Constitutional Law and the Death Penalty

Gideon v. Wainwright - Overturning Betts v. Brady

This case was decided in 1960 with a 9-0 decision, therefore overturning the precedent set by Betts v. Brady. In this case, Clarence Gideon was arrested in FL on a felony charge of burglary. Gideon was indigent and he requested a lawyer be appointed for him by the state gratis. Following the precedent of Betts, the state denied Gideon's request for a lawyer. So, Gideon had to represent himself at trial where he was convicted and sentenced to 5-7 years in prison. Gideon began to read all the lawbooks he could find in the prison library. Based upon his reading, he decided he had been denied his due process rights - his rights to a fair trial - because of the denial of his request to have a lawyer represent him at trial. Gideon filed an appeal to the FLSC which was denied. He then appealed to SCOTUS and they agreed to take his appeal. Gideon argued in his appeal to SCOTUS that he had been denied a fair trial in violation of his due process rights under the 14th Amendment , and he also alleged violation of the Equal Protection Clause of the 14th Amendment. SCOTUS ruled 9-0 in favor of Gideon and in fact, the Justices adopted wholesale J. Black's blistering dissent in Betts 21 years before. SCOTUS overruled the Betts precedent and established the Gideon precedent which is "that an indigent person facing a felony charge must automatically be given a lawyer to represent him or her at state expense. Now under Gideon, the states no longer have discretion in whether to give a lawyer to an indigent person.

Betts v. Brady and J. Black's Dissent

This case was decided on 1 June 1942 with a 6-3 decision. Smith Betts was arrested and charged with robbery in Maryland. Robbery is a felony. Betts was facing a year or more in prison if convicted. He was indigent, so he petitioned the state to appoint a lawyer to defend him gratis, and the state refused. Betts was forced to defend himself; he was convicted and sentenced to 10-12 years in prison. From prison, he sued the state of MD, alleging false imprisonment and violating his 6th and 14th amendment rights - Right to Counsel and Equal Protection. The MDSC rules against Betts. The Court says that having an attorney appointed in a felony case is not a right. It is done or not done at the discretion of the state, based upon the facts of the particular case at hand. The Court denied his motion for a new trial. The jurisprudential question since 1792 was: "Does the provision of the 6th Amendment about the right to assistance of counsel mean that 1.) a poor person has an automatic right to a lawyer appointed by the state, or 2.) does it simply mean that the state cannot dictate which lawyer you decide to employ? Ultimately, SCOTUS decided 6-3 against Betts. The dissenting opinion was written by J. Hugo Black, joined by R Jackson and WO Douglas. It is known as a blistering dissent - a very strong denunciation of the majority's opinion and a call to people of good will. J. Black wrote that this practice cannot be reconciled with common and fundamental ideas of fairness and right. It exposes a presumably innocent man to a greater danger of conviction merely because of his poverty. A man's guilt or innocence cannot be determined from a trial in which, as is true here, certainty that the defendant's case was accurately presented.

Background of United States v. Eichman (Application of a Test Case)

