Capital Punishment Quotes - FL2022

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"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.

" Enmund v. Florida (1982), Justice White

"The Texas Court of Criminal Appeals has not yet construed the first and third questions; thus it is as yet undetermined whether or not the jury's consideration of those questions would properly include consideration of mitigating circumstances . . . . We cannot [] construe the statute; that power is reserved to the Texas courts.

" Jurek v. Texas (1976), Blackmun majority (Justice Stevens, joined by Powell & Stewart, concurred by all other justices (White, Burger, Blackmun, Rehnquist, Marshall, and Brennan)...about 1st and 3rd special issues in TX statute

""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."

" Kansas v. Marsh, 548 U.S. 163, 188 (2006), Souter

"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."

" McClesky v. Kemp (1987) Powell Court is blatantly rejecting /oblivious to the heightened reliability point...the Court is basically saying that the theory that death is different is false (by saying if we do xyz here we have to do it for all...which defeats the purpose of the heightened reliability standard. See footnote 45 (page 13 of week 11 doc)

"The defendant's] argument that the Constitution condemns the discretion allowed decisionmakers in the [States] 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. . . 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.

" McClesky v. Kemp (1987), Justice Powell majority holding part IV

"We then consider the State's argument that the possibility of commutation is sufficient to save an otherwise unconstitutional sentence . . . . As a matter of law, parole and commutation are different concepts, despite some surface similarities. Parole is a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases . . . . Commutation on the other hand, is an ad hoc exercise of executive clemency.

" Solem v. Helm (1983), Justice Powell

In other circumstances the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata.

"Brown v. Allen (1953), J. Reed; Q1: what does cert mean or denial of cert mean? denial should NOT be interpreted as reflection on the merits. Q2: extent of deference to state court's adjudication of the federal claim (i.e., SOR?) A2: 28 U.S.C. § 2254 governed at the time: "the judgment of a State court . . . shall be presumed to be correct . . . " Frankfurter: State Court Fact Findings: significant deference to state court; presumption of correctness and Mixed Law/Fact Questions: federal court should use its own judgment and perform essentially de novo review; Reed: pay attention to what the state court said, but what the state court said is not res judicata (i.e., not binding)

"We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies."

"Fay v. Noia (1963), Majority by J. Brennan; Brennan says rule that says you can't overlook procedural defaults on direct review doesn't apply to federal habeas. Why is it different? o On direct review, state court opinion is being reviewed. Federal court doesn't have jurisdiction. o Q1: Are procedural defaults jurisdictional? Not bound by procedural defaults (GOOD LAW) • May be some equitable reasons to review the decision but not • But! How do you know if you are being held against the law if the court can't review the grounds for detention • Federal habeas is review detention simpliciter • In federal habeas, you're claiming an unconstitutional detention. Different! But you'd still look at the state court decision. Brennan is radically expanding habeas, saying you look at just the injustice. • SC has never overturned this. Inadequate and independent state court doctrine doesn't apply. Brennan's deliberate bypass standard has changed.

That the jury had a meaningful basis to consider the relevant mitigating qualities of petitioner's youth is what distinguishes this case from Penry. Unlike Penry's mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue.

"Johnson v. Texas (1993), Kennedy majority, as long as mitigating evidence can be given some consideration, it doesn't have to be given all possible consideration. Youth is sufficiently covered in the question about future dangerousness. Juries may understand that the young will have time to change their behaviors, and learn from their mistakes. Oconnor dissents saying This is not full effect to the mitigating evidence, though it may be some effect. This holding is in violation of Eddings

I would grant certiorari in this case...to consider whether the Eighth and fourteenth amendments to the United States Constitution permit the imposition of the death penalty on a convicted rapist who has neither taken nor endangered life."

"Rudolph v. Alabama (1963), Goldberg denial from cert. Warren court incorporated constitutional criminal procedure against the states in 1960s, Alan Dershowitz (clerk for J. Goldberg) gives memo addressing the constitutionality of the DP (includes arbitrary/racial discrimination), Goldberg writes dissent from denial of cert: laments Court's failure to hear the case, Doesn't mention race - just whether DP is disproportionate punishment for crime of rape, Met with shock because constitutionality of the DP had never been questioned From Steiker ppt: Denial of Cert. - Raises question of whether DP for non-homicidal crimes (eg. rape) is excessive? Opinion makes no mention of race despite Rudolph's argument that Alabama imposes dp for rape only against black defendants convicted of raping white victims.

"Strickland v. Washington (1984): first time SC addresses standard of ineffective assistance of counsel; global standard that applies to capital as well as non-capital cases (6th A. doctrine, not 8th A.).O'Connor for the majority: you are governed by reasonableness standard, and you are allowed any strategic thinking. Adopts standards rather than rules

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 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.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

28 U.S. Code § 2254 (d) - State custody; remedies in Federal courts

This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competence for the appointment of such counsel.

28 USC sec. 2261 (Prisoner in state custody); Details that if a state pays lawyers for post-conviction proceedings (not required), then the court or statute has to have standards. IAC in state post-conviction not deemed to be constitutional error as decided in Murray v. Giarratano; See also, Coleman, Martinez, and Trevino (holding no right to cause and prejudice through IAC for habeas (coleman), unless there was no counsel provided on state post conviction (Martinez) or habeas is the first place you raised IAC (Trevino).

trial counsel should formulate a defense theory. Counsel should seek a theory that will be effective in connection with both guilt and penalty, and should seek to minimize any inconsistencies.

ABA Guideline 10.10.1

Relationship with client (most important in Steiker's opinion) Counsel at all stages of the case should make every appropriate effort to establish a relationship of trust with the client, and should maintain close contact with the client.

ABA Guideline 10.5 (A) plus (C) engage in a continuing interactive dialogue with the client concerning al matters that might reasonably be expected to have a material impact on the case

A. Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty. 1. The investigation regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented. 2. The investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented. B. 1. Counsel at every stage have an obligation to conduct a full examination of the defense provided to the client at all prior phases of the case. This obligation includes at minimum interviewing prior counsel and members of the defense team and examining the files of prior counsel. 2. Counsel at every stage have an obligation to satisfy themselves independently that the official record of the proceedings is complete and to supplement it as appropriate. Commentary: Elements of an appropriate invesitgation include: 1. Charging Documents 2. Potential Witnesses 3. The Police and Prosecution 4. Physical Evidence 5. The Scene Counsel needs to explore: 1. Medical History 2. Family and Social History 3. Educational History 4. Military Service 5. Employment and Training History 6. Prior juvenile and adult correctional experience potentially relevent information: 1. school records 2. Social service and welfare records 3. juvenile dependency or family court records 4. medical records 5. military records 6. employment records 7. criminal and correctional records 8. family birth, marriage, and death records 9. alcohol and drug abuse assessment or treatment records 10. INS records

ABA Guideline 10.7

The legal representation plan should provide for assembly of a defense team that will provide high quality legal representation team = 2 attnys, an investigator, and a mitigation specialist (at least one member qualified to screen for mental/psychological disorders/impairments

ABA Guideline 4.1 (A)(1)

"It is ineffective assistance for counsel to simply acquiesce to such wishes, which usually reflect the distorting effects of overwhelming feelings of guilt and despair rather than a rational decision in favor of a state-assisted suicide."

ABA Guidelines commentary - Counsel's Duties Respecting Uncooperative Clients

To cut short this question of law of retaliation, we must note that even in its primitive form it can operate only between two individuals of whom one is absolutley innocent and the other absolutely guilty. The victim, to be sure, is innocent. But can the society that is supposed to represent the victim lay claim to innocence? Is it not responsible, at least in part, for the crime it punishes so severely? This theme has often been developed, and I shall not repeat the arguments that all sorts of thinkers have brought forth since the eighteenth century. They can be summed up anyway by saying that every society has the criminal it deserves.

