitigating circumstance offered by the defendant, North Carolina has ensured that the jury will “be able to consider and give effect to that evidence in imposing sentence.” Penry v. Lynaugh. By requiring both aggravating circumstances to be found unanimously (beyond a reasonable doubt) and mitigating circumstances to be found unanimously (by only a preponderance of the evidence), North Carolina has “reduc[ed] the likelihood that [the jury] will impose a sentence that fairly can be called capricious or arbitrary.” Gregg v. Georgia. Finally, by requiring the jury unanimously to find beyond a reasonable doubt not only that the aggravating circumstances outweigh the mitigating circumstances, but also that they are sufficiently substantial in light of the mitigating circumstances to justify the death penalty, North Carolina has provided even an extra measure of assurance that death will not be lightly or mechanically imposed. ...

III The constitutional issue conceded in Mills is both presented and contested in the present case. North Carolina’s capital sentencing statute unambiguously provides that mitigating circumstances must be found by the jury unanimously. The Court finds this scheme constitutionally defective because it prevents individual jurors “from giving effect to evidence that they believe calls for a sentence less than death.” This is so because each juror’s answers to the ultimately dispositive Issues Three and Four can take account of only those mitigating circumstances found by the jury unanimously under Issue Two. Thus, any juror who concludes that the defendant has proved additional mitigating circumstances is precluded by his colleagues’ disagreement from giving that

301

302

Chapter 15: The Sentencing Decision

c­ onclusion effect. The Court several times refers to the prospect that 1 “‘holdout’ juror” will prevent the other 11 from reaching the decision they wish, but the reader should not be misled: The constitutional principle appealed to is not majority rule but just the opposite. According to the Court, North Carolina’s system in which one juror can prevent the others from giving effect to a mitigating circumstance is invalid only because the Constitution requires, in the context of the North Carolina statute, a system in which one juror can prevent the others from denying effect to a mitigating circumstance. The “‘holdout’ juror” scenario provides attractive atmosphere, but the alleged constitutional principle upon which the decision rests is that “each juror [must] be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death,” and “may not be foreclosed by one or more jurors’ failure,” to find that those mitigating facts existed, or that those existing facts were mitigating. Such a scheme, under which (at least where the statute requires the jury’s recommendation of death to be unanimous) a single juror’s finding regarding the existence of mitigation must control, is asserted to be demanded by “the principle established in Lockett v. Ohio, that a sentencer may not be precluded from giving effect to all mitigating evidence.” With respect, “the principle established in Lockett” does not remotely support that conclusion. In Lockett, the Court vacated a death sentence imposed under a statute that limited the sentencing judge’s consideration of mitigating factors to three statutory circumstances. A plurality of the Court reasoned that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Similarly, in Eddings [v. Oklahoma], also relied upon by the Court, we vacated a death sentence because the sentencing judge refused to consider evidence proffered by the defendant of his unhappy upbringing. We reasoned: “Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” Accord, Penry v. Lynaugh, 492 U.S. at 328 (failure to instruct Texas jury that it could consider and give effect to mitigating evidence beyond the scope of three statutory special issues inconsistent with Lockett and Eddings); Hitchcock v. Dugger, 481 U.S. 393 (1987) (trial judge’s belief that Florida law prohibited consideration of nonstatutory mitigating circumstances and corresponding instruction to the jury contravened Lockett); Skipper v. South Carolina, 476 U.S. 1 (1986) (trial judge’s failure to permit jury to consider evidence of defendant’s good behavior in prison inconsistent with Lockett and Eddings). The principle established by these cases is that a State may not preclude the sentencer from considering and giving effect to evidence of any relevant

Dissenting Opinion of Justice Scalia

mitigating circumstance proffered by the defendant. . . . The sentencer in this case was the North Carolina jury, which has not been precluded from considering and giving effect to all mitigating circumstances. What petitioner complains of here is not a limitation upon what the sentencer was allowed to give effect to, but rather a limitation upon the manner in which it was allowed to do so—viz., only unanimously. As the Court observes today, that is a crucial distinction. “There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making the sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision.” Saffle v. Parks, [494 U.S. 484] at 490 [1990] (emphasis added). . . . In short, Lockett and Eddings are quite simply irrelevant to the question before us, and cannot be pressed into service by describing them as establishing that “a sentencer [by which the reader is invited to understand an individual member of the jury] may not be precluded from giving effect to all mitigating evidence.”

IV Nothing in our prior cases, then, supports the rule the Court has announced; and since the Court does not even purport to rely upon constitutional text or traditional practice, nothing remains to support the result. There are, moreover, some affirmative indications in prior cases that what North Carolina has done is constitutional. Those indications are not compelling—for the perverse reason that the less support exists for a constitutional claim, the less likely it is that the claim has been raised or taken seriously before, and hence the less likely that this Court has previously rejected it. If petitioner should seek reversal of his sentence because two jurors were wearing green shirts, it would be impossible to say anything against the claim except that there is nothing to be said for it—neither in text, tradition, nor jurisprudence. That is the point I have already made here, and that alone suffices. With the caution, however, that it is entirely superfluous, I may mention several aspects of our jurisprudence that appear to contradict the Court’s result. To begin with, not only have we never before invalidated a jury-unanimity requirement, but we have approved schemes imposing such a requirement in contexts of great importance to the criminal defendant—for example, as a condition to establishing the defense of self-defense in a capital murder case, . . . as a condition to establishing the defense of extreme emotional disturbance in a second-degree murder case, . . . and as a condition to establishing the defense of insanity in a second-degree murder case. . . . Of course the Court’s holding today—and its underlying thesis that each individual juror must be empowered to “give effect” to his own view—invalidates not just a requirement of unanimity for the defendant to benefit from a mitigating

303

304

Chapter 15: The Sentencing Decision

factor, but a requirement of any number of jurors more than one. Thus it is also in tension with Leland v. Oregon, 343 U.S. 790 (1952), which upheld, in a capital case, a requirement that the defense of insanity be proved (beyond a reasonable doubt) to the satisfaction of at least 10 of the 12-member jury. Even with respect to proof of the substantive offense, as opposed to an affirmative defense, we have approved verdicts by less than a unanimous jury. See Apodaca v. Oregon, 406 U.S. 404 (1972) (upholding state statute providing for conviction by 10-to-2 vote). We have, to be sure, found that a criminal verdict by less than all of a six-person jury is unconstitutional—not, however, because of any inherent vice in nonunanimity, but because a 5-to-1 verdict, no less than a 5-to-0 verdict . . . “presents a . . . threat to preservation of the substance of the jury trial guarantee.” Burch v. Louisiana, 441 U.S. 130, 138 (1979). The Court discusses briefly one of the above cases (Patterson), in which we said that if a State “chooses to recognize a factor that mitigates the degree of criminality or punishment, . . . the State may assure itself that the fact has been established with reasonable certainty.” It distinguishes that case, and presumably would distinguish the rest I have cited, as follows: “The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall.” But surely the Constitution also requires States to allow consideration of all evidence bearing upon the substantive criminal offense and consideration of all evidence bearing upon the substantive criminal offense and consideration of all evidence bearing upon affirmative defenses. If, in those contexts, it is not regarded as a “barrier” to such consideration to require unanimity before any single juror’s evaluation of the evidence can be “given effect” to the defendant’s advantage, I do not understand why a comparable requirement constitutes a “barrier” to consideration of mitigation. Or why, in the latter context, assuring “reasonable certainty” is no longer a legitimate objective. Likewise incompatible with the Court’s theory is the principle of guided discretion that we have previously held to be essential to the validity of capital sentencing. States, we have said, “must channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance’ and that ‘make rationally reviewable the process for imposing a sentence of death.’” Godfrey v. Georgia. There is little guidance in a system that requires each individual juror to bring to the ultimate decision his own idiosyncratic notion of what facts are mitigating, untempered by the discipline of group deliberation and agreement. Until today, I would have thought that North Carolina’s scheme was a model of guided discretion. The requirement that the jury determine four specific issues operates like a special verdict—a device long recognized as enhancing the reliability and rationality of jury determinations. Moreover, by enabling the reviewing court to examine the specific findings underlying the verdict it facilitates appellate review, which we have described

Dissenting Opinion of Justice Scalia

as “an ­important additional safeguard against arbitrariness and caprice.” Gregg v. Georgia. “Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.” Id. The Court strikes down this eminently reasonable scheme. The quality of what it substitutes is conveniently evaluated by considering how future North Carolina juries will behave under the Court’s own doomsday hypothetical, in which all jurors believe the defendant has proved one mitigating circumstance, but each believes a different one. A jury, of course, is not a collection of individuals who are asked separately about their independent views, but a body designed to deliberate and decide collectively. See Williams v. Florida, 399 U.S. 78, 100 (1970) (Sixth Amendment requires a jury “large enough to promote group deliberation”); Ballew v. Georgia, 435 U.S. 223 (1978) (five­person jury too small); id., at 232–234 (opinion of Blackmun, J.) (small juries impede group deliberation). But after today’s decision, in the hypothetical the Court has posed, it will be quite impossible for North Carolina sentencing juries to “deliberate” on the dispositive questions (Issues Three and Four—whether the aggravating circumstances out-weigh the mitigating circumstances, and whether in light of the mitigating circumstances the aggravating circumstances justify death), because no two jurors agree on the identity of the “mitigating circumstances.” Each juror must presumably decide in splendid isolation, on the basis of his uniquely determined mitigating circumstance, whether death should be imposed. What was supposed to be jury trial has degenerated into a poll. It seems to me inconceivable that such a system should be—not just tolerated under the Constitution—but constitutionally prescribed.5 In sum, the constitutional prohibition asserted by the petitioner was not decided in Mills and is not supported by Lockett and Eddings. Since nothing

Justice Blackmun believes that this grotesque distortion of normal jury deliberations cannot be blamed upon the rule the Court today announces, but is rather North Carolina’s own fault, because the scheme it has adopted represents “an extraordinary departure from the way in which juries customarily operate.” Typically, he points out, juries “are . . . called upon to render unanimous verdicts on the ultimate issues of a given case,” with “no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” This is the sort of argument that causes state legislators to pull their hair. A general verdict is of course the usual practice. But it is this Court that has pushed the States to special verdicts in the capital sentencing field. We have intimated that requiring “the sentencing authority . . . to specify the factors it relied upon in reaching its decision” may be necessary to ensure, through “meaningful appellate review[, ] that death sentences are not imposed capriciously or in a freakish manner.” Gregg v. Georgia. Disparaging a practice we have at least encouraged, if not indeed coerced, gives new substance to the charge that we have been administering a “bait and switch” capital sentencing jurisprudence.

5

305

306

Chapter 15: The Sentencing Decision

else is adduced to support it, there is no basis for believing that it exists. It is, moreover, contrary to the constitutional principles governing jury trial in other contexts, contrary to the principle of guided discretion that launched our modern incursion into the field of capital sentencing, and destructive of sound jury deliberation. When we abandon text and tradition, and in addition do not restrict prior cases to their holdings, knowing and observing the law of the land becomes impossible. State officials sworn to uphold the Constitution we expound rush to comply with one of our newly designed precepts, only to be told that by complying they have violated another one that points in the opposite direction. Compare Furman v. Georgia (invalidating discretionary death penalty), with Woodson v. North Carolina (invalidating mandatory death ­penalty enacted in light of Furman). I dissent from today’s decision, and from the unpredictable jurisprudence of capital sentencing that it represents.

Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed.2d 429 (2006) (5–4, statute requiring imposition of death sentence if aggravating circumstances are not outweighed by mitigating circumstances is constitutional.)

Opinion of justice thomas for the court Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. Kan. Stat. Ann. §21-4624(e) (1995). We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.

I Respondent Michael Lee Marsh II broke into the home of Marry Ane Pusch and lay in wait for her to return. When Marry Ane entered her home with her 19-month-old daughter, M. P., Marsh repeatedly shot Marry Ane, stabbed her, and slashed her throat. The home was set on fire with the toddler inside, and M.P. burned to death. The jury convicted Marsh of the capital murder of M. P., the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. On the basis of those findings, the jury sentenced Marsh to death for the capital murder of M.P. The jury also sentenced Marsh to life

Opinion of Justice Thomas for the Court

imprisonment without possibility of parole for 40 years for the first-degree murder of Marry Ane, and consecutive sentences of 51 months’ imprisonment for aggravated arson and 34 months’ imprisonment for aggravated burglary. On direct appeal, Marsh challenged §21-4624(e), which reads: If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 . . . exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law.

Focusing on the phrase “shall be sentenced to death,” Marsh argued that §214624(e) establishes an unconstitutional presumption in favor of death because it directs imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. The Kansas Supreme Court agreed, and held that the Kansas death penalty statute, §21-4624(e), is facially unconstitutional. The court concluded that the statute’s weighing equation violated the Eighth and Fourteenth Amendments of the United States Constitution because, “[i]n the event of equipoise, i.e., the jury’s determination that the balance of any aggravating circumstances and any mitigating circumstances weighed equal, the death penalty would be required.” . . . We granted certiorari, and now reverse the Kansas Supreme Court’s judgment that Kansas’ capital sentencing statute is facially unconstitutional. ...

III This case is controlled by Walton v. Arizona, 497 U.S. 639 (1990), overruled on other grounds, Ring v. Arizona. In that case, a jury had convicted Walton of a capital offense. At sentencing, the trial judge found the existence of two aggravating circumstances and that the mitigating circumstances did not call for leniency, and sentenced Walton to death. . . . Walton argued to this Court that the Arizona capital sentencing system created an unconstitutional presumption in favor of death because it “tells an Arizona sentencing judge who finds even a single aggravating factor, that death must be imposed, unless—as the Arizona Supreme Court put it in Petitioner’s case— there are ‘outweighing mitigating factors.’” Rejecting Walton’s argument, this Court stated: So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating

307

308

Chapter 15: The Sentencing Decision

circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.

This Court noted that, as a requirement of individualized sentencing, a jury must have the opportunity to consider all evidence relevant to mitigation, and that a state statute that permits a jury to consider any mitigating evidence comports with that requirement. The Court also pointedly observed that while the Constitution requires that a sentencing jury have discretion, it does not mandate that discretion be unfettered; the States are free to determine the manner in which a jury may consider mitigating evidence. So long as the sentencer is not precluded from considering relevant mitigating evidence, a capital sentencing statute cannot be said to impermissibly, much less automatically, impose death. Indeed, Walton suggested that the only capital sentencing systems that would be impermissibly mandatory were those that would “automatically impose death upon conviction for certain types of murder.” Contrary to Marsh’s contentions and the Kansas Supreme Court’s conclusions, the question presented in the instant case was squarely before this Court in Walton. Though, as Marsh notes, the Walton Court did not employ the term “equipoise,” that issue undeniably gave rise to the question this Court sought to resolve, and it was necessarily included in Walton’s argument that the Arizona system was unconstitutional because it required the death penalty unless the mitigating circumstances outweighed the aggravating circumstances. . . . Our conclusion that Walton controls here is reinforced by the fact that the Arizona and Kansas statutes are comparable in important respects. Similar to the express language of the Kansas statute, the Arizona statute at issue in Walton has been consistently construed to mean that the death penalty will be imposed upon a finding that aggravating circumstances are not outweighed by mitigating circumstances. Like the Kansas statute, the Arizona statute places the burden of proving the existence of aggravating circumstances on the State, and both statutes require the defendant to proffer mitigating evidence. The statutes are distinct in one respect. The Arizona statute, once the State has met its burden, tasks the defendant with the burden of proving sufficient mitigating circumstances to overcome the aggravating circumstances and that a sentence less than death is therefore warranted. In contrast, the Kansas statute requires the State to bear the burden of proving to the jury, beyond a reasonable doubt, that aggravators are not outweighed by mitigators and that a sentence of death is therefore appropriate; it places no additional evidentiary burden on the capital defendant. This distinction operates in favor of Kansas capital defendants. Otherwise the statutes function in substantially the same manner and are sufficiently analogous for our purposes. Thus, Walton is not distinguishable from the instant case.

Opinion of Justice Thomas for the Court

Accordingly, the reasoning of Walton requires approval of the Kansas death penalty statute. At bottom, in Walton, the Court held that a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances. A fortiori, Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.

IV A.  Even if, as Marsh contends, Walton does not directly control, the general principles set forth in our death penalty jurisprudence would lead us to conclude that the Kansas capital sentencing system is constitutionally permis­ sible. Together, our decisions in Furman v. Georgia, and Gregg v. Georgia, establish that a state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime. So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed. . . . In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” Franklin [v. Lynaugh, 487 U.S. 164, 179 (1988).] Rather, this Court has held that the States enjoy “‘a constitutionally permissible range of discretion in imposing the death penalty.’” Blystone, 494 U.S., at 308. B.  The Kansas death penalty statute satisfies the constitutional mandates of Furman and its progeny because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. It does not interfere, in a constitutionally significant way, with a jury’s ability to give independent weight to evidence offered in mitigation. Kansas’ procedure narrows the universe of death-eligible defendants consistent with Eighth Amendment requirements. Under Kansas law, imposition of the death penalty is an option only after a defendant is convicted of capital ­murder,

309

310

Chapter 15: The Sentencing Decision

which requires that one or more specific elements beyond intentional premeditated murder be found. Once convicted of capital murder, a defendant becomes eligible for the death penalty only if the State seeks a separate sentencing hearing, and proves beyond a reasonable doubt the existence of one or more statutorily enumerated aggravating circumstances. Consonant with the individualized sentencing requirement, a Kansas jury is permitted to consider any evidence relating to any mitigating circumstance in determining the appropriate sentence for a capital defendant, so long as that evidence is relevant. Specifically, jurors are instructed: A mitigating circumstance is that which in fairness or mercy may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, although it does not justify or excuse the offense. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case. The appropriateness of the exercise of mercy can itself be a mitigating factor you may consider in determining whether the State has proved beyond a reasonable doubt that the death penalty is warranted.3

Jurors are then apprised of, but not limited to, the factors that the defendant contends are mitigating. They are then instructed that “[e]ach juror must consider every mitigating factor that he or she individually finds to exist.” Kansas’ weighing equation merely channels a jury’s discretion by providing it with criteria by which it may determine whether a sentence of life or death is appropriate. . . . Indeed, in Boyde [v. California, 494 U.S. 370 (1990)], this Court sanctioned a weighing jury instruction that is analytically indistinguishable from the Kansas jury instruction under review today. The Boyde jury instruction read: If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.

Boyde argued that the mandatory language of the instruction prevented the jury from rendering an individualized sentencing determination. This Court

The “mercy” jury instruction alone forecloses the possibility of Furman-type error as it “eliminate[s] the risk that a death sentence will be imposed in spite of facts calling for a lesser penalty.”

3

Opinion of Justice Thomas for the Court

rejected that argument, concluding that it was foreclosed by Blystone, where the Court rejected a nearly identical challenge to the Pennsylvania death penalty statute. In so holding, this Court noted that the mandatory language of the statute did not prevent the jury from considering all relevant mitigating evidence. Similarly here, §21-4624(e) does not prevent a Kansas jury from considering mitigating evidence. Marsh’s argument that the Kansas provision is impermissibly mandatory is likewise foreclosed. Contrary to Marsh’s argument, §21-4624(e) does not create a general presumption in favor of the death penalty in the State of Kansas. Rather, the Kansas capital sentencing system is dominated by the presumption that life imprisonment is the appropriate sentence for a capital conviction. If the State fails to meet its burden to demonstrate the existence of an aggravating circumstance(s) beyond a reasonable doubt, a sentence of life imprisonment must be imposed. If the State overcomes this hurdle, then it bears the additional burden of proving beyond a reasonable doubt that aggravating circumstances are not outweighed by mitigating circumstances. Significantly, although the defendant appropriately bears the burden of proffering mitigating circumstances—a burden of production—he never bears the burden of demonstrating that mitigating circumstances outweigh aggravating circumstances. Instead, the State always has the burden of demonstrating that mitigating evidence does not outweigh aggravating evidence. Absent the State’s ability to meet that burden, the default is life imprisonment. Moreover, if the jury is unable to reach a unanimous decision—in any respect—a sentence of life must be imposed. This system does not create a presumption that death is the appropriate sentence for capital murder. Nor is there any force behind Marsh’s contention that an equipoise determination reflects juror confusion or inability to decide between life and death, or that a jury may use equipoise as a loophole to shirk its constitutional duty to render a reasoned, moral decision, regarding whether death is an appropriate sentence for a particular defendant. Such an argument rests on an implausible characterization of the Kansas statute—that a jury’s determination that aggravators and mitigators are in equipoise is not a decision, much less a decision for death—and thus misses the mark. Weighing is not an end; it is merely a means to reaching a decision. The decision the jury must reach is whether life or death is the appropriate punishment. The Kansas jury instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for—not a presumption in favor of—death. Kansas jurors, presumed to follow their instructions, are made aware that: a determination that mitigators outweigh aggravators is a decision that a life sentence is appropriate; a determination that aggravators outweigh mitigators or a determination that ­mitigators do not outweigh aggravators—including a finding that aggravators and mitigators are in balance—is a decision that

311

312

Chapter 15: The Sentencing Decision

death is the appropriate sentence; and an inability to reach a unanimous decision will result in a sentence of life imprisonment. So informed, far from the abdication of duty or the inability to select an appropriate sentence depicted by Marsh and Justice Souter, a jury’s conclusion that aggravating evidence and mitigating evidence are in equipoise is a decision for death and is indicative of the type of measured, normative process in which a jury is constitutionally tasked to engage when deciding the appropriate sentence for a capital defendant.

V Justice Souter argues (hereinafter dissent) that the advent of DNA testing has resulted in the “exoneratio[n]” of “innocent” persons “in numbers never imagined before the development of DNA tests.” Based upon this “new empirical argument about how ‘death is different,’” the dissent concludes that Kansas’ sentencing system permits the imposition of the death penalty in the absence of reasoned moral judgment. But the availability of DNA testing, and the questions it might raise about the accuracy of guilt-phase determinations in capital cases, is simply irrelevant to the question before the Court today, namely, the constitutionality of Kansas’ capital sentencing system. Accordingly, the accuracy of the dissent’s factual claim that DNA testing has established the “innocence” of numerous convicted persons under death sentences—and the incendiary debate it invokes—is beyond the scope of this opinion. The dissent’s general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose. While such a bright-line rule may be easily applied, it has no basis in law. Indeed, the logical consequence of the dissent’s argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system. And those precedents do not empower this Court to chip away at the States’ prerogatives to do so on the grounds the dissent invokes today. We hold that the Kansas capital sentencing system, which directs imposition of the death penalty when a jury finds that aggravating and mitigating circumstances are in equipoise, is constitutional. Accordingly, we reverse the judgment of the Kansas Supreme Court and remand the case for further proceedings not inconsistent with this opinion. . . .

Dissenting Opinion of Justice Souter

Dissenting opinion of justice stevens Having joined Justice Blackmun’s dissent from the plurality’s opinion in Walton v. Arizona, I necessarily also subscribe to the views expressed by Justice Souter today. . . .

Dissenting opinion of justice souter, joined by justices stevens, ginsburg, and breyer II . . . More than 30 years ago, this Court explained that the Eighth Amendment’s guarantee against cruel and unusual punishment barred imposition of the death penalty under statutory schemes so inarticulate that sentencing discretion produced wanton and freakish results. See Furman v. Georgia. The Constitution was held to require, instead, a system structured to produce reliable, rational, and rationally reviewable determinations of sentence. Decades of back-and-forth between legislative experiment and judicial review have made it plain that the constitutional demand for rationality goes beyond the minimal requirement to replace unbounded discretion with a sentencing structure; a State has much leeway in devising such a structure and in selecting the terms for measuring relative culpability, but a system must meet an ultimate test of constitutional reliability in producing “‘a reasoned moral response to the defendant’s background, character, and crime,’” Penry v. Lynaugh, 492 U.S. 302, 319 (1989). The Eighth Amendment, that is, demands both form and substance, both a system for decision and one geared to produce morally justifiable results. The State thinks its scheme is beyond questioning, whether as to form or substance, for it sees the tie-breaker law as equivalent to the provisions examined in Blystone v. Pennsylvania, and Boyde v. California, where we approved statutes that required a death sentence upon a jury finding that aggravating circumstances outweighed mitigating ones. But the crucial fact in those systems was the predominance of the aggravators, and our recognition of the moral rationality of a mandatory capital sentence based on that finding is no authority for giving States free rein to select a different conclusion that will dictate death. Instead, the constitutional demand for a reasoned moral response requires the state statute to satisfy two criteria that speak to the issue before us now, one governing the character of sentencing evidence, and one going to the substantive justification needed for a death sentence. As to the first, there is an obligation in each case to inform the jury’s choice of sentence with evidence about the crime as actually committed and about the specific individual who ­committed it. Since the sentencing choice is, by definition, the attribution of

313

314

Chapter 15: The Sentencing Decision

particular culpability to a criminal act and defendant, as distinct from the general culpability necessarily implicated by committing a given offense, the sentencing decision must turn on the uniqueness of the individual defendant and on the details of the crime, to which any resulting choice of death must be “directly” related. Second, there is the point to which the particulars of crime and criminal are relevant: within the category of capital crimes, the death penalty must be reserved for “the worst of the worst.” One object of the structured sentencing proceeding required in the aftermath of Furman is to eliminate the risk that a death sentence will be imposed in spite of facts calling for a lesser penalty, and the essence of the sentencing authority’s responsibility is to determine whether the response to the crime and defendant “must be death,” Spaziano v. Florida. Of course, in the moral world of those who reject capital punishment in principle, a death sentence can never be a moral imperative. The point, however, is that within our legal and moral system, which allows a place for the death penalty, “must be death” does not mean “may be death.” Since a valid capital sentence thus requires a choice based upon unique particulars identifying the crime and its perpetrator as heinous to the point of demanding death even within the class of potentially capital offenses, the State’s provision for a tie breaker in favor of death fails on both counts. The dispositive fact under the tie breaker is not the details of the crime or the unique identity of the individual defendant. The determining fact is not directly linked to a particular crime or particular criminal at all; the law operates merely on a jury’s finding of equipoise in the State’s own selected considerations for and against death. Nor does the tie breaker identify the worst of the worst, or even purport to reflect any evidentiary showing that death must be the reasoned moral response; it does the opposite. The statute produces a death sentence exactly when a sentencing impasse demonstrates as a matter of law that the jury does not see the evidence as showing the worst sort of crime committed by the worst sort of criminal, in a combination heinous enough to demand death. It operates, that is, when a jury has applied the State’s chosen standards of culpability and mitigation and reached nothing more than what the Supreme Court of Kansas calls a “tie.” It mandates death in what that court identifies as “doubtful cases.” The statute thus addresses the risk of a morally unjustifiable death sentence, not by minimizing it as precedent unmistakably requires, but by guaranteeing that in equipoise cases the risk will be realized, by “placing a ‘thumb [on] death’s side of the scale,’” Sochor v. Florida, 504 U.S. 527, 532 (1992). In Kansas, when a jury applies the State’s own standards of relative culpability and cannot decide that a defendant is among the most culpable, the state law says that equivocal evidence is good enough and the defendant must die. A law that requires execution when the case for aggravation has failed to

Editors’ Question

c­ onvince the sentencing jury is morally absurd, and the Court’s holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.