This case was decided on 11 June 1990 with a decision of 5-4. Background: In 1989, in a 5-4 decision, SCOTUS struck down a Texas statute that made it illegal to destroy/desecrate/damage a US flag for the purposes of political protest, to show contempt for the US government, etc. The central issue in this case was Freedom of Speech (i.e. symbolic speech) protections under the First Amendment. It should be noted that at time the Texas law was challenged, identical or similar laws were also in the statute books of 47 other states (aside: as you might imagine, if you were the attorney general of Texas arguing before SCOTUS, one of your arguments would certainly be that the Texas law was by no means a legal outlier, as reflected by the overwhelming number of states with the same law, and you would argue that therefore such laws against destroying or desecrating the US flag for political purposes reflected the will of the vast majority of the US population). SCOTUS found in favor of Johnson—though closely divided--holding that such laws were a clear violation of the Doctrine of Free Speech. It is important to remember in terms of the Doctrine of Precedent and its implications, when SCOTUS struck down/overturned/overruled the Texas law in Johnson, the identical or very similar laws in the other 47 states were also simultaneously invalidated. It was not necessary to wage a similar legal battle in the other 47 states (i.e. because of substantially similar facts, now applied from a different angle). It would be difficult now to imagine the firestorm of opposition to the Johnson decision that erupted across the country, in many cases encouraged by elected officials and other politicians. Public opinion polls demonstrated conclusively that the vast majority of Americans opposed the decision reached in Johnson, and believed that their elected officials should enact new legislation to make illegal again the desecration of the US flag as a form of political protest. Responding to this public outpouring of patriotism, President George H.W. Bush called on both Houses of Congress to pass legislation to again outlaw the destruction of a US flag as a form of political protest. In response to President Bush's clarion call for action, the 101st Congress overwhelmingly passed the Flag Protection Action of 1989. This law made it a federal crime to 'mistreat' the US flag for any reason (without regard to any political message being conveyed through the action of destroying the flag). Therefore, this legislation was a clear attempt by Congress to circumvent Johnson, which had proved so unpopular with most of the public. Though it must be stated that a good number of other citizens, especially those involved in protesting US foreign policy in Central America, believed that the Flag Protection Act was also unconstitutional because it violated the intent of Johnson. The members of SCOTUS, regardless of the side they took in Johnson, also saw the action by Congress as a blatant attempt to 'get around' Johnson; however, four justices presumably viewed this as the right response by Congress, while the other five justices (i.e. the Johnson majority) presumably viewed the legislation as unconstitutional because it was in conflict with the new precedent concerning Free Speech that was established by Johnson. And yet because of the requirements of Judicial Review, SCOTUS would be unable to issue any ruling on the Flag Protection Act until a case challenging the legislation made its way to SCOTUS from a lower court. It should be noted that in anticipation of the Flag Protection Act being challenged (immediately) as an unconstitutional violation of Johnson, the text of the act allowed for what is referred to "expedited" Judicial Review. This means that when a verdict is reached on a new law at First Instance (by the first court to sit on the case), any appeal will, in this instance, go immediately to SCOTUS for review (i.e. a final decision). So many political activists—and others—opposed to the Flag Protection Act realized that the only legal avenue for bringing a constitutional challenge of the act before SCOTUS under Judicial Review would be to be arrested for violating the act. One such activist was a young man by the name of Shawn Eichman. Because of his strong opposition to US foreign policy in Central America, he was willing to be arrested for violating the Flag Protection Act. And thus doing so, very importantly, Eichman would then have Standing in the eyes of the court to 'test' the constitutionality of the new and very controversial act passed by Congress. In order for Eichman's violation of the Flag Protection Act to have any effect, he knew he would have to violate the act both deliberately and publicly. For example, if Eichman decided to burn a US flag for political purposes on his own property in the dead of night, only in the presence of his like-minded friends, nothing would come of that violation. While in that scenario, Eichman's violation would certainly be deliberate, it would not, however, be a public act in the truest sense of the word. It would not be a public act because by its nature it would not lead to a prosecution, penalty, or injunction. We can safely say that Shawn Eichman knew exactly what he was doing! On the day the Flag Protection Act went into effect, at noontime, Eichman and several associates stood on the steps of the US Capitol building, positioning themselves next to several members of the Capitol Police. While normally not a smart idea when one is intent upon violating the law, we remember that Eichman's purpose that day was to be arrested for violating the Flag Protection Act (and only that law), so it was vital to his plan's success that his violation of the act is noticed and responded to by the officials of law enforcement. On that day, Eichman had two US flags in his rucksack, just in case. He had also notified a number of reporters, both print and television, and a number of photographers. He wanted to make sure that there would be no way his action would not be noticed. At the stroke of noon, Eichman reached into his rucksack and took out a US flag. He then proceeded to light the flag on fire while shouting against "compulsory patriotism." Then (in accord with his plan), he was promptly arrested by the Capitol Police for violating the Flag Protection Act. Thus Eichman had achieved his goal: he was now on his way to court to argue against (i.e. 'test') the constitutionality of the act. Since Eichman's action had occurred at the US Capitol, he was tried in federal district court in the District of Columbia. The judge ruled in favor of Eichman, holding that the Flag Protection Act was "wholly inconsistent" with Johnson. And because of the provision in the act that permitted for expedited Judicial Review, the US Attorney for the Federal District appealed the adverse decision to SCOTUS (thus skipping both an en banc review by the federal district court, or review by the 12th Circuit Court of Appeals). Because of the proviso to the legislation to which SCOTUS had agreed, it was now obligated to hear the government's appeal of the verdict in favor of Eichman.

J. Marshall's Concurring Opinion in Furman v. Georgia

This case was decided on 29 June 1972 with a 5-4 decision. J. Marshall, in his concurring opinion wrote that "Americans know very little about the Death Penalty. They know only whether they are for the Death Penalty, or whether they are against it." In this opinion, J. Marshall urged the citizenry to inform themselves about the Death Penalty. Citizens should seek empirical data on the Death Penalty to have a better understanding of the issue and its complexities.

Furman v. Georgia Question

This case was decided on 29 June 1972. In agreeing to hear Furman's appeal of his death sentence, the United States Supreme Court stipulated that it would entertain only one question: "Does the imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?"