Albert Camus retribution theory doesn't work. "Every society gets the criminals it deserves."

"We also acknowledged in Coker that the objective evidence...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."" "...in cases involving a consensus, our own judgement is "brought to bear" by asking whether there is a reason to disagree with the judgment reached by the citizenry and its legislators." quoting Coker

Atkins v. Virginia (2002) justice Stevens majority

"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 religions organizations, members of assorted professional and religious organizations, members of the so called "world community," and respondents to opinion polls."

Atkins v. Virginia (2002), Justice Scalia Dissent (joined by Thomas)

"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."" (quoting Enmund)

Atkins v. Virginia (2002), Justice Stevens majority

"it is not so much the number of these States that is significant, but the consistency of the direction of change.[footnote 18]" [footnote 18]: "A comparison to Stanford v. Kentucky in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling." ...[footnote 21]: "polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong."

Atkins v. Virginia (2002), Justice Stevens majority

[the three drug protocol] "The Kentucky Supreme Court affirmed, holding that the protocol does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death. ..."petitioners claim that there is a significant risk that the procedure will not be properly followed..."sure or very likely to cause serious illness and needless suffering" (quoting Helling v. McKinney).

Baze v. Rees (2008) Cert to Supreme Court of Kentucky Real reason for the drug cokctail = to make oberserving by the witness less difficult and prsumably it's more mundane than other execution methods. -3 drug protocol - created by some oklahoma med ex guy: 1. sodium thiopental** something or other: sedative 2. Pancuronium bromine**: paralytic - anticonvulsive (easier to administer and witness the death) 3. potassium chloride: stops heart Court does not view the protocol as "posing an "objectively intolerable risk" when no other State has adopted the one-drug method and the pertitioners have proffered no study showing that it is an eqally effective manner of imposing a death sentence."

The thoughtful opinions written [by other members of the Court] 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 deliberative process 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.

Baze v. Rees (2008), Stevens concurring. Making an overall attack on the death penalty, citing that retribution is a faulty way to consider the DP. One of four justices to ultimately change their opinion on the DP (blackmun, souter, and breyer being the other 3)

ABA Guidelines Focus: "should comprise efforts to discover all reasonably available mitigating evidence and evidicen to rebut any aggravating evidence that may be introduced by the prosecutor" (quoting ABA Guidelines for the apointment and performance of counsel in death penalty cases 11.4.1(c) -- From the: it's like deja vu all over again article (blume)

Blue Article about: Wiggins

From blume article: Rompilla had the "additional step of requiring trial counsel to conduct a thorough pre-trial investigation not only to uncover mitigating evidence but also to rebut the prosecution's case for death" ..."The Rompilla majority, relying on Williams and Wiggins quoted extensively from the ABA standards...the duty to investigate regardless of the accused's admissions or statements and the standard that the "investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities."

Blume Article about Rompilla v beard

Bias against the defendant clearly stems from the institutional limits on what an appellate court can do - limits the jurors often might not understand. The 'delegation' of sentencing responsibility that the prosecutor here encouraged would thus not simply postpone the defendant's right to a fair determination of the appropriateness of his death; rather it would deprive him of that right, for an appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance.

Caldwell v. Mississippi (1985), Marshall, NARROW HOLDING: (Marshall + O'Connor): can't give jury misleading information that diminishes the jury's sense of responsibility (i.e., be truthful); Marshall for the plurality: wouldn't allow ANY statement that would deflect responsibility, whether truthful or not; Belief that jury is not responsibly may lead to decreased reliability of the sentence, which creates a risk that death will be imposed arbitrarily and capricious

First, The application should be dismissed when it fails to state a federal question Second, Failure to exhaust an available State remedy is an obvious ground for denying the application Third, If the record of the State proceedings is not filed, the judge is required to decide, with due regard, to efficienct in judicial administration, whther it is more desirable to call for the record or to hold a hearng. Fourth, [important to the overarching question about state deference ad deference to state fact finding??] Unless a vital flaw be found in the process of ascertaining such fact in the State court, the Distrit Judge may accept their detemination in the State proceeding and deny the application. On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these question that the federal judge is commanded to decide. fifth, [de novo review] So-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge. sixth, A federal districict judge may under § 2244 take into consideration a prior denial of relief by a federal court, and in that sense § 2244 is of coure applicable to state prisoners.

Brown v. Allen Justice Frankfurter [habeas] Denial of Cert ("court held that a denial of cert on review of the conviction should not be given any preclusive effect in subsequent collateral proceeding.") "Relitigation Model" (frankfurter establishing the need to adopt clear rules...holding of the case)

"We are not final because we are infallible, but we are infallible only because we are final."

Brown v. Allen, justice jackson...we are the last stop because that's how the courts are structured...we won't necessarily get everything right, but the SCOTUS decision is final and has to be followed because that is the law of the land.

"The Constitution allows capital punishment...The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the Judiciary bears no license to end a debate reserved for the people and their representatives."

Bucklew v. Precythe (2019) Justice Gorsuch majority Gorsuch thinks the 8th A, can't ever be invoked to declare DP unconstitutional using the methodology that Breyer utilizes

"[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court."

Harrington v. Richter, (Justice Kennedy) (2011) (citing Knowles v. Mirzayance)

"A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision.

Harrington v. Richter, (Justice Kennedy) (2011) (citing Yarborough v. Alvarado)

One can easily imagine that in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in.

Caldwell v. Mississippi (1985), Justice Marshall ;In this quotation, in response to the defense attorney's assertion that the defendant's life rests in the jury's hands, the prosecutor argues that the defendant's life does not lie in their hands because the case is reviewable. This statement is found to be unconstitutional beacuse it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who was led to believe, as the jury was in this case, that the responsibility for the determining the appropriateness of death rests elsewhere. Esp., as Marshall points out, since the appellate court reviews with a presumption of correctness. This holding leaves open the question of whether a jdx where the jury makes a recommendation to a judge who makes the final decision creates the same situation.

Jurors may harbor misconceptions about the power of state. appellate courts or, for that matter, this Court to override a jury's sentence of death. Should a State conclude that the reliability of its sentencing procedure is enhanced by accurately instructing the jurors on the sentencing procedure, including the existence and limited nature of appellate review, I see nothing in Ramos to foreclose a policy choice in favor of jury education.

Caldwell v. Mississippi (1985), Justice Marshall, quoting the prosecuting in the original death portion of the birfurcated trial

Ladies and gentlemen, I intend to be brief. I'm in complete disagreement with the approach the defense has taken. I don't think it's fair. I think it's unfair. I think the lawyers know better. Now, they would have you believe that you're going to kill this man and they know they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it.

Caldwell v. Mississippi (1985), Justice Marshall, quoting the prosecuting in the original death portion of the birfurcated trial

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed.

Callins v. Collins (1994) (Justice Blackmun)

It is the decision to sentence a defendant to death - not merely the decision to make a defendant eligible for death - that may not be arbitrary. While one might hope that providing the sentencer with as much relevant mitigating evidence as possible will lead to more rational and consistent sentences, experience has taught otherwise. It seems that the decision whether a human being should live or die is so inherently subjective - rife with all of life's understandings, experiences, prejudices, and passions - that it inevitably defies the rationality and consistency required by the Constitution.

Callins v. Collins (1994) (Justice Blackmun, dissent to denial of cert)

"Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, see Furman v. Georgia, can never be achieved without compromising an equally essential component of fundamental fairness -- individualized sentencing. See Lockett v. Ohio."