III That precedent, demanding reasoned moral judgment, developed in response to facts that could not be ignored, the kaleidoscope of life and death verdicts that made no sense in fact or morality in the random sentencing before Furman was decided in 1972. Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests. We cannot face up to these facts and still hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences, by requiring them when juries fail to find the worst degree of culpability: when, by a State’s own standards and a State’s own characterization, the case for death is “doubtful.” . . . [The remainder of Justice Souter’s opinion expressing concern about the possibility of executing innocent persons, along with Justice Scalia’s response, is found in Chapter 17.]

Editors’ Question In Walton v. Arizona, the Court approved a statute that required the defendant to prove that the mitigating circumstances at least slightly outweighed the aggravating in order to avoid a death sentence. Based on Marsh, would it be constitutional for a statute to require the defendant to prove that the mitigating circumstances substantially outweighed the aggravating in order to avoid a death sentence?

315

Chap ter 1 6

Ineffective Counsel—Strickland v. Washington (1984) and Williams v. Taylor (2000) Editors’ Comment The Sixth Amendment guarantees the accused “the Assistance of Counsel for his defense,” and the Supreme Court has held that the right to effective assistance of counsel follows naturally from that guarantee. The need for an effective lawyer is especially great in a capital case, where the stakes are high, the trial procedures are different, and each phase of the trial requires especially careful attention. For reasons explained in Chapter 1, one of the most common claims defendants make in state post-conviction and federal habeas corpus proceedings is that counsel rendered ineffective assistance at trial. The two cases in this chapter examine the most common ineffective assistance claim—that counsel was ineffective in investigating and presenting mitigating evidence. The first case—Strickland v. Washington (1984)—established the standard that an attorney must meet in order to be constitutionally effective, and applied that standard to the performance of a defense lawyer in a capital penalty proceeding. The two-part “performance and prejudice” test derived from Strickland applies to all cases, capital and noncapital. It is difficult to satisfy because the Court did not want to encourage appeals courts to routinely second-guess trial lawyers, as this would release a flood of ineffective assistance appeals and, where such appeals succeeded, retrials. Because the Supreme Court has often established greater procedural safeguards for capital defendants (because “death is different”), however, one might have expected a more stringent test for counsel in capital cases. Yet only Justice Marshall in dissent made an argument for greater stringency. The second case—Williams v. Taylor (2000)—shows the Court, sixteen years after Strickland, applying the performance and prejudice test to a defense lawyer’s capital penalty phase work. Although the Strickland test remains unchanged, Williams may indicate the Court’s increased willingness to critically examine defense counsel’s penalty phase performance.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984) (7–2, counsel’s failure to more vigorously investigate and present mitigating evidence did not result in ineffective assistance of counsel.) Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

317

318

Chapter 16: Ineffective Counsel

Opinion of justice o’connor for the court This case requires us to consider the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective.

I A.  During a 10-day period in September 1976, respondent planned and committed three groups of crimes, which included three brutal stabbing murders, torture, kidnaping, severe assaults, attempted murders, attempted extortion, and theft. After his two accomplices were arrested, respondent surrendered to police and voluntarily gave a lengthy statement confessing to the third of the criminal episodes. The State of Florida indicted respondent for kid­ naping and murder and appointed an experienced criminal lawyer to rep­ resent him. Counsel actively pursued pretrial motions and discovery. He cut his efforts short, however, and he experienced a sense of hopelessness about the case, when he learned that, against his specific advice, respondent had also confessed to the first two murders. By the date set for trial, respondent was subject to indictment for three counts of first-degree murder and multiple counts of robbery, kidnaping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery. Respondent waived his right to a jury trial, again acting against counsel’s advice, and pleaded guilty to all charges, including the three capital murder charges. In the plea colloquy, respondent told the trial judge that, although he had committed a string of burglaries, he had no significant prior criminal record and that at the time of his criminal spree he was under extreme stress caused by his inability to support his family. He also stated, however, that he accepted responsibility for the crimes. The trial judge told respondent that he had “a great deal of respect for people who are willing to step forward and admit their responsibility” but that he was making no statement at all about his likely sentencing decision. Counsel advised respondent to invoke his right under Florida law to an advisory jury at his capital sentencing hearing. Respondent rejected the advice and waived the right. He chose instead to be sentenced by the trial judge without a jury recommendation. In preparing for the sentencing hearing, counsel spoke with respondent about his background. He also spoke on the telephone with respondent’s wife and mother, though he did not follow up on the one unsuccessful effort to meet

Opinion of Justice O’Connor for the Court

with them. He did not otherwise seek out character witnesses for respondent. Nor did he request a psychiatric examination, since his conversations with his client gave no indication that respondent had psychological problems. Counsel decided not to present and hence not to look further for evidence concerning respondent’s character and emotional state. That decision reflected trial counsel’s sense of hopelessness about overcoming the evidentiary effect of respondent’s confessions to the gruesome crimes. It also reflected the judgment that it was advisable to rely on the plea colloquy for evidence about respondent’s background and about his claim of emotional stress: the plea colloquy communicated sufficient information about these subjects, and by forgoing the opportunity to present new evidence on these subjects, counsel prevented the State from cross-examining respondent on his claim and from putting on psychiatric evidence of its own. Counsel also excluded from the sentencing hearing other evidence he thought was potentially damaging. He successfully moved to exclude respondent’s “rap sheet.” Because he judged that a presentence report might prove more detrimental than helpful, as it would have included respondent’s criminal history and thereby would have undermined the claim of no significant history of criminal activity, he did not request that one be prepared. At the sentencing hearing, counsel’s strategy was based primarily on the trial judge’s remarks at the plea colloquy as well as on his reputation as a sentencing judge who thought it important for a convicted defendant to own up to his crime. Counsel argued that respondent’s remorse and acceptance of responsibility justified sparing him from the death penalty. Counsel also argued that respondent had no history of criminal activity and that respondent committed the crimes under extreme mental or emotional disturbance, thus coming within the statutory list of mitigating circumstances. He further argued that respondent should be spared death because he had surrendered, confessed, and offered to testify against a codefendant and because respondent was fundamentally a good person who had briefly gone badly wrong in extremely stressful circumstances. The State put on evidence and witnesses largely for the purpose of describing the details of the crimes. Counsel did not cross-examine the medical experts who testified about the manner of death of respondent’s victims. The trial judge found several aggravating circumstances with respect to each of the three murders. He found that all three murders were especially heinous, atrocious, and cruel, all involving repeated stabbings. All three murders were committed in the course of at least one other dangerous and violent felony, and since all involved robbery, the murders were for pecuniary gain. All three murders were committed to avoid arrest for the accompanying crimes and to hinder law enforcement. In the course of one of the murders, respondent knowingly subjected numerous persons to a grave risk of death by ­deliberately ­stabbing

319

320

Chapter 16: Ineffective Counsel

and shooting the murder victim’s sisters-in-law, who sustained severe—in one case, ultimately fatal—injuries. With respect to mitigating circumstances, the trial judge made the same findings for all three capital murders. First, although there was no admitted evidence of prior convictions, respondent had stated that he had engaged in a course of stealing. In any case, even if respondent had no significant history of criminal activity, the aggravating circumstances “would still clearly far outweigh” that mitigating factor. Second, the judge found that, during all three crimes, respondent was not suffering from extreme mental or emotional disturbance and could appreciate the criminality of his acts. Third, none of the victims was a participant in, or consented to, respondent’s conduct. Fourth, respondent’s participation in the crimes was neither minor nor the result of duress or domination by an accomplice. Finally, respondent’s age (26) could not be considered a factor in mitigation, especially when viewed in light of respondent’s planning of the crimes and disposition of the proceeds of the various accompanying thefts. In short, the trial judge found numerous aggravating circumstances and no (or a single comparatively insignificant) mitigating circumstance. With respect to each of the three convictions for capital murder, the trial judge concluded: “A careful consideration of all matters presented to the court impels the conclusion that there are insufficient mitigating circumstances . . . to outweigh the aggravating circumstances.” He therefore sentenced respondent to death on each of the three counts of murder and to prison terms for the other crimes. The Florida Supreme Court upheld the convictions and sentences on direct appeal. Respondent subsequently sought collateral relief in state court on numerous grounds, among them that counsel had rendered ineffective assistance at the sentencing proceeding. . . .

II . . . [T]he Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). . . . The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in . . . cases . . . presenting claims of “actual ineffectiveness.” In giving meaning to the requirement, however, we must take its purpose—to ensure a fair trial—as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Opinion of Justice O’Connor for the Court

The same principle applies to a capital sentencing proceeding such as that provided by Florida law. We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision that counsel’s role in the proceeding is comparable to counsel’s role at trial—to ensure that the adversarial testing process works to produce a just result under the standards governing decision. For purposes of describing counsel’s duties, therefore, Florida’s capital sentencing proceeding need not be distinguished from an ordinary trial.

III A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. A.  As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. . . . When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. More specific guidelines are not appropriate. The Sixth Amendment refers simply to “counsel,” not specifying particular requirements of effective assistance. It relies instead on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on

321

322

Chapter 16: Ineffective Counsel

i­ mportant decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial ­testing process. These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. . . . Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel

Opinion of Justice O’Connor for the Court

that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case. As the Court of Appeals concluded [in this case], strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions. B.  An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. . . .

323

324

Chapter 16: Ineffective Counsel

[I]neffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors “impaired the presentation of the defense.” That standard, however, provides no workable principle. Since any error, if it is indeed an error, “impairs” the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding. On the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case. . . . The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record

Opinion of Justice O’Connor for the Court

is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. ...

V . . . Application of the governing principles is not difficult in this case. The facts as described above make clear that the conduct of respondent’s counsel at and before respondent’s sentencing proceeding cannot be found unreasonable. They also make clear that, even assuming the challenged conduct of counsel was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence. With respect to the performance component, the record shows that respondent’s counsel made a strategic choice to argue for the extreme emotional distress mitigating circumstance and to rely as fully as possible on respondent’s acceptance of responsibility for his crimes. Although counsel understandably felt hopeless about respondent’s prospects, nothing in the record indicates . . . that  counsel’s sense of hopelessness distorted his professional judgment. Counsel’s strategy choice was well within the range of professionally reasonable judgments, and the decision not to seek more character or psychological evidence than was already in hand was likewise reasonable. The trial judge’s views on the importance of owning up to one’s crimes were well known to counsel. The aggravating circumstances were utterly overwhelming. Trial counsel could reasonably surmise from his conversations with respondent that character and psychological evidence would be of little help. Respondent had already been able to mention at the plea colloquy the substance of what there was to know about his financial and emotional troubles. Restricting testimony on respondent’s character to what had come in at the plea colloquy ensured that contrary character and psychological evidence and respondent’s criminal history, which counsel had successfully moved to exclude, would not come in. On these facts, there can be little question, even without application of the presumption of adequate performance, that trial counsel’s defense, though unsuccessful, was the result of reasonable professional judgment. With respect to the prejudice component, the lack of merit of respondent’s claim is even more stark. The evidence that respondent says his trial counsel should have offered at the sentencing hearing would barely have altered the

325

326

Chapter 16: Ineffective Counsel

sentencing profile presented to the sentencing judge. As the state courts and District Court found, at most this evidence shows that numerous people who knew respondent thought he was generally a good person and that a psychiatrist and a psychologist believed he was under considerable emotional stress that did not rise to the level of extreme disturbance. Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed. Indeed, admission of the evidence respondent now offers might even have been harmful to his case: his “rap sheet” would probably have been admitted into evidence, and the psychological reports would have directly contradicted respondent’s claim that the mitigating circumstance of extreme emotional disturbance applied to his case. . . . Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Here there is a double failure. More generally, respondent has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance. Respondent’s sentencing proceeding was not fundamentally unfair. . . .

Opinion of justice brennan, concurring in part and dissenting in part I join the Court’s opinion but dissent from its judgment. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate respondent’s death sentence and remand the case for further proceedings. . . . I join the Court’s opinion because I believe that the standards it sets out today will both provide helpful guidance to courts considering claims of actual ineffectiveness of counsel and also permit those courts to continue their efforts to achieve progressive development of this area of the law. . . .

Dissenting opinion of justice marshall ...

I The opinion of the Court revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple “standard of reasonableness.” Second, the majority holds that only an error of counsel that

Dissenting Opinion of Justice Marshall

has sufficient impact on a trial to “undermine confidence in the outcome” is grounds for overturning a conviction. I disagree with both of these rulings. A.  My objection to the performance standard adopted by the Court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave “reasonably” and must act like “a reasonably competent attorney,” is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes “professional” representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel. In my view, the Court has thereby not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs. . . . The majority defends its refusal to adopt more specific standards primarily on the ground that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” I agree that counsel must be afforded “wide latitude” when making “tactical decisions” regarding trial strategy, but many aspects of the job of a criminal defense attorney are more amenable to judicial oversight. For example, much of the work involved in preparing for a trial, applying for bail, conferring with one’s client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards. The opinion of the Court of Appeals in this case represents one sound attempt to develop particularized standards designed to ensure that all defendants receive effective legal assistance. By refusing to address the merits of these proposals, and indeed suggesting that no such effort is worthwhile, the opinion of the Court, I fear, will stunt the development of constitutional doctrine in this area. B.  I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government’s evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties

327

328

Chapter 16: Ineffective Counsel

of ­estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice. Second and more fundamentally, the assumption on which the Court’s holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process. In Chapman v. California, 386 U.S. 18, 23 (1967), we acknowledged that certain constitutional rights are “so basic to a fair trial that their infraction can never be treated as harmless error.” Among these rights is the right to the assistance of counsel at trial. In my view, the right to effective assistance of counsel is entailed by the right to counsel, and abridgment of the former is equivalent to abridgment of the latter. I would thus hold that a showing that the performance of a defendant’s lawyer departed from constitutionally prescribed standards requires a new trial regardless of whether the defendant suffered demonstrable prejudice thereby. ...

III The majority suggests that, “[f]or purposes of describing counsel’s duties,” a capital sentencing proceeding “need not be distinguished from an ordinary trial.” I cannot agree. The Court has repeatedly acknowledged that the Constitution requires stricter adherence to procedural safeguards in a capital case than in other cases. . . . The importance to the process of counsel’s efforts, combined with the severity and irrevocability of the sanction at stake, require that the standards for determining what constitutes “effective assistance” be applied especially stringently in capital sentencing proceedings.

Opinion of Justice Stevens for the Court

IV The views expressed in the preceding section oblige me to dissent from the majority’s disposition of the case before us. It is undisputed that respondent’s trial counsel made virtually no investigation of the possibility of obtaining testimony from respondent’s relatives, friends, or former employers pertaining to respondent’s character or background. Had counsel done so, he would have found several persons willing and able to testify that, in their experience, respondent was a responsible, nonviolent man, devoted to his family, and active in the affairs of his church. Respondent contends that his lawyer could have and should have used that testimony to “humanize” respondent, to counteract the impression conveyed by the trial that he was little more than a cold-blooded killer. Had this evidence been admitted, respondent argues, his chances of obtaining a life sentence would have been significantly better. . . . That the aggravating circumstances implicated by respondent’s criminal conduct were substantial does not vitiate respondent’s constitutional claim; judges and juries in cases involving behavior at least as egregious have shown mercy, particularly when afforded an opportunity to see other facets of the defendant’s personality and life. . . . I respectfully dissent.

Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. E.2d 389 (2000) (6–3, defense counsel was constitutionally ineffective in failing to investigate and present mitigating evidence at the penalty phase.)

Opinion of justice stevens for the court The question . . . presented . . . [is] whether Terry Williams’ constitutional right to the effective assistance of counsel as defined in Strickland v. Washington, was violated. . . .

I On November 3, 1985, Harris Stone was found dead in his residence on Henry Street in Danville, Virginia. Finding no indication of a struggle, local officials determined that the cause of death was blood alcohol poisoning, and the case was considered closed. Six months after Stone’s death, Terry Williams, who was then incarcerated in the “I” unit of the city jail for an unrelated offense, wrote a letter to the police stating that he had killed “‘that

329

330

Chapter 16: Ineffective Counsel

man down on Henry Street’” and also stating that he “‘did it’” to that “lady down on West Green Street” and was “‘very sorry.’” The letter was unsigned, but it closed with a reference to “I cell.” The police readily identified Williams as its author, and, on April 25, 1986, they obtained several statements from him. In one Williams admitted that, after Stone refused to lend him “‘a couple of dollars,’” he had killed Stone with a mattock and took the money from his wallet. In September 1986, Williams was convicted of robbery and capital murder. At Williams’ sentencing hearing, the prosecution proved that Williams had been convicted of armed robbery in 1976 and burglary and grand larceny in 1982. The prosecution also introduced the written confessions that Williams had made in April. The prosecution described two auto thefts and two separate violent assaults on elderly victims perpetrated after the Stone murder. On December 4, 1985, Williams had started a fire outside one victim’s residence before attacking and robbing him. On March 5, 1986, Williams had brutally assaulted an elderly woman on West Green Street—an incident he had mentioned in his letter to the police. That confession was particularly damaging because other evidence established that the woman was in a “vegetative state” and not expected to recover. Williams had also been convicted of arson for setting a fire in the jail while awaiting trial in this case. Two expert witnesses employed by the State testified that there was a “high probability” that Williams would pose a serious continuing threat to society. The evidence offered by Williams’ trial counsel at the sentencing hearing consisted of the testimony of Williams’ mother, two neighbors, and a taped excerpt from a statement by a psychiatrist. One of the neighbors had not been previously interviewed by defense counsel, but was noticed by counsel in the audience during the proceedings and asked to testify on the spot. The three witnesses briefly described Williams as a “nice boy” and not a violent person. The recorded psychiatrist’s testimony did little more than relate Williams’ statement during an examination that in the course of one of his earlier robberies, he had removed the bullets from a gun so as not to injure anyone. In his cross-examination of the prosecution witnesses, Williams’ counsel repeatedly emphasized the fact that Williams had initiated the contact with the police that enabled them to solve the murder and to identify him as the perpetrator of the recent assaults, as well as the car thefts. In closing argument, Williams’ counsel characterized Williams’ confessional statements as “dumb,” but asked the jury to give weight to the fact that he had “turned himself in, not on one crime but on four . . . that the [police otherwise] would not have solved.” The weight of defense counsel’s closing, however, was devoted

Opinion of Justice Stevens for the Court

to explaining that it was difficult to find a reason why the jury should spare Williams’ life.3 The jury found a probability of future dangerousness and unanimously fixed Williams’ punishment at death. The trial judge concluded that such punishment was “proper” and “just” and imposed the death sentence. The Virginia Supreme Court affirmed the conviction and sentence. . . .

State Habeas Corpus Proceedings In 1988 Williams filed for state collateral relief in the Danville Circuit Court. The petition was subsequently amended, and the Circuit Court (the same judge who had presided over Williams’ trial and sentencing) held an evidentiary hearing on Williams’ claim that trial counsel had been ineffective. Based on the evidence adduced after two days of hearings, Judge Ingram found that Williams’ conviction was valid, but that his trial attorneys had been ineffective during sentencing. Among the evidence reviewed that had not been presented at trial were documents prepared in connection with Williams’ commitment when he was 11 years old that dramatically described mistreatment, abuse, and neglect during his early childhood, as well as testimony that he was “borderline mentally retarded,” had suffered repeated head injuries, and might have mental impairments organic in origin. The habeas hearing also revealed that the same experts who had testified on the State’s behalf at trial believed that Williams, if kept in a “structured environment,” would not pose a future danger to society. Counsel’s failure to discover and present this and other significant mitigating evidence was “below the range expected of reasonable, professional competent assistance of counsel.” Counsel’s performance thus “did not measure up to the standard required under the holding of Strickland, and [if it had,] there is a reasonable probability that the result of the sentencing phase would have been different.” Judge Ingram therefore recommended that Williams be granted a rehearing on the sentencing phase of his trial. The Virginia Supreme Court did not accept that recommendation. Although it assumed, without deciding, that trial counsel had been ineffective, it disagreed with the trial judge’s conclusion that Williams had suffered sufficient prejudice to warrant relief. . . . In defense counsel’s words: “I will admit too that it is very difficult to ask you to show mercy to a man who maybe has not shown much mercy himself. I doubt very seriously that he thought much about mercy when he was in Mr. Stone’s bedroom that night with him. I doubt very seriously that he had mercy very highly on his mind when he was walking along West Green and the incident with Alberta Stroud. I doubt very seriously that he had mercy on his mind when he took two cars that didn’t belong to him. Admittedly it is very difficult to get us and ask that you give this man mercy when he has shown so little of it himself. But I would ask that you would.”

3

331

332

Chapter 16: Ineffective Counsel

Federal Habeas Corpus Proceedings Having exhausted his state remedies, Williams sought a federal writ of habeas corpus pursuant to 28 U.S.C. §2254. After reviewing the state habeas hearing transcript and the state courts’ findings of fact and conclusions of law, the federal trial judge agreed with the Virginia trial judge: The death sentence was constitutionally infirm. . . . He identified five categories of mitigating evidence that counsel had failed to introduce,5 and he rejected the argument that counsel’s failure to conduct an adequate investigation had been a strategic decision to rely almost entirely on the fact that Williams had voluntarily confessed. According to Williams’ trial counsel’s testimony before the state habeas court, counsel did not fail to seek Williams’ juvenile and social services records because he thought they would be counterproductive, but because counsel erroneously believed that “‘state law didn’t permit it.’” Counsel also acknowledged in the course of the hearings that information about Williams’ childhood would have been important in mitigation. And counsel’s failure to contact a potentially persuasive character witness was likewise not a conscious strategic choice, but simply a failure to return that witness’ phone call offering his service. Finally, even if counsel neglected to conduct such an investigation at the time as part of a tactical decision, the District Judge found, tactics as a matter of reasonable performance could not justify the omissions. Turning to the prejudice issue, the judge determined that there was “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Strickland. The Federal Court of Appeals reversed. . . . ...

IV We are . . . persuaded that the Virginia trial judge correctly applied both components of [the Strickland] standard to Williams’ ineffectiveness claim. Although he concluded that counsel competently handled the guilt phase of the trial, “(i) Counsel did not introduce evidence of the Petitioner’s background. . . . (ii) Counsel did not introduce evidence that Petitioner was abused by his father. (iii) Counsel did not introduce testimony from correctional officers who were willing to testify that defendant would not pose a danger while incarcerated. Nor did counsel offer prison commendations awarded to Williams for his help in breaking up a prison drug ring and for returning a guard’s missing wallet. (iv) Several character witnesses were not called to testify. . . . [T]he testimony of Elliott, a respected CPA in the community, could have been quite important to the jury. . . . (v) Finally, counsel did not introduce evidence that Petitioner was borderline mentally retarded, though he was found competent to stand trial.”

5

Opinion of Justice Stevens for the Court

he found that their representation during the sentencing phase fell short of professional standards—a judgment barely disputed by the State in its brief to this Court. The record establishes that counsel did not begin to prepare for that phase of the proceeding until a week before the trial. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records. Had they done so, the jury would have learned that Williams’ parents had been imprisoned for the criminal neglect of Williams and his ­siblings,20 that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents’ incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents’ custody. Counsel failed to introduce available evidence that Williams was “borderline mentally retarded” and did not advance beyond sixth grade in school. They failed to seek prison records recording Williams’ commendations for helping to crack a prison drug ring and for returning a guard’s missing wallet, or the testimony of prison officials who described Williams as among the inmates “least likely to act in a violent, dangerous or provocative way.” Counsel failed even to return the phone call of a certified public accountant who had offered to testify that he had visited Williams frequently when Williams was incarcerated as part of a prison ministry program, that Williams “seemed to thrive in a more regimented and structured environment,” and that Williams was proud of the carpentry degree he earned while in prison. Of course, not all of the additional evidence was favorable to Williams. The juvenile records revealed that he had been thrice committed to the juvenile system—for aiding and abetting larceny when he was 11 years old, for pulling a false fire alarm when he was 12, and for breaking and entering when he was 15. But as the Federal District Court correctly observed, the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams’ favor was not justified by a tactical decision to focus on Williams’ voluntary confession. Whether or not those omissions were sufficiently prejudicial to

20

Juvenile records contained the following description of his home: The home was a complete wreck. . . . There were several places on the floor where someone had had a bowel movement. Urine was standing in several places in the bedrooms. There were dirty dishes scattered over the kitchen, and it was impossible to step any place on the kitchen floor where there was no trash. . . . The children were all dirty and none of them had on under-pants. Noah and Lula were so intoxicated, they could not find any clothes for the children, nor were they able to put the clothes on them. . . . The children had to be put in Winslow Hospital, as four of them, by that time, were definitely under the influence of whiskey.

333

334

Chapter 16: Ineffective Counsel

have affected the outcome of sentencing, they clearly demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background. See 1 ABA Standards for Criminal Justice 4-4.1 (2d ed.1980). We are also persuaded, unlike the Virginia Supreme Court, that counsel’s unprofessional service prejudiced Williams within the meaning of Strickland. After hearing the additional evidence developed in the postconviction proceedings, the very judge who presided at Williams’ trial and who once determined that the death penalty was “just” and “appropriate,” concluded that there existed “a reasonable probability that the result of the sentencing phase would have been different” if the jury had heard that evidence. . . . [T]he State Supreme Court’s prejudice determination was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence . . . [I]t correctly emphasized the strength of the prosecution evidence supporting the future dangerousness aggravating circumstance. But the state court failed even to mention the sole argument in mitigation that trial counsel did advance—Williams turned himself in, alerting police to a crime they otherwise would never have discovered, expressing remorse for his actions, and cooperating with the police after that. While this, coupled with the prison records and guard testimony, may not have overcome a finding of future dangerousness, the graphic description of Williams’ childhood, filled with abuse and privation, or the reality that he was “borderline mentally retarded,” might well have influenced the jury’s appraisal of his moral culpability. The circumstances recited in his several confessions are consistent with the view that in each case his violent behavior was a compulsive reaction rather than the product of cold-blooded premeditation. Mitigating evidence unrelated to dangerousness may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case. . . .

Dissenting opinion of chief justice rehnquist, joined by justices scalia and thomas I, like the Virginia Supreme Court and the Federal Court of Appeals below, will assume without deciding that counsel’s performance fell below an objective standard of reasonableness. As to the prejudice inquiry, I agree with the Court of Appeals that evidence showing that petitioner presented a future danger to society was overwhelming. As that court stated: The murder of Mr. Stone was just one act in a crime spree that lasted most of Williams’s life. Indeed, the jury heard evidence that, in the

Editors’ Questions

months following the murder of Mr. Stone, Williams savagely beat an elderly woman, stole two cars, set fire to a home, stabbed a man during a robbery, set fire to the city jail, and confessed to having strong urges to choke other inmates and to break a fellow prisoner’s jaw.