Coker v. Georgia

This case was decided on 29 June 1977, 7-2. In 1974, while serving concurrent sentences for rape, kidnapping, one count of first-degree murder, and aggravated assault, Ehrlich Anthony Coker escaped from prison. He broke into a home near Waycross, Georgia. He raped the woman residing in the house and stole the family's vehicle. After his capture, he was tried and convicted of rape, armed robbery, and several other offenses. Coker was sentenced to death on the rape charge after the jury found two of the aggravating factors present for imposing a death sentence: the rape was committed by a person with prior convictions for capital felonies, and the rape was committed in the course of committing another capital felony, the armed robbery. On appeal, the Georgia state Supreme Court upheld the death sentence. Coker appeal then to the US Supreme Court, and SCOTUS agreed to hear his appeal. Justice Byron White wrote the majority opinion in Coker. He wrote that the Court's Proportionality Analysis was informed by objective evidence, which comes from the laws enacted by state legislatures and the behavior of sentencing juries (i.e. both 'sources' seen as reflective of evolving standards of decency). The Court found that it was always a minority of states that allowed the death penalty for the crime of rape. In 1925, 18 of then 48 states, the District of Columbia, and the federal government authorized the death penalty for rape of an adult woman. By 1963, the figure was 17 of 50 states, almost all of them in the Southern and Western United States, as well as the District of Columbia, and the federal government. In 1977, at the time of the Coker decision, only Georgia retained the death penalty for the crime of rape of an adult woman—that Georgia figuratively stood alone was, in the view of many, a strong example of the impact of evolving standards of decency. Further, SCOTUS reviewed 63 recent rape cases in Georgia. Only six of those involved a death sentence. The Georgia high court had set aside one, leaving death sentences intact for five among all the rape convictions since Furman. From the statistical evidence, the Court concluded that in at least 90% of rape cases, the jury did not impose a death sentence. Thus, the objective evidence from Georgia, the state's death penalty laws, and the behavior of sentencing juries, suggested that the imposition of the death penalty for rape in Georgia was rare. The US Supreme Court found for Coker and vacated his death sentence. The Court acknowledged that rape is an extremely serious crime: "Short of homicide, it is the ultimate violation of self." While stating that the crime of rape usually involves violence and injury, both physical and psychological, the Court asserted that it did not involve "serious injury." J. White wrote: "Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified of human life." In light of such a reality, SCOTUS held that the death penalty for rape was "grossly disproportionate and excessive punishment" for the rapist " ... who, as such, does not take human life." When considering the arguments for evolving standards of decency, I think a charge of 'arbitrariness' is almost inevitable when the US Supreme Court changes the rules by which the death sentence is imposed. This is especially true when the sentencing changes have a retroactive effect (i.e. when they are applied to earlier cases). While the courts do not in most instances make legal changes retroactive, they do make it so on occasion. An example would be the Court's decision in Witherspoon vs. Illinois, 1968, which held as unconstitutional the practice of excluding people from capital juries simply because they generally opposed capital punishment. The effect of this ruling was that dozens of death row inmates had their death sentences vacated because of unconstitutional errors in jury selection. Of course, the decision in Witherspoon was welcome news to those inmates who received new trials; however, the decision did nothing for the dozens who were executed even though their trial had been tainted with identical errors. Similarly, though the Court's decision in Coker declared the death penalty unconstitutional as the punishment for the rape of an adult woman, it did nothing for the 455 men (405 of them African American) who were executed for rape in the United States between 1929 and 1967 (when the unofficial moratorium on executions began). Had these men been tried under the Coker standard, they would have met a different fate. On 25 June 2008, in Kennedy vs. Louisiana, 5 to 4, the United States Supreme court extended its Coker precedent to the rape of a child, ruling that the death penalty for the rape of a child is unconstitutional under the Eighth and Fourteenth Amendments because it is disproportionate to a crime where the crime did not, and was not intended to result, in the death of the child. In addition to the proportionality argument, J. Anthony Kennedy, who wrote the majority opinion, asserted that capital rape statutes might harm children in three ways. First, the child victim may feel a moral responsibility for the offender's death. Second, prosecution may be deterred in some cases, particularly in intra-family rapes. And third, the offender would have no incentive to spare the life child's life. However, what J. Kennedy failed to highlight in the majority opinion in Kennedy were the gross racial disparities in prior capital rape prosecutions. J. Samuel Alito, joined by three other justices, wrote a passionate dissenting opinion. He denied that existence of the evolution of a national consensus against the death penalty for those convicted of the rape of a child. Moreover, he adamantly rejected the majority's application of what he termed to be a "blanket rule" barring the death penalty in all child rape cases regardless of the facts of those cases. J. Alito said the decision as to whether impose the death penalty for one convicted of child rape should depend on the facts of each particular case, i.e. the age the child, the sadistic elements of the crime, and the number of times the child had been raped.

McGautha v. California

This case was decided on 3 May 1971. This is an important case that laid the legal foundation for the decision in Furman v. Georgia. Dennis McGautha was sentenced to death for the murder of a store owner's husband during an armed robbery. McGautha's lawyers argued that unfettered jury discretion in imposing death for murder resulted in arbitrary and capricious sentencing (i.e. sentencing not governed by principle; in other words, the jury acts in a 'fickle' manner in imposing the death penalty) in California, and thus violated the Fourteenth Amendment guarantee of Due Process of Law. McGautha's trial court judge, following the procedure used in California at the time, instructed the jury as follows: "Now, beyond prescribing the two alternative penalties [the death penalty or life imprisonment], the law itself provides no standard of guidance for the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury." McGautha's claim was rejected in a vote of 6-3. In rejecting his assertions, the Court tacitly approved 1) unfettered jury discretion in death sentencing; and 2) capital trials in which guilt and sentencing were determined in one set of deliberations. Regarding unfettered jury discretion J. Harlan, Chief Justice Burger, and Justices Stewart, White, Black, and Blackmun, reasoned that: "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." This conclusion was based on the underlying belief that it was impossible to adequately guide capital sentencing discretion. In writing for the majority, J. Harlan framed the issue this way: "Those who have come to grips with the hard task of actually attempting to draft means of capital punishment sentencing discretion have confirmed the lesson taught by ... history ... 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." An interesting aspect of the Court's decision in McGautha is its failure to address the legitimacy of jury death sentencing itself. Very few states allow jury sentencing in other areas of American criminal law. Jury sentencing is also absent in most other countries. The proponents of the abolition of the death penalty were disappointed with McGautha but not surprised. Some abolitionists remained hopeful because in the majority's opinion there was a suggestion that the Court had not foreclosed entirely the possibility of a successful Eighth Amendment challenge. Indeed, on 28 June 1971, less than 60 days after its decision in McGautha, SCOTUS agreed to review a case that challenged the constitutionality of the death penalty. In its review orders, the Court stipulated that it would entertain only one question: "Does the imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?" The case was Furman vs. Georgia.

Reasons for NOT subjecting juveniles to the Death Penalty

--Our society, as represented by our legislators, prosecutors, judges, and juries, has rejected the juvenile death penalty --Other nations, including many that share our Anglo-American heritage, have rejected the death penalty for juveniles --Studies show that the threat of the death penalty does not deter potential juvenile murderers because juveniles do not consider the possible consequences prior to committing their murderous acts and because, even if they did consider these consequences, they would probably realize that very few juveniles actually receive the death penalty --Statistically, juvenile offenders are especially likely to be rehabilitated or reformed while in prison, thus rendering the juvenile death penalty especially misdirected --The death penalty for offenders who were juveniles when they committed a capital crime does not serve a legitimate retributive purpose, since juveniles are generally less mature and responsible than adults, and should therefore be viewed as less culpable than adults who commit the same crimes. Moreover, another compelling reason for treating juveniles differently than adults in the administration of justice is that juveniles are already treated differently in a legal sense from adults in other areas of life, such as driving, voting, gambling, marriage, and jury service.