Callins v. Collins (1994), Blackmun dissenting

"From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [footnote 1] Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." [foot note 1: "As a member of the United States Court of Appeals, I voted to enforce the death penalty, even as I stated publicly that I doubted its moral, social, and constitutional legitimacy."]

Callins v. Collins (1994), Blackmun dissenting

"I believe the Woodson-Lockett line of cases to be fundamentally sound and rooted in American standards of decent that have evolved over time." ... ""'[T]he power to be lenient [also] is the power to discriminate.'"" (quoting McCleskey v. Kemp).

Callins v. Collins (1994), Blackmun dissenting

"a truly persuasive claim of actual innocence"

Herrera v. Collins

"Since the Court now invalidates the death penalty as a sanction for all rapes of adults at all times under all circumstances...The analysis of the plurality of opinion is divided into two parts: (a) an 'objective' determination that most American Jurisdictions do not presently make rape a capital offense, and (b) a subjective judgment that death is an excessive punishment for rape because the crime does not, in and of itself, cause the death of the victim. I take issue with each of these points."

Chief Justice Burger (joined by Rehnquist) dissenting; section 3 of the dissent

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.

Coker v. Georgia (1977), Justice Burger dissenting

"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...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.'"

Coker v. Georgia (1977); Powell concurrence in part and dissent in part... Rape victims have a possibility to recover, whereas dead is dead... in my humble opinion: that's a tone deaf load of BS; Rape victims would likely argue that the trauma they experienced feels like a major part of them was murdered during the rape (i have personally heard victims use this exact phrasing)...so the court is downplaying the trauma expereinced...it is life-long torture/torment and often leads to suicide...almost worse than death itself for many victims...this is the wrong way to draw a comparison in order to outlaw rape-based death penalty.

"Limiting §2254 (d) (l) review to the State-Court record is consistent with our precedents interpreting that statutory provision. . . . It would be Strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the State Court."

Cullen v. Pinholster (2011), Thomas Holding: in making reasonableness determination, have to look at the record at the time of the state court decision. Implication: even if you meet the requirement for developing new facts in federal habeas, this won't held if there was an adjudication on the merits in state court. Clarifying AEDPA sec. 2254(d) stating even if you overcome the nearly insurmountable hurdle of "unreasonably wrong" {as compared to just regularly wrong} see Williams v. Taylor, the Federal court will STILL not hear your case de novo but will take the facts from the state record.

"We now apply the rule in Lockett to the circumstances of this case. The trial judge state that "in following the law," he could not "consider the fact of this young man's violent background."" "...We find that the limitation placed by these courts upon the mitigating evidence they would consider violated the rule in Lockett. 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."

Eddings v. Oklahoma (1982), Justice Powell majority...kid had anti-social personality disorder but a psychologist felt he could be rehabilitated by intensive therapy, and the kid fac abuse and "an unhappy upbringining" by his stepfather who's a policeman...the psychiatrist suggested that in killing the cop, Edding "was in his own mind shooting his stepfather...he did kill someone, but I don't even think he knew that he was doing it." But the Court, per Lockett, was not permitted to consider those circumstances of his family history as mitigating...this is wrong, the sentencer should be able to consider all circumstances, including family history as mitigation?? "...Even the normal 16-year-old customarily lacks the maturity of an adult. In this case, Eddings was not a normal 16-year-old; he had been deprived of the care, concern, and the paternal attention that children deserve...We are not unaware of the extent to which minors engage increasingly in violent crime. Nor do we suggest an absence of legal responsibility where crime is committed by a minor. We are concerned here only with the manner of he imposition of the ultimate penalty: the death sentence imposed for the crime of murder upon an emotionally disturbed youth with a disturbed child's immaturity. On Remand, the state courts must consider all relevant mitigating evidence and weigh it..."

"Society's rejection of the death penalty for accomplice liability in felony murders is also indicated by the sentencing decisions that juries have made...'[t]he jury ... is a significant and reliable objective index of contemporary value because it is so directly involved.' (quoting coker v. georgia, quoting gregg v. Georgia)." "...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."

Enmund v. Florida (1982), Justice White

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.

Enmund v. Florida (1982), Justice White

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.

Enmund v. Florida (1982), White, Enmund is getaway driver like Lockett, holding it is disproportionate to apply the DP to accomplices who had neither killed, nor attempted to kill, nor intended to kill (creates new category)

Despite precautions, nearly all human activities, such as trucking, lighting, or construction, cost the lives of some innocent bystanders. We do not give up these activities, because the advantages, moral and material, outweigh the unintended losses. Analogously, for those who think the death penalty just, miscarriages of justice are offset by the moral benefits and the usefulness of doing justice.

Ernest van den Haag (1986), addressing the "miscarriage of justice" principle of the death penalty. Analagyzing losing lives in regular activity is weighed with necessity of certain human activities. Goes on to say, "Analogously, for those who think the death penalty just, miscarriages of justice are offset by the moral benefits and the usefulness of doing justice. For those who think death penalty unjust even when it does not miscarry, miscarriages can hardly be decisive."

"For Noia to have appealed in 1942 would have been to run a substantial risk of electrocution. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence."

Fay v. Noia (1963) Brennan Majority

In view of our holding that Lockett was not sentenced in accord with the Eighth Amendment, we need not address her contention that the death penalty is constitutionally disproportionate for one who has not been proved to have taken a life, to have attempted to take life, or to have intended to take life, or her contention that the death penalty s disproportionate as applied to her in this case. Nor do we address her contentions that the Constitution requires that the death sentence be imposed by a jury; that the Ohio statutory procedures impermissibly burden the defendant's exercise of his rights to plead not guilty and to be tried by a jury; and that it violates the Constitution to require defendants to bear the risk of nonpersuasion as to the existence of mitigating circumstances in capital cases."

Footnote 4 Lockett v. Ohio, Chief Justice Burger...

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 death, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U.S. 184 (1964) 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.

Furman v. Georgia (1972), Justice Potter Stewart...[stewart in Gregg says "no longer can a jury wantonly and freakishly impose the death sentence..."]

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.

Furman v. Georgia

"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 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."

Furman v. Georgia (1972) Justice Douglas Concurrence...DP is arbitrary and discriminatory. Much like a caste system, it violates equal protection and is in effect cruel and unusual. If you make enough money and aren't from a marginalized background you are pretty much exempt from death row (ie, well to do white men).

"The Court holds that the imposition and carrying out of the death penalty in these cases consititute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."

Furman v. Georgia (1972) PER CURIAM...Majority holding that to pursue the death penalty in cases of rape where there was no loss of life is unconstitutional and violates 8th and 14th amendments.

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 whose social position may be in a more protected position.

Furman v. Georgia (1972), Douglas Concurrence: Caste Aspect or Discrimination

"It (if?) we were possessed of legislative power, I would either join with Mr. Justice Brennan and Mr. Justice Marshall or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our Constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment. 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."

Furman v. Georgia (1972), Justice Burger Dissenting (joined by Blackmun, Powell, and Rehnquist) ... He doesn't buy that it is an unpopular practice in society. The Court has not deemed DP to be unconstitutional. Complaining about the rarity of it risks telling the states to in effect make it mandatory in some cases (and in his mind, mandatories would be unconstitutional, but the precedent would already be laid) -- ten states did exactly that as he feared.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.

Furman v. Georgia (1972), Justice Potter Stewart

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 or 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. In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in light of all information presently available.

Furman v. Georgia (1972), Justice Thurgood Marshall

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.

Furman v. Georgia (1972), Justice Thurgood Marshall; Marshall Concurrence: DP not serving retributive values. He argues that it serves no purpose that cannot be served equally well by some lesser punishment, such as life in prison (this portion sounds like Hugo Bedau's argument that DP is no longer necessary). DP ≠ consistent with evolving standards of decency; informed citizenry would reject.