. . . Here, there was strong evidence that petitioner would continue to be a danger to society, both in and out of prison. It was not, therefore, unreasonable for the Virginia Supreme Court to decide that a jury would not have been swayed by evidence demonstrating that petitioner had a terrible childhood and a low IQ. The potential mitigating evidence that may have countered the finding that petitioner was a future danger was testimony that petitioner was not dangerous while in detention. But, again, it is not unreasonable to assume that the jury would have viewed this mitigation as unconvincing upon hearing that petitioner set fire to his cell while awaiting trial for the murder at hand and has repeated visions of harming other inmates.

Editors’ Questions 1. After Williams, would a case presenting facts identical to those in Strickland result in a finding of ineffective assistance? Does it make a difference that the sentencer in Strickland was a judge whereas the sentencer in Williams was a jury? 2. Why is Strickland v. Washington referred to as “Strickland” and its legal standard called the Strickland test? Federal habeas corpus cases are usually referred to by the name of the prisoner—here Washington—rather than the name of the corrections official because the official is probably the named party in numerous prisoner suits. Do you think the choice here might have something to do with the fact that “Washington” may be an even more common case name than “Strickland”?

335

Chap ter 1 7

Claims of Innocence—Herrera v. Collins (1993) and Kansas v. Marsh (2006) Editors’ comment In a death penalty case, a federal habeas corpus proceeding is typically the last stage in the post-conviction process. (See Chapter 1.) If the writ is denied, usually only the executive branch, through its clemency power, can prevent the execution. The Herrera case raises the question of whether a defendant who asserts that he is innocent, based on evidence discovered after the trial, can make the necessary constitutional claim for federal habeas corpus to obtain judicial relief. That is, is it cruel and unusual punishment in violation of the Eighth Amendment, or a violation of due process, to execute an innocent person? The Court’s answer in Herrera was probably yes, but only under conditions that would be very unlikely to be met: If no state remedy were available to the inmate, and if he could meet an “extraordinarily high” standard for proof of innocence, a constitutional foundation for the writ would be established even in the absence of any other constitutional violation. The Supreme Court has not found these conditions to have been met so far. The claim at issue in Herrera is what the Court calls a “freestanding” claim of innocence—one that is asserted apart from any other constitutional claim. There is another kind of claim of innocence referred to as a “gateway” that may be beneficial to a defendant in a different way. As the name implies, such a claim can act as a “gateway” through which another constitutional claim, one that would ordinarily be denied, may gain review. Gateway issues arise in two ways. First, in a federal habeas proceeding, a defendant may seek to litigate a claim that was not properly preserved for review in the state proceedings. For example a venireperson is improperly dismissed for cause but the defense does not object to the dismissal. Such a claim is viewed as “procedurally defaulted,” and neither the state appellate courts nor the federal habeas courts will even consider it. In the second way, a defendant may file a subsequent federal habeas petition after having lost an earlier one. This will result in the subsequent petition’s summary dismissal under the rule prohibiting multiple petitions. However, Congress has established an exception to the ban on consideration of procedurally defaulted claims or multiple petitions when necessary to avoid a “miscarriage of justice,” which is defined as the conviction of someone who is actually innocent. This is what the Herrera Court meant when it said that a claim of actual innocence could serve as “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Thus, a claim of innocence can sometimes give another constitutional claim a chance of success that it would not otherwise have. Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

337

338

Chapter 17:  Claims of Innocence

Editors’ Comment—Cont’d The standard of proof for a gateway claim of innocence is not as high as for a freestanding claim, but it is still strict: The evidence must be such that if the jury had heard it at the trial, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed.2d 808 (1995). Despite the strictness of this standard, the Supreme Court has twice applied it in a defendant’s favor. In Schlup, the Court found the petitioner’s evidence of innocence sufficient to act as a gateway to permit a second federal habeas petition to consider his otherwise barred claims of ineffective assistance of counsel and violation of the prosecutor’s duty to disclose exculpatory evidence. And in House v. Bell, 547 U.S. 518, 126 S. Ct. 2064, 165 L. Ed.2d 1 (2006), the Court found the gateway evidence sufficient to permit consideration of an otherwise barred claim of ineffective assistance of counsel—even though the evidence was insufficient to meet the standard for a freestanding claim. The legal question of whether claims of innocence can be presented in federal habeas petitions masks broader questions about how often death sentences are imposed on innocent persons, and how effective the system is at identifying and reprieving those persons before the sentence is carried out. The second case in this Chapter—Kansas v. Marsh (2006)—presents a debate on these points between Justice Souter in a dissent and Justice Scalia in a concurrence. (For the remainder of the Marsh opinions on another issue, see Chapter 15.)

Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed.2d 203 (1993) (6–3, death row defendant’s claim of innocence was insufficiently supported by evidence to serve as the constitutional basis for the issuance of a federal writ of habeas corpus.)

Opinion of chief justice rehnquist for the court Petitioner Leonel Torres Herrera was convicted of capital murder and sentenced to death in January 1982. He unsuccessfully challenged the conviction on direct appeal and state collateral proceedings in the Texas state courts, and in a federal habeas petition. In February 1992—10 years after his conviction—he urged in a second federal habeas petition that he was “actually innocent” of the murder for which he was sentenced to death, and that the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process of law therefore forbid his execution. He supported this claim with affidavits tending to show that his now-dead brother, rather than he, had been the

Opinion of Chief Justice Rehnquist for the Court

perpetrator of the crime. Petitioner urges us to hold that this showing of innocence entitles him to relief in this federal habeas proceeding. We hold that it does not. Shortly before 11 p.m. on an evening in late September 1981, the body of Texas Department of Public Safety Officer David Rucker was found by a passerby on a stretch of highway about six miles east of Los Fresnos, Texas, a few miles north of Brownsville in the Rio Grande Valley. Rucker’s body was lying beside his patrol car. He had been shot in the head. At about the same time, Los Fresnos Police Officer Enrique Carrisalez observed a speeding vehicle traveling west towards Los Fresnos, away from the place where Rucker’s body had been found, along the same road. Carrisalez, who was accompanied in his patrol car by Enrique Hernandez, turned on his flashing red lights and pursued the speeding vehicle. After the car had stopped briefly at a red light, it signaled that it would pull over and did so. The patrol car pulled up behind it. Carrisalez took a flashlight and walked toward the car of the speeder. The driver opened his door and exchanged a few words with Carrisalez before firing at least one shot at Carrisalez’ chest. The officer died nine days later. Petitioner Herrera was arrested a few days after the shootings and charged with the capital murder of both Carrisalez and Rucker. He was tried and found guilty of the capital murder of Carrisalez in January 1982, and sentenced to death. In July 1982, petitioner pleaded guilty to the murder of Rucker. At petitioner’s trial for the murder of Carrisalez, Hernandez, who had witnessed Carrisalez’ slaying from the officer’s patrol car, identified petitioner as the person who had wielded the gun. A declaration by Officer Carrisalez to the same effect, made while he was in the hospital, was also admitted. Through a license plate check, it was shown that the speeding car involved in Carrisalez’ murder was registered to petitioner’s “live-in” girlfriend. Petitioner was known to drive this car, and he had a set of keys to the car in his pants pocket when he was arrested. Hernandez identified the car as the vehicle from which the murderer had emerged to fire the fatal shot. He also testified that there had been only one person in the car that night. The evidence showed that Herrera’s Social Security card had been found alongside Rucker’s patrol car on the night he was killed. Splatters of blood on the car identified as the vehicle involved in the shootings, and on petitioner’s blue jeans and wallet, were identified as type A blood—the same type which Rucker had. (Herrera has type O blood.) Similar evidence with respect to strands of hair found in the car indicated that the hair was Rucker’s

339

340

Chapter 17:  Claims of Innocence

and not Herrera’s. A handwritten letter was also found on the person of petitioner when he was arrested, which strongly implied that he had killed Rucker.1 Petitioner appealed his conviction and sentence, arguing, among other things, that Hernandez’ and Carrisalez’ identifications were unreliable and improperly admitted. The Texas Court of Criminal Appeals affirmed and we denied certiorari. Petitioner’s application for state habeas relief was denied. Petitioner then filed a federal habeas petition, again challenging the identifications offered against him at trial. This petition was denied and we again denied certiorari. Petitioner next returned to state court and filed a second habeas petition, raising, among other things, a claim of “actual innocence” based on newly discovered evidence. In support of this claim petitioner presented the affidavits of Hector Villarreal, an attorney who had represented petitioner’s brother, Raul Herrera Senior, and of Juan Franco Palacious, one of Raul Senior’s former cellmates. Both individuals claimed that Raul Senior, who died in 1984,

1

The letter read: “To whom it may concern: I am terribly sorry for those I have brought grief to their lives. Who knows why? We cannot change the future’s problems with problems from the past. What I did was for a cause and purpose. One law runs others, and in the world we live in, that’s the way it is. “I’m not a tormented person. . . . I believe in the law. What would it be without this [sic] men that risk their lives for others, and that’s what they should be doing—protecting life, property, and the pursuit of happiness. Sometimes, the law gets too involved with other things that profit them. The most laws that they make for people to break them, in other words, to encourage crime. “What happened to Rucker was for a certain reason. I knew him as Mike Tatum. He was in my business, and he violated some of its laws and suffered the penalty, like the one you have for me when the time comes. “My personal life, which has been a conspiracy since my high school days, has nothing to do with what has happened. The other officer that became part of our lives, me and Rucker’s (Tatum), that night had not to do in this [sic]. He was out to do what he had to do, protect, but that’s life. There’s a lot of us that wear different faces in lives every day, and that is what causes problems for all [unintelligible word]. “You have wrote all you want of my life, but think about yours, also. [Signed Leonel Herrera] “I have tapes and pictures to prove what I have said. I will prove my side if you accept to listen. You [unintelligible word] freedom of speech, even a criminal has that right. I will present myself if this is read word for word over th+e media, I will turn myself in; if not, don’t have millions of men out there working just on me while others—robbers, rapists, or burglars—are taking advantage of the law’s time. Excuse my spelling and writing. It’s hard at times like this.”

Opinion of Chief Justice Rehnquist for the Court

had told them that he—and not petitioner—had killed Officers Rucker and Carrisalez. The State District Court denied this application, finding that “no evidence at trial remotely suggest[ed] that anyone other than [petitioner] committed the offense.” The Texas Court of Criminal Appeals affirmed and we denied certiorari. In February 1992, petitioner lodged the instant habeas petition—his second— in federal court, alleging, among other things, that he is innocent of the murders of Rucker and Carrisalez, and that his execution would thus violate the Eighth and Fourteenth Amendments. In addition to proffering the above affidavits, petitioner presented the affidavits of Raul Herrera Jr. Raul Sr.’s son, and Jose Ybarra Jr. a schoolmate of the Herrera brothers. Raul Jr. averred that he had witnessed his father shoot Officers Rucker and Carrisalez and petitioner was not present. Raul Jr. was nine years old at the time of the killings. Ybarra alleged that Raul Sr. told him one summer night in 1983 that he had shot the two police officers. . . . The District Court dismissed most of petitioner’s claims as an abuse of the writ. However, “in order to ensure that Petitioner can assert his constitutional claims and out of a sense of fairness and due process,” the District Court granted petitioner’s request for a stay of execution so that he could present his claim of actual innocence, along with the Raul Jr. and Ybarra affidavits, in state court. . . . The Court of Appeals vacated the stay of execution. . . . Absent an accompanying constitutional violation, the Court of Appeals held that petitioner’s claim of actual innocence was not cognizable because, under Townsend v. Sain, 372 U.S. 293, 317 (1963), “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” We granted certiorari and the Texas Court of Criminal Appeals stayed petitioner’s execution. We now affirm. Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. But the evidence upon which petitioner’s claim of innocence rests was not produced at his trial, but rather eight years later. In any system of criminal justice, “innocence” or “guilt” must be determined in some sort of a judicial proceeding. Petitioner’s showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings in this case, which have stretched over a span of 10 years.

341

342

Chapter 17:  Claims of Innocence

A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). Other constitutional provisions also have the effect of ensuring against the risk of convicting an innocent person. . . . In capital cases, we have required additional protections because of the nature of the penalty at stake. See, e.g., Beck v. Alabama, 447 U.S. 625 (1980) (jury must be given option of convicting the defendant of a lesser offense). All of these constitutional safeguards, of course, make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant. But we have also observed that “[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Patterson v. New York, 432 U.S. 197, 208 (1977). To conclude otherwise would all but paralyze our system for enforcement of the criminal law. Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Moffitt, 417 U.S. 600, 610 (1974) (“The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is “innocent,” but, on the contrary, as one who has been convicted by due process of law of two brutal murders. Based on affidavits here filed, petitioner claims that evidence never presented to the trial court proves him innocent notwithstanding the verdict reached at his trial. Such a claim is not cognizable in the state courts of Texas. For to obtain a new trial based on newly discovered evidence, a defendant must file a motion within 30 days after imposition or suspension of sentence. The Texas courts have construed this 30-day time limit as jurisdictional. Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. Chief Justice Warren made this clear in Townsend v. Sain, 372 U.S. 293, at 317 (1963): Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.

Opinion of Chief Justice Rehnquist for the Court

This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact. . . . Few rulings would be more disruptive of our federal system than to provide for federal habeas review of free standing claims of actual innocence. Our decision in Jackson v. Virginia, 443 U.S. 307 (1979), comes as close to authorizing evidentiary review of a state-court conviction on federal habeas as any of our cases. There, we held that a federal habeas court may review a claim that the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt. But in so holding, we emphasized: [T]his inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id., at 318–319.

We specifically noted that “the standard announced . . . does not permit a court to make its own subjective determination of guilt or innocence.” Id., at 320, n. 13. The type of federal habeas review sought by petitioner here is different in critical respects than that authorized by Jackson. First, the Jackson inquiry is aimed at determining whether there has been an independent constitutional violation—i.e., a conviction based on evidence that fails to meet the Winship standard [of proof beyond a reasonable doubt]. Thus, federal habeas courts act in their historic capacity—to assure that the habeas petitioner is not being held in violation of his or her federal constitutional rights. Second, the sufficiency of the evidence review authorized by Jackson is limited to “record evidence.” Jackson does not extend to nonrecord evidence, including newly discovered evidence. Finally, the Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit. Petitioner is understandably imprecise in describing the sort of federal relief to which a suitable showing of actual innocence would entitle him. In his brief he states that the federal habeas court should have “an important initial opportunity to hear the evidence and resolve the merits of Petitioner’s claim.” Acceptance of this view would presumably require the habeas court to hear testimony from the witnesses who testified at trial as well as those who made the

343

344

Chapter 17:  Claims of Innocence

statements in the affidavits which petitioner has presented, and to determine anew whether or not petitioner is guilty of the murder of Officer Carrisalez. Indeed, the dissent’s approach differs little from that hypothesized here. The dissent would place the burden on petitioner to show that he is “probably” innocent. Although petitioner would not be entitled to discovery “as a matter of right,” the District Court would retain its “discretion to order discovery . . . when it would help the court make a reliable determination with respect to the prisoner’s claim.” And although the District Court would not be required to hear testimony from the witnesses who testified at trial or the affiants upon whom petitioner relies, it would allow the District Court to do so “if the petition warrants a hearing.” At the end of the day, the dissent would have the District Court “make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances,” and then “weigh the evidence in favor of the prisoner against the evidence of his guilt.” The dissent fails to articulate the relief that would be available if petitioner were to meet its “probable innocence” standard. Would it be commutation of petitioner’s death sentence, new trial, or unconditional release from imprisonment? The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner, or in a capital case a similar conditional order vacating the death sentence. Were petitioner to satisfy the dissent’s “probable innocence” standard, therefore, the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of ­petitioner’s new found evidence a jury might find him not guilty at a second trial. Yet there is no guarantee that the guilt or innocence determination would be any more exact. To the contrary, the passage of time only diminishes the reliability of criminal adjudications. . . . Under the dissent’s approach, the District Court would be placed in the even more difficult position of having to weigh the probative value of “hot” and “cold” evidence on petitioner’s guilt or innocence. This is not to say that our habeas jurisprudence casts a blind eye towards innocence. In a series of cases culminating with Sawyer v. Whitley, 505 U.S. 333 (1992), decided last Term, we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence. This rule, or fundamental miscarriage of justice exception, is grounded in the “equitable discretion” of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons. But this body of our habeas jurisprudence makes clear that a claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which

Opinion of Chief Justice Rehnquist for the Court

a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. Petitioner in this case is simply not entitled to habeas relief based on the reasoning of this line of cases. For he does not seek excusal of a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because newly discovered evidence shows that his conviction is factually incorrect. The fundamental miscarriage of justice exception is available “only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Kuhlmann [v. Wilson, 544 U.S. 407 (2008)] (plurality opinion). We have never held that it extends to free standing claims of actual innocence. Therefore, the exception is inapplicable here. Petitioner asserts that this case is different because he has been sentenced to death. But we have “refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus.” Murray v. Giarratano, 492 U.S. 1, 9 (1989) (plurality opinion). We have, of course, held that the Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed. See, e.g., McKoy v. North Carolina, 494 U.S. 433 (1990) (unanimity requirement impermissibly limits jurors’ consideration of mitigating evidence); Eddings v. Oklahoma, 455 U.S. 105 (1982) (jury must be allowed to consider all of a capital defendant’s mitigating character evidence); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (same). But petitioner’s claim does not fit well into the doctrine of these cases, since, as we have pointed out, it is far from clear that a second trial 10 years after the first trial would produce a more reliable result. Perhaps mindful of this, petitioner urges not that he necessarily receive a new trial, but that his death sentence simply be vacated if a federal habeas court deems that a satisfactory showing of “actual innocence” has been made. But such a result is scarcely logical; petitioner’s claim is not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of the underlying murder in the first place. It would be a rather strange jurisprudence, in these circumstances, which held that under our Constitution he could not be executed, but that he could spend the rest of his life in prison. … Alternatively, petitioner invokes the Fourteenth Amendment’s guarantee of due process of law in support of his claim that his showing of actual innocence entitles him to a new trial, or at least to a vacation of his death sentence. “[B]ecause the States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common law tradition,” we have “exercis[ed] substantial deference to legislative judgments in this area.” Medina v. California, 505 U.S. 437, 445–446 (1992). Thus, we have found criminal process lacking only

345

346

Chapter 17:  Claims of Innocence

where it ‘“offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”’ Ibid. (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). “Historical practice is probative of whether a procedural rule can be characterized as fundamental.” 505 U.S., at 446 . . . [The Court here made the following points regarding time limits on the filing of motions for a new trial based on newly discovered evidence. Historically, the common-law rule was that a new trial could be granted “only during the term of court in which the final judgment was entered.” In 1946, the Supreme Court adopted Rule 33 of the Federal Rules of Criminal Procedure, setting a two-year time limit for filing a motion for a new trial. This has remained the rule in federal courts. Contemporary state practice is “divergent.” Texas is one of 17 states that requires a motion within 60 days of judgment. One state adheres to the common-law rule. Eighteen jurisdictions have time limits ranging between one and three years. Fifteen States allow a motion to be filed more than three years after conviction. Of these states, four have waivable time limits of less than 120 days, two have waivable time limits of more than 120 days, and nine states have no time limits.]

In light of the historical availability of new trials, our own . . . Rule 33, and the contemporary practice in the States, we cannot say that Texas’ refusal to entertain petitioner’s newly discovered evidence eight years after his conviction transgresses a principle of fundamental fairness “rooted in the traditions and conscience of our people.” This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency. Clemency12 is deeply rooted in our Anglo American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. In England, the clemency power was vested in the Crown and can be traced back to the 700’s. W. Humbert, The Pardoning Power of the President 9 (1941). Blackstone thought this “one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment.” 4 W. Blackstone, Commentaries. Clemency provided the principal avenue of relief for individuals convicted of criminal offenses—most of which were capital—because there was no right of appeal until 1907. 1 L. Radzinowicz, A History of English

The term “clemency” refers not only to full or conditional pardons, but also commutations, remissions of fines, and reprieves. See Kobil, “The Quality of Mercy Strained: Wresting the Pardoning Power from the King,” 69 Texas L. Rev. 569, 575–578 (1991).

12

Opinion of Chief Justice Rehnquist for the Court

Criminal Law 122 (1948). It was the only means by which one could challenge his conviction on the ground of innocence. United States Dept. of Justice, 3 Attorney General’s Survey of Release Procedures 73 (1939). Our Constitution adopts the British model and gives to the President the “Power to grant Reprieves and Pardons for Offences against the United States.” Art. II, § 2, cl. 1. In United States v. Wilson, 7 Pet. 150, 160–61 (1833), Chief Justice Marshall expounded on the President’s pardon power: As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.

See also Ex parte Garland, 4 Wall. 333, 380–381 (1867); The Federalist No. 74, pp. 447–449 (C. Rossiter ed. 1961) (A. Hamilton) (“The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel”). Of course, although the Constitution vests in the President a pardon power, it does not require the States to enact a clemency mechanism. Yet since the British Colonies were founded, clemency has been available in America. C. Jensen, The Pardoning Power in the American States 3–4 (1922). The original States were reluctant to vest the clemency power in the executive. And although this power has gravitated toward the executive over time, several States have split the clemency power between the Governor and an advisory board selected by the legislature.

347

348

Chapter 17:  Claims of Innocence

See Survey of Release Procedures, supra, at 91–98. Today, all 36 States that authorize capital punishment have constitutional or statutory provisions for clemency. Executive clemency has provided the “fail safe” in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after discovered evidence establishing their innocence. In his classic work, Professor Edwin Borchard compiled 65 cases in which it was later determined that individuals had been wrongfully convicted of crimes. Clemency provided the relief mechanism in 47 of these cases; the remaining cases ended in judgments of acquittals after new trials. E. Borchard, Convicting the Innocent (1932). Recent authority ­confirms that over the past century clemency has been exercised frequently in capital cases in which demonstrations of “actual innocence” have been made. See M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282–356 (1992).15 In Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency. The board’s consideration is triggered upon request of the individual sentenced to death, his or her representative, or the Governor herself. In capital cases, a request may be made for a full pardon, a commutation of death sentence to life imprisonment or appropriate maximum penalty, or a reprieve of execution. The Governor has the sole authority to grant one reprieve in any capital case not exceeding 30 days. The Texas clemency procedures contain specific guidelines for pardons on the ground of innocence. The board will entertain applications for a recommendation of full pardon because of innocence upon receipt of the following: “(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or (2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and (3) affidavits of witnesses upon which the finding of innocence is based.” In this case, petitioner has apparently sought a 30-day reprieve from the Governor, but has yet to apply for a pardon, or even a commutation, on the ground of innocence or otherwise. As the foregoing discussion illustrates, in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the ­defendant.

The dissent points to one study concluding that 23 innocent persons have been executed in the United States this century as support for the proposition that clemency requests by persons believed to be innocent are not always granted (citing Bedau and Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21 (1987)). Although we do not doubt that clemency—like the criminal justice system itself—is fallible, we note that scholars have taken issue with this study. See Comment, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988).

15

Opinion of Chief Justice Rehnquist for the Court

Federal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings. Our federal habeas cases have treated claims of “actual innocence,” not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency. We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant ­federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold. Petitioner’s newly discovered evidence consists of affidavits. In the new trial context, motions based solely upon affidavits are disfavored because the affiants’ statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations. Petitioner’s affidavits are particularly suspect in this regard because, with the exception of Raul Herrera Jr.’s affidavit, they consist of hearsay. Likewise, in reviewing petitioner’s new evidence, we are mindful that defendants often abuse new trial motions “as a method of delaying enforcement of just sentences.” Although we are not presented with a new trial motion per se, we believe the likelihood of abuse is as great—or greater—here. The affidavits filed in this habeas proceeding were given over eight years after petitioner’s trial. No satisfactory explanation has been given as to why the affiants waited until the 11th hour—and, indeed, until after the alleged perpetrator of the murders himself was dead—to make their statements. . . . Equally troubling, no explanation has been offered as to why petitioner, by hypothesis an innocent man, pleaded guilty to the murder of Rucker. Moreover, the affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed. For instance, the affidavit of Raul Jr. who was nine years old at the time, indicates that there were three people in the speeding car from which the murderer emerged, whereas Hector Villarreal attested that Raul Sr. told him that there were two people in the car that night. Of course, Hernandez testified at petitioner’s trial that the murderer was the only occupant of the car. The affidavits also conflict as to the direction in which

349

350

Chapter 17:  Claims of Innocence

the vehicle was heading when the murders took place, and petitioner’s whereabouts on the night of the killings. Finally, the affidavits must be considered in light of the proof of petitioner’s guilt at trial—proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and a handwritten letter in which petitioner apologized for killing the officers and offered to turn himself in under certain conditions. That proof, even when considered alongside petitioner’s belated affidavits, points strongly to petitioner’s guilt. This is not to say that petitioner’s affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner’s trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist. The judgment of the Court of Appeals is Affirmed.

Concurring opinion of justice o’connor, joined by justice kennedy I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed—“contrary to contemporary standards of decency,” “shocking to the conscience,” or offensive to a ‘“principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, ’”—the execution of a legally and factually innocent person would be a constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word. As the Court explains, petitioner is not innocent in the eyes of the law because, in our system of justice, “the trial is the paramount event for determining the guilt or innocence of the defendant.” In petitioner’s case, that paramount event occurred 10 years ago. He was tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that trial, the jury found petitioner guilty beyond a reasonable doubt. Petitioner therefore does not appear before us as an innocent man on the verge of execution. He is instead a legally guilty one who, refusing to accept the jury’s verdict, demands a hearing in which to have his culpability determined once again. Consequently, the issue before us is not whether a State can execute the innocent. It is, as the Court notes, whether a fairly convicted and therefore legally

Concurring Opinion of Justice O’Connor

guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial. In most circumstances, that question would answer itself in the negative. Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the ­innocent. The question similarly would be answered in the negative today, except for the disturbing nature of the claim before us. Petitioner contends not only that the Constitution’s protections “sometimes fail,” but that their failure in his case will result in his execution—even though he is factually innocent and has evidence to prove it. Exercising restraint, the Court and Justice White assume for the sake of ­argument that, if a prisoner were to make an exceptionally strong showing of actual innocence, the execution could not go forward. Justice Blackmun, in contrast, would expressly so hold; he would also announce the precise burden of proof. . . . Resolving the issue is neither necessary nor advisable in this case. The question is a sensitive and, to say the least, troubling one. It implicates not just the life of a single individual, but also the State’s powerful and legitimate interest in punishing the guilty, and the nature of state federal relations. Indeed, as the Court persuasively demonstrates, throughout our history the federal courts have assumed that they should not and could not intervene to prevent an execution so long as the prisoner had been convicted after a constitutionally adequate trial. The prisoner’s sole remedy was a pardon or clemency. Nonetheless, the proper disposition of this case is neither difficult nor troubling. No matter what the Court might say about claims of actual innocence today, petitioner could not obtain relief. The record overwhelmingly demonstrates that petitioner deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner’s new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court’s decision, not even the dissent expresses a belief that petitioner might possibly be actually innocent. Nor could it: The record makes it abundantly clear that petitioner is not somehow the future victim of “simple murder” (dissenting opinion), but instead himself the established perpetrator of two brutal and tragic ones.… Now, 10 years after being convicted on that seemingly dispositive evidence, petitioner has collected four affidavits that he claims prove his innocence. The affidavits allege that petitioner’s brother, who died six years before the affidavits were executed, was the killer—and that petitioner was not. Affidavits like these are not uncommon, especially in capital cases. They are an unfortunate although understandable occurrence. It seems that, when a prisoner’s life is at stake, he often can find someone new to vouch for him. Experience has shown, however, that such affidavits are to be treated with a fair degree of skepticism.