Reasons FOR subjecting juveniles to the Death Penalty

--The views of other nations are irrelevant to the proper interpretation of our Constitution, at least absent a strong consensus within our own society --The threat of the death penalty can deter potential juvenile murderers, or at least the judgments of legislatures and prosecutors to that effect deserve deference --The most heinous juvenile murderers, who are the only ones likely to receive the death penalty, are not, statistically, good candidates for rehabilitation or reform --There certainly are some juvenile murderers who are sufficiently mature and responsible to deserve the death penalty for their crimes, and thus the juvenile death penalty serves a legitimate retributive purpose. As for other areas of our legal system that distinguish between adults and juveniles, proponents of capital punishment for some juvenile offenders emphasize that while juveniles may not vote conscientiously or drive safely, they do know that killing other human beings is wrong. According to proponents of the juvenile death penalty, another reason for supporting the death penalty for at least some juvenile capital offenders, and what makes the current practice of excluding death-eligible juveniles from the death penalty discriminatory, is that the designation of 'juvenile' is arbitrary and only a proxy for more relevant characteristics. Not until the sixteenth and seventeenth centuries did the young begin to be viewed as other than 'miniature' adults or property. Before that time, history tells us juveniles as young as five and six years old were expected to assume the responsibilities of adults and, when they violated the law, were subject to the same criminal sanctions as adults. Moreover, it is asked whether there is a significant difference in regard to any relevant social characteristics between a 17- and 18-year-old, other than what has been created by law? Is it really meaningful to consider a 17-year-old a juvenile and an 18-year-old an adult? This area is one where reasonable people might disagree.

4 Important Factors Regarding the Early Era of the DP

1) As the colonies made the transition from statehood status, the northern colonies dropped the DP for religious offenses; the Southern colonies dropped the DP for most property crimes. 2) There was the recurring phenomenon of "Jury Nullification" where a jury would refuse to convict a defendant even though the jury believed beyond a reasonable doubt the defendant was indeed guilty of the crime. This was because a good number of the crimes carried an automatic death sentence upon conviction. Many jurors has strong objections to the imposition of the death penalty in cases where there was not substantial property damage or grievous bodily harm to the victim. Many jurors felt the DP was a disproportionate response to a crime, but the jury had no discretion in the sentence imposed. If they voted to convict, the defendant would be executed, so they refused to convict the defendant to avoid the death penalty. 3) States began to limit or reduce the number of crimes that carried an automatic death sentence upon conviction. In 1794, PA became the first state to establish degrees of murder. The DP was then reserved only for first degree murder cases. 1st degree murder meant one of two things: a.) the premeditated and deliberate taking of the life of another OR b.) the taking of the life of another during the commission of a kidnapping, rape, arson, burglary, and/or robbery. By 1908, all the other states had established some form of degrees of murder. 4) Gradually, statutes in some state began to change to give juries the discretion in 1st degree murder cases to either impose the DP or not. In those states, the DP was no longer automatic in first-degree murder cases. In 1848, Tennessee became the first state to introduce a discretionary statute for first-degree murder cases. By 1963, all 50 states had a discretionary statute.

3 Factors the Court must consider before it overturns or overrules a precedent

1.) Age of the Precedent: the older the precedent, the more likely it is that the precedent has already survived legal challenge. There is what is known as super-precedent which is a precedent that, because of its age and the gravity of its content, it is widely viewed as beyond the scope of all legal challenges. Ex: Brown v. Board of Education (1954). Counter ex: Roe v. Wade is not viewed as a super precedent not because its substance is not of the utmost importance, but because Roe is constantly challenged in all aspects of the decision in both federal and state cases. 2.) The nature and extent of public and private reliance on the rights granted by the precedent. Ex: Planned Parenthood v. Casey (1992) - the case was focused on Roe v. Wade, and the PA legislature was hoping that SCOTUS would use Planned Parenthood to overturn the precedent of Roe. It was a 5-4 vote to overturn Roe, but then J. Kennedy changed his mind. 3.) The consistency or inconsistency with similar laws and precedents.

Principles of the Rule of Law

1.) All government actions and decisions must be in accord with written and promulgated rules and regulations. The government must follow the law. 2.) The government must give written and timely notice before it can legally deprive someone of life, liberty, or property. This is Due Process - due process rights state that the government must follow all designated laws and procedures in seeking to infringe on a person's rights. 3.) As far as possible, the law should be administered fairly and impartially, regardless of race, color, religion, ethnicity, gender, or physical disability. These are the six protected categories. This falls under Equal Protection in the 14th Amendment. 4.) Courts must give written reasons for its decisions, based upon the law.

J. Marshall's 5 Areas that need investigation in regard to the DP

1.) Are there racial disparities in the implementation of the Death Penalty? 2.) What role, if any, did poverty play in the backgrounds of those sitting on Death Row? 3.) What role has ineffective assistance of counsel played in the case of someone on Death Row? 4.) In each specific Death Row case, how much do we know about the discretion/decision of the prosecutor to seek the DP in that case, rather than a plea bargain? 5.) Are there areas/regions of the country, or certain states, in which the DP is imposed more frequently than in other regions or states?