" 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 can it be said with confidence that society's need for specific deterrence justifies death..."

Furman v. Georgia (1972), Justice White Concurrence...To have the DP, you'd have to apply it more often, otherwise the rarity suggests that it serves no penal purpose (deterrence and retribution) and is arbitrarily/inconsistently sought.

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.

Furman v. Georgia (1972), Justice White Concurring; DP so rarely imposed, it does not serve deterrance value. White's concurrance had opposite effects on states, who began executing more prisoners to satisfy this argument.

"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."

Furman v. Georgia (1972)- White Concurrence Justice White was of the opinion that the death penalty is so infrequently impose that the threat of execution cannot truly be said to meet the societal penal purposes of retribution and deterrence (can't serve a substantial purpose in the pursuit of criminal justice in a way that imprisonment isn't already doing). However, he still acknowledges that there remains consistent support for the death penalty in many states and it has not come to go against the grain of evolving standards of decency just yet...when it does (when society no longer views the death penalty as acceptable in the standard of decency), then and only then will it be deemed unconstitutional.

"Today's administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty's penological purpose." plus (4) decline in use of DP) [deterrence and retribution] I. Cruel - Lack of Reliability ..."As of 2002, this Court used the word "disturbing" to describe the number of instances in which individuals had been sentenced to death but later exonerated. At that time, there was evidence of approximately 60 exonerations in capital cases." (citing atkins and national registry of exonerations). [Anthony Ray Hinton, Cameron Todd Willingham] 4% estimated error rate in capital cases "4% of those sentenced to death are actually innocent...are too many instances in which courts sentence defendants to death without complying with the necessary procedures..." II. Cruel - Arbitrariness "Nevertheless, it remains the jury's task to make the individualized assessment of whether the defendant's mitigation evidence entitles him to mercy." III. Cruel - Excessive Delays - See above quote on penological purpose - psychological stress of waiting for execution (1890s 4week wait was excessive...now 18+ years is typical) IV. Unusual - Decline in Use of the Death Penalty - diminishing number of death sentences (all geographically concentrated in south)...more and more unusual "in 11 other States that maintain the death penalty on the books, no execution has taken place for more than eight years..." - Atkins factor on direction of change: things are trending towards restriction and elimination of DP, not states returning to DP or increasing DP footprint (Atkins footnote 21 factors and ALI expert opinion about the problems with administering DP, world practices moving away from DP...overall building up previous proportionality args) [Atkins footnote 21]: opinion polls "polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong." "it "'is not so much the number of these states that is significant, but the consistency of the direction of change.'"" (citing Roper).

Glossip v. Gross (2015) Breyer (joined by Ginsburg) dissent

We shouldn't be doing any of this stuff to detemine DP constitutionality. DP is constituional: was mentioned in constitution, was practiced at the time of the founding. only thing we should reconinder is (not Gregg), we should reconsider the Trop v. Dulles approach to 8th A. based on evolving standards of deceny "If we were to travel down the path that Justice breyer sets out for us and once again consider the constitutionality of the death penalty, I would ask that counsel also brief whter our cases that have abandoned the historical understanding of the eighth Amendment, beginning with Trop, should be overruled. That ase has caused more mschief to our jurisprudence, to our federal system, and to our society than any other that comes to mind." (Strange argument, since Trop has only lead to the follwing decisions: Trop v. Dulles (impermissable to use denaturalization as punishment, Coker (imermissable to execute for rape of adult victim), Edmund (limiting DP from nontrigger persons), Atkins (ID), Simmons, Kennedy v. Louisiana, Graham, and Miller (LWOP + Juveniles), and Solumn v. Helm). Scalia thinks Trop is most potneitally destablizing in that it allows for the reconsideration of DP constitutionality.

Glossip v. Gross (2015) Scalia Concurrence ( joined by thomas) (response to Breyer and Ginsburg) See other side for explaination of quote

"welcome to Groundhog Day. The scene is familiar: Petitioners, sentence to die for the crimes they committed...come before this court asking us to nullify their sentences as "cruel and unusual" under the Eighth Amendment."

Glossip v. Gross, J. Scalia concurrence to denial of cert. He thinks Breyer's arguments, particularly the unusualness and arbitrary arguments, repeat to arguments that have been decided before. Scalia thinks we should go back and correct troop v. dulles where the gauge of something is whether is violates "contemporary" standards of decency. Rather, we should look at constitutional textualism.

" A person of ordinary sensibility could fairly characterize almost every murder as "outrageously or wantonly vile, horrible and inhuman." ...The Georgia Supreme Court had by 1977 reached three separate but consistent conclusions...the first was that the evidence that the offense was "outrageously or wantonly vile, horrible and 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..The thirs was that the word torture must be construed in pari materia with "aggravated battery" so as to reqquire evidence of serious physical abuse of the victim before death."

Godfrey v. Georgia (1980) Justice Stewart (majority opinion)

"the validity of the petitioner's death sentences turns in whether, in light of the facts and circumstances...the Gergia Court can be said to have applied a constitutional construction of the phrase "outrageously or wantonly vile, horrible and inhuman in that they involved...depravity of mnd..." We conclude that the answer must be no. The petitioner's crimes cannot be said to have reflected a conciousness materially more "depraved" than that of any person guilty of murder."

Godfrey v. Georgia, Stewart...no difference than comparing to murders of other people...not "more depraved" than just generally depraved people (all murder = morally depraved)

"(A caution to the reader: do not use the creative arithmetic that [Justice] employees in counting the number of States that use the death penalty when you prepare your tax return; outside the world of our Eighth Amendment abolitionism-inspired jurisprudence, it will be regarded as more misrepresentation than math.)"

Gossip v. Gross, J. Scalia concurrence to denial of cert.

An application...shall not granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim [] resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States

Greene v. Fisher (2011),Scalia 9-0 interpreting AEDPA, Background: In Bruton, 1968 case, co-d. statements admissible but in 1998 Gray says Bruton rule says statements inadmissible. Issue: meaning of "clearly established federal law as determined by the SC of the US" Holding: clearly established means at the time of adjudication (despite Gray, which is case on point that would provide relief)

"as Justices Stewart, Powell, and Stevens remind us..."To be sustained under the Eighth Amendment, the death penalty must "comport with the basic concept of human dignity at the core of the Amendment.""

Gregg (Marshall Dissenting)

"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. "The instinct for retribution is party 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.""

Gregg v. Georgia (1976), Justice Stewart? (Majority)...quoting stewart concurrence in Furman in support of DP as retributive to prevent society taking matters into their own hands (sort of lex talionis situation)

"We now consider whether Georgia may impose the death penalty on the petitioner in this case. 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 suitable directed and limited so as to minimize the risk of wholly arbitrary and capricious action...in summary, the concerns expressed in Furman that the penalty of death not be imposed n 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..."

Gregg v. Georgia (stewart)

"The type of federal habeas review sought be petitioner here is different in critical respects than that authorized by Jackson v. Virginia. First, the Jackson inquiry is aimed at determining whether there has been an independent constitutional violation. . . . 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."

Herrera v. Collins (1993) Chief Justice Rehnquist

This is not to say that our habeas jurisprudence casts a blind eye towards innocence. In a series of cases culminating with Sawyer, 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. . . . 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 a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.

Herrera v. Collins (1993) Rehnquist holding, Innocence can play a role in federal habeas: threshold requirement if you are barred, but you CAN'T get actual relief on this (i.e., if there is some procedural requirement not met, a colorable claim of actual innocence allows you to get around procedural requirement and argue an otherwise barred constitutional claim). Q on cert: violate 8th to DP actually innocent person? Q by O'Connor: O'Connor's concurrence states the issue as whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew

"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."