351

352

Chapter 17:  Claims of Innocence

These affidavits are no exception. They are suspect, produced as they were at the 11th hour with no reasonable explanation for the nearly decade long delay. Worse, they conveniently blame a dead man—someone who will neither contest the allegations nor suffer punishment as a result of them. Moreover, they contradict each other on numerous points, including the number of people in the murderer’s car and the direction it was heading when Officer Carrisalez stopped it. They do not even agree on when Officer Rucker was killed. . . . And the affidavits are inconsistent with petitioner’s own admission of guilt. The affidavits blame petitioner’s deceased brother for both the Rucker and Carrisalez homicides—even though petitioner pleaded guilty to murdering Rucker and contested only the Carrisalez slaying. Most critical of all, however, the affidavits pale when compared to the proof at trial. While some bits of circumstantial evidence can be explained, petitioner offers no plausible excuse for the most damaging piece of evidence, the signed letter in which petitioner confessed and offered to turn himself in. One could hardly ask for more unimpeachable—or more unimpeached—evidence of guilt. The conclusion seems inescapable: Petitioner is guilty. The dissent does not contend otherwise. Instead, it urges us to defer to the District Court’s determination that petitioner’s evidence was not “so insubstantial that it could be dismissed without any hearing at all.” I do not read the District Court’s decision as making any such determination. Nowhere in its opinion did the District Court question the accuracy of the jury’s verdict. Nor did it pass on the sufficiency of the affidavits. The District Court did not even suggest that it wished to hold an evidentiary hearing on petitioner’s actual innocence claims. Indeed, the District Court apparently believed that a hearing would be futile because the court could offer no relief in any event. As the court explained, claims of “newly discovered evidence bearing directly upon guilt or innocence” are not cognizable on habeas corpus “unless the petition implicates a constitutional violation.”. . . Unless federal proceedings and relief—if they are to be had at all—are reserved for “extraordinarily high” and “truly persuasive demonstration[s] of ‘actual innocence’” that cannot be presented to state authorities, the federal courts will be deluged with frivolous claims of actual innocence. Justice Jackson explained the dangers of such circumstances some 40 years ago: It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search. Brown v. Allen, 344 U.S. 443, 537 (1953) (concurring in result).

If the federal courts are to entertain claims of actual innocence, their attention, efforts, and energy must be reserved for the truly extraordinary case; they ought not be forced to sort through the insubstantial and the incredible as well.

Concurring Opinion of Justice Scalia

Ultimately, two things about this case are clear. First is what the Court does not hold. Nowhere does the Court state that the Constitution permits the execution of an actually innocent person. Instead, the Court assumes for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional and that federal habeas relief would be warranted if no state avenue were open to process the claim. Second is what petitioner has not demonstrated. Petitioner has failed to make a persuasive showing of actual innocence. Not one judge—no state court judge, not the District Court Judge, none of the three judges of the Court of Appeals, and none of the Justices of this Court—has expressed doubt about ­petitioner’s guilt. Accordingly, the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence. That difficult question remains open. If the Constitution’s guarantees of fair procedure and the safeguards of clemency and pardon fulfill their historical mission, it may never require resolution at all.

Concurring opinion of justice scalia, joined by justice thomas We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be “actually innocent.” I would have preferred to decide that question, particularly since, as the Court’s discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) “shock[s]” the dissenters’ consciences, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of “conscience shocking” as a legal test. I nonetheless join the entirety of the Court’s opinion, including the final ­portion—because there is no legal error in deciding a case by assuming arguendo, that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution1 lets stand any injustice, much less the ­execution My reference is to an article by Professor Monaghan, which discusses the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be. See Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353 (1981).

1

353

354

Chapter 17:  Claims of Innocence

of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon. My concern is that in making life easier for ourselves we not appear to make it harder for the lower federal courts, imposing upon them the burden of regularly analyzing newly discovered evidence of innocence claims in capital cases (in which event such federal claims, it can confidently be predicted, will become routine and even repetitive). A number of Courts of Appeals have hitherto held, largely in reliance on our unelaborated statement in Townsend v. Sain, 372 U.S. 293, 317 (1963), that newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a basis for federal habeas corpus relief. I do not understand it to be the import of today’s decision that those holdings are to be replaced with a strange regime that assumes permanently, though only “arguendo,” that a constitutional right exists, and expends substantial judicial resources on that assumption. The Court’s extensive and ­scholarly discussion of the question presented in the present case does nothing but support our statement in Townsend and strengthen the validity of the holdings based upon it.

Concurring opinion of justice white In voting to affirm, I assume that a persuasive showing of “actual innocence” made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). For the reasons stated in the Court’s opinion, petitioner’s showing falls far short of satisfying even that standard, and I therefore concur in the judgment.

Dissenting opinion of justice blackmun, joined in parts i–iv by justice stevens and souter Nothing could be more contrary to contemporary standards of decency, or more shocking to the conscience, than to execute a person who is actually innocent. I therefore must disagree with the long and general discussion that precedes the Court’s disposition of this case. That discussion, of course, is dictum because

Dissenting Opinion of Justice Blackmun

the Court assumes, “for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Without articulating the standard it is applying, however, the Court then decides that this petitioner has not made a sufficiently persuasive case. Because I believe that in the first instance the District Court should decide whether petitioner is entitled to a hearing and whether he is entitled to relief on the merits of his claim, I would reverse the order of the Court of Appeals and remand this case for further proceedings in the District Court.

I The Court’s enumeration of the constitutional rights of criminal defendants surely is entirely beside the point. These protections sometimes fail.1 We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. Despite the State of Texas’ astonishing protestation to the contrary, I do not see how the answer can be anything but “yes.” A.  The Eighth Amendment prohibits “cruel and unusual punishments.” This proscription is not static but rather reflects evolving standards of decency. I think it is crystal clear that the execution of an innocent person is “at odds with contemporary standards of fairness and decency.” Spaziano v. Florida, 468 U.S. 447, 465 (1984). Indeed, it is at odds with any standard of decency that I can imagine. This Court has ruled that punishment is excessive and unconstitutional if it is “nothing more than the purposeless and needless imposition of pain and suffering,” or if it is “grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592 (1977) Gregg v. Georgia, 428 U.S., at 173. It has held that death is an excessive punishment for rape, Coker, and for mere participation in a robbery during which a killing takes place, Enmund. If it is violative of the Eighth Amendment to execute someone who is guilty of those crimes, then it plainly is violative of the Eighth One impressive study has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984. Bedau and Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 36, 173–179 (1987); Radelet, Bedau, and Putnam, In Spite of Innocence 282–356 (1992). The majority cites this study to show that clemency has been exercised frequently in capital cases when showings of actual innocence have been made. But the study also shows that requests for clemency by persons the authors believe were innocent have been refused. See, e.g., Bedau and Radelet, 40 Stan. L. Rev., at 91 (discussing James Adams who was executed in Florida on May 10, 1984); Radelet, Bedau, and Putnam, In Spite of Innocence, at 5–10 (same). 1

355

356

Chapter 17:  Claims of Innocence

Amendment to execute a person who is actually innocent. Executing an innocent person epitomizes “the purposeless and needless imposition of pain and suffering.” Coker.2 The protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced. In Johnson v. Mississippi, 486 U.S. 578 (1988), the petitioner had been convicted of murder and sentenced to death on the basis of three aggravating circumstances. One of those circumstances was that he previously had been convicted of a violent felony in the State of New York. After Johnson had been sentenced to death, the New York Court of Appeals reversed his prior conviction. Although there was no question that the prior conviction was valid at the time of Johnson’s sentencing, this Court held that the Eighth Amendment required review of the sentence because “the jury was allowed to consider evidence that has been revealed to be materially inaccurate.” In Ford v. Wainwright, the petitioner had been convicted of murder and sentenced to death. There was no suggestion that he was incompetent at the time of his offense, at trial, or at sentencing, but subsequently he exhibited changes in behavior that raised doubts about his sanity. This Court held that Florida was required under the Eighth Amendment to provide an additional hearing to determine whether Ford was mentally competent, and that he could not be executed if he were incompetent. Both Johnson and Ford recognize that capital defendants may be entitled to further proceedings because of an intervening development even though they have been validly convicted and sentenced to death. Respondent and the United States as amicus curiae argue that the Eighth Amendment does not apply to petitioner because he is challenging his guilt, not his punishment. The majority attempts to distinguish Ford on that basis. Such reasoning, however, . . . fundamentally misconceives the nature of petitioner’s argument. Whether petitioner is viewed as challenging simply his death sentence or also his continued detention, he still is challenging the State’s right to punish him. Respondent and the United States would impose a clear line between guilt and punishment, reasoning that every claim that concerns guilt necessarily does not involve punishment. Such a division is far too facile. What respondent and the United States fail to recognize is that the legitimacy of­ punishment is inextricably intertwined with guilt.

It also may violate the Eighth Amendment to imprison someone who is actually innocent. See Robinson v. California, 370 U.S. 660, 667 (1962) (“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold”). On the other hand, this Court has noted that “‘death is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the defendant, it is different in both its severity and its finality.’” We are not asked to decide in this case whether petitioner’s continued imprisonment would violate the Constitution if he actually is innocent, and I do not address that question.

2

Dissenting Opinion of Justice Blackmun

Beck [v. Alabama, 447 U.S. 625 (1980)] makes this clear. In Beck, the petitioner was convicted of the capital crime of robbery intentional killing. Under Alabama law, however, the trial court was prohibited from giving the jury the option of convicting him of the lesser included offense of felony murder. We held that precluding the instruction injected an impermissible element of uncertainty into the guilt phase of the trial. To insure that the death penalty is indeed imposed on the basis of ‘reason rather than caprice or emotion,’ we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the State] is constitutionally prohibited from withdrawing that option in a capital case. Id., at 638 [footnote omitted].

The decision in Beck establishes that, at least in capital cases, the Eighth Amendment requires more than reliability in sentencing. It also mandates a reliable determination of guilt. See also Spaziano v. Florida, 468 U.S., at 456. The Court also suggests that allowing petitioner to raise his claim of innocence would not serve society’s interest in the reliable imposition of the death penalty because it might require a new trial that would be less accurate than the first. This suggestion misses the point entirely. The question is not whether a second trial would be more reliable than the first but whether, in light of new evidence, the result of the first trial is sufficiently reliable for the State to carry out a death sentence. Furthermore, it is far from clear that a State will seek to retry the rare prisoner who prevails on a claim of actual innocence. As explained in Part III, I believe a prisoner must show not just that there was probably a reasonable doubt about his guilt but that he is probably actually innocent. I find it difficult to believe that any State would choose to retry a person who meets this standard. I believe it contrary to any standard of decency to execute someone who is actually innocent. Because the Eighth Amendment applies to questions of guilt or innocence, and to persons upon whom a valid sentence of death has been imposed, I also believe that petitioner may raise an Eighth Amendment challenge to his punishment on the ground that he is actually innocent. B.  Execution of the innocent is equally offensive to the Due Process Clause of the Fourteenth Amendment. The majority’s discussion misinterprets peti­ tioner’s Fourteenth Amendment claim as raising a procedural, rather than a substantive, due process challenge. The Due Process Clause of the Fifth Amendment provides that “No person shall … be deprived of life, liberty, or property, without due

357

358

Chapter 17:  Claims of Innocence

process of law. …” This Court has held that the Due Process Clause protects individuals against two types of government action. So-called “substantive due process” prevents the government from engaging in conduct that “shocks the conscience,” or interferes with rights “implicit in the concept of ordered liberty. …”

Petitioner’s claim falls within our due process precedents. In Rochin [v. California, 342 U.S. 165, 172 (1952)], deputy sheriffs investigating narcotics sales broke into Rochin’s room and observed him put two capsules in his mouth. The deputies attempted to remove the capsules from his mouth and, having failed, took Rochin to a hospital and had his stomach pumped. The capsules were found to contain morphine. The Court held that the deputies’ conduct “shock[ed] the conscience” and violated due process. 342 U.S., at 172. “Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.” Ibid. The lethal injection that petitioner faces as an allegedly innocent person is certainly closer to the rack and the screw than the stomach pump condemned in Rochin. Execution of an innocent person is the ultimate “‘arbitrary impositio[n].’” It is an imposition from which one never recovers and for which one can never be compensated. Thus, I also believe that petitioner may raise a substantive due process challenge to his punishment on the ground that he is actually innocent. C.  Given my conclusion that it violates the Eighth and Fourteenth Amendments to execute a person who is actually innocent, I find no bar in Townsend v. Sain to consideration of an actual-innocence claim. Newly discovered evidence of petitioner’s innocence does bear on the constitutionality of his execution. Of course, it could be argued this is in some tension with Townsend’s statement that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” That statement, however, is no more than distant dictum here, for we never had been asked to consider whether the execution of an innocent person violates the Constitution.

II The majority’s discussion of petitioner’s constitutional claims is even more perverse when viewed in the light of this Court’s recent habeas jurisprudence. Beginning with a trio of decisions in 1986, this Court shifted the focus of federal habeas review of successive, abusive, or defaulted claims away from the preservation of constitutional rights to a fact based inquiry into the habeas petitioner’s guilt or innocence. See Kuhlmann v. Wilson, Murray v. Carrier, Smith

Dissenting Opinion of Justice Blackmun

v. Murray. The Court sought to strike a balance between the State’s interest in the finality of its criminal judgments and the prisoner’s interest in access to a forum to test the basic justice of his sentence. In striking this balance, the Court adopted the view of Judge Friendly that there should be an exception to the concept of finality when a prisoner can make a colorable claim of actual innocence. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970). Justice Powell, writing for the plurality in Wilson, explained the reason for focusing on innocence: The prisoner may have a vital interest in having a second chance to test the fundamental justice of his incarceration. Even where, as here, the many judges who have reviewed the prisoner’s claims in several proceedings provided by the State and on his first petition for federal habeas corpus have determined that his trial was free from constitutional error, a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated. That interest does not extend, however, to prisoners whose guilt is conceded or plain. 477 U.S., at 452.

In other words, even a prisoner who appears to have had a constitutionally perfect trial “retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated.” It is obvious that this reasoning extends beyond the context of successive, abusive, or defaulted claims to substantive claims of actual innocence. Indeed, Judge Friendly recognized that substantive claims of actual innocence should be cognizable on federal habeas. Having adopted an “actual-innocence” requirement for review of abusive, successive, or defaulted claims, however, the majority would now take the position that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” In other words, having held that a prisoner who is incarcerated in violation of the Constitution must show he is actually innocent to obtain relief, the majority would now hold that a prisoner who is actually innocent must show a constitutional violation to obtain relief. The only principle that would appear to reconcile these two positions is the principle that habeas relief should be denied whenever possible.

III The Eighth and Fourteenth Amendments, of course, are binding on the States, and one would normally expect the States to adopt procedures to consider claims of actual innocence based on newly discovered evidence. The majority’s

359

360

Chapter 17:  Claims of Innocence

disposition of this case, however, leaves the States uncertain of their constitutional obligations. A.  Whatever procedures a State might adopt to hear actual innocence claims, one thing is certain: The possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments. The majority correctly points out: “A pardon is an act of grace.” The vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal. Indeed, in Ford v. Wainwright, we explicitly rejected the argument that executive clemency was adequate to vindicate the Eighth Amendment right not to be executed if one is insane. The possibility of executive clemency “exists in every case in which a defendant challenges his sentence under the Eighth Amendment. Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless.” Solem v. Helm, 463 U.S. 277, 303 (1983). “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch, 163 (1803). If the exercise of a legal right turns on “an act of grace,” then we no longer live under a government of laws. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). It is understandable, therefore, that the majority does not say that the vindication of petitioner’s constitutional rights may be left to executive clemency. ... C.  The question that remains is what showing should be required to obtain relief on the merits of an Eighth or Fourteenth Amendment claim of actual innocence. … I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent. … It should be clear that the standard I would adopt would not convert the federal courts into “‘forums in which to relitigate state trials.’” It would not “require the habeas court to hear testimony from the witnesses who testified at trial,” though, if the petition warrants a hearing, it may require the habeas court to hear the testimony of “those who made the statements in the affidavits which petitioner has presented.” I believe that if a prisoner can show that he is probably actually innocent, in light of all the evidence, then he has made “a truly persuasive demonstration,” and his execution would violate the Constitution. I would so hold.

Dissenting Opinion of Justice Blackmun

IV . . . In one of the affidavits, Hector Villarreal, a licensed attorney and former state court judge, swears under penalty of perjury that his client Raul Herrera Sr. confessed that he, and not petitioner, committed the murders. No matter what the majority may think of the inconsistencies in the affidavits or the strength of the evidence presented at trial, this affidavit alone is sufficient to raise factual questions concerning petitioner’s innocence that cannot be resolved simply by examining the affidavits and the petition. I do not understand why the majority so severely faults petitioner for relying only on affidavits. It is common to rely on affidavits at the preliminary consideration stage of a habeas proceeding. The opportunity for cross examination and credibility determinations comes at the hearing, assuming that the petitioner is entitled to one. It makes no sense for this Court to impugn the reliability of petitioner’s evidence on the ground that its credibility has not been tested when the reason its credibility has not been tested is that petitioner’s habeas proceeding has been truncated by the Court of Appeals and now by this Court. In its haste to deny petitioner relief, the majority seems to confuse the question whether the petition may be dismissed summarily with the question whether petitioner is entitled to relief on the merits of his claim.

V I have voiced disappointment over this Court’s obvious eagerness to do away with any restrictions on the States’ power to execute whomever and however they please. I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.

Editors’ Comment In Chapter 15 we presented portions of Kansas v. Marsh that dealt with the constitutionality of a statute that required a death sentence if aggravating circumstances were not outweighed by mitigating circumstances. Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented in that case. Part of Souter’s dissent, presented here, contended that a spate of recent death row exonerations, many supported by DNA findings, raised doubts about the moral acceptability of the Kansas law. Souter implied that such laws, which did not require the

361

362

Chapter 17:  Claims of Innocence

Editors’ Comment­—Cont’d jury to find that aggravating factors outweighed mitigating factors, made miscarriages of justice more likely by making imposition of the death penalty too easy. This triggered a response by Justice Scalia, who concurred in Marsh but vigorously denied that there were significant numbers of miscarriages in capital cases. This exchange provided the most extensive discussion ever offered by the Justices on the topic of innocence and the death penalty. Incidentally, although concurring opinions are usually presented before dissents, we reversed the order here because Scalia’s concurrence was a response to Souter’s dissent.

Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed.2d 429 (2006)

Dissenting opinion of justice souter, joined by justices stevens, ginsburg, and breyer III . . . Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests. We cannot face up to these facts and still hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences, by requiring them when juries fail to find the worst degree of culpability: when, by a State’s own standards and a State’s own characterization, the case for death is “doubtful.” A few numbers from a growing literature will give a sense of the reality that must be addressed. When the Governor of Illinois imposed a moratorium on executions in 2000, 13 prisoners under death sentences had been released since 1977 after a number of them were shown to be innocent, as described in a report which used their examples to illustrate a theme common to all 13, of “relatively little solid evidence connecting the charged defendants to the crimes.” State of Illinois, G. Ryan, Governor, Report of the Governor’s Commission on Capital Punishment: Recommendations Only 7 (2002). During the same period, 12 condemned convicts had been executed. Subsequently the Governor determined that 4 more death row inmates were innocent.2 Illinois had thus wrongly ­convicted The Illinois Report emphasizes the difference between exoneration of a convict because of actual innocence, and reversal of a judgment because of legal error affecting conviction or sentence but not inconsistent with guilt in fact. See Report 9 (noting that, apart from the 13 released men, a “broader review” discloses that more than half of the State’s death penalty cases “were reversed at some point in the process”). More importantly, it takes only a cursory reading of the Report to recognize

2

Dissenting Opinion of Justice Souter

and condemned even more capital defendants than it had executed, but it may well not have been otherwise unique; one recent study reports that between 1989 and 2003, 74 American prisoners condemned to death were exonerated, Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531 (2006) (hereinafter Gross), many of them cleared by DNA evidence.3 Another report states that “more than 110” death row prisoners have been released since 1973 upon findings that they were innocent of the crimes charged, and “[h]undreds of additional wrongful convictions in potentially capital cases have been documented over the past century.” Lanier & Acker, Capital Punishment, the Moratorium Movement, and Empirical Questions, 10 Psychology, Public Policy & Law 577, 593 (2004). Most of these wrongful convictions and sentences resulted from eyewitness misidentification, false confession, and (most frequently) perjury, and the total shows that among

that it describes men released who were demonstrably innocent or convicted on grossly unreliable evidence. Of one, the Report notes “two other persons were subsequently convicted in Wisconsin of” the murders. Of two others, the Report states that they were released after “DNA tests revealed that none of them were the source of the semen found in the victim. That same year, two other men confessed to the crime, pleaded guilty and were sentenced to life in prison, and a third was tried and convicted for the crime.” Of yet another, the Report says that “another man subsequently confessed to the crime for which [the released man] was convicted. He entered a plea of guilty and is currently serving a prison term for that crime.”A number were subject to judgments as close to innocence as any judgments courts normally render. In the case of one of the released men, the Supreme Court of Illinois found the evidence insufficient to support his conviction. Several others obtained acquittals, and still more simply had the charges against them dropped, after receiving orders for new trials. At least 2 of the 13 were released at the initiative of the executive. We can reasonably assume that a State under no obligation to do so would not release into the public a person against whom it had a valid conviction and sentence unless it were certain beyond all doubt that the person in custody was not the perpetrator of the crime. The reason that the State would forgo even a judicial forum in which defendants would demonstrate grounds for vacating their convictions is a matter of common sense: evidence going to innocence was conclusive. 3 The authors state the criteria for their study: “As we use the term, ‘exoneration’ is an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted. The exonerations we have studied occurred in four ways: (1) In forty-two cases governors (or other appropriate executive officers) issued pardons based on evidence of the defendants’ innocence. (2) In 263 cases criminal charges were dismissed by courts after new evidence of innocence emerged, such as DNA. (3) In thirty-one cases the defendants were acquitted at a retrial on the basis of evidence that they had no role in the crimes for which they were originally convicted. (4) In four cases, states posthumously acknowledged the innocence of defendants who had already died in prison. . . .” Gross 524 (footnote omitted). The authors exclude from their list of exonerations “any case in which a dismissal or an acquittal appears to have been based on a decision that while the defendant was not guilty of the charges in the original conviction, he did play a role in the crime and may be guilty of some lesser crime that is based on the same conduct. For our purposes, a defendant who is acquitted of murder on retrial, but convicted of involuntary manslaughter, has not been exonerated. We have also excluded any case in which a dismissal was entered in the absence of strong evidence of factual innocence, or in which—despite such evidence—there was unexplained physical evidence of the defendant’s guilt.”

363

364

Chapter 17:  Claims of Innocence

all prosecutions homicide cases suffer an unusually high incidence of false conviction, probably owing to the combined difficulty of investigating without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent. We are thus in a period of new empirical argument about how “death is different”: not only would these false verdicts defy correction after the fatal moment, the Illinois experience shows them to be remarkable in number, and they are probably disproportionately high in capital cases. While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness. In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure. And unless application of the Eighth Amendment no longer calls for reasoned moral judgment in substance as well as form, the Kansas law is unconstitutional.

Concurring opinion of justice scalia ...