Members of the Gerry Commission

1.) Elbridge T Gerry: A prominent Manhattan lawyer 2.) Matthew Hale: An Albany lawyer, and great-grandson of Nathan Hale - a schoolteacher in CT who was arrested by the British for being a spy. His last words were "I only regret that I have but one life to lose for my country." 3.) Dr. Alfred Southwick: a Buffalo dentist. He was a good friend of Thomas Edison and he was very proficient in the field of electricity. In 1881, he invented the electric chair.

J. Breyer's 2 reasons why a court should not overturn a precedent

1.) If the original court making the decision - establishing the precedent - got it wrong. This is not enough of a reason to overturn. 2.) If the current court would reach an opposite decision based upon the same facts that the original court had at hand. There is only one reason for a precedent to be overturned - if the application of the precedent is causing significant harm to the country. Example: Betts. v. Brady (1942)

Manifestations of the Rule of Law

1.) Independent and Impartial Judiciary 2.) A system of checks and balances 3.) The Doctrine of Separation of Powers - each branch can only exercise the powers that the Constitution specifies 4.) Free and fair elections 5.) A free press - Thomas Jefferson wrote, "If i were give the choice between a government without newspapers, or newspapers without government, I wouldn't hesitate to choose the latter."

Six Aspects of the New Justice System presented by Aeschylus

1.) Justice system is now public and political vs. previously it was private and familiar (the family exacts its revenge) 2.) Introduces an orderly process for settling disputes vs. uncontrolled violence 3.) Introduces a neutral or impartial decision-maker (judge or jury) who stands apart from the interested parties in the case 4.) There are reasoned arguments of the facts of the case vs. the blood feud. Under this system, evidence is introduced and witnesses are questioned. 5.) There is open debate about which principles of justice should be applied to the facts of the case. A verdict is then reached by the neutral and impartial desicion-maker/s. 6.) Families of murder victims cede the right and role of avenger of the murdered to the state; the family must abide by the decision of the court regardless of how vehemently it might object to the verdict.

3 Points made by Justices in Gideon Decision

1.) No person who has not been trained in the law can ever hope to prevail over an experienced prosecutor at trial. 2.) The public cannot have confidence in the correctness of the verdict of the defendant's side has not been adequately presented. 3.) A constitutional right, in this instance the 6th Amendment's guarantee to a right of legal counsel at trial, is not truly a right if the person has no realistic hope of exercising that right. SCOTUS unanimously decided to overturn the precedent of Betts because they came to believe that the precedent was causing significant harm to the country - that most probably, innocent people are going to prison because of the denial of legal counsel to an indigent person.

3 Core Values of Stare Decisis

1.) Predictability (from the Ancient Romans): a person going to court can have reasonable confidence in what laws will be applied in her case. The public can have confidence in the correctness of the court's verdict. 2.) Consistency: the Courts will speak with "one voice" on a particular issue. Ex. Obergefell v. Hodges (2015) - this avoids the reality of geographic justice. 3.) Stability: the legal system develops organically through court decisions and precedents that are established and then applied in future cases with substantially similar facts. The decisions of a higher court must be followed by the lower courts.

Methods of Execution

83% hanging, 14% electrocution (1890 on...), and 3% other (firing squad or burning).

Gregg v. Georgia Background

A jury found Troy Gregg guilty of murdering two men during an armed robbery. He was sentenced to death separately for the two murders ,and also for the armed robbery. On appeal, the Georgia Supreme Court affirmed the death sentence for the two murders but vacated the death sentence for the armed robbery conviction. Gregg then challenged his remaining death sentence for the murders, claiming that the capital sentence was a 'cruel and unusual punishment' that violated his rights under the Eighth and Fourteenth Amendments.

The Transition from Locally Authorized to State-Authorized Executions

A major trend in the Early Era took place during the Civil War. Before the Civil War, all legal executions were conducted locally—generally in the jurisdiction in which the crime was committed (in accord with the 6th Amendment provision)—however, on 20 January 1864, a man by the name of Sandy Kavanaugh was executed at the Vermont State Prison. Kavanaugh was the first person executed under state authority, as opposed to local authority. This shift in jurisdiction from local authority to impose the death penalty to state authority was gradual. After the execution of Kavanaugh, there were only about two state- or federally-authorized executions per year well into the 1890s; the rest of the executions occurring then remained under state auspices. Yet this pattern shifted dramatically during the next 30 years. In the 1890s, about 90 percent of executions were imposed under local authority; however, by the 1920s, about 90 percent were imposed under state authority. By 1905, 23 states—none of them in the south, incidentally—imposed the death penalty only under state authority; eight southern states did so between 1906 and 1925. However, Louisiana and Mississippi continued to allow executions under local (i.e. county) authority into the 1950s. Today, all executions are imposed under state authority, except those carried out by the federal government and the US military.

'Successful' and 'Botched' executions

A successful execution depends on a number of factors: a) skill of the executioner, b) proper placement of the knot in the rope, c) properly measuring the distance to drop, and d) the proper amount of pressure on the neck. All of these would produce a sudden jerk which severed the spinal cord and brought about a quick and painless death. Executions were successful about two-thirds of the time. One-third of the time there was a botched execution. These occurred usually because the executioner was inexperienced. He would miscalculate where the knot in the rope should be put, the height of the drop, or the weight of the condemned. So, when this happened, a condemned man was left suspended in the air, choking, for often 25-40 minutes, until he slowly strangled to death. Since executions were public, it was a grotesque spectacle for people to see. Many would complain that the particular execution was long, painful, and cruel. People reacted to botched executions in one of two ways: a) In the 1880s, there was a growing sentiment to abolish the death penalty, or b) The vast majority supported the death penalty, but objected to the infliction of pain on the condemned. So, government officials were in the 1880s trying to get ahead of public opinion on this issue and reform the method of execution.