Herrera v. Collins (1993), Chief Justice Rehnquist majority

Executive clemency has provided the 'fail safe' in our criminal justice system.

Herrera v. Collins (1993), Chief Justice William H. Rehnquist

"The theory underlying Penry and Lockett is that an appropriate balance can be struck between the Furman promise of consistency and the Lockett requirement of individualized sentencing if the death penalty is conceptualized as consisting of two distinct stages. ... over time, I have come to conclude that even this approach is unacceptable: It simply reduces, rather than eliminates, the number of people subject to arbitrary sentencing."

Justice Harry Blackmun (1994) Callins v. Collins...balacning individualization and guidance is cruicial

"work conducted on Mr. Davis's case was akin to triage... There were numerous witnesses that we knew should have been interviewed, but lacked the resources to do so."

In re Troy Davis (2009) (Executive Director of the Georgia Resource Center who represented Troy Davis on appeal.)

As long as our system affords capital defendants the procedural safeguards this Court has long endorsed, defendants who avail themselves of these procedures will face the delays Justice Stevens laments. There are, of course, alternatives. As Blackstone observed, the principle that 'punishment should follow the crime as early as possible' found expression in a [statute] decreeing that 'in case of murder', the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.' I have no doubt that such a system would avoid the diminishing justification problem [] but I am equally confident that such a system would find little support from this Court."

Johnson v. Tennessee (2009), Justice Thomas concurring to denial of cert and Justice Stevens dissenting from denial of cert. Justice Thomas says that Justice Stevens now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the "lengthy and inhumane delay" occasioned by his appeals would violate the Eighth Amendment's prohibition on "cruel and unusual" punishment. But there is no constitutional basis for this argument

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 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.

Jurek v. Texas (1976) (Justice Stevens, joined by Powell & Stewart, concurred by all other justices (White, Burger, Blackmun, Rehnquist, Marshall, and Brennan)

Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed.

Justice Harry Blackmun (1994) Callins v. Collins

We deal here with petitioner's ability to exercise intelligently his complementary challenge for cause against those persons on the venire who as jurors would unwaveringly impose death after finding of guilt

Morgan v. Illinous

"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."

Kansas v. Marsh, 548 U.S. 163, 188 (2006), Scalia

"nailing complaint to the wrong church door"

Kansas v. Marsh, 548 U.S. 163, 188 (2006), Scalia

"System mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measures"

Kansas v. Marsh, 548 U.S. 163, 188 (2006), Souter

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."

Kansas v. Marsh, 548 U.S. 163, 210-11 (2006), Souter

"To date the Court has sought to define and implement this principle, for the most part, in cases involving capital murder. One approach has been to insist upon general rules that ensure consitency in determining who receives a death sentence." (see California v. brown).[guidance] ... "At the same time the Court has insisted, to ensure restraint and moderation in use of capital punishment, on judging the "character and record of the individual offender and the circumstances of the particular offense as a constitutinally indispensable part of the process of inflicting the penalty of death."" (quoting woodson plurality; lockett v. ohio plurality). [individualization] "The tension between general rules and case-specific circumstances has produced results not all together satisfactory."

Kennedy v. Louisiana (2008), Justice Kennedy majority

"When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

Kennedy v. Louisiana (2008), Justice Kennedy majority

"[T]he resulting imprecision and the tension between evaluating the individual circumstances and consistency of treatment have been tolerated where the victim dies. It should not be introduced into our justice system, though, where death has not occurred."

Kennedy v. Louisiana (2008), Justice Kennedy majority

"Capital cases require a long-term commitment by those who testify for the prosecution...During formative years of [the victim's] adolescence, made all the more daunting for having to come to terms with the brutality." ... "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."

Kennedy v. Louisiana (2008), Justice Kennedy majority Retraumatization risk to rape victims in cases of DP because such cases take a LONG time and a LOT of testimony, and may do more harm than good..."it is not at all evident that the child rape victim's hurt is lessened when the law permits the death of the perpetrator."

"With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too diminishes the penalty's objectives." ... "As a result, punishment by death may not result in more deterrence of more effective enforcement...a State that punished child rape by death may remove a strong incentive for the rapist not to kill the victim."

Kennedy v. Louisiana (2008), Justice Kennedy majority undercuts the deterrent effect to not kill one's victims

The problem of unreliable, induced, and even imagined child testimony means there is a "special risk of wrongful execution.""

Kennedy v. Louisiana (2008), Justice Kennedy majority Risk with child rape victims in capital (nondeath) cases.

"The Court, accordingly, has upheld the constitutionality of aggravating factors ranging from whether the defendant was a "'cold-blooded, pitiless slayer,'" (quoting Arave v. Creech) ... All of these standards have the potential to result in some inconsistency of application...the resulting imprecision and the tensions between evaluating the individual circumstances and consistency of treatment have been tolerated where the victim dies. It should not be introduced into our justice system, though, where death has not occurred."

Kennedy v. Louisiana (2008), Justice Kennedy majority...About saving the death penalty for instances of loss of life, as a live victim can recover and move forward from their experience...death is different both for the act of murder and for the penalty of death. Its finality should be treated as such...

"'It's unsettling to me because it was so violent,'she told me, looking away. It took me a few minutes to realize she wasn't talking about the murder, but rather about [the defendant's] life."

Kotlowitz Essay about Jeremy Gross (quote from juror Elizabeth Stone who was initially strongly in favor of the death penalty)- Shows the importance of individualization. Jurors coming to genuinely care for Gross. Almost all referring to him as Jeremy rather than by his last name or as "the defendant" or otherwise. They felt he had been humanized by knowing his story and could better empathize with his position and the circumstances surrounding the crime. Some jurors felt he was capable of being rehabilitated and doing better. Rather than putting him to death with no chance at changing his life. Thinking about the individual facing the death penalty makes it harder to blindly give it, just because the law says the jury can do so...it goes from being an abstract concept in the law to a tangible decision made by the jury.

Ohio Mitigating circumstances (to counter the mandatory DP)...at least one to be 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 ...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."

Lockett v. Ohio (1978), Chief Justice Burger...Rule??

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."

Lockett v. Ohio (1978), Opinion by J. Burger; Sandra Lockett, who had encouraged and driven the getaway car for a robbery that resulted in the murder of a pawnshop owner, was found guilty under the statute and sentenced to death. The Court held that the Eighth and Fourteenth Amendments required, in all but the rarest capital cases, that sentencers not be precluded from considering a range of mitigating factors before imposing the death penalty. These factors included any aspect of a defendant's character or record and any circumstances of the offense proffered as a reason for a sentence less than death. The Court held that the Ohio statute did not permit the type of individualized consideration of mitigating factors required by the Constitution.

Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim

Martinez v. Ryan

"what the court fears is too much justice"

McCleskey v. Kemp (1987), Justice Brennan says the court fears giving relief based on arbitrary outcomes because it will blow up the entire criminal justice system for both capital and non-capital crimes.

"At most, the Baldus study indicates a discrepancy that appears to correlate with race."

McCleskey v. Kemp (1987), Justice Powell is saying simultaneously that he accepts the Baldus study yet that it "appears to correlate with race." Makes no sense. If you take the Baldus study at face value, then it proves that race is a factor in DP as likely to produce a DP as a recidivist murderer. Court is minimizing the results of the study (arguably in an unfair fashion)

" The 230-model variable model divided cases into eight different ranges, according to the estimated aggravation level of the offense.