III . . . There exists in some parts of the world sanctimonious criticism of America’s death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently—and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it. It should be noted at the outset that the dissent does not discuss a single case— not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

Concurring Opinion of Justice Scalia

This happened, for instance, only a few months ago in the case of Roger Coleman. Coleman was convicted of the gruesome rape and murder of his sisterin-law, but he persuaded many that he was actually innocent and became the posterchild for the abolitionist lobby. Around the time of his eventual ­execution, “his picture was on the cover of Time magazine (“This Man Might Be Innocent. This Man Is Due to Die”). He was interviewed from death row on Larry King Live, the Today show, Primetime Live, Good Morning America, and The  Phil Donahue Show. Frankel, Burden of Proof, Washington Post, May 14, 2006. Even one Justice of this Court, in an opinion filed shortly before the execution, cautioned that “Coleman has now produced substantial evidence that he may be innocent of the crime for which he was sentenced to die.” Coleman v. Thompson, 504 U.S. 188, 189 (1992) (Blackmun, J., dissenting). Coleman ultimately failed a lie-detector test offered by the Governor of Virginia as a condition of a possible stay; he was executed on May 20, 1992. In the years since then, Coleman’s case became a rallying point for abolitionists, who hoped it would offer what they consider the “Holy Grail: proof from a test tube that an innocent person had been executed.” Frankel, at W24. But earlier this year, a DNA test ordered by a later Governor of Virginia proved that Coleman was guilty, even though his defense team had “proved” his innocence and had even identified “the real killer” (with whom they eventually settled a defamation suit). And Coleman’s case is not unique. Instead of identifying and discussing any particular case or cases of mistaken execution, the dissent simply cites a handful of studies that bemoan the alleged prevalence of wrongful death sentences. One study (by Lanier and Acker) is quoted by the dissent as claiming that “‘more than 110’ death row prisoners have been released since 1973 upon findings that they were innocent of the crimes charged, and ‘hundreds of additional wrongful convictions in potentially capital cases have been documented over the past century.’” For the first point, Lanier and Acker cite the work of the Death Penalty Information Center (more about that below) and an article in a law review jointly authored by Radelet, Lofquist, and Bedau (two professors of sociology and a professor of philosophy). For the second point, they cite only a 1987 article by Bedau and Radelet. See Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21. In the very same paragraph which the dissent quotes, Lanier and Acker also refer to that 1987 article as “hav[ing] identified 23 individuals who, in their judgment, were convicted and executed in this country during the 20th century notwithstanding their innocence.” Lanier & Acker, Capital Punishment, the Moratorium Movement, and Empirical Questions, 10 Psychology, Public Policy & Law 577, 593 (2004). This 1987 article has been highly influential in the abolitionist world. Hundreds of academic articles, including those relied on by today’s dissent, have cited it. It also makes its appearance in judicial decisions—cited recently in a six-judge dissent in House v. Bell, 386 F.3d 668,

365

366

Chapter 17:  Claims of Innocence

708 (CA6 2004) (en banc) (Merritt, J., dissenting), for the proposition that “the system is allowing some innocent defendants to be executed.” The article therefore warrants some further observations. The 1987 article’s obsolescence began at the moment of publication. The most recent executions it considered were in 1984, 1964, and 1951; the rest predate the Allied victory in World War II. (Two of the supposed innocents are Sacco and Vanzetti.) Even if the innocence claims made in this study were true, all except (perhaps) the 1984 example would cast no light upon the functioning of our current system of capital adjudication. The legal community’s general attitude toward criminal defendants, the legal protections States afford, the constitutional guarantees this Court enforces, and the scope of federal habeas review, are all vastly different from what they were in 1961. So are the scientific means of establishing guilt, and hence innocence—which are now so striking in their operation and effect that they are the subject of more than one popular TV series. (One of these new means, of course, is DNA testing—which the dissent seems to think is primarily a way to identify defendants erroneously convicted, rather than a highly effective way to avoid conviction of the innocent.) But their current relevance aside, this study’s conclusions are unverified. And if the support for its most significant conclusion—the execution of 23 innocents in the 20th century—is any indication of its accuracy, neither it, nor any study so careless as to rely upon it, is worthy of credence. The only execution of an innocent man it alleges to have occurred after the restoration of the death penalty in 1976—the Florida execution of James Adams in 1984—is the easiest case to verify. As evidence of Adams’ innocence, it describes a hair that could not have been his as being “clutched in the victim’s hand.” The hair was not in the victim’s hand; “[i]t was a remnant of a sweeping of the ambulance and so could have come from another source.” Markman & Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121, 131 (1988). The study also claims that a witness who “heard a voice inside the victim’s home at the time of the crime” testified that the “voice was a woman’s.” Bedau & Radelet. The witness’s actual testimony was that the voice, which said “‘“In the name of God, don’t do it”‘” (and was hence unlikely to have been the voice of anyone but the male victim), “‘sounded “kind of like a woman’s voice, kind of like strangling or something.”‘ . . .“Markman & Cassell. Bedau and Radelet failed to mention that upon arrest on the afternoon of the murder Adams was found with some $200 in his pocket—one bill of which “was stained with type O blood. When Adams was asked about the blood on the money, he said that it came from a cut on his finger. His blood was type AB, however, while the victim’s was type O.” Among the other unmentioned, incriminating details: that the victim’s eyeglasses were found in Adams’ car, along with jewelry belonging to the victim, and clothing of Adams’ stained with type O blood. This is just a sample of the evidence arrayed against this “innocent.”

Concurring Opinion of Justice Scalia

Critics have questioned the study’s findings with regard to all its other cases of execution of alleged innocents for which “appellate opinions . . . set forth the facts proved at trial in detail sufficient to permit a neutral observer to assess the validity of the authors’ conclusions.” (For the rest, there was not “a reasonably complete account of the facts . . . readily available.”) As to those cases, the only readily verifiable ones, the authors of the 1987 study later acknowledged, “We agree with our critics that we have not ‘proved’ these executed defendants to be innocent; we never claimed that we had.” Bedau & Radelet, The Myth of Infallibility: A Reply to Markman and Cassell, 41 Stan. L. Rev. 161, 164 (1988). One would have hoped that this disclaimer of the study’s most striking conclusion, if not the study’s dubious methodology, would have prevented it from being cited as authority in the pages of the United States Reports. But alas, it is too late for that. Although today’s dissent relies on the study only indirectly, the two dissenters who were on the Court in January 1993 have already embraced it. “One impressive study,” they noted (referring to the 1987 study), “has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984.” Herrera v. Collins, 506 U.S. 390, 430, n. 1 (1993) (Blackmun, J., joined by Stevens and Souter, JJ., dissenting). Remarkably avoiding any claim of erroneous executions, the dissent focuses on the large numbers of non-executed “exonerees” paraded by various professors. It speaks as though exoneration came about through the operation of some outside force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system. Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out. Of course even in identifying exonerees, the dissent is willing to accept anybody’s say-so. It engages in no critical review, but merely parrots articles or reports that support its attack on the American criminal justice system. The dissent places significant weight, for instance, on the Illinois Report (compiled by the appointees of an Illinois Governor who had declared a moratorium upon the death penalty and who eventually commuted all death sentences in the State, see Warden, Illinois Death Penalty Reform: How It Happened, What It Promises, 95 J. Crim. L. & C. 381, 406-407, 410 (2006)), which it claims shows that “false verdicts” are “remarkable in number.” The dissent claims that this report identifies 13 inmates released from death row after they were determined to be innocent. To take one of these cases, discussed by the dissent as an example of a judgment “as close to innocence as any judgments courts normally render”: In People v. Smith, 185 Ill. 2d 532, 708 N. E. 2d 365 (1999) the defendant was twice convicted of murder. After his first trial, the Supreme Court of Illinois “reversed [his] conviction based upon certain evidentiary

367

368

Chapter 17:  Claims of Innocence

errors” and remanded his case for a new trial. The second jury convicted Smith again. The Supreme Court of Illinois again reversed the conviction because it found that the evidence was insufficient to establish guilt beyond a reasonable doubt. The court explained: While a not guilty finding is sometimes equated with a finding of innocence, that conclusion is erroneous. Courts do not find people guilty or innocent. . . . A not guilty verdict expresses no view as to a defendant’s innocence. Rather, [a reversal of conviction] indicates simply that the prosecution has failed to meet its burden of proof.

This case alone suffices to refute the dissent’s claim that the Illinois Report distinguishes between “exoneration of a convict because of actual innocence, and reversal of a judgment because of legal error affecting conviction or sentence but not inconsistent with guilt in fact.” The broader point, however, is that it is utterly impossible to regard “exoneration”—however casually defined—as a failure of the capital justice system, rather than as a vindication of its effectiveness in releasing not only defendants who are innocent, but those whose guilt has not been established beyond a reasonable doubt. Another of the dissent’s leading authorities on exoneration of the innocent is Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523 (2005). The dissent quotes that study’s self-congratulatory “criteria” of exoneration—seemingly so rigorous that no one could doubt the study’s reliability. But in fact that article, like the others cited, is notable not for its rigorous investigation and analysis, but for the fervor of its belief that the American justice system is condemning the innocent “in numbers,” as the dissent puts it, “never imagined before the development of DNA tests.” Among the article’s list of 74 “exonerees,” is Jay Smith of Pennsylvania. Smith—a school principal—earned three death sentences for slaying one of his teachers and her two young children. His retrial for triple murder was barred on double-jeopardy grounds because of prosecutorial misconduct during the first trial. But Smith could not leave well enough alone. He had the gall to sue, under 42 U.S.C. §1983, for false imprisonment. The Court of Appeals for the Third Circuit affirmed the jury verdict for the defendants, observing along the way that “our confidence in Smith’s convictions is not diminished in the least. We remain firmly convinced of the integrity of those guilty verdicts.” Another “exonerated” murderer in the Gross study is Jeremy Sheets, convicted in Nebraska. His accomplice in the rape and murder of a girl had been secretly tape recorded; he “admitted that he drove the car used in the murder . . . and implicated Sheets in the murder.” Sheets v. Butera, 389 F. 3d 772, 775 (CA8 2004). The accomplice was arrested and eventually described the murder in greater detail, after which a plea agreement was arranged, conditioned

Concurring Opinion of Justice Scalia

on the accomplice’s full cooperation. The resulting taped confession, which implicated Sheets, was “[t]he crucial portion of the State’s case,” State v. Sheets, 260 Neb 325, 327 618 N. W. 2d 117, 122 (2000). But the accomplice committed suicide in jail, depriving Sheets of the opportunity to cross-examine him. This, the Nebraska Supreme Court held, rendered the evidence inadmissible under the Sixth Amendment. After the central evidence was excluded, the State did not retry Sheets. Sheets brought a §1983 claim; the U.S. Court of Appeals for the Eighth Circuit affirmed the District Court’s grant of summary judgment against him. Sheets also sought the $1,000 he had been required to pay to the Nebraska Victim’s Compensation Fund; the State Attorney General—far from concluding that Sheets had been “exonerated” and was entitled to the money—refused to return it. The court action left open the possibility that Sheets could be retried, and the Attorney General did “not believe the reversal on the ground of improper admission of evidence … is a favorable disposition of charges.” In its inflation of the word “exoneration,” the Gross article hardly stands alone; mischaracterization of reversible error as actual innocence is endemic in abolitionist rhetoric, and other prominent catalogues of “innocence” in the deathpenalty context suffer from the same defect. Perhaps the best known of them is the List of Those Freed From Death Row, maintained by the Death Penalty Information Center. This includes the cases from the Gross article described above, but also enters some dubious candidates of its own. Delbert Tibbs is one of them. We considered his case in Tibbs v. Florida, 457 U.S. 31 (1982), concluding that the Double Jeopardy Clause does not bar a retrial when a conviction is “revers[ed] based on the weight, rather than the sufficiency, of the evidence.” The case involved a man and a woman hitchhiking together in Florida. A driver who picked them up sodomized and raped the woman, and killed her boyfriend. She eventually escaped and positively identified Tibbs. The Florida Supreme Court reversed the conviction on a 4-to-3 vote. The Florida courts then grappled with whether Tibbs could be retried without violating the Double Jeopardy Clause. The Florida Supreme Court determined not only that there was no double-jeopardy problem, but that the very basis on which it had reversed the conviction was no longer valid law, and that its action in “reweigh[ing] the evidence” in Tibbs’ case had been “clearly improper.” After we affirmed the Florida Supreme Court, however, the State felt compelled to drop the charges. The state attorney explained this to the Florida Commission on Capital Cases: “‘By the time of the retrial, [the] witness/victim . . . had progressed from a marijuana smoker to a crack user and I could not put her up on the stand, so I declined to prosecute. Tibbs, in my opinion, was never an innocent man wrongfully accused. He was a lucky human being. He was guilty, he was lucky and now he is free. His 1974 conviction was not a miscarriage of justice.’” Other state officials involved made similar points.

369

370

Chapter 17:  Claims of Innocence

Of course, even with its distorted concept of what constitutes “exoneration,” the claims of the Gross article are fairly modest: Between 1989 and 2003, the authors identify 340 “exonerations” nationwide—not just for capital cases, mind you, nor even just for murder convictions, but for various felonies. Joshua Marquis, a district attorney in Oregon, recently responded to this article as follows: [L]et’s give the professor the benefit of the doubt: let’s assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren’t involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent—or, to put it another way, a success rate of 99.973 percent. The Innocent and the Shammed, N.Y. Times, Jan. 26, 2006, p. A23.

The dissent’s suggestion that capital defendants are especially liable to suffer from the lack of 100% perfection in our criminal justice system is implausible. Capital cases are given especially close scrutiny at every level, which is why in most cases many years elapse before the sentence is executed. And of course capital cases receive special attention in the application of executive clemency. Indeed, one of the arguments made by abolitionists is that the process of finally completing all the appeals and reexaminations of capital sentences is so lengthy, and thus so expensive for the State, that the game is not worth the candle. The proof of the pudding, of course, is that as far as anyone can determine (and many are looking), none of the cases included in the 0.027% error rate for American verdicts involved a capital defendant erroneously executed. Since 1976 there have been approximately a half million murders in the United States. In that time, 7,000 murderers have been sentenced to death; about 950 of them have been executed; and about 3,700 inmates are currently on death row. See Marquis, The Myth of Innocence, 95 J. Crim. L. & C. 501, 518 (2006). As a consequence of the sensitivity of the criminal justice system to the due-process rights of defendants sentenced to death, almost two-thirds of all death sentences are overturned. “Virtually none” of these reversals, however, are attributable to a defendant’s “‘actual innocence.’” Most are based on legal errors that have little or nothing to do with guilt. The studies cited by the dissent demonstrate nothing more. Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern

Editors’ Questions

execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.

Editors’ Questions 1. Consider the following possible situation: The petitioner presents evidence of innocence that is insufficient for a freestanding claim but sufficient for a gateway claim. Accordingly, the constitutional claim for which the evidence of innocence is a gateway becomes eligible for adjudication—but is decided against the petitioner. Is it constitutional to execute a defendant who has produced gateway evidence of innocence that makes it more likely than not that no reasonable juror would have convicted in the original trial if the evidence had been presented? Can you infer from Herrera why the Court may believe it will not, as a practical matter, be called upon to confront this issue? 2. Herrera implies that a freestanding claim of innocence can be litigated only if the defendant received a death sentence. Shouldn’t the rule also apply to a life-without-parole petitioner? Isn’t it cruel and unusual punishment to imprison an innocent person for life? Or, for that matter, to impose any punishment on an innocent?

371

Chap ter 1 8

Insane Convicts May Not Be Executed— Ford v. Wainwright (1986) and Panetti v. Quarterman (2007) Editors’ comment Defense claims of mental illness can arise at two points in both capital and noncapital cases. First, a defendant may claim that his mental processes are so severely compromised that he is incompetent to stand trial because he cannot understand the proceedings or assist his attorney. If he is found to be incompetent, he may not be tried unless and until his mental competence is sufficiently restored. Second, a defendant may pursue an insanity defense at trial, which in most jurisdictions requires a defendant to prove either that he did not know the nature and quality of his act or that he did not know the act was wrong. If he is acquitted by reason of insanity, he may not be punished as a criminal but may be civilly committed if dangerous. In capital cases, a defense claim of mental illness may be asserted at yet a third juncture: A defendant who was neither incompetent to be tried nor legally insane—as indicated by the fact that he was tried and found guilty—may claim to be insane at the time of the scheduled execution, and thus exempt from it under the traditional Anglo-American common law rule that a person who is insane at the time of execution cannot be put to death. (For those unfamiliar with the term, “common law” in the Court’s discussion is a reference to the legal rules developed hundreds of years ago by English judges in the resolution of cases before them. These principles of law, synthesized in the writings of Blackstone (1723–1780) and Coke (pronounced “cook”) (1552–1634), have had great influence on American law.) In the first case in this chapter—Ford v. Wainwright (1986)—the Supreme Court affirmed the common law rule—and, indeed, at the time of the Ford decision no state permitted the execution of the insane and none of the Justices doubted the traditional rule’s validity. However, a slim majority of the Court disapproved of the nonadversarial method Florida used to determine insanity. The Governor appointed three psychiatrists to examine Ford, and after receiving their reports, signed the death warrant with no explicit opportunity for Ford to challenge those reports. The dissenters believed that Ford had been given a sufficient opportunity to present his claim. In the second case in this chapter—Panetti v. Quarterman (2007)—the Court elaborated on how completely the condemned person must understand the meaning and reasons for his execution in order for his sentence to be carried out. The Court held that a “rational understanding” was required; mere “awareness” was insufficient.

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

373

374

Chapter 18: Insane Convicts May Not Be Executed

Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed.2d 335 (1986) (5–4, the Eighth Amendment prohibits the execution of a defendant who is convicted and sentenced to death but is insane at the time of execution.)

Opinion of Justice Marshall for the Court . . . This Court granted Ford’s petition for certiorari in order to resolve the important issue whether the Eighth Amendment prohibits the execution of the insane. ...

II . . . Now that the Eighth Amendment has been recognized to affect significantly both the procedural and the substantive aspects of the death penalty, the question of executing the insane takes on a wholly different complexion. The adequacy of the procedures chosen by a State to determine sanity, therefore, will depend upon an issue that this Court has never addressed: whether the Constitution places a substantive restriction on the State’s power to take the life of an insane prisoner. There is now little room for doubt that the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. . . . Moreover, the Eighth Amendment’s proscriptions are not limited to those practices condemned by the common law in 1789. Not bound by the ­sparing humanitarian concessions of our forebears, the Amendment also recognizes the “evolving standards of decency that mark the progress of a maturing ­society.” In addition to considering the barbarous methods generally ­outlawed in the 18th century, therefore, this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects. A. We begin, then, with the common law. The bar against executing a prisoner who has lost his sanity bears impressive historical credentials; the practice consistently has been branded “savage and inhuman.” 4 W. Blackstone, Commentaries 24–25. Blackstone explained:

Opinion of Justice Marshall for the Court

[I]diots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it: because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.

Sir Edward Coke had earlier expressed the same view of the common law of England: “[B]y intendment of Law the execution of the offender is for example, . . . but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law, and of extreme inhumanity and cruelty, and can be no example to others.” 3 E. Coke, Institutes 6 (6th ed. 1680). Other recorders of the common law concurred. . . . As is often true of common-law principles, the reasons for the rule are less sure and less uniform than the rule itself. One explanation is that the execution of an insane person simply offends humanity, another, that it provides no example to others and thus contributes nothing to whatever deterrence value is intended to be served by capital punishment. Other commentators postulate religious underpinnings: that it is uncharitable to dispatch an offender “into another world, when he is not of a capacity to fit himself for it.” . . . It is also said that execution serves no purpose in these cases because madness is its own punishment: furiosus solo furore punitur. Blackstone. More recent commentators opine that the community’s quest for “retribution”—the need to offset a criminal act by a punishment of equivalent “moral quality”—is not served by execution of an insane person, which has a “lesser value” than that of the crime for which he is to be punished. Hazard and Louisell, Death, the State, and the Insane: Stay of Execution, 9 UCLA L. Rev. 381, 387 (1962). Unanimity of rationale, therefore, we do not find. “But whatever the reason of the law is, it is plain the law is so.” We know of virtually no authority condoning the execution of the insane at English common law. Further indications suggest that this solid proscription was carried to America, where it was early observed that “the judge is bound” to stay the execution upon insanity of the prisoner.

375

376

Chapter 18: Insane Convicts May Not Be Executed

B. This ancestral legacy has not outlived its time. Today, no State in the Union permits the execution of the insane.2 It is clear that the ancient and humane limitation upon the State’s ability to execute its sentences has as firm a hold upon the jurisprudence of today as it had centuries ago in England. The various reasons put forth in support of the common law restriction have no less logical, moral, and practical force than they did when first voiced. For today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.

Concurring opinion of justice powell I ... B. The more general concern of the common law—that executions of the insane are simply cruel—retains its vitality. It is as true today as when Coke lived that most men and women value the opportunity to prepare, mentally and spiritually, for their death. Moreover, today as at common law, one of the death penalty’s critical justifications, its retributive force, depends on the defendant’s awareness of the penalty’s existence and purpose. Thus, it remains true that executions of the insane both impose a uniquely cruel penalty and are inconsistent with one of the chief purposes of executions generally. For precisely these reasons, Florida requires the Governor to stay executions of those who “d[o] not have the mental capacity to understand the nature of the death Of the 50 States, 41 have a death penalty or statutes governing execution procedures. Of those, 26 have statutes explicitly requiring the suspension of the execution of a prisoner who meets the legal test for incompetence. . . . Others have adopted the common-law rule by judicial decision. . . . Still others have more discretionary statutory procedures providing for the suspension of sentence and transfer to mental facilities for convicted prisoners who have developed mental illness. . . . The remaining four States having a death penalty have no specific procedure governing insanity, but have not repudiated the common law rule.

2

Opinion of Justice O’Connor

penalty and why it was imposed” on them. . . . A number of States have more rigorous standards,3 but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it. Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it. Petitioner’s claim of insanity plainly fits within this standard. According to petitioner’s proffered psychiatric examination, petitioner does not know that he is to be executed, but rather believes that the death penalty has been invalidated. If this assessment is correct, petitioner cannot connect his execution to the crime for which he was convicted. Thus, the question is whether petitioner’s evidence entitles him to a hearing in Federal District Court on his claim. . . .

Opinion of justice o’connor, joined by justice white, concurring in the result in part and dissenting in part I am in full agreement with Justice Rehnquist’s conclusion that the Eighth amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system

A number of States have remained faithful to Blackstone’s view that a defendant cannot be executed unless he is able to assist in his own defense. . . . The majority of States appear not to have addressed the issue in their statutes. Modern case authority on this question is sparse, and while some older cases favor the Blackstone view, . . . those cases largely antedate the recent expansion of both the right to counsel and the availability of federal and state collateral review. Moreover, other cases suggest that the prevailing test is “whether the condemned man was aware of his conviction and the nature of his impending fate”—essentially the same test stated by Florida’s statute. . . . Under these circumstances, I find no sound basis for constitutionalizing the broader definition of insanity, with its requirement that the defendant be able to assist in his own defense. States are obviously free to adopt a more expansive view of sanity in this context than the one the Eighth Amendment imposes as a constitutional minimum.

3

377

378

Chapter 18: Insane Convicts May Not Be Executed

so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal courts should have any role whatever in the substantive determination of a defendant’s competency to be executed. . . . I believe that one aspect of the Florida procedure for determining competency to be executed renders that procedure constitutionally deficient. If there is one “fundamental requisite” of due process, it is that an individual is entitled to an “opportunity to be heard.” . . . As currently implemented, the Florida procedure for determining competency violates this bedrock principle. By Executive Order, the present Governor has provided that “[c]ounsel for the inmate and the State Attorney may be present [at the competency hearing] but shall not participate in the examination in any adversarial manner.” . . . Indeed, respondent does not dispute that the Governor’s office has steadfastly refused to acknowledge whether it would even review the extensive psychiatric materials submitted by petitioner concerning his present mental state. While I would not invariably require oral advocacy or even cross-examination, due process at the very least requires that the decisionmaker consider the prisoner’s written submissions. I conclude therefore that Florida law has created a protected expectation that no execution will be carried out while the prisoner lacks the “mental capacity to understand the nature of the death penalty and why it was imposed on him.” . . . Because Florida’s procedures are inadequate to satisfy even the minimal requirements of due process in this context, I would vacate the judgment below with instructions that the case be returned to Florida so that it might assess petitioner’s competency in a manner that accords with the command of the Fourteenth Amendment. In my view, however, the only federal question presented in cases such as this is whether the State’s positive law has created a liberty interest and whether its procedures are adequate to protect that interest from arbitrary deprivation. Once satisfied that the procedures were adequate, a federal court has no authority to second-guess a State’s substantive competency determination.

Dissenting Opinion of Justice Rehnquist, Joined by Chief Justice Burger The Court today holds that the Eighth Amendment prohibits a State from carrying out a lawfully imposed sentence of death upon a person who is currently insane. This holding is based almost entirely on two unremarkable observations. First, the Court states that it “know[s] of virtually no authority condoning the execution of the insane at English common law.” Second, it notes that “[t]oday, no State in the Union permits the execution of the insane.” Armed with these facts, and shielded by the claim that it is simply “keep[ing] faith

Dissenting Opinion of Justice Rehnquist

with our common-law heritage,” the Court proceeds to cast aside settled precedent and to significantly alter both the common law and current practice of not executing the insane. It manages this feat by carefully ignoring the fact that the Florida scheme it finds unconstitutional, in which the Governor is assigned the ultimate responsibility of deciding whether a condemned prisoner is currently insane, is fully consistent with the “common law heritage” and current practice on which the Court purports to rely. The Court places great weight on the “impressive historical credentials” of the common law bar against executing a prisoner who has lost his sanity. What it fails to mention, however, is the equally important and unchallenged fact that, at common law, it was the executive who passed upon the sanity of the condemned. See 1 N. Walker, Crime and Insanity in England 194–203 (1968). So when the Court today creates a constitutional right to a determination of sanity outside of the executive branch, it does so not in keeping with but at the expense of “our common-law heritage.” . . . Creating a constitutional right to a judicial determination of sanity before that sentence may be carried out, whether through the Eighth Amendment or the Due Process Clause, needlessly complicates and postpones still further any finality in this area of the law. The defendant has already had a full trial on the issue of guilt, and a trial on the issue of penalty; the requirement of still a third adjudication offers an invitation to those who have nothing to lose by accepting it to advance entirely spurious claims of insanity. A claim of insanity may be made at any time before sentence and, once rejected, may be raised again; a prisoner found sane two days before execution might claim to have lost his sanity the next day, thus necessitating another judicial determination of his sanity and presumably another stay of his execution. See Nobles v. Georgia, 168 U.S. 398, 405–406 (1897). Since no State sanctions execution of the insane, the real battle being fought in this case is over what procedures must accompany the inquiry into sanity. The Court reaches the result it does by examining the common law, creating a constitutional right that no State seeks to violate, and then concluding that the common-law procedures are inadequate to protect the newly created but common-law-based right. I find it unnecessary to “constitutionalize” the already uniform view that the insane should not be executed, and inappropriate to “selectively incorporate” the common law practice. I therefore dissent.

Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed.2d 662 (2007) (5–4, a prisoner who claims to be insane at the time of the proposed execution may be executed if he has a “rational understanding” of the reason for and meaning of the punishment of death, not just a mere “awareness.”)

379

380

Chapter 18: Insane Convicts May Not Be Executed

Opinion of Justice Kennedy for the Court “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford v. Wainwright. The prohibition applies despite a prisoner’s earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition. These determinations are governed by the substantive federal baseline for competency set down in Ford. Scott Louis Panetti, referred to here as petitioner, was convicted and sentenced to death in a Texas state court. After the state trial court set an execution date, petitioner made a substantial showing he was not competent to be executed. The state court rejected his claim of incompetency on the merits. Filing a petition for writ of habeas corpus in the United States District Court for the Western District of Texas, petitioner claimed again that his mental condition barred his execution; that the Eighth Amendment set forth a substantive standard for competency different from the one advanced by the State; and that prior state-court proceedings on the issue were insufficient to satisfy the procedural requirements mandated by Ford. The State denied these assertions. . . . [W]e determine that the federal appellate court employed an improperly restrictive test when it considered petitioner’s claim of incompetency on the merits. We therefore reverse the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further consideration.