SCOTUS decisions of Death Penalty Cases (1920-1929)

At the close of the Early Era, 1920-1929, SCOTUS decided only two death penalty cases. The first case was Moore vs. Dempsey, 19 February 1923, in which SCOTUS ordered a new trial for five African American defendants who, the Court asserted, did not receive a fair trial. It is interesting to note that Moore was the first case to come before SCOTUS in the 20th century related to the treatment of African Americans in the criminal justice systems of the Southern states. According to SCOTUS, the five "were hurried to conviction under the pressure of a mob without any regard to their rights and without according them Due Process of Law." The second case was Biddle vs. Perovich, 31 May 1927. This case set the narrow, and interesting, precedent that the president of the United States has the authority to commute a federal death sentence to life imprisonment without the consent of the defendant.

North v. South in Early Era of the Death Penalty

Both the Northern and Southern states imposed the DP for capital crimes, but they also differed significantly in what each regarded as a capital crime. The difference has to do with the way of life in the respective geographic regions. The northern colonies were founded by religious dissidents - people seeking religious freedom and tolerance. Two northern colonies punished certain theological and religious offenses with the DP. People were executed for witchcraft, idolatry, sexual offenses, adultery, sodomy, and bestiality. The Southern colonies punished various property crimes with death, as was true also in England. This reflected the land-based economy of the South; a farming economy.

Background on Death Penalty

Death Penalty has been part of the American landscape from the beginning and has always generated controversy. Through the centuries, millions of Americans have had ambivalent feelings about the Death Penalty. 2 Existential Questions: 1.) Are some people, because of their horrendous, murderous conduct, unfit to live? 2.) If so, how do we determine who is worthy of the death penalty? 2 Connections: 1.) We need to pay attention to the almost unlimited discretion of prosecutors in a capital case to seek the death penalty or lesser sentence in a plea bargain. Virtually everyone on Death Row is there because of the decision of a prosecutor. 2.) Given that in the last 20 years, a not insignificant number of people on Death Row have been exonerated, Americans must grapple with the question of how comfortable and resigned we are to allowing the Death Penalty to continue when its existence will eventually lead to the execution of an innocent person.

Disparity vs. Discrimination

Disparity of course refers to numerical differences based on some characteristic, such as race. There has been a pattern of racial disparity in the imposition of the death penalty in the United States because the penalty has been imposed on African Americans disproportionately to their numbers in the adult population. The United States Supreme Court has held (see below) that as long as racial or other disparities can be justified by other relevant legal factors (e.g., that blacks commit a disproportionate number of capital crimes), there is nothing inherently problematic with those disparities in the administration of capital punishment. For the most part, the Court considers it legally irrelevant that disparities may be wholly or partially products of factors antecedent to the criminal action (e.g., growing up in a racist or psychologically impoverished environment, etc.). Discrimination, on the other hand, is a violation of the Equal Protection Clause of the Fourteenth Amendment and of the special restrictions (as we have seen) on the use of capital punishment under the Eighth Amendment's prohibition on the infliction of cruel or unusual punishment. Discrimination, then, is evident to the Court when the death penalty is intentionally or purposefully imposed on persons because of some characteristic, such as race, and not because of or in addition to legitimate sentencing considerations. A number of cases demonstrate that proving intentional discrimination in particular cases is an extremely difficult task.

SCOTUS Decisions of Death Penalty Cases (1950-1959)

During the decade of the 1950s, SCOTUS decided five death penalty cases. In Solesbee vs. Balkcom, 20 February 1950, the Court ruled that a death row inmate did not have a right to a judicial determination of insanity after conviction. In Stein vs. New York, 15 June 1953, the Court made clear that defendants had to substantiate their claims that their confessions were indeed coerced. In Alcorta vs. Texas, 12 November 1957, SCOTUS addressed an error made by the Texas Court of Criminal Appeals in dismissing Alcorta's Writ of Habeas Corpus alleging that he did not receive a fair trial and Due Process of Law. In Fikes vs. Alabama, 14 January 1957, the Court further expanded its position on coerced confessions by ruling that in determining a confession's admissibility it is necessary to consider "the totality of the circumstances" that preceded the confession. Finally, in Ciucci vs. Illinois, 19 May 1958, the Court ruled that it was not fundamentally unfair for the prosecution to separate Ciucci's four contemporaneous murder charges and attempt to convict him at three separate trials on the same evidence to achieve its desired result of a capital verdict.

What are the Historical Periods of the Death Penalty?

Early Era: 1608-1929 Pre-Modern Era: 1929-1977 Modern Era: 1977-Present

The Ritual of Execution in the Early Era

Executions were public events, and they drew numerous spectators. The execution was carried out in the locality where the crime was committed. It lasted 3 to 4 hours in total. These are the steps in the ritual: 1.) The condemned person is taken from the place of confinement to the place of execution, usually the main square of the locality, with spectators lining the route. In some places, but not all, the condemned wore special clothing. 2.) A minister gave a sermon on the wages of sin and the necessity of living a virtuous life. Often, the sermon was published. 3.) The sheriff or another government official read aloud the warrant of execution (and sometimes the sheriff gave his own speech). 4.) The condemned person is allowed to speak his "Final Words." These were usually words of repentance and remorse, or affection for one's family. 5.) Hymns are sung and a final blessing or prayer is said. 6.) The execution is carried out. After the execution, the body would be left hanging in the gallows for a number of hours, or for several days. This was done clearly for the reason/motivation of deterrence. Government officials believed that seeing the body of a just executed person would serve as a powerful visible reminder to citizens about the possible consequences of a life of crime, and also of the seriousness with which the government will deal with criminals.