McCleskey v. Kemp (1987, p. 1113), Justice Powell, Footnote 5 discussing baldus study. Race case; People charged with killing whites 4.3x more likely to get DP. court assumes arguendo that the study is valid; The Court held that since McCleskey could not prove that purposeful discrimination which had a discriminatory effect on him existed in this particular trial, there was no constitutional violation. Justice Powell refused to apply the statistical study in this case given the unique circumstances and nature of decisions that face all juries in capital cases

"For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever by really complete. The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler-plate' or a statement of the obvious that no jury would need." (see flashcard 20 for starting point on this)

McGautha v. California (1971) Harlan for majority...If the court were to try to give rigid bounds for what circumstances are death penalty eligible, it would be setting impossible limits, since there are so many different circumstances for the jury to consider in making its decision. Too strict of limits undermines the role of the jury and their ability to reason through what deserves the death penalty under the law. There is no exhaustive list of what should be considered and what cannot be, and setting a limit would improperly exclude some relevant circumstances and leave people out to dry. Harlan holds that the death penalty does not violate Due Process inherently and thus it isn't even necessary to attempt to catalog all of the possible permutations of circumstances (if it was even possible to do so in a meaningful way).

In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. The States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human being will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete. The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler-plate' or a statement of the obvious that no jury would need."

McGautha v. California (1971), Harlan, Due Process Challenge: Does the lack of standards violate DP? Standardless Discretion: Due Process, Harlan holds DP does not violate Due Process inherently, Impossible to catalog all possible circumstances in a meaningful way.

"To indentify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability."

McGautha v. California (1971), Justice Harlan

To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express those characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be-tasks which are beyond present human ability.

McGautha v. California, 402 U.S. 183 (1971). Harlan, stating that it would be virtually imposssible to construct beforehand the standards for sentencing to death

Unlike the court, I do not believe that the legislatures of the 50 states are so devoid of wisdom and the power of rational thought that they are unable to face the problem of capital punishment directly, and to determine for themselves the criteria under which convicted capital felon should be chosen to live or die."

McGautha v. Ohio (1971); Brennan Dissent (joined by Douglas and Marshall)

"To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability."

McGautha v. Ohio (1971); Harlan pt. III -- essentially saying due process cannot require what cannot be done????

I do not agree, however, that unconstitutional 'partiality,' for either Sixth Amendment or Fourteenth Amendment purposes, is established by the fact that a juror's standard of judgment - which he applies to the defendant on trial as he would to all others -- happens to be the standard least favorable to the defense. Assume, for example, a criminal prosecution in which the State plans to prove only elements of circumstantial evidence x, y, and z. Surely counsel for the defendant cannot establish unconstitutional partiality (and hence obtain mandatory recusal) of a juror by getting him to state, on voir dire, that if, in a prosecution for this crime, elements x, y, and z were shown, he would always vote to convict.

Morgan v. Illinois (1992)

" "Today, obscured within the fog of confusion that is our annually improvised Eighth Amendment, `death is different' jurisprudence, the Court strikes a further blow against the People in its campaign against the death penalty. Not only must mercy be allowed, but now only the merciful may be permitted to sit in judgment."

Morgan v. Illinois (1992), Majority by White, this quotation is Dissent by J. Scalia; In a majority opinion authored by Justice Byron R. White, the Court noted that the Due Process Clause of the Fourteenth Amendment and the impartial jury requirement of the Sixth Amendment, in combination, indicate that the criminally accused have a right to an impartial jury. It found that a juror who would automatically vote for the death penalty in criminal sentencing would be prejudiced. The Court also concluded that, in order to detect this prejudice, an adequate voir dire is necessary. Therefore, an adequate voir dire would include a question to determine whether a juror would automatically vote for the death penalty, upon request. Thus, the decision of the Illinois State Supreme Court was reversed.

Our cases in this area hold, not that the sentencer must give effect to (or even that he must consider) the evidence offered by the defendant as mitigating, but rather that he must 'not be precluded from considering, it . . . . Woodson and Lockett meant to ensure that the sentencing jury would function as a link between contemporary community values and the penal system;, they did not mean to specify what the content of those values must be. The 'conscience of the community' also includes those jurors who are not swayed by mitigating evidence.

Morgan v. Illinois (1992), majority by J. White

it is an affront to civilized members of the human race to say that we get full individualization of the ∆ ("parade of witnesses") but nothing about victim or harm caused. "Booth, supra, 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 evidences goes to the circumstances of the crime..."

Payne v. Tennessee (1991), TN supreme court Souter (joined by Kennedy) Concurrence: unless D knew about the information and used that as a part of why or how they killed the victim, the VIMS is irrelevant, even though D is being individualized, while the victim is not....should things be more balanced so that there is a voice for the murdered person as well?? There is a state vs. defendant power imbalance that is being helped by D having mitigating-individualizing evidence; they are given more credence in individualization...this is not a civil person-person case.

Payne v. Tennessee (1991), Justice Rehnquist for the majority

Payne v. Tennessee (1991), Justice Rehnquist for the majority. This holding means that the 8th Amendment is no longer a per se bar to admission of victim impact evidence. Oconnor clarifies This does not command admission of victim impact evidence under all circumstance

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. 'The 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." Payne v. Tennessee (1991), Justice Rehnquist for the majority. This holding means that the 8th Amendment is no longer a per se bar to admission of victim impact evidence. Oconnor clarifies This does not command admission of victim impact evidence under all circumstance

"Just as defendants know that they are not faceless human ciphers, they know that their victims are not fungibles..."

Payne v. Tennessee (1991), Souter (joined by Kennedy) Concurrence:

"If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, "evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse."(quoting O'Connor concurrence in California v. Brown)." "...Only then can we be sure that the sentencer has treated the defendant as a "uniquely individual human being (quoting Woodson)..."Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime." (quoting O'Connor concurrence in California v. Brown)."

Penry v. Lynaugh (1989) Justice O'Connor majority...individualization and consideration of background, character, and the crime...Penry was mentally retarded and less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and he experienced childhood abuse...a juror with that info could conclude that he is less morally culpable than defendants with no such excuse...we don't know the precise definition jurors assigned to the term deliberate or how the circumstances may sway them one way or the other...without the special instruction giving a clear definition of "deliberate" the Court cannot be sure the jury gave full effect to the mitigating evidence of his abuse and retardation...a two-edged sword (diminishes blameworthiness but increases probability of future dangerousness)...we conclude that (in the absences of instructions informing that the jury could consider and give effect to mitigating evidence) the jury was not provided with a vehicle for expressing its "reasoned moral response."

In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of [the defendant's] mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its 'reasoned moral response' to that evidence in rendering its sentencing decision.

Penry v. Lynaugh (1989) O'Connor; hard to discern legislative judgment/jury practices; if you had mental disability, you probably can't understand wrongfulness of conduct (today, this is known not to be true)

Position: court is talking about what violates due process...prisoners only have a right to point to violations of due process (bator took a limit on due process to be a limit on the actual habeas forum) full review model??

Profesor Peller

in between Bator and Peller models???

Professor Woolhandler

institutional competence model??

Professor bator

From the perspective of a proponent of capital punishment, abolition as a remedy for race-of-the-victim disparities in equivalent to reducing to darkness a town in which street lights have been provided on a racially unequal basis; the norm of equality is enforced but at the cost of a reduction in services to all.

Randall L. Kennedy Article on McCleskey, concluding that there is no satisfying remedy for addressing the race-of-the-victim equal protection problem in McCleskey. However, he concludes that of the remedies, the SC chose the worst: even while accepting Baldus as true, denying that a problem of constitutional magnitude exists and thereby barring future claims.He also says the decision is particularly unfortunate bc SC decisions don't just have justiciable value but moral value as well--sends a message to society and the states that this issue is not congnizeable, thereby sending a beacon signal of racially selective leniency.

From the perspective of a proponent of capital punishment, abolition as a remedy for race-of-the-victim disparities is equivalent to reducing to darkness a town in which street lights have been provided on a racially unequal basis; the norm of equality is enforced but at the cost of a reduction in services."