I On a morning in 1992 petitioner awoke before dawn, dressed in camouflage, and drove to the home of his estranged wife’s parents. Breaking the front-door lock, he entered the house and, in front of his wife and daughter, shot and killed his wife’s mother and father. He took his wife and daughter hostage for the night before surrendering to police. Tried for capital murder in 1995, petitioner sought to represent himself. The court ordered a psychiatric evaluation, which indicated that petitioner suffered from a fragmented personality, delusions, and hallucinations. The evaluation noted that petitioner had been hospitalized numerous times for these disorders. Evidence later revealed that doctors had prescribed medication for petitioner’s mental disorders that, in the opinion of one expert, would be difficult for a person not suffering from extreme psychosis even

Opinion of Justice Kennedy for the Court

to tolerate. (“I can’t imagine anybody getting that dose waking up for two to three days. You cannot take that kind of medication if you are close to normal without absolutely being put out.”). Petitioner’s wife described one psychotic episode in a petition she filed in 1986 seeking extraordinary relief from the Texas state courts. She explained that petitioner had become convinced the devil had possessed their home and that, in an effort to cleanse their surroundings, petitioner had buried a number of valuables next to the house and engaged in other rituals. Petitioner nevertheless was found competent to be tried and to waive counsel. At trial he claimed he was not guilty by reason of insanity. During his trial petitioner engaged in behavior later described by his standby counsel as “bizarre,” “scary,” and “trance-like.” According to the attorney, petitioner’s behavior both in private and in front of the jury made it evident that he was suffering from “mental incompetence,” and the net effect of this dynamic was to render the trial “truly a judicial farce, and a mockery of self-representation.” There was evidence on the record, moreover, to indicate that petitioner had stopped taking his antipsychotic medication a few months before trial, a rejection of medical advice that, it appears, petitioner has continued to this day with one brief exception. According to expert testimony, failing to take this medication tends to exacerbate the underlying mental dysfunction. And it is uncontested that, less than two months after petitioner was sentenced to death, the state trial court found him incompetent to waive the appointment of state habeas counsel. It appears, therefore, that petitioner’s condition has only worsened since the start of trial. The jury found petitioner guilty of capital murder and sentenced him to death. ...

IV A.  This brings us to the question petitioner asks the Court to resolve: whether the Eighth Amendment permits the execution of a prisoner whose mental illness deprives him of “the mental capacity to understand that [he] is being executed as a punishment for a crime.” A review of the expert testimony helps frame the issue. Four expert witnesses testified on petitioner’s behalf in the District Court [habeas corpus proceedings. One explained that petitioner’s mental problems are indicative of “schizo-affective disorder,” resulting in a “genuine delusion” involving his understanding of the reason for his execution. According to the expert, this delusion has recast petitioner’s execution as “part of spiritual warfare . . . between the demons and the forces of the darkness and God and the angels

381

382

Chapter 18: Insane Convicts May Not Be Executed

and the forces of light.” As a result, the expert explained, although petitioner claims to understand “that the state is saying that [it wishes] to execute him for [his] murder[s],” he believes in earnest that the stated reason is a “sham” and the State in truth wants to execute him “to stop him from preaching.” Petitioner’s other expert witnesses reached similar conclusions concerning the strength and sincerity of this “fixed delusion.” While the State’s expert witnesses resisted the conclusion that petitioner’s stated beliefs were necessarily indicative of incompetency, particularly in light of his perceived ability to understand certain concepts and, at times, to be “clear and lucid,” they acknowledged evidence of mental problems. . . . There is . . . much in the record to support the conclusion that petitioner suffers from severe delusions. The legal inquiry concerns whether these delusions can be said to render him incompetent. The Court of Appeals held that they could not. That holding, we conclude, rests on a flawed interpretation of Ford. The Court of Appeals stated that competency is determined by whether a prisoner is aware “‘that he [is] going to be executed and why he [is] going to be executed.’” To this end, the Court of Appeals identified the relevant District Court findings as follows: first, petitioner is aware that he committed the murders; second, he is aware that he will be executed; and, third, he is aware that the reason the State has given for the execution is his commission of the crimes in question. Under Circuit precedent this ends the analysis as a matter of law; for the Court of Appeals regards these three factual findings as necessarily demonstrating that a prisoner is aware of the reason for his execution. The Court of Appeals concluded that its standard foreclosed petitioner from establishing incompetency by the means he now seeks to employ: a showing that his mental illness obstructs a rational understanding of the State’s reason for his execution. As the court explained, “[b]ecause we hold that ‘awareness,’ as that term is used in Ford, is not necessarily synonymous with ‘rational understanding,’ as argued by [petitioner,] we conclude that the district court’s findings are sufficient to establish that [petitioner] is competent to be executed.” In our view the Court of Appeals’ standard is too restrictive to afford a prisoner the protections granted by the Eighth Amendment. The opinions in Ford, it must be acknowledged, did not set forth a precise standard for competency. . . . The Court of Appeals’ standard treats a prisoner’s delusional belief system as irrelevant if the prisoner knows that the State has identified his crimes as the reason for his execution. Yet the Ford opinions nowhere indicate that delusions are irrelevant to “comprehen[sion]” or “aware[ness]” if they so impair the

Opinion of Justice Kennedy for the Court

prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution. If anything, the Ford majority suggests the opposite. Explaining the prohibition against executing a prisoner who has lost his sanity, Justice Marshall in the controlling portion of his opinion set forth various rationales, including recognition that “the execution of an insane person simply offends humanity,” that it “provides no example to others,” that “it is uncharitable to dispatch an offender into another world, when he is not of a capacity to fit himself for it,” that “madness is its own punishment,” and that executing an insane person serves no retributive purpose. Considering the last—whether retribution is served—it might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. The potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. This problem is not necessarily overcome once the test set forth by the Court of Appeals is met. And under a similar logic the other rationales set forth by Ford fail to align with the distinctions drawn by the Court of Appeals. Whether Ford’s inquiry into competency is formulated as a question of the prisoner’s ability to “comprehen[d] the reasons” for his punishment or as a determination into whether he is “unaware of . . . why [he is] to suffer it,” then, the approach taken by the Court of Appeals is inconsistent with Ford. The principles set forth in Ford are put at risk by a rule that deems delusions relevant only with respect to the State’s announced reason for a punishment or the fact of an imminent execution, as opposed to the real interests the State seeks to vindicate. We likewise find no support elsewhere in Ford, including in its discussions of the common law and the state standards, for the proposition that a prisoner is automatically foreclosed from demonstrating incompetency once a court has found he can identify the stated reason for his execution. A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. This is not to deny the fact that a concept like rational understanding is difficult to define. And we must not ignore the concern that some prisoners, whose cases are not implicated by this decision, will fail to understand why they are to be punished on account of reasons other than those stemming

383

384

Chapter 18: Insane Convicts May Not Be Executed

from a severe mental illness. The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered “normal,” or even “rational,” in a layperson’s understanding of those terms. Someone who is condemned to death for an atrocious murder may be so ­callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder. Petitioner’s submission is that he suffers from a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced. This argument, we hold, should have been considered. The flaws of the Court of Appeals’ test are pronounced in petitioner’s case. Circuit precedent required the District Court to disregard evidence of psychological dysfunction that, in the words of the judge, may have resulted in petitioner’s “fundamental failure to appreciate the connection between the petitioner’s crime and his execution.” To refuse to consider evidence of this nature is to mistake Ford’s holding and its logic. Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted. B.  Although we reject the standard followed by the Court of Appeals, we do not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be, even on the narrower issue of how a mental illness of the sort alleged by petitioner might affect this analysis. . . . As a result, we find it difficult to amplify our conclusions or to make them more precise. We are also hesitant to decide a question of this complexity before the District Court and the Court of Appeals have addressed, in a more definitive manner and in light of the expert evidence found to be probative, the nature and severity of petitioner’s alleged mental problems. . . . The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Dissenting Opinion of Justice Thomas

Dissenting Opinion of Justice Thomas, Joined by Chief Justice Roberts and Justices Scalia and Alito ...

III . . . The Court parses the opinions in Ford to impose an additional constitutional requirement without undertaking any Eighth Amendment analysis of its own. Because the Court quibbles over the precise meaning of Ford’s opinions with respect to an issue that was not presented in that case, what emerges is a half-baked holding that leaves the details of the insanity standard for the District Court to work out. As its sole justification for thrusting already muddled Ford determinations into such disarray, the Court asserts that Ford itself compels such a result. It does not. The four-Justice plurality in Ford did not define insanity or create a substantive standard for determining competency. Only Justice Powell’s concurrence set forth a standard: . . . Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

Because the issue before the Court in Ford was actual knowledge, not rational understanding, nothing in any of the Ford opinions addresses what to do when a prisoner knows the reason for his execution but does not “rationally understand” it. Tracing the language of Justice Powell’s concurrence, the Court of Appeals held that Panetti needed only to be “‘aware’ of” the stated reason for his execution. Implicitly, the Court of Appeals also concluded that the fact that Panetti “disbelieves the State’s stated reason for executing him,” does not render him “unaware” of the reason for his execution. The Court challenges this approach based on an expansive interpretation of Justice Powell’s use of the word “aware.” However, the Court does not and cannot deny that “ awareness” is undefined in Ford and that Ford does not discuss whether “delusions [that] so impair the prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution” affect awareness in a constitutionally

385

386

Chapter 18: Insane Convicts May Not Be Executed

relevant manner. Nevertheless, the Court cobbles together stray language from Ford’s multiple opinions and asserts that the Court of Appeals’ test is somehow inconsistent with the spirit of Ford. Because that result does not follow naturally from Ford, today’s opinion can be understood only as holding for the first time that the Eighth Amendment requires “rational understanding.” . . .

Editors’ Questions 1. Upon remand in Panetti v. Quarterman, the federal district judge found: [Panetti’s] delusions do not prevent his rational understanding of the causal connection between those murders and his death sentence, and he in fact has such an understanding. Panetti’s understanding of the causal connection between his crime and his punishment is most clearly demonstrated by his rationally articulated position that the punishment is unjustified: He believes the State should not execute him because he was mentally ill when he committed the murders. This position is based on and necessarily indicates a rational understanding that the State intends to execute him because he committed the murders. Do you think the fact that Panetti believed his sentence was unjust because he really was not guilty by reason of insanity, by itself, should have constituted sufficient evidence that he had a rational understanding of the meaning and purpose of his execution? 2. Suppose that a death row inmate becomes psychotic but his symptoms can be significantly reduced by medication. Assume that the medication is in the inmate’s medical interest, that he becomes violent without it, but that he declines it because he does not want to become sane enough to be executed. Can the state force him to take the medicine and, if he meets the Ford-Panetti test, execute him?

Chap ter 1 9

Method of Execution—Baze v. Rees (2008) Editors’ Comment Various methods of execution have been employed over the course of American history. Hanging was the most utilized until its replacement in many jurisdictions in the first half of the twentieth century by electrocution and, less commonly, lethal gas (see Chapter 1). Currently, however, lethal injection is virtually the only method used. About half of all death penalty jurisdictions require it, and the other half use it by default unless the inmate chooses another specified method, or unless it is declared unconstitutional. The specified alternative varies among jurisdictions: electrocution (9), lethal gas (4), hanging (3), and firing squad (3). In Baze v. Rees (2008) the Supreme Court addressed a claim that the Kentucky protocol for lethal injection constituted cruel and unusual punishment because it created an “unnecessary risk” of pain. Kentucky, like 30 other jurisdictions at the time, administered a sequence of three drugs: the first was intended to render the inmate unconscious prior to injection of the other two, which caused death. Baze claimed that an insufficient dose of the first drug could expose the inmate to excruciating pain from the second and third which would be undetectable to observers because the inmate would appear to be unconscious. The Court held in favor of Kentucky, although not in a way that totally precluded further challenges to such protocols. Inmates have continued to litigate based on ways in which their jurisdiction’s protocol varies even slightly from Kentucky’s, as in the dosages used or details of administration. In fact, Louisiana resorted to a class-action suit against its death-sentenced inmates to prohibit further challenges to its method of lethal injection. In 2009, Ohio changed to a one-drug lethal injection protocol using only the first of the three drugs. In 2010, Washington State followed suit.

Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed.2d 420 (2008) (7–2, risk of improper administration of three-drug lethal injection protocol is sufficiently low so as to not constitute cruel and unusual punishment.)

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

387

388

Chapter 19: Method of Execution

Opinion of chief justice roberts, joined by justices kennedy and alito Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty. Petitioners in this case—each convicted of double homicide—acknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendment’s ban on “cruel and unusual punishments,” because of the risk that the protocol’s terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried. The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that “[t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds,” but concluded that Kentucky’s procedure “complies with the constitutional requirements against cruel and unusual punishment.” The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

I A.  By the middle of the 19th century, “hanging was the nearly universal form of execution in the United States.” Campbell v. Wood, 511 U.S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari). In 1888, following the recommendation of a commission empaneled by the Governor to find “‘the most humane and practical method known to modern science of carrying into effect the sentence of death,’” New York became the first State to authorize electrocution as a form of capital punishment. By 1915, 11 other States had followed suit, motivated by the “wellgrounded belief that electrocution is less painful and more humane than hanging.” Malloy v. South Carolina, 237 U.S. 180, 185 (1915). Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Following the 9-year hiatus in executions that

Opinion of Chief Justice Roberts

ended with our decision in Gregg v. Georgia, however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the State’s method of execution. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States.1 It is also the method used by the Federal Government. Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. B.  Kentucky replaced electrocution with lethal injection in 1998. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that “every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death.” Ky. Rev. Stat. Ann. §431.220(1)(a). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default if—as is the case with petitioners— the prisoner refuses to make a choice at least 20 days before the scheduled execution. If a court invalidates Kentucky’s lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of §431.220(1)(a). Kentucky’s protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium

. . . Although it is undisputed that the States using lethal injection adopted the protocol first developed by Oklahoma without significant independent review of the procedure, it is equally undisputed that, in moving to lethal injection, the States were motivated by a desire to find a more humane alternative to then-existing methods. . . .

1

389

390

Chapter 19: Method of Execution

thiopental from 2 grams to 3 grams. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Kentucky’s execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing. A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. By statute, however, the physician is prohibited from participating in the “conduct of an execution,” except to certify the cause of death. An electrocardiogram (EKG) verifies the death of the prisoner. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harper’s execution. . . .

II The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” We begin with the principle, settled by Gregg, that capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.

Opinion of Chief Justice Roberts

Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain. Specifically, they argue that courts must evaluate “(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures.” Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, but that the risk must be “significant” to trigger Eighth Amendment scrutiny. Kentucky responds that this “unnecessary risk” standard is tantamount to a requirement that States adopt the “‘least risk’” alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Instead, Kentucky urges the Court to approve the “substantial risk” test used by the courts below. A.  This Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U.S. 130 (1879), we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. We noted there the difficulty of “defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted.” Rather than undertake such an effort, the Wilkerson Court simply noted that “it is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden” by the Eighth Amendment. By way of example, the Court cited cases from England in which “terror, pain, or disgrace were sometimes superadded” to the sentence, such as where the condemned was “embowelled alive, beheaded, and quartered,” or instances of “public dissection in murder, and burning alive.” In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of pain— “superadd[ing]” pain to the death sentence through torture and the like. We carried these principles further in In re Kemmler, 136 U.S. 436 (1890). There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. In passing over that question, however, we observed that “[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” We noted that the New York statute adopting electrocution as a method of execution “was passed in the effort to devise a more humane method of reaching the result.”

391

392

Chapter 19: Method of Execution

B.  Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that “if performed properly,” an execution carried out under Kentucky’s procedures would be “humane and constitutional.” That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. Instead, petitioners claim that there is a significant risk that the procedures will not be properly followed—in particular, that the sodium thiopental will not be properly administered to achieve its intended effect—resulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harm—not simply actually inflicting pain— can qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be “sure or very likely to cause serious illness and needless suffering,” and give rise to “sufficiently imminent dangers.” Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that prevents prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, and n. 9 (1994). Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident, with no suggestion of malevolence,” did not give rise to an Eighth Amendment violation. As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, “a hypothetical situation” involving “a series of abortive attempts at electrocution” would present a different case. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure”—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. See Farmer, 511 U.S., at 846, and n. 9. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.” Id.

Opinion of Chief Justice Roberts

C.  Much of petitioners’ case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative. Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining “best practices” for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures—a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.

III In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as “objectively intolerable” when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners.

393

394

Chapter 19: Method of Execution

In order to meet their “heavy burden” of showing that Kentucky’s procedure is “cruelly inhumane,” Gregg, 428 U.S., at 175, petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified. A.  Petitioners contend that there is a risk of improper administration of thiopental because the doses are difficult to mix into solution form and load into syringes; because the protocol fails to establish a rate of injection, which could lead to a failure of the IV; because it is possible that the IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered to the vein; because of inadequate facilities and training; and because Kentucky has no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopental has been administered. As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol. The state trial court, however, specifically found that “[i]f the manufacturers’ instructions for reconstitution of Sodium Thiopental are followed . . . there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task.” We cannot say that this finding is clearly erroneous, particularly when that finding is substantiated by expert testimony describing the task of reconstituting powder sodium thiopental into solution form as “[n]ot difficult at all. . . . You take a liquid, you inject it into a vial with the powder, then you shake it up until the powder dissolves and, you’re done. The instructions are on the package insert.” Likewise, the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment. Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner. The most significant of these is the written protocol’s requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. Kentucky currently uses a phlebotomist and an EMT, personnel

Opinion of Chief Justice Roberts

who have daily experience establishing IV catheters for inmates in Kentucky’s prison population. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. . . . In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration. Three of the Commonwealth’s medical experts testified that identifying signs of infiltration would be “very obvious,” even to the average person, because of the swelling that would result. Kentucky’s protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds. In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation. B.  Nor does Kentucky’s failure to adopt petitioners’ proposed alternatives demonstrate that the Commonwealth’s execution procedure is cruel and unusual. First, petitioners contend that Kentucky could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate. That alternative was not proposed to the state courts below. As a result, we are left without any findings on the effectiveness of petitioners’ barbiturate-only protocol, despite scattered references in the trial testimony to the sole use of sodium thiopental or pentobarbital as a preferred method of execution. In any event, the Commonwealth’s continued use of the three-drug protocol cannot be viewed as posing an “objectively intolerable risk” when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. Indeed, the State of Tennessee, after reviewing its execution procedures, rejected a proposal to adopt a one-drug protocol using sodium thiopental. The State concluded that the one-drug alternative would take longer than the three-drug method and that the “required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death. . . .” We need not endorse the accuracy of those conclusions to note simply that the comparative efficacy of a one-drug method of execution is not so well established that Kentucky’s failure to adopt it constitutes a violation of the Eighth Amendment. Petitioners also contend that Kentucky should omit the second drug, pancuronium bromide, because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of the first drug. The state trial court, however, specifically found that pancuronium serves two purposes. First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. The Commonwealth

395

396

Chapter 19: Method of Execution

has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death. Kentucky’s decision to include the drug does not offend the Eighth Amendment. Petitioners’ barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, it overlooks the States’ legitimate interest in providing for a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopental in order to prevent a prolonged, undignified death. That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarians—such as stunning the animal or severing its spinal cord—make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans. Petitioners also fault the Kentucky protocol for lacking a systematic mechanism for monitoring the “anesthetic depth” of the prisoner. Under petitioners’ scheme, qualified personnel would employ monitoring equipment, such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify that a prisoner has achieved sufficient unconsciousness before injecting the final two drugs. The visual inspection performed by the warden and deputy warden, they maintain, is an inadequate substitute for the more sophisticated procedures they envision. At the outset, it is important to reemphasize that a proper dose of thiopental obviates the concern that a prisoner will not be sufficiently sedated. All the experts who testified at trial agreed on this point. The risks of failing to adopt additional monitoring procedures are thus even more “remote” and attenuated than the risks posed by the alleged inadequacies of Kentucky’s procedures designed to ensure the delivery of thiopental. But more than this, Kentucky’s expert testified that a blood pressure cuff would have no utility in assessing the level of the prisoner’s unconsciousness following the introduction of sodium thiopental, which depresses circulation. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the

Concurring Opinion of Justice Alito

entire procedure, given that both Kentucky law, and the American Society of Anesthesiologists’ own ethical guidelines, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is “the standard of care in surgery requiring anesthesia,” as the dissent points out. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering. The dissent believes that rough-and-ready tests for checking consciousness— calling the inmate’s name, brushing his eyelashes, or presenting him with strong, noxious odors—could materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentucky’s procedure, but not sufficient to prevent pain. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmate’s bloodstream, the record confirms that the visual inspection of the IV site under Kentucky’s procedure achieves that objective. . . . Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today’s decision will be any different. The judgment below concluding that Kentucky’s procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

Concurring Opinion of Justice Alito I join the plurality opinion but write separately to explain my view of how the holding should be implemented. The opinion concludes that “a State’s refusal to change its method [of execution] can be viewed as ‘cruel and unusual’ under the Eighth Amendment” if the State, “without a legitimate penological justification,” rejects an alternative method that is “feasible” and “readily” available and that

397

398

Chapter 19: Method of Execution

would “significantly reduce a substantial risk of severe pain.” Properly understood, this standard will not, as Justice Thomas predicts, lead to litigation that enables “those seeking to abolish the death penalty . . . to embroil the States in never-ending litigation concerning the adequacy of their execution procedures.”

I . . . Objections to features of a lethal injection protocol must be considered against the backdrop of the ethics rules of medical professionals and related practical constraints. Assuming, as previously discussed, that lethal injection is not unconstitutional per se, it follows that a suggested modification of a lethal injection protocol cannot be regarded as “feasible” or “readily” available if the modification would require participation—either in carrying out the execution or in training those who carry out the execution—by persons whose professional ethics rules or traditions impede their participation.

II In order to show that a modification of a lethal injection protocol is required by the Eighth Amendment, a prisoner must demonstrate that the modification would “significantly reduce a substantial risk of severe pain.” Showing merely that a modification would result in some reduction in risk is insufficient. Moreover, an inmate should be required to do more than simply offer the testimony of a few experts or a few studies. Instead, an inmate challenging a method of execution should point to a well-established scientific consensus. Only if a State refused to change its method in the face of such evidence would the State’s conduct be comparable to circumstances that the Court has previously held to be in violation of the Eighth Amendment. The present case well illustrates the need for this type of evidence. Although there has been a proliferation of litigation challenging current lethal injection protocols, evidence regarding alleged defects in these protocols and the supposed advantages of alternatives is strikingly haphazard and unreliable. . . . Petitioners’ chief argument is that Kentucky’s procedure violates the Eighth Amendment because it does not employ a one-drug protocol involving a lethal dose of an anesthetic. By “relying . . . on a lethal dose of an anesthetic,” petitioners contend, Kentucky “would virtually eliminate the risk of pain.” Petitioners point to expert testimony in the trial court that “a three-gram dose of thiopental would cause death within three minutes to fifteen minutes.” The accuracy of that testimony is not universally accepted. Indeed, the medical authorities in the Netherlands, where assisted suicide is legal, have recommended against the use of a lethal dose of a barbiturate. An amicus supporting petitioners, Dr. Robert D. Truog, Professor of Medical Ethics and Anesthesiology

Opinion of Justice Stevens Concurring in the Judgment

at Harvard Medical School, has made the following comments about the use of a lethal dose of a barbiturate: “A number of experts have said that 2 or 3 or 5 g[rams] of pentothal is absolutely going to be lethal. The fact is that, at least in this country, none of us have any experience with this . . . . If we go to Holland, where euthanasia is legal, and we look at a study from 2000 of 535 cases of euthanasia, in 69% of those cases, they used a paralytic agent. Now, what do they know that we haven’t figured out yet? I think what they know is that it’s actually very difficult to kill someone with just a big dose of a barbiturate. And, in fact, they report that in 6% of those cases, there were problems with completion. And in I think five of those, the person actually woke up, came back out of coma. Perspective Roundtable: Physicians and Execution—Highlights from a Discussion of Lethal Injection, 358 New England J. Med. 448 (2008).

... My point in citing the Dutch study is not that a multi-drug protocol is in fact better than a one-drug protocol or that it is advisable to use pancuronium bromide. Rather, my point is that public policy on the death penalty, an issue that stirs deep emotions, cannot be dictated by the testimony of an expert or two or by judicial findings of fact based on such testimony.

III . . . The issue presented in this case—the constitutionality of a method of execution—should be kept separate from the controversial issue of the death penalty itself. If the Court wishes to reexamine the latter issue, it should do so directly, as Justice Stevens now suggests. The Court should not produce a de facto ban on capital punishment by adopting method-of-execution rules that lead to litigation gridlock.

Opinion of Justice Stevens Concurring in the Judgment ...

I Because it masks any outward sign of distress, pancuronium bromide creates a risk that the inmate will suffer excruciating pain before death occurs. There is a

399

400

Chapter 19: Method of Execution

general understanding among veterinarians that the risk of pain is ­sufficiently serious that the use of the drug should be proscribed when an animal’s life is being terminated. As a result of this understanding among knowledgeable professionals, several States—including Kentucky—have enacted legislation prohibiting use of the drug in animal euthanasia. It is unseemly—to say the least—that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets. Use of pancuronium bromide is particularly disturbing because—as the trial court specifically found in this case—it serves “no therapeutic purpose.” The drug’s primary use is to prevent involuntary muscle movements, and its secondary use is to stop respiration. In my view, neither of these purposes is sufficient to justify the risk inherent in the use of the drug. The plurality believes that preventing involuntary movement is a legitimate justification for using pancuronium bromide because “[t]he Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.” This is a woefully inadequate justification. Whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect. Nor is there any necessity for pancuronium bromide to be included in the cocktail to inhibit respiration when it is immediately followed by potassium chloride, which causes death quickly by stopping the inmate’s heart. Moreover, there is no nationwide endorsement of the use of pancuronium bromide that merits any special presumption of respect. While state legislatures have approved lethal injection as a humane method of execution, the majority have not enacted legislation specifically approving the use of pancuronium bromide, or any given combination of drugs. . . .

II The thoughtful opinions written by the Chief Justice and by Justice Ginsburg have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty. . . .

Opinion of Justice Scalia Concurring in the Judgment

III . . . In sum, just as Justice White ultimately based his conclusion in Furman [v. Georgia] on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman (White, J, concurring).

IV The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by the Chief Justice or Justice Ginsburg, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.

Opinion of Justice Scalia Concurring In The Judgment, Joined By Justice Thomas I join in the opinion of Justice Thomas concurring in the judgment. I write separately to provide what I think is a needed response to Justice Stevens’ separate opinion.

I [Justice Stevens’] conclusion [that the death penalty violates the Eighth Amendment] is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice. The Fifth Amendment expressly requires a presentment or indictment of a grand jury to hold a person to answer for “a capital, or otherwise infamous crime,” and prohibits deprivation of “life” without due process of law. . . .

401

402

Chapter 19: Method of Execution

III I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views—which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.

Opinion of Justice Thomas Concurring in the Judgment, Joined by Justice Scalia Although I agree that petitioners have failed to establish that Kentucky’s lethal injection protocol violates the Eighth Amendment, I write separately because I cannot subscribe to the plurality opinion’s formulation of the governing standard. As I understand it, that opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. This standard—along with petitioners’ proposed “unnecessary risk” standard and the dissent’s “untoward risk” standard, finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on longaccepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. Because, in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain, I concur only in the judgment.