NAACP's Legal Defense and Education Fund

Founded in 1939 by Charles Hamilton Houston, a Harvard-trained lawyer. Mr. Houston's young protegee was Thurgood Marshall, who had graduated from Howard University Law School during Mr. Houston's tenure as dean there. The Legal Defense and Education Fund (the LDF) was a coalition of lawyers, clients, staff, clerks, consultants, and exert advisors that had as its founding goal to dismantle legalized racial segregation and attack racial discrimination in the United States through the courts. The LDF played a major role in legal advances for African Americans and other minorities in the 1950s and 1960s by winning challenges to, for example, protective covenants that segregated neighborhoods by race, and the desegregation of public schools from elementary schools to colleges and universities. In 1961, when President Kennedy nominated Thurgood Marshall to the United States Court of Appeals for the Second Circuit, Marshall handed off the reins of the LDF to Jack Greenberg, a white man who received his law degree from Columbia University. Fund lawyers turned their attention to the death penalty in the 1960s primarily because of what they believed to be the racially discriminatory way it was being administered. Philosophy professor and anti-death penalty activist Hugo Adam Bedau referred to the LDF's efforts to challenge the death penalty as "the final act of the Civil Rights Movement." Later, however, when they began to accept clients facing execution, the LDF lawyers began to realize that they would need to raise issues in court that had nothing to do with race. With this unanticipated change in focus, there was no longer any reason for the LDF not to take on cases of death row inmates who were white, and so they did. In attempting to achieve the abolition of the death penalty through the courts, LDF lawyers Michael Meltsner, Frank Heffner, and LeRoy Clark plotted a general strategy to convince the courts that the death penalty was imposed in a discriminatory way against minorities, and to otherwise block all executions by challenging the legal protocols employed in capital cases (the "Moratorium Strategy"). If successful, their plan would achieve three goals. First, it would make those who were still executed appear to be unlucky participants in a death penalty lottery rigged against them. Second, if the death penalty was only carried out on rare occasions, it would demonstrate that the death penalty was not really needed for society's protection. Third, if all executions were blocked, the resulting logjam of death row inmates would lead to an inevitable "bloodbath" if the states ever began trying to empty their death rows by executing en masse. The LDF lawyers believed that most citizens would not be able to stomach such gore carried out in their names, and then would demand the abolition of the death penalty. The LDF's plan would be quite expensive but, fortunately for the Fund attorneys and other cooperating lawyers, Greenberg was able to use a million-dollar grant from the Ford Foundation to help finance the project. From 1963 until 1972, the LDF represented more than 300 death row inmates. From these early experiences, an important project of the LDF emerged. It was the writing and publishing of a 'how-to' manual that was later dubbed the 'Last Aid Kit.' The 'Kit' included sample petitions for a Writ of Habeas Corpus, application forms for stays of execution, and sample legal briefs that contained every significant constitutional argument against the death penalty—everything a lawyer would need to petition a court to postpone an execution. In time, the 'Kit' was distributed to thousands of lawyers.

Early Era Stats for Capital Punishment

From 1608-1929 there were 10,598 executions, averaging 33 per year. From 1900-1929, however, there were 3,664 executions, averaging 122 per year. The people executed were 41% white, 53% black, and 6% other minority race. 6 out of 10 executed were minorities. 96% executed were men. The average age for someone being executed was 30 years old, but the youngest was 12 and the oldest was 83.