"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."

Roper v. Simmons

"In light of the trend both in this county and throughout the world...the imposition of the death penalty by those States which retain it for rape violate "evovling standards of decency" that mark the progress of [out] maturing society..."

Rudolph v. Alabama (1963) Justice Goldberg Dissent During this time, the court was heavily endowed by EP litigation as it relates to civil rights and compliance with Brown v Board. So Goldberg (and other justices) didn't wish to rock the boat of society or to influence their opinions one way or the other while the fight was happening...Warren didn't want to focus on the racially discriminatory application of DP in discussing the merits of DP 1/3 of the court at least wanted to consider that DP was unconstitutional for rape...for the first time that the court may apply the 8th amend to prohibit part of DP practices...Warren basically told Goldberg to keep race out of the position he was taking up against DP

No case in Alabama jurisprudence has been found which imposed the death sentence on a white person in a rape case. And this even though the crime be a particularly heinous one."

Rudolph v. Alabama (1963) on 14th amendment sect. 1

"In determining the question of intention the jury may consider social conditions and customs founded upon racial differences, such as that the prosecutrix is a white woman and the defendant is a negro man..." (citing McQuirter v. State 1953). "The imposition of the death sentence upon the petitioner by the jury and the subsequent entry of judgment thereon by the trial judge is a discrimination exercised in meting out punishment based solely on race, such discrimination being condemned in Yeikwo v. Hopkins."

Rudolph v. Alabama (1963) on 14th amendment sect. 1 - reason B for granting the writ

"...it is a denial of equal protection of the laws for a jury in a state court to consistently reserve the death penalty for negroes in rape cases."

Rudolph v. Alabama (1963) on 14th amendment sect. 1 - statement of the case argument

This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, if a legislature made overtime parking a felony punishable by life imprisonment.

Rummel v. Estelle (1980), Rehnquist, Habeas case (3rd strike rule) the Court held that the life sentence imposed by Texas law did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. Rummel was convicted of 3 non-violent felonies in less than 15 years, involving app. $230.

" And despite our general deference to state decisions regarding what the jury should be told about sentencing, I agree that due process requires that the defendant by allowed [to bring his parole ineligibility to the jury's attention] in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future.

Simmons v. South Carolina (1994) (heightened reliability), Oconnor concurring, if the prosecution does not argue future dangerousness, the state may decide that parole is not a proper issue for jury consideration.

Question sent out to trial court judge during jury deliberation: "Does the imposition of a life sentence carry with it the possibility of parole?" Judge's response/instruction: "You are instructed not to consider parole or parole eligibility in reaching your verdict. Do not consider parole or parole eligibility. That is not a proper issue for your consideration. The terms life imprisonment and death sentence are to be understood in their plain and ordinary meaning."

Simmons v. South Carolina (1994) Blackmun opinion (joined by stvens, souter, and ginsburg) Jury confusion over how life sentences and parole eligibility work and the court refusing to give context...Defense argues that the best possible rebuttal for them to raise against future dangerousness issue is to tell the jury he's not eligible for parole (which he isn't) but the court won't allow them to give that piece of mind to the jury as a defense...they argue then that prosecution shouldn't be able to argue future dangerousness. Justice a Souter argues that key terms must be defined to meet heightened reliailty standards and constitutionality [This rule is only triggered if the oly alternative to DP is Life Without Possibility of Parole] Some states, like TX, have "LWOP" that is actully only until 40 years and thereafter parloe can be considered...so this fits into an exception of being not true pure LWOP so that the court can keep secret the context around LWOP and parole eligibility like the trial court in Simmons

Policy may be reasonable, but "nothing in the Constitution requires it to be followed coast to coast"

Simmons v. South Carolina (1994), Scalia/Thomas dissenting

"whenever there is a reasonable likelihood that a juror will misunderstanding a sentencing term, a ∆ may demand an instruction on its meaning" [Anything not fully explained in this manner is "arbitrary or discriminatory" and "wantonly and freakishly imposed"]

Simmons v. South Carolina (1994), Souter/Stevens concurring

In answering the Special Issues submitted to you herein, if you believe that the State has proved beyond a reasonable doubt that the answers to the Special Issues are "Yes" and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to Death, then you shall answer at least one of the special issues "No" in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you.

Smith v. Texas (2004), Per Curiam. Court cites Penry II to say that nullification instruction is insufficient jury consideration of mitigating factors--TX has to rework the statute. The mitigating evidence had little to do with findings of deliberateness and dangerousness.

2 IAC prongs: 1. a screw up 2. harm (Prejudice)****

Stickland v. washington

The costs of applying the exclusionary rule even at trial and on direct review are well known: the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding. Moreover, the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant . . . . These long- recognized costs of the rule persist when a criminal conviction is sought to be overturned on collateral review . . . .

Stone v. Powell (1976), J. Powell

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 actor 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.

Strickland v. Washington (1984), Majority holding by O'Connor

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.

Strickland v. Washington (1984), Majority holding by O'Connor, Quotation is dissent by Justice Marshall

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."

Strickland v. Washington (1984), Majority holding by O'Connor; The Supreme Court held that: (1) counsel's performance must be deficient; and (2) the deficient performance must have prejudiced the defense so as to deprive the defendant of a fair trial. With Justice Sandra Day O'Connor writing for the majority, the Court counseled that in making a showing of deficient performance, the defendant must demonstrate that counsel's representation fell below an "objective standard of reasonableness." The Court also noted that to show prejudice, the defendant must show that there is a "reasonable probability" that, but for counsel's unprofessional errors, the result would have been different. Here, the Court reasoned that Mr. Washington's counsel was not unreasonable.

[I]t 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.

Strickland v. Washington (ineffective assistance of counsel) (1984), Dissenting Opinion of Justice Marshall: court held

"...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."

Woodson v. North Carolina (1976), Rehnquist Dissent?? Heightened Reliability....

Application of Constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect."

Teague v. Lane (1989) O'connor; Part IV in which CJ Roberts, Scalia and Kennedy join. After incorporation, all claims considered non-retroactive, EXCEPT teague makes two exceptions: (1) underlying conduct is no longer punishable (i.e., abortion, gay, flagburning); OR (2) right to counsel if you were tried before Gideon

These underlying considerations of finality find significant and compelling parallels in the criminal context. Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. The fact that life and liberty are at stake in criminal prosecutions 'shows only that "conventional notions of finality" should not have as much place as in civil litigation, not that they should have none."

Teague v. Lane (1989), Justice Oconnor delivered the majority

A case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.

Teague v. Lane (1989), O'connor concurring; After incorporation, all claims considered non-retroactive, EXCEPT teague makes two exceptions: (1) underlying conduct is no longer punishable (i.e., abortion, gay, flagburning); OR (2) right to counsel if you were tried before Gideon.

Certification of Appealability Denied "Writing for a plurality of four, Judge McCormick observed that the definition of mental retardation adopted in Texas involves three components ("(1) subaverage general intellectual functioning, (2) concurrent deficits in adaptive behavior, and (3) onset during the early development period..." pp 284-86: "his low IQ evidence bore no nexus to the crime...the Fifth Circuit invoked both the "uniquely severe" and the "nexus" elements of its test to deny him relief under Penry ... (penry claims "must fail because [tennard] made no showing at trial that the criminal act was attributable" to his condition)..."

Tennard v. Dretke (2004) Justice O'Connor

[I]n cases in which the jury charge at the guilt or innocent 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 another or anticipated that a human life would be taken.

Texas Code of Criminal Procedure Article 37.071 was amended in 1991, changing subsection (b) to incorporate the following "anti-parties" language into the second special issue to the jury in determining whether the defendant should be sentenced to death: "On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: . . . (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."