I The Eighth Amendment’s prohibition on the “inflict[ion]” of “cruel and unusual punishments” must be understood in light of the historical practices that led the Framers to include it in the Bill of Rights. Justice Stevens’ ruminations notwithstanding, it is clear that the Eighth Amendment does not prohibit the death penalty. That is evident both from the ubiquity of the death penalty in the founding era, see S. Banner, The Death Penalty: An American History 23 (2002) (noting that, in the late 18th century, the death penalty was “the standard penalty for all serious crimes”), and from the Constitution’s express provision for capital punishment, see, e.g., Amdt. 5 (requiring an indictment or presentment of a grand jury to hold a person for “a capital, or otherwise infamous crime,” and prohibiting deprivation of “life” without due process of law). That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as

Opinion of Justice Thomas Concurring in the Judgment

cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment. “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54. One such “tool” was burning at the stake. Because burning, unlike hanging, was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72. Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, and “public dissection,” . . . But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors. “The punishment of high treason,” Blackstone wrote, was “very solemn and terrible,” and involved “embowelling alive, beheading, and quartering.” Thus, the following death sentence could be pronounced on seven men convicted of high treason in England: That you and each of you, be taken to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters, to be at the King’s disposal. And God Almighty have mercy on your souls. G. Scott, History of Capital Punishment 179 (1950).

The principal object of these aggravated forms of capital punishment was to terrorize the criminal, and thereby more effectively deter the crime. Their defining characteristic was that they were purposely designed to inflict pain and suffering beyond that necessary to cause death. As Blackstone put it, “in very atrocious crimes, other circumstances of terror, pain, or disgrace [were] superadded.” 4 Blackstone 376. These “superadded” circumstances “were carefully handed out to apply terror where it was thought to be most needed,” and were designed “to ensure that death would be slow and painful, and thus all the more frightening to contemplate.” Banner 70.

403

404

Chapter 19: Method of Execution

Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause. By the late 18th century, the more violent modes of execution had “dwindled away,” id., at 76, and would for that reason have been “unusual” in the sense that they were no longer “regularly or customarily employed,” Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (opinion of Scalia, J.); see also Weems v. United States, 217 U.S. 349, 395 (1910) (White, J., dissenting) (noting that, “prior to the formation of the Constitution, the necessity for the protection afforded by the cruel and unusual punishment guarantee of the English bill of rights had ceased to be a matter of concern, because as a rule the cruel bodily punishments of former times were no longer imposed”). Embellishments upon the death penalty designed to inflict pain for pain’s sake also would have fallen comfortably within the ordinary meaning of the word “cruel.” . . .

II Consistent with the original understanding of the Cruel and Unusual Punishments Clause, this Court’s cases have repeatedly taken the view that the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop of the Eighth Amendment. . . .

III In light of this consistent understanding of the Cruel and Unusual Punishments Clause as forbidding purposely torturous punishments, it is not surprising that even an ardent abolitionist was constrained to acknowledge in 1977 that “[a]n unbroken line of interpreters has held that it was the original understanding and intent of the framers of the Eighth Amendment . . . to proscribe as ‘cruel and unusual’ only such modes of execution as compound the simple infliction of death with added cruelties or indignities.” H. Bedau, The Courts, the Constitution, and Capital Punishment 35. What is surprising is the plurality’s willingness to discard this unbroken line of authority in favor of a standard that finds no support in the original understanding of the Eighth Amendment or in our method-of-execution cases and that, disclaimers notwithstanding, “threaten[s] to transform courts into boards of inquiry charged with determining ‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology.” We have never suggested that a method of execution is “cruel and unusual” within the meaning of the Eighth Amendment simply because it involves a risk of pain—whether “substantial,” “unnecessary,” or “untoward”—that could be reduced by adopting alternative procedures. And for good reason. It strains

Opinion of Justice Thomas Concurring in the Judgment

credulity to suggest that the defining characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like was that they involved risks of pain that could be eliminated by using alternative methods of execution. Quite plainly, what defined these punishments was that they were designed to inflict torture as a way of enhancing a death sentence; they were intended to produce a penalty worse than death, to accomplish something “more than the mere extinguishment of life.” Kemmler at 447. The evil the Eighth Amendment targets is intentional infliction of gratuitous pain, and that is the standard our method-of-execution cases have explicitly or implicitly invoked. . . .

IV Aside from lacking support in history or precedent, the various risk-based standards proposed in this case suffer from other flaws, not the least of which is that they cast substantial doubt on every method of execution other than lethal injection. It may well be that other methods of execution such as hanging, the firing squad, electrocution, and lethal gas involve risks of pain that could be eliminated by switching to lethal injection. Indeed, they have been attacked as unconstitutional for that very reason. But the notion that the Eighth Amendment permits only one mode of execution, or that it requires an anesthetized death, cannot be squared with the history of the Constitution. It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected. And it is obvious that, for some who oppose capital punishment on policy grounds, the only acceptable end point of the evolution is for this Court, in an exercise of raw judicial power unsupported by the text or history of the Constitution, or even by a contemporary moral consensus, to strike down the death penalty as cruel and unusual in all circumstances. In the meantime, though, the next best option for those seeking to abolish the death penalty is to embroil the States in never-ending litigation concerning the adequacy of their execution procedures. But far from putting an end to abusive litigation in this area, and thereby vindicating in some small measure the States’ “significant interest in meting out a sentence of death in a timely fashion,” Nelson v. Campbell, 541 U.S. 637, 644 (2004), today’s decision is sure to engender more litigation. At what point does a risk become “substantial”? Which alternative procedures are “feasible” and “readily implemented”? When is a reduction in risk “significant”? What penological justifications are “legitimate”? Such are the questions the lower courts will have to grapple with in the wake of today’s decision. Needless to say, we have left the States with nothing resembling a bright-line rule.

405

406

Chapter 19: Method of Execution

Which brings me to yet a further problem with comparative-risk standards: They require courts to resolve medical and scientific controversies that are largely beyond judicial ken. Little need be said here, other than to refer to the various opinions filed by my colleagues today. Under the competing risk standards advanced by the plurality opinion and the dissent, for example, the difference between a lethal injection procedure that satisfies the Eighth Amendment and one that does not may well come down to one’s judgment with respect to something as hairsplitting as whether an eyelash stroke is necessary to ensure that the inmate is unconscious, or whether instead other measures have already provided sufficient assurance of unconsciousness. . . . In short, I reject as both unprecedented and unworkable any standard that would require the courts to weigh the relative advantages and disadvantages of different methods of execution or of different procedures for implementing a given method of execution. To the extent that there is any comparative element to the inquiry, it should be limited to whether the challenged method inherently inflicts significantly more pain than traditional modes of execution such as hanging and the firing squad. . . .

V Judged under the proper standard, this is an easy case. It is undisputed that Kentucky adopted its lethal injection protocol in an effort to make capital punishment more humane, not to add elements of terror, pain, or disgrace to the death penalty. And it is undisputed that, if administered properly, Kentucky’s lethal injection protocol will result in a swift and painless death. . . . Because Kentucky’s lethal injection protocol is designed to eliminate pain rather than to inflict it, petitioners’ challenge must fail. I accordingly concur in the Court’s judgment affirming the decision below.

Opinion of Justice Breyer Concurring in the Judgment Assuming the lawfulness of the death penalty itself, petitioners argue that Kentucky’s method of execution, lethal injection, nonetheless constitutes a constitutionally forbidden, “cruel and usual punishmen[t].” U.S. Const., Amdt. 8. In respect to how a court should review such a claim, I agree with Justice Ginsburg. She highlights the relevant question, whether the method creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering. I agree that the relevant factors—the “degree of risk,” the “magnitude of pain,” and the “availability of alternatives”—are interrelated and each must be considered. At the same time, I believe that the legal merits of the kind of claim presented must inevitably turn not so much upon the ­wording of an

Dissenting Opinion of Justice Ginsburg

i­ ntermediate standard of review as upon facts and evidence. And I cannot find, either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the “significant and unnecessary risk of inflicting severe pain” that petitioners assert. . . .

Dissenting Opinion of Justice Ginsburg, Joined by Justice Souter It is undisputed that the second and third drugs used in Kentucky’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. Potassium chloride causes burning and intense pain as it circulates throughout the body. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be “constitutionally unacceptable.” The constitutionality of Kentucky’s protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky’s system is constitutional, the plurality states, because “petitioners have not shown that the risk of an inadequate dose of the first drug is substantial.” I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I . . . Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it “creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.” Petitioners respond that courts should consider “(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible.” The plurality settles somewhere in between, requiring a “substantial risk of serious harm” and considering whether a “feasible, readily implemented” alternative can “significantly reduce” that risk. I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its “substantial risk” test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

407

408

Chapter 19: Method of Execution

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmate’s consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of “a slightly or marginally safer alternative” is, as the plurality notes, insufficient. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II . . . Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. From that point forward, only the warden and deputy warden remain with the inmate. Neither the warden nor the deputy warden has any medical training. The warden relies on visual observation to determine whether the inmate “appears” unconscious. In Kentucky’s only previous execution by lethal injection, the warden’s position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmate’s face. No other check for consciousness occurs before injection of pancuronium bromide. Kentucky’s protocol does not include an automatic pause in the “rapid flow” of the drugs, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmate’s name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response. Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG). A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, but would signal that the drug has entered the inmate’s bloodstream. Kentucky’s own expert testified that the sodium thiopental should “cause the inmate’s blood pressure to become very, very low,” and that a precipitous drop in blood pressure would “confir[m]” that the drug was having its expected effect. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. . . . Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentucky’s protocol. Florida pauses between injection of the first and second drugs so the warden can “determine, after consultation, that the inmate is indeed unconscious.” . . .

Dissenting Opinion of Justice Ginsburg

In Missouri, “medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again.” . . . In California, a member of the IV team brushes the inmate’s eyelashes, speaks to him, and shakes him at the halfway point and, again, at the completion of the sodium thiopental injection. In Alabama, a member of the execution team “begin[s] by saying the condemned inmate’s name. If there is no response, the team member will gently stroke the condemned inmate’s eyelashes. If there is no response, the team member will then pinch the condemned inmate’s arm.” In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmate’s name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. These checks provide a degree of assurance—missing from Kentucky’s protocol— that the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures. . . .

409

Ap p endix A

Facts and Figures on Murder and the Death Penalty A.1  Homicides Homicide rates1 in the United States doubled from the mid-1960s to the late 1970s, peaking in 1980 and 1991. (See Figure A.1.) They declined sharply starting in 1994, reaching mid-1960s levels in 2000. In 1991, there had been 24,703 homicides, a rate of 9.8 per 100,000. In 2000, there were 15,586 homicides, a rate of 5.5. Rates have been stable through the first decade of the 21st century.

A.1.1  Age of offenders Sixty-five percent of killers in the United States between 1976 and 2005 were between ages 18 and 34. Young men aged 18 to 24 had the highest homicide rate of any age group—nearly 30 per 100,000—twice that for the age group with the next highest rate. Teenage homicides (ages 14 to 17) soared in the mid-1980s, exceeding those of even the 25- to 34-year-old group, then declined sharply after 1994. (See Figure A.2.) Teenagers are not eligible for the death penalty. (See Chapter 10.)

Unless otherwise indicated, this section of the appendix relies on data from the U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States. The appendix presents the latest data available, but often there is a lag of several years between the period covered and the publication of the data. Many, but not all, of the Bureau of Justice Statistics reports are regularly updated. See http:// bjs.ojp.usdoj.gov/content/homicide/homtrnd.cfm. The Justice Department defines homicide as murder or non-negligent manslaughter as determined by police investigation. This excludes deaths caused by negligence, suicide, accident, or justifiable homicide (defined as the killing of a felon by a police officer or by a private citizen during the commission of a felony). It also excludes the 9/11/01 terrorist attacks. The ultimate disposition of homicides by a court is not known. It would not be accurate, therefore, to identify homicides as “murder” in the legal sense since some incidents may not be prosecuted as murder and those that are may result in convictions of other crimes or in acquittals. Only a small percentage of these cases led to the filing of capital murder charges, that is, prosecutions that could result in a sentence of death.

1

Death Penalty Casses. Copyright © 2011 by Academic Press. Inc.

411

A.1.2  Race of offenders

Homicide rates in the United States, 1950-2005 15

Even though during the period 1976 to 2005 African Americans made up approximately 12% of the U.S. population, they committed more than half (52%) of the homicides in the United States in that time.

10

5

0 1950

1961

1972

1983 Year

1994

2005

Source: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States; see http://bjs.ojp.usdoj.gov/content/homicide/hmrt.cfm#longterm.

Figure A.1 Homicide rates in the United States, 1950−2005.

Homicide rates in the United States by age group, 1976-2005 50

The black homicide rate over the last four decades has been seven to nine times that of whites. (See Figure A.3.) Blacks were the offenders in six out of ten ­“felony-murders” (homicides contemporaneous with another felony) and in two-thirds of drug-related homicides. Offenders who kill during the commission of another offense (an aggravating ­factor) may be eligible for the death penalty. Hispanics (of any race) comprised 28% of those accused of murder in the largest counties in the United States, where they represented 23% of the population.2

Age

40 30

18–24

20 10 0 1975

25–34 14–17 35–49 50+ Under 14

1980 1985 1990 1995 2000 2005 Year

Source: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States; see http://bjs.ojp.usdoj.gov/content/homicide/teens.cfm#oage.

Figure A.2 Homicide rates in the United States by age group, 1976−2005.

Rate per 100,000 population

Note : Rate per 100,000 population

APPENDIX A:  Facts and Figures on Murder and the Death Penalty

Rate per 100,000 population

412

Homicide rates in the United States by race, 1976-2005 60 Blacks 50 40 30 20 10

Whites

0 1975 1980 1985 1990 1995 2000 2005 Year

Source: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States; see http://bjs.ojp.usdoj.gov/content/homicide/race.cfm#orace.

Figure A.3 Homicide rates in the United States by race, 1976−2005.

2 U.S. Department of Justice, Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2004-Statistical Tables; see http://bjs.ojp.usdoj.gov/content/pub/html/fdluc/2004/tables/fdluc04st02.cfm.

A.1  Homicides

Those who kill are overwhelmingly male—89% from 1976 to 2005. (See Figure A.4.) Females were responsible for 38% of infanticides (victim under age 5) and 35% of killings of intimates (spouses and romantic partners, ­present and former).

A.1.4 Age of victims

Rate per 100,000 population

A.1.3 Gender of offenders

Homicide rates in the United States by gender, 1976-2005 30

20

Males

10 Females 0

The victims of homicide are somewhat older 1975 1980 1985 1990 1995 2000 2005 Year than their killers but, at 31 or 32 years of age on average, are still relatively young. The most Source: U.S. Department of Justice, Bureau of Justice Statistics, victimized age group is 18 to 24, with a rate of Homicide Trends in the United States; see http://bjs.ojp.usdoj.gov/content/homicide/gender.cfm#osex. about 15 per 100,000 in recent years. Those aged 25 to 34 were the most victimized before the mid-1980s, at which point killings Figure A.4 Homicide of older teens/young adults (ages 18 to 24) rose dramatically. (See Figure A.5.) rates in the United States Among victimized children under age five, 60% were killed by a parent; only 3% by a stranger.

by gender, 1976−2005.

Victimization of the elderly declined starting in the 1980s, leveling off in the late 1990s. Five percent of all homicides involve the death of someone 65 or older.

A.1.5  Race of victims

For the period 1976 to 1999, 45% of all the homicides involved white perpetrators and white victims; 43.5% involved blacks killing blacks; 7% involved blacks killing whites; and 3% involved whites killing blacks. (See Figure A.6.) More than three-quarters of all the homicide victims from 1976 through 2005 were males. Females were victims in 65% of killings by intimates and 81% of sex-related killings. (See Table A.1.) Sixty-five percent of all the homicides involved males killing males; 23% males killing females;

Age

Per 100,000 population

Forty-seven percent of all homicide victims from 1976 to 2005 were black. Ninety-four percent of those were killed by blacks. Eighty-six percent of white victims were killed by whites.

Homicide victimization rates in the United Statesby age, 1976–2005 30

20 18–24 25–34

10

35–49 14–17 50+ Under 14

0 1975

1980

1985

1990 Year

1995

2000

2005

Source: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States; see http://bjs.ojp.usdoj.gov/content/homicide/teens.cfm#vage.

Figure A.5 Homicide victimization rates in the United States by age, 1976−2005.

413

414

APPENDIX A:  Facts and Figures on Murder and the Death Penalty

Homicides in the United States by race of killer and victim, 1976-2005 60%

10% female offender and male victim; and 2% female offender and female victim.

A.1.6  Homicide circumstances 40%

White on white Black on black

20% Black on white White on black 0% 1975 1980 1985 1990 1995 2000 2005 Year

From 1976 to 2005, 14% of all homicides were by strangers, 15% by family members. Thirtytwo percent of the victims were acquainted with their assailant. In 35% of incidents, the relationship was not determined. Two-thirds of all homicides (64%) were committed with guns; half (49%), with handguns.

Large cities (populations of 100,000 or more) accounted for over 57% of all homicides. Source: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States; Twenty-one percent occurred in suburbs, 12% see http://bjs.ojp.usdoj.gov/content/homicide/race.cfm#ovrace.Gender. in small cities, and 10% in rural areas. In the 1990s, homicide rates in cities of more than one million fell sharply, from a 1991 Figure A.6 Homicides in the United peak of 35.5 per 100,000 to a 2005 low of 13. States by race of killer and victim, 1976−2005.

From 1973 to 2005, 2598 law enforcement officers were killed while on duty, not including the 72 who died in the attack of September 11, 2001. The trend since the 1980s has been downward. In 1975, 129 died and 55 died in 2005. Murder of a police officer is commonly treated as an aggravating circumstance establishing eligibility for the death penalty. Arguments (such as over money or property, and sometimes associated with drinking or drug use) are the major cause of homicide, responsible for 38% from 1976 through 2005. Homicides occurring during the commission of a felony, such as robbery, accounted for 18%. Conviction of murder contemporaneous with a felony is often considered aggravated and is therefore death-eligible. The proportion of homicides that involve more than one victim (another ­aggravating factor) is low, under 5%.

A.2  Murder arrests, convictions, and sentences The proportion of homicides “cleared” (generally meaning solved) by arrests has declined since the 1970s. In 1976, 79% of cases were cleared; in 2005, 62%. Compared to other crimes, murder convictions are infrequent. Of a sample of 180,298 state court defendants convicted of a felony in 1990 to 2002, only 1077, or 6% were convicted of murder. This sample was drawn from the 75

A.2  Murder Arrests, Convictions, and Sentences

Table A.1  U.S. Homicides by Type of Killing and Gender of Killer and Victim, 1976–2005 Victims Homicide Type

Offenders

Male

Female

Male

Female

All homicides

76.5%

23.5%

88.8%

11.2%

Victim/offender relationship Intimate Family Infanticide Eldercide

35.2% 51.5% 54.6% 58.1%

64.8% 48.5% 45.4% 41.9%

65.5% 70.8% 61.8% 85.2%

34.5% 29.2% 38.2% 14.8%

78.4% 18.8% 90.2% 94.7% 77.8% 79.1%

21.6% 81.2% 9.8% 5.3% 22.2% 20.9%

93.2% 93.6% 95.5% 98.3% 85.6% 91.3%

6.8% 6.4% 4.5% 1.7% 14.4% 8.7%

Gun Arson Poison

82.7% 56.4% 55.3%

17.3% 43.6% 44.7%

91.3% 79.1% 63.5%

8.7% 20.9% 36.5%

Multiple victims/offenders Multiple victims Multiple offenders

63.3% 85.6%

36.7% 14.4%

93.5% 91.6%

6.5% 8.4%

Circumstances Felony murder Sex related Drug related Gang related Argument Workplace Weapon

Source: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States; see http://bjs.ojp.usdoj.gov/content/homicide/gender.cfm#vorelgender.

most populous counties in the United States. There were disparities in the racial/ethnic makeup of the counties and the convicted murderers, as shown in Table A.2. Two-thirds of those convicted of murder had arrest records, with 21% having ten or more prior arrests. There were 53% who had prior convictions and 25% had been convicted two to four times. Of the previous convictions, 17% were for a violent felony. The mean sentence imposed on convicted murderers during the 1990 to 2002 sample was 25.7 years; the median was 20 years. Twenty-two percent received life sentences. Death sentences for murderers are very infrequent. In a 2006 sample of murder and non-negligent manslaughter convictions, 23% were sentenced to life,

415

416

APPENDIX A:  Facts and Figures on Murder and the Death Penalty

Table A.2  Racial/Ethnic Composition of County and Murderers Race/Ethnicity Black Hispanic (any race) White (non-Hispanic) Other races (non-Hispanic)

County Population (%) 14 19 58 9

Convicted Murderers (%) 46 27 23 4

Source: U.S. Department of Justice, Bureau of Justice Statistics, Violent Felons in Large Urban Counties; see http://bjs.ojp.usdoj.gov/content/pub/pdf/vfluc.pdf.

2% to death, and 75% to some other sentence, including a prison term less than life.3 A 1988 survey of murder arrests in the most populous counties of the United States tracked the treatment of the defendants by race.4 The outcomes were essentially similar. Of whites arrested for murder, n n n n

25% were not convicted of any crime. 56% received less than a life sentence, with a mean sentence of 14 years. 10% were sentenced to life in prison. 2% received death sentences.

Of blacks arrested for murder, n n n n

29% were not convicted of any crime. 52% received less than a life sentence, with a mean sentence of 14 years. 12% were sentenced to life. 1% received death.

A.3  Death sentences and executions5 A.3.1  Number sentenced and executed From 1930 to the end of 2009, 5047 prisoners were executed by nonmilitary authority in the United States.6 (See Figure A.7.) The peak year for ­executions was 1935, with 199. From 1968 to 1976, no executions took place in the United States because of uncertainties about the constitutionality of capital punishment. The

U.S. Department of Justice, Bureau of Justice Statistics, Felony Sentences in State Courts, 2006-Statistical Tables; see http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf. 4 U.S. Department of Justice, Bureau of Justice Statistics, Murder in Large Urban Counties, 1988. 5 This section of the appendix, unless otherwise indicated, is based on U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2008—Statistical Tables; see http://bjs.ojp.usdoj.gov/content/pub/pdf/cp08st.pdf. 6 Data for 2009, indicating 52 executions, was obtained from the Death Penalty Information Center, a private nonprofit organization; see http://deathpenaltyinfo.org/home. 3

A.3  Death Sentences and Executions

From 1977 to the end of 2008, a total of 7658 death sentences were imposed and 1136 (14.8%) were carried out. Of those, 1133 were carried out in 34 states, three by the federal government. Thirty-eight percent were not carried out because of events such as changes in death penalty statutes, successful appeals or post-conviction reviews, pardons, or commutations by a state governor, or other legal process. Five percent of those sentenced to death died from causes other than execution.

Civilian executions in the United States., 1930-2009 200 180 160 140 Number

U.S. Supreme Court’s ruling in Furman v. Georgia (Chapter 2), which struck down the death penalty as then applied, was announced in 1972. Gregg v. Georgia (Chapter 3), which upheld the revised death penalty, was decided in 1976.

120 100 80 60 40 20 0 30 35 40 45 50 55 60 65 70 75 80 85 90 95 00 05 09 19 19 19 19 19 19 19 19 19 19 19 19 19 19 20 20 20 Year

Sources: U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2005; U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2008 Statistical Tables; Death Penalty Information Center [em dash]http://deathpenaltyinfo.org/home.

Figure A.7 Civilian Executions in the United States, 1930–2009.

Texas leads all states in total number of executions during the post-Gregg period, with 423 from 1977 through 2008. This represents 37% of all executions in the United States. Next are Virginia (102), Oklahoma (88), Florida (66), and Missouri (66). The District of Columbia, Iowa, Kansas, Massachusetts, New Hampshire, New Jersey, New York, Vermont, and West Virginia carried out no executions from 1977 through 2008. Generally the number of death sentences imposed declined from 235 in 2000 to 111 in 2008. (See Table A.3.)

A.3.2  Death penalty jurisdictions Thirty-five states and the federal government have a death penalty. Fifteen states and the District of Columbia do not. The states without capital punishment are Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. New York (2004), New Jersey (2007), and New Mexico (2009) have recently ­abolished capital punishment.7 The sentencing portion of New York’s death penalty statute was struck down by the New York Court of Appeals, the state’s highest court, on the ground that the deadlocked jury instruction required by state statute violated the state constitution. People v. LaValle, 3 N.Y.3d 88 (2004). New Mexico abolished the death penalty only prospectively. As of 2010, it still had two inmates under death sentences.

7

417

418

APPENDIX A:  Facts and Figures on Murder and the Death Penalty

Table A.3  Inmates under Sentence of Death that State and Federal Prisons Received, 1993–2008 Year

Inmates Received

1993

295

1994

328

1995

326

1996

323

1997

281

1998

306

1999

284

2000

235

2001

167

2002

169

2003

154

2004

140

2005

138

2006

122

2007

119

2008

111

Source: U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2008—Statistical Tables; see http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1757.

A.3.3  Method of execution All 35 death penalty states, along with the federal government, authorize execution by lethal injection. Eighteen states (see Table A.4) also authorize a second method of execution, or authorize a second method should lethal injection be legally barred.

A.3.4  Capital offender characteristics The 1136 persons executed between 1977 and the end of 2008 had the ­following characteristics: n n n n n n

8

White: 57% (n = 648) Black: 34% (n = 390) Hispanic: 7% (n = 84) Female: 0.9% (n = 11)8 American Indian: 0.7% (n = 8) Asian: 0.5% (n = 6)

Data for women was obtained from Death Penalty Information Center; see http://deathpenaltyinfo.org/home.

A.3  Death Sentences and Executions

Table A.4  Alternative Methods of Execution Electrocution

Lethal Gas

Hanging

Firing Squad

Alabama Arkansas Florida Illinois Kentucky Oklahoma South Carolina Tennessee Virginia

Arizona California Missouri Wyoming

Delaware New Hampshire Washington

Idaho Oklahoma Utah

The 3207 inmates under sentence of death (but not yet executed) as of the end of 2008 had the following characteristics9: n n n n n n n n n

White: 56% Black: 42% Hispanic: 13% Other: 2% Female: 2% Age 20 to 34 when arrested: 68% Prior felony convictions: 66% Prior murder/manslaughter convictions: 8% On probation or parole at the time of the crime: 26%

A.3.5  Time consumption For defendants sentenced to death and not yet executed, the average time lapse since sentencing, as of the end of 2008, was 147 months (more than 12 years). At the end of 2005, 43% of those sentenced to death between 1973 and 2005 were still in prison waiting for their sentence to be carried out or for their appeals to be resolved. At the same time, 339 inmates, 10.4% of the death row population, had been under sentence of death for 20 years or more. For prisoners executed between 1977 and 2008, the average time between sentence and execution was 128 months, or 10.7 years. That time has gone up in recent years. The average elapsed time for those executed between 2000 and 2008 was 139 months, or 11.6 years.10 Percentages for age, prior convictions, and legal status were based on prisoners for whom data were available, which did not always include all 3207 death row inmates. 10 The data from 2005 are from U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2005, Appendix Table 2. Data from 2008 are from U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2008—Statistical Tables. 9

419

420

APPENDIX A:  Facts and Figures on Murder and the Death Penalty

A.3.6  Public opinion Since 1976, when capital punishment was approved by the U.S. Supreme Court, more than 69% of the American public has consistently favored the death penalty for a person who is convicted of murder.11 Prior to 1976, starting with a survey in 1953, support was weaker, averaging around 52%. (See Figure A.8.) Given a choice between the death penalty and “life imprisonment, with absolutely no chance of parole,” 54% of those surveyed in recent years chose the death penalty. A 2009 survey showed the highest levels of support for the death penalty to be among self-identified Republicans (81%), conservatives (75%), and respondents with no education beyond high school (73%). The lowest support came from blacks (41%), liberals (47%), Democrats (48%), and those who had a post-graduate education (48%). (See Table A.5.) Public support for the death penalty for convicted murderers in the United States, 1953-2009 90% 80% 70% 60% 50% 40% 30% 20% 10% 0 1953

1960

1967

1972

1981

1988

1995

2001

2004

2007

2009

Year Yes, support

No, do not support

Don’t know/no answer

Source: The Gallup Organization, The Gallup Poll [Online], www.gallup.com/poll/1606/ Death-Penalty.aspx, as presented by Ann L. Pastore & Kathleen Maguire (eds.), Sourcebook of Criminal Justice Statistics,Table 2.51, 2009; see www.albany.edu/sourcebook/pdf/t2512009. pdf. Used with permission of the Gallup Organization.

Figure A.8 Public support for the death penalty for convicted murderers in the United States, 1953–2009. 11 The data on public opinion were obtained from Ann L. Pastore & Kathleen Maguire (eds.), Sourcebook of Criminal Justice Statistics, Tables 2.49.2006, 2.53, 2.57.2006, 2.54.2009, 2.0005.2009, 2.55, and 2.56 see www.albany.edu/sourcebook/. Reprinted with permission of The Gallup Organization, Inc.

A.3  Death Sentences and Executions

Table A.5  U.S. Attitudes toward the Death Penalty for Persons Convicted of Murder by Demographic Characteristics, 2009 Question: “Are you in favor of the death penalty for a person convicted of murder?”

Yes, in favor (%) 65

No, not in favor (%) 31

Don’t know/refused to answer (%) 5

69 61

27 34

4 5

Race White Nonwhite Black

69 55 41

27 40 52

5 5 7

Age 18 to 29 years 30 to 49 years 50 to 64 years 50 years and older 65 years and older

56 66 69 68 67

40 29 28 28 27

4 5 3 4 6

Education College postgraduate College graduate Some college High school graduate or less

48 71 63 73

49 24 34 20

4 5 3 7

Income $75,000 and over $50,000 to $74,999 $30,000 to $49,999 $20,000 to $29,999 Under $20,000

67 62 69 60 58

29 35 26 36 40

4 3 5 4 2

Region East Midwest South West

55 63 69 69

38 34 27 25

7 3 3 6

Politics Republican Democrat Independent

81 48 67

16 47 28

3 5 5

Ideology Conservative Moderate Liberal

75 62 47

21 30 52

3 7 1

National Sex Male Female

Note: These data are based on telephone interviews with a randomly selected national sample of 1013 adults, 18 years of age and older, conducted October 1−4, 2009. Source: The Gallup Organization, Inc., as presented by Ann L. Pastore and Kathleen Maguire (eds.) in Sourcebook of Criminal Justice Statistics, Table 2.52, 2009; see www.albany.edu/sourcebook/pdf/ t2522009.pdf. Reprinted by permission.

421

422

APPENDIX A:  Facts and Figures on Murder and the Death Penalty

Table A.6  Attitudes toward Applying the Death Penalty to Certain Groups Group

Favor Applying (%)

Oppose Applying (%)

Don’t Know/ No Answer (%)

Women

68

29

3

Mentally ill Mentally retarded Juveniles

19 13 26

75 82 69

6 5 5

As for whether the public favors or opposes the death penalty for certain groups of people, a 2003 survey yielded the results shown in Table A.6. The public has changed its views on the benefit of the death penalty as a deterrent (i.e., that it lowers the murder rate). In 1985, nearly two-thirds (62%) said that it was a deterrent; one-third, (31%) believed it was not. In 2004, 35% considered it a deterrent, 62% expressed doubts. From 2000 to 2009, a majority of the public (more than 56%) thought that the death penalty was applied fairly in the United States. However, 56% of black respondents thought that it was applied unfairly. Among those favoring the death penalty, the reason most often given was retribution. In a 2003 poll asking why respondents favored the death penalty for persons convicted of murder, 37% said an eye for an eye, they took a life, or it fit the crime. An additional 13% said they deserved it, and 3% said it was fair punishment. Eleven percent cited the cost savings, and another 11% said it deterred or set an example. When opponents of the death penalty were asked in 2003 why they were opposed, 46% said it was wrong to take a life, 25% were concerned about wrongful convictions, and 13% said that punishment should be left to God or offered other religious explanations.

A.3.7 Other countries One hundred and two countries provide by law for capital punishment; 95 do not.12 Thirty-four of the countries with death penalty laws have not executed anyone during the last ten years.

The data in this section were obtained from Amnesty International, an organization opposed to the death penalty; see www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries.

12

A.3  Death Sentences and Executions

The following countries have death penalty laws: Afghanistan Antigua and Barbuda Bahamas Bahrain Bangladesh Barbados Belarus Belize Bolivia Botswana Brazil Chad Chile China Comoros Cuba Democratic Republic of Congo Dominica Egypt El Salvador Equatorial Guinea Ethiopia Fiji

Guatemala Guinea Guyana India Indonesia Iran Iraq Israel Jamaica Japan Jordan Kazakhstan Kuwait Latvia Lebanon Lesotho Libya Malaysia Mongolia Nigeria North Korea Oman Pakistan

Palestinian Authority Peru Qatar Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Saudi Arabia Sierra Leone Singapore Somalia Sudan Syria Taiwan Thailand Trinidad and Tobago Uganda United Arab Emirates United States Vietnam Yemen Zimbabwe

These countries do not impose death as a punishment: Albania Algeria Andorra Angola Argentina Armenia Australia Austria Azerbaijan Belgium Benin Bhutan Bosnia-Herzegovina Brunei Bulgaria Burundi Cambodia Canada Cape Verde Colombia Cook Islands Costa Rica Cote D’Ivoire Croatia

Cyprus Czech Republic Denmark Djibouti Dominican Republic Ecuador Estonia Finland France Georgia Germany Greece Guinea-Bissau Haiti Holy See Honduras Hungary Iceland Ireland Italy Kiribati Kyrgyzstan Liechtenstein Lithuania

Luxembourg Macedonia Malta Marshall Islands Mauritius Mexico Micronesia Moldova Monaco Montenegro Mozambique Namibia Nepal New Zealand Nicaragua Niue Norway Palau Panama Paraguay Philippines Poland Portugal Romania

423

424

APPENDIX A:  Facts and Figures on Murder and the Death Penalty

Rwanda Samoa San Marino Sao Tome and Principe Senegal Serbia (including Kosovo) Seychelles Slovakia Slovenia

Solomon Islands South Africa Spain Sweden Switzerland The Netherlands Timor-Leste Togo Turkey

Turkmenistan Tuvalu Ukraine United Kingdom Uruguay Uzbekistan Vanuatu Venezuela

These countries have death penalty laws but have carried out no executions in the last decade: Algeria Benin Brunei Burkina Faso Cameroon Central African Republic Congo (Republic of) Eritrea Gabon Gambia Ghana Grenada

Kenya Laos Liberia Madagascar Malawi Maldives Mali Mauritania Morocco Myanmar Nauru Niger

Papua New Guinea Russian Federation South Korea Sri Lanka Suriname Swaziland Tajikistan Tanzania Tonga Tunisia Zambia

Numerous European countries have, by treaty, renounced capital punishment. Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms permits executions by a court in accordance with law. It states: “No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” However, two protocols to the Convention—6 (1983) and 13 (2002), the latter ratified by 33 European nations—have virtually abolished the death penalty in Europe. Protocol 13 states in part: “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Abolition of the death penalty is a condition of membership in the Council of Europe and the European Union.13 European public opinion surveys nonetheless have shown strong multinational support for capital punishment. “In France, Germany, the United Kingdom, and Canada,” an international death penalty expert said, “abolition of the death penalty took place even though a majority of popular opinion was opposed to it.” In England, the 1994 British Social Attitudes Survey revealed

13 The Council of Europe, which seeks abolition of the death penalty, provides reference texts for the Human Rights Convention and its Protocols at its website, www.coe.int/t/dc/files/themes/peine_de_mort/default_en.asp. Protocol 6 permitted the use of the death penalty in wartime; Protocol 13 prohibited this use.

A.3  Death Sentences and Executions

that 70% of respondents supported the death penalty for murder in the course of a terrorist act; 67% favored it for the murder of a police officer; and 59% approved it for other murders.14 It is estimated that in 2009, 2001 people were sentenced to death in 56 countries, and that 18 countries carried out 714 executions. Known executions in 2009 included Bangladesh (3), Botswana (1), Egypt (at least 5), Iran (at least 388), Iraq (at least 120), Japan (7), Libya (at least 4), Saudi Arabia (at least 69), Singapore (1), Sudan (at least 9), Syria (at least 8), Thailand (2), United States (52), Vietnam (at least 9), and Yemen (at least 30). According to Amnesty International, China carried out by far the greatest number of executions—perhaps numbering in the thousands—but exact figures are unknown. Figures are unavailable for North Korea and Malaysia as well, but both are believed to have carried out ­executions in 2009.15

Hood, Roger (2003) The Death Penalty: A Worldwide Perspective. New York: Oxford University Press, p. 234. 15 Amnesty International (2010) Death Sentences and Executions 2009; see www.amnesty.org/en/library/ asset/ACT50/001/2010/en/17348b70-3fc7-40b2-a258-af92778c73e5/act500012010en.pdf. 14

425

App endix B

Understanding Statutory Provisions Death penalty statutes are lengthy and complex, but may be more easily understood when three crucial aspects are examined separately: aggravating circumstances, mitigating circumstances, and rules for making the sentencing decision.

I.  Aggravating Circumstances “Aggravating circumstances” refers to the statutory factors that make a murder eligible for a death sentence. Most jurisdictions use this term, but a few use other names, such as “special circumstances” (California), or “aggravating factors” (Colorado); and four states make aggravated murders into a separate crime of “capital murder” (Oregon, Texas, Utah, and Virginia). We will use “aggravating circumstances” to refer to all these variations. Aggravating circumstances serve an additional role beyond rendering a defendant death-eligible. They impact on the jury’s decision whether to impose a death sentence or a sentence of imprisonment. Subpart A, below, will examine the death-eligibility function of aggravating circumstances; subpart B will examine their role in determining whether a defendant will receive a death sentence.

A.  Death-eligibility The concept of “aggravating circumstances” traces to the primary drafter of the Model Penal Code, Professor Herbert Wechsler, who was an opponent of the death penalty, but believed it was unlikely to be abolished. Thus, he sought ways to limit it. As far back as the 1930s, Wechsler had proposed the idea that only certain particularly depraved murders should be eligible for death sentences. See Herbert Wechsler & Jerome Michael, A Rationale of the Law of 427

428

APPENDIX B: Understanding Statutory Provisions

Homicide: II, 37 Colum. L. Rev. 1261 (1937). In Model Penal Code ­section 210.6, written by Wechsler and approved by the American Law Institute in 1963, his idea triumphed.1 That portion of the Code reads: 210.6(3) Aggravating Circumstances (a) The murder was committed by a convict under sentence of imprisonment. (b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person. (c) At the time the murder was committed the defendant also committed another murder. (d) The defendant knowingly created a great risk of death to many persons. (e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping. (f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody. (g) The murder was committed for pecuniary gain. (h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.

In the wake of Furman v. Georgia (Chapter 2), about half the jurisdictions that wished to re-enact a constitutionally acceptable death penalty latched onto the Model Penal Code as a template. The Code’s aggravating circumstances were copied verbatim, or virtually so, into those statutes. And after mandatory death penalty statutes were struck down in Woodson v. North Carolina (Chapter 4), the remaining jurisdictions also adopted statutes using the Code’s formula. Consequently, the current statutes of every death penalty jurisdiction embody all or most of the Code’s aggravating circumstances.

Despite the enormous influence of Model Penal Code Section 210.6 on death penalty law, the American Law Institute website reported: “On October 23, 2009, the ALI Council voted overwhelmingly, with some abstentions, to accept the resolution of the capital punishment matter as approved by the Institute’s membership at the 2009 Annual Meeting in May. The resolution adopted at the Annual Meeting and now accepted by the Council reads as follows:   ‘For reasons stated in Part V of the Council’s report to the membership, the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.’”

1

I.  Aggravating Circumstances

Many jurisdictions have added aggravating circumstances to the Code’s list, the most common of which are: hiring a killer, the victim was a child (ages vary by jurisdiction), the murder was committed in an effort to conceal a crime, and the victim was an on-duty police or correctional officer. (The Code’s subpart (f)—murder for the purpose of avoiding arrest or escaping from custody— probably would cover many of the police killing cases, as approximately 40% of such killings occur in arrest situations. See Brown & Langan, U.S. Department of Justice, Policing and Homicide, 1976-98: Justifiable Homicide of Felons by Police and Murder of Police by Felons 22 (2001).) There is a wide variation in how often particular aggravating circumstances accompany murders. Professor McCord studied the prevalence of aggravating circumstances in 1128 death-eligible cases over the two-year span of 2004 and 2005. David McCord, Should Commission of a Contemporaneous Arson, Burglary, Kidnapping, Rape, or Robbery Be Sufficient to Make a Murderer Eligible for a Death Sentence?—An Empirical and Normative Analysis, 49 Santa Clara L. Rev. 1 (2009). The results were as follows. (Note that the total of all the aggravating circumstances is far more than the number of cases because many cases contained multiple aggravators.) Prevalence of Aggravating Circumstances in 1128 Death-Eligible Murders, 2004-2005 Robbery

445

Multiple murder

369

Burglary

264

Violent priors

191

Victim 12 or younger

163

Kidnapping

154

Rape

125

To conceal crime

66

Murder for hire

48

Pecuniary gain

44

Police/correctional officer victim

43

Great risk to others

38

To escape arrest

35

Arson

35

Torture

28

By a prisoner

9

To escape incarceration

7

Government employee victim

6

429

430

APPENDIX B: Understanding Statutory Provisions

While jurisdictions’ lists of aggravating circumstances vary from quite long to relatively short, the shorter lists typically include the circumstances that most often accompany murders. Thus, the difference in practical effect between longer and shorter lists is less than might appear. Here are the aggravating circumstances of the three states with the most prisoners on death row: California (lengthy), Florida (medium length), and Texas (medium length), along with Montana’s, which has the shortest list of aggravating circumstances.

CAL. PENAL CODE § 190.2 (a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: (1) The murder was intentional and carried out for financial gain. (2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree. (3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree. (4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings. (5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody. (6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings. (7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably

I.  Aggravating Circumstances

should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.   (8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.   (9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties. (10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, “juvenile proceeding” means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code. (11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor’s office in this or any other state, or of a federal prosecutor’s office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties. (12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties. (13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.

431

432

APPENDIX B: Understanding Statutory Provisions

(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase “especially heinous, atrocious, or cruel, manifesting exceptional depravity” means a conscienceless or pitiless crime that is unnecessarily torturous to the victim. (15) The defendant intentionally killed the victim by means of lying in wait. (16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin. (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: (A) Robbery in violation of Section 211 or 212.5. (B) Kidnapping in violation of Section 207, 209, or 209.5. (C) Rape in violation of Section 261. (D) Sodomy in violation of Section 286. (E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288. (F) Oral copulation in violation of Section 288a. (G) Burglary in the first or second degree in violation of Section 460. (H) Arson in violation of subdivision (b) of Section 451. (I) Train wrecking in violation of Section 219. (J) Mayhem in violation of Section 203. (K) Rape by instrument in violation of Section 289. (L) Carjacking, as defined in Section 215. (M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder. (18) The murder was intentional and involved the infliction of torture. (19) The defendant intentionally killed the victim by the administration of poison. (20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.

I.  Aggravating Circumstances

(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, “motor vehicle” means any vehicle as defined in Section 415 of the Vehicle Code. (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.

FLA. STAT. ANN. § 921.141(5) Aggravating circumstances shall be limited to the following: (a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation. (b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person. (c) The defendant knowingly created a great risk of death to many persons. (d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb. (e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. (f) The capital felony was committed for pecuniary gain. (g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. (h) The capital felony was especially heinous, atrocious, or cruel. (i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. (j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties. (k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim’s official capacity.

433

434

APPENDIX B: Understanding Statutory Provisions

(l) The victim of the capital felony was a person less than 12 years of age. (m) The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim. (n) The capital felony was committed by a criminal street gang member, as defined in s. 874.03. (o) The capital felony was committed by a person designated as a sexual predator pursuant to s. 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed.

TEX. PENAL CODE ANN. § 19.03—Capital Murder (a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and: (1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman; (2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6); (3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration; (4) the person commits the murder while escaping or attempting to escape from a penal institution; (5) the person, while incarcerated in a penal institution, murders another: (A) who is employed in the operation of the penal institution; or (B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination; (6) the person: (A) while incarcerated for an offense under this section or Section 19.02, murders another; or (B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 20.04, 22.021, or 29.03, murders another; (7) the person murders more than one person: (A) during the same criminal transaction; or (B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct;

I.  Aggravating Circumstances

(8) the person murders an individual under six years of age; or (9) the person murders another person in retaliation for or on account of the service or status of the other person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

MONT. CODE ANN. § 46-18-303 Aggravating circumstances one any of the following: (1) (a) The offen se was deliberate homicide and was committed:    (i) by an offender while in official detention, as defined in 45-2-101;  (ii) by an offender who had been previously convicted of another deliberate homicide;  (iii)  by means of torture;  (iv)  by an offender lying in wait or ambush;   (v) as a part of a scheme or operation that, if completed, would result in the death of more than one person; or  (vi) by an offender during the course of committing sexual assault, sexual intercourse without consent, deviate sexual conduct, or incest, and the victim was less than 18 years of age. (b) The offense was deliberate homicide, as defined in 45-5-102(1) (a), and the victim was a peace officer killed while performing the officer’s duty.

B. Role of aggravating circumstances in determining whether a defendant receives a death sentence Once a jury has found an aggravating circumstance that renders a defendant death-eligible, that same jury must then decide whether the defendant should receive a death sentence or a sentence of imprisonment. The penalty phase rule of relevance is that evidence is admissible if it relates to the defendant’s character or record or the circumstances of the offense. All aggravating circumstances implicate at least one of these three bases of relevance, and thus become weights on the prosecution’s side of the scale in determination of the sentence. Additionally, most jurisdictions permit the prosecution to prove and argue “nonstatutory” aggravating circumstances, that is, other things that make the crime worse, even if they are not included in the jurisdiction’s list of statutory aggravating circumstances.

435

436

APPENDIX B: Understanding Statutory Provisions

Typically the prosecution’s penalty phase presentation does not take much time (unless the case involves a “battle of experts,” most often on the issue whether the defendant will constitute a continuing threat to society). As to the circumstances of the offense, usually these were proven in the guilt/ innocence phase of the trial, are fresh in the jury’s memory, and need not be proven again. With respect to the defendant’s criminal record—which twothirds of convicted capital defendants have—the prosecution can present this quickly through certified public records. As to the defendant’s character, the prosecution sometimes can prove bad acts for which the defendant has not been convicted. Particularly damaging, if available, is proof that the defendant acted badly while awaiting trial on the capital charge, as by hiding weapons in his cell, attacking other inmates or correctional staff, or plotting to intimidate or eliminate witnesses in the capital case. Finally, the prosecution in most jurisdictions may present victim impact evidence (see Chapter 14).

II.  Mitigating circumstances Another way Professor Wechsler conceived of limiting the death penalty was to formalize some of the factors that might make a defendant seem less blameworthy, and thus increase the defendant’s chances of receiving a non-death sentence. Wechsler wrote some of these factors into the Model Penal Code under the name “mitigating circumstances.”

210.6(4) Mitigating Circumstances (a) The defendant has no significant history of prior criminal activity. (b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. (c) The victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act. (d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct. (e) The defendant was an accomplice in the murder committed by another person and his participation in the homicidal act was relatively minor. (f) The defendant acted under duress or under the domination of another person. (g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to

II.  Mitigating Circumstances

conform his conduct to the requirements of the law was impaired as a result of mental disease or defect or intoxication. (h) The youth of the defendant at the time of the crime.

After Furman, many jurisdictions that used the Model Penal Code as a template included all or most of these mitigating circumstances in their statutes, but did not limit the jury to consideration of only those circumstances. Such a statute was upheld in Proffitt v. Florida, 428 U.S. 242 (1976), and was in accordance with the holding of Woodson v. North Carolina (Chapter 4) that a defendant must always be permitted to present mitigating evidence relating to “the character and record of the individual offender and the circumstances of the particular offense.” Three states, however—Connecticut, Ohio, and Pennsylvania—selected a few mitigating circumstances and limited the jury to consideration of only those mitigators. Such statutes were declared unconstitutional in Lockett v. Ohio (Chapter 5) as not permitting the full range of mitigating evidence required by Woodson. While many jurisdictions still have statutory mitigating circumstances, those lists have been superseded by the Woodson requirement. In such jurisdictions, the jury will be instructed to consider any statutory mitigating evidence presented by the defendant along with any other mitigating evidence relating to his character or record or the circumstances of the offense. Even though the Model Penal Code’s list of mitigating circumstances cannot be considered exhaustive after Woodson, it is illustrative. Subpart (a) relates to the defendant’s “record”; subparts (b) through (f), and the “intoxication” aspect of (g), relate to the “circumstances of the offense”; and the “mental disease or defect” portion of (g), along with subpart (h), relate broadly to the defendant’s “character.” Over the decades since Furman, the concept of “character” has been expanded far beyond subparts (g) and (h) to include almost anything relating to the defendant that might move a jury toward a non-death sentence. Nowadays a skilled and sufficiently-funded capital defense lawyer will launch an intensive investigation to find out as much as possible about the defendant’s life in the hope of finding mitigating character evidence. The defense can take two nonmutually exclusive tacks regarding character: (1) that the defendant has good aspects to his character; and (2) that there are explanations for his bad behavior that lie mostly outside his control and thus make him less blameworthy. Some possible good character evidence includes that the defendant: cooperated with the police or assisted in the prosecution of another, has a good work history, served in the military, is religious, is remorseful, has done specific good deeds, is creative, loves others, is loved by others (which inferentially shows he has good character traits that make him loveable), and has sought to better himself. Also, the defense often will present evidence of a character

437

438

APPENDIX B: Understanding Statutory Provisions

trait that in most sentencing hearings would not be considered “good,” but may be relevant to whether a capital defendant is sentenced to death or life in prison—that he tends to behave well in a tightly structured prison environment. See generally, Jeffrey Kirchmeier, A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Justice, 83 Ore. L. Rev. 631 (2004). As to some possible explanations for the defendant’s bad behavior which lie outside the defendant’s control, they include that the defendant: was relatively young, was of low mental functioning (short of retardation, which would render him ineligible—see Chapter 10), was afflicted with mental illness (short of insanity, which would be a defense at the guilt/innocence stage), and that the defendant suffered a deprived and abusive childhood, perhaps including traumatic brain injury. A well-presented defense mitigation case will typically extend over several days, and will involve a mixture of non-expert (lay) and expert witnesses. The prosecution will then have a chance to present rebuttal evidence.

III.  Rules for sentencing decisions The statutes of all jurisdictions establish rules for the sentencer (we’ll assume this means the jury, which is typical) to decide whether the defendant should receive a death sentence. Regarding whether an aggravating circumstance has been proven, all jurisdictions follow the same rule: the jurors must unanimously agree that an aggravating circumstance has been proven by the prosecution beyond a reasonable doubt. Once such a circumstance has been found, however, statutes diverge considerably regarding how the jury should proceed. Four pertinent questions may be addressed. First, on which party is the burden of persuasion placed, that is which side, prosecution or defense, risks losing the point if the jury is unconvinced? Must the prosecution prove that a death sentence is warranted, or must the defendant prove that it isn’t? Second, how great is the burden? Must the matter be proved by a preponderance of the evidence, beyond a reasonable doubt, or in accordance with some other test? Third, how (if at all) should the jurors compare the aggravating with the mitigating circumstances? (See Chapter 15.) And fourth, if the jury finds the criteria for a death sentence have been met, does the jury still have the discretion to return a non-death sentence, or does the statute specify that the jury “shall” or “must” impose a sentence of death? There is no constitutional requirement for a statute to answer any of these questions in a particular manner, or indeed, to answer them at all. For ­example, the

III.  Rules for Sentencing Decisions

Georgia statute simply instructs the jurors “to consider” the aggravating and mitigating circumstances and return a sentence (Georgia Code 17-10-30(b)). Most statutes, however, do answer at least some of the four questions. The Arkansas statute, for example, explicitly answers all of them. The Pennsylvania statute, by contrast, addresses only some of the four questions. As a final example, the Texas “special issues” system requires the jury to answer specific questions in determining whether a death sentence is warranted. Excerpts from all three statutes follow.

Arkansas Code, Section 5-4-603 Findings required for death sentence—Harmless error review (a) The jury shall impose a sentence of death if it unanimously returns written findings that: (1) Aggravating circumstances exist beyond a reasonable doubt; and (2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and (3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt. (b) The jury shall impose a sentence of life imprisonment without parole if it finds that: (1) Aggravating circumstances do not exist beyond a reasonable doubt; or (2) Aggravating circumstances do not outweigh beyond a reasonable doubt all mitigating circumstances found to exist; or (3) Aggravating circumstances do not justify a sentence of death beyond a reasonable doubt. (c) If the jury does not make all findings required by subsection (a) of this section, the court shall impose a sentence of life imprisonment without parole.

Pennsylvania Consolidated Statutes, Title 42, Section 9711 Sentencing procedure for murder of the first degree … (iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.

439

440

APPENDIX B: Understanding Statutory Provisions

Texas Code of Criminal Procedure, Article 37.071 Procedure in capital case, Sec. 2 . . . (b) O  n conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. (c) The state must prove each issue submitted under Subsection (b) of this article beyond a reasonable doubt, and the jury shall return a special verdict of “yes” or “no” on each issue submitted under Subsection (b) of this Article. (d) The court shall charge the jury that: in deliberating on the issues submitted under Subsection (b) of this article, it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant’s background or character or the circumstances of the offense that mitigates for or mitigates against the imposition of the death penalty; . . . (2) it may not answer any issue submitted under Subsection (b) of this article “yes” unless it agrees unanimously and it may not answer any issue “no” unless 10 or more jurors agree; and members of the jury need not agree on what particular evidence supports a negative answer to any issue submitted under Subsection (b) of this article. (e) (1) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.