"No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or established a finding that race . . . was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed may include statistical evidence or other evidence . . . ."

This is North Carolina's Racial Justice Act

"[W]e simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the [constitutionally required] culpability requirement."

Tison v. Arizona (1987), Majority by Oconnor; The Petitioners aided in bringing an arsenal of lethal weapons to a prison in order to arm two convicted murderers for the purpose of escaping. The Petitioner Raymond Tison performed the role of flagging down the victims, robbed the victims and guarded them at gunpoint. He then watched the killing without making an effort to assist the victims. The Petitioner Ricky Tison's behavior was substantially the same. This conduct evidences a substantial participation in the crime and a reckless disregard for the value of human life. "[T]he 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 Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. We believe . .. that use of denaturalization as a punishment is barred by the Eighth Amendment."

Trop v. Dulles

"evolving standards of decency that mark the progress of a maturing society"

Trop v. Dulles (1958) Plurality: punishing desertion with denaturalization violates 8th A., which is to be gauged in light of (insert the quote here)

There is a radical disjuncture between the concerns of Furman and the concerns of the current doctrine. Furman identified the constitutional impermissibility of punishing some criminals more harshly because of their race or class; the constitutional imperative of reserving the death penalty for the "worst" murderers; the importance of guiding jurors' consideration of the factors relevant to the death-penalty decision; and the constitutional prohibition against widespread arbitrariness in capital punishment systems as a whole. Current doctrine, however, addresses these problems inadequately or not at all. But to believe that current system could have addressed these problems is to ignore fundamental limitations on our ability to construct fair and non-arbitrary capital punishment procedures. Our choice, then, is either to abolish the death penalty or to return to the pre-Furman regime. If the death penalty is to remain, we should discard the current, intricate doctrines so that we do not promote the illusion that we have progressed far in the past two decades."

UNKNOWN

I do not oppose torture as undeserved or nondeterrent (although I doubt that the threat of the rack, or of anything adds deterrence to the threat of execution), but simply as repulsive. Death is not; nor is the death penalty.

Van Den Haag's Commentary on the DP.;van den Haag, response to Reiman that DP isn't torture. He also goes on to respond to nathanson, arbitrariness is throughout the criminal justice system. That so many guilty are never punished is the greatest example

"...petitioners "grisly choice" between acceptance of ____ life sentence and pursuit of an appeal which might culminate in a sentence of death..."

Wainwright v. Skyes (1977) Rehnquist Majority

" [T]here would appear to be few first-degree murders which the [State] Supreme Court would not define as especially heinous or depraved - and those murders which do fall outside this aggravating circumstance are likely to be covered by some other aggravating factor . . . . [I]n the absence of evidence to the contrary, the trial judge who sentenced petitioner to death must be presumed to have been aware of the manner in which these statutory terms have been construed by the [State] Supreme Court. That judge's familiarity with the applicable precedents, however, could not possibly have served to guide or channel his sentencing discretion.

Walton v. Arizona (1990), Blackmun dissenting. The majority, by White, Upheld two important aspects of the capital sentencing scheme in Arizona — judicial sentencing and the aggravating factor "especially heinous, cruel, or depraved" — as not unconstitutionally vague. Here, Blackmun concluded that Arizona's definition of "heinous, cruel, or depraved" was so broad as to be meaningless. In other words, because there were "few first-degree murders which the Arizona Supreme Court would not define as especially heinous or depraved," the aggravating circumstance did not serve its constitutional role of narrowing the class of murderers who were eligible for the death penalty.

The trial judge's familiarity with the State Supreme Court's decisions, however, will serve to narrow his discretion only if that body of case law articulates a construction of the aggravating circumstances that is coherent and consistent, and that meaningfully limits the range of homicides to which the aggravating factor will apply.

Walton v. Arizona (1990), Justice Blackmun

" The Arizona Supreme Court stated 'a crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim's death, and the mental anguish includes a victim's uncertainty as to his ultimate fate.

Walton v. Arizona (1990), White for majority, mental anguish or physical abuse before death—this is constitutionally sufficient because it gives meaningful guidance to the sentencer, Blackmun, Brennan, Marshall, Stevens dissenting: AZ S. Ct. would not define as especially heinous or depraved, except dictionary and so vague as to not render any additional meaning to overcome Maynard.

"Had the jury been able to place [Defendants's] excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance,"

Wiggins v. Smith (2003), Oconnor for majority

"Stated simply, a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable."

Williams v. Taylor (Justice Oconnor) (2000) (interpreting AEDPA sec. 2254(d) "unreasonable application" provision).

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.

Witherspoon v. Illinois (1968), Stewart, Unconstitutional under the 6th Amendment to throw out jurors who have some reservations about the DP, must show they cannot follow the law in imposing the sentence, not just that they have some reservations about DP.

The only protections the Constitution afforded to state prisoners were those for which the text of the Constitution explicitly limited the authority of the States, most notably the Due Process Clause of the Fourteenth Amendment. And in the area of criminal procedure, the Due Process Clause was understood to guarantee no more than a full and fair hearing in the state courts. Thus, when the Court stated that a state prisoner who had been afforded a full and fair hearing could not obtain a writ of habeas corpus, the Court was propounding a rule of constitutional law, not a threshold requirement of habeas corpus.

Wright v. West (1992), Justice O'Connor Concurring with Thomas

[T]he only protections the Constitution afforded to state prisoners were those for which the text of the Constitution explicitly limited the authority of the States, most notably the Due Process Clause of the Fourteenth Amendment. And in the area of criminal procedure, the Due Process Clause was understood to guarantee no more than a full and fair hearing in the state courts. Thus, when the Court stated that a state prisoner who had been afforded a full and fair hearing could not obtain a writ of habeas corpus, the Court was propounding a rule of constitutional law, not a threshold requirement of habeas corpus."

Wright v. West (1992), Justice O'Connor Concurring with Thomas

"If Georgia were to narrow the class of death-eligible defendants to those categories [of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty], the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated."

Zandt v. Stevens (1982) Justice Stevens Majority??

"...an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder."

Zandt v. Stevens (1982), Justice Stevens majority

In Georgia, unlike some other States, the jury is not instructed to give any special weight to any aggravating circumstance, to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.

Zant v. Stephens (1983) Justice Stevens

In any event, the jury that sentenced respondent to death was never apprised of the 'threshold' theory relied upon by the Court. There is no basis for the Court's assumption that the jury did not attribute special significance to the statutory aggravating circumstances and did not weigh them, along with any other evidence in aggravation, against the evidence offered by the respondent in mitigation.

Zant v. Stephens (1983) Justice Stevens

" In Georgia, unlike some other States, the jury is not instructed to give any special weight to any aggravating circumstance, to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.

Zant v. Stephens (1983) Stevens, Prisoner had been sentenced to death in Georgia based on three aggravating factors, but a lower court overturned one of them. Stevens writes for the majority: The purpose of the aggravating factor is to create a threshold. Once that threshold has been reached, it is up to the jury, irrelevant that there is an invalid aggravating factor in there given that he was properly made death eligible by one, which is all that was required

Footnote: No member of this court has ever said the death penalty is firmly and finally constitutional because it was practiced at the time of the founding or because of the textual commitments to the death penalty in the constitution some retributive value lost because of how medicalized (almost euthanistic) executions are (weird argument...since death doesn't have to be painful to be retributive)

breyer???

"In the absence of jury instructions defining 'deliberately' in a way that would clearly direct the jury to consider fully [the defendant's] mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence . . . [and thus] cannot be sure that the jury's answer .. . reflected a 'reasoned moral response' to the [the defendant's] evidence."

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