Furman v. Georgia Decision

Furman's appeal proved successful and, on 29 June 1972, the last day of its term, SCOTUS set aside death sentences for the first time in its history. Furman's sentence was commuted to life imprisonment. In its 5-4 decision in Furman (which was consolidated for purposes of review with Jackson vs. Georgia and Branch vs. Texas), the Court held that capital punishment statutes in the three cases were unconstitutional because they gave the jury complete discretion as to whether to impose the death penalty or a lesser punishment in capital cases. Although nine separate opinions were written in the case (a very rare occurrence), the majority of the justices—Brennan, Douglas, Marshall, Stewart, and White, who all had been members of the Warren Court—highlighted that the death penalty had been imposed arbitrarily, infrequently, and often selectively against minorities (though only a few pages of the long decision addressed the topic of racial discrimination). The majority agreed that the statutes in question allowed for cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The four dissenters in the decision—all nominated by President Nixon—were Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist. The themes that united the four dissenting opinions were the need for judicial restraint (i.e. respecting the decisions of the lower courts), as well as the importance of states' rights, the separation of powers, and the Doctrine of Stare Decisis. Remarkably, Justices Burger and Blackmun noted that had they been legislators themselves they would have voted to abolish or severely restrict the death penalty. Furman totaled 50,000 words and 243 pages, and at the time was one of the longest decisions in the Supreme Court's history. A very important practical effect of Furman was the Supreme Court's voiding of 41 state death penalty statutes and the sentences of approximately 600 inmates on Death Row in 32 states and the District of Columbia. Depending on the state involved, those sentenced to death received new sentences of life imprisonment, a term of years, or, in a few cases, new trials. An interesting question is why SCOTUS entertained the Furman challenge to unfettered jury discretion in capital cases in the first place, having just the year before rejected the same claim made in McGautha. I think the answer lies in the particular constitutional right that was being challenged. As criminologist David Garland notes, "The position that the plurality in Furman appeared to be taking ... was that while the process of having defendants sentenced to death by juries lacking formal guidance is consistent with the Fourteenth Amendment's requirement of Due Process, the product, an arbitrary and freakish pattern of death sentencing, is condemned by the Eighth Amendment." That argument was persuasive enough to change the positions of Justice Stewart and White, who voted against McGautha (who lost by a 6 to 3 margin, as we saw), but in favor of Furman. Interestingly, making no difference was the change in the composition of SCOTUS between the two cases. Although Lewis Powell replaced Hugo Black and William Rehnquist replaced John M. Harlan, Powell and Rehnquist were in the minority in Furman just as Black and Harlan voted against McGautha. Another factor that seems to have influenced the Supreme Court's decision in Furman was the decision reached in Ralph vs. Warden by the US Fourth Circuit Court of Appeals. On 11 December 1970, the Fourth Circuit became the first court to declare the death penalty to be an unconstitutional violation of the Eighth Amendment's prohibition against cruel and unusual punishment. William Ralph had been convicted of rape in Maryland in 1961 and sentenced to death. Although he did not use violence during the attack, and the victim showed no visible signs of trauma, Ralph did threaten to kill the victim and her young son, who was asleep in another room, if she resisted. Following years of litigation, Ralph's court-appointed attorney, assisted by an amicus brief from the Legal Defense Fund of the NAACP, presented the Eighth Amendment claim to the appeals court. In deciding the case, the court concluded that the death penalty was not necessarily unconstitutional as the punishment in all rape cases, but it was unconstitutional in rape cases were the victim's life was neither taken or endangered. The court also highlighted that death was an excessive penalty for rape because only a few jurisdictions authorized it, and even in those it was seldom imposed. Of course, the court's decision in Ralph only applied to those condemned to death for certain forms of rape. Some critics of the decision questioned whether the victim of the rape, in fact, was not endangered. What if the victim had not submitted voluntarily? Despite the various criticisms of the decision, Ralph did demonstrate that the Eighth Amendment's prohibition against cruel and unusual punishment could be applied successfully in capital cases. Moreover, law professor Corinna Lain argues that Furman was an important case to the justices both jurisprudentially and personally. Lain writes, "Furman was a decision the justices wanted to make, not one they had to make (or even had substantial support for making). The US Supreme Court invalidated the death penalty because five justices were convinced it was the right thing to do and the right time to do it."

William Kemmler

He lived in Buffalo. He was a fruit peddler and an alcoholic. One night he was very drunk and he accused his girlfriend, Tillie Ziegler, of seeing another man. They argued, he got a hatchet, and he brutally murdered her. He was arrested and charged with first-degree murder. He was convicted after a four-day trial, and sentenced to die by the electric chair.

David Bennet Hill

He was the governor of NY in 1886 and he established a special select committee to examine how NY State executes prisoners and to recommend reforms. Gov. Hill gave the committee, known as the Gerry Commission, a single mandate: to find a method of execution that is both humane and efficient. So their purpose was to reform - not to reform through abolition, but reform in order to preserve the death penalty.

Proportionality Analysis

In 1977, the same year as Coker, the United States Supreme Court, under Proportionality Analysis, held in Eberheart vs. Georgia, 7 to 2, and Hooks vs. Georgia, 7 to 2, that the death penalty is a "disproportionate and excessive punishment" for the crimes of kidnapping and armed robbery respectively, and thus constituted "most certainly cruel and unusual punishment." Traditionally, in Southern states and some others, the crimes of kidnapping and armed robbery, like rape, had been capital crimes, regardless of whether the victim died or not. Thus, in essence, the four above cases, Coker, Kennedy, Eberheart, and Hooks, have in effect limited/narrowed the death penalty only to 'aggravated' or capital murders.

Juveniles who have committed Capital Crimes

In 1988 and 1989, the United States Supreme Court decided three cases that dealt with the age of the offender at the time the crime was committed. At issue was the question of whether the United States Constitution permitted the execution of juveniles, that is, individuals who committed their crimes prior to their eighteenth birthday. In Thompson vs. Oklahoma, 1988, SCOTUS held that the Constitution prohibited the execution of a person who was under 16 years of age at the time of his or her offense. In this case, the Court stipulated that its decision applied only when a state had not specifically legislated the death penalty for such minors. The following year, in 1989, in Stanford vs. Kentucky and Wilkins vs. Missouri, SCOTUS determined that the Eighth Amendment did not prohibit the execution of persons who were 17 years of age (in Stanford) or 16 years of age (in Wilkins) at the time of their offenses. Taken collectively, these three decisions meant that SCOTUS would allow the executions of 16- and 17-year-olds but would not allow the execution of persons who were under the age of 16 at the time of their capital offenses. And now with this category of persons we consider the issue in the context of the "evolving standards of decency that mark the progress of a maturing society." By 2002, it was evident that a national consensus had developed about the desirability of executing juveniles. For example, in a 2020 Gallup poll , only 26% of respondents favored the death penalty for those who committed a capital offense(s) when a juvenile, 69% opposed it, and 5% did not know or declined to answer. Among the subgroups identified in the poll results, only 31% of men, 21% of women, 25% of whites, and 29% of nonwhites favored the death penalty for juvenile offenders. Yet, SCOTUS was slow to respond to this evolution of viewpoints concerning the execution of those who were juveniles when they committed their capital crime(s). Toward the end of 2002, SCOTUS, by a vote of 5 to 4, declined to consider another appeal by Kevin Stanford (the plaintiff in Stanford vs. Kentucky), who had been sentenced to death for abducting, sodomizing, and killing a gas station attendant when he was 17 years old. Nevertheless, by 2005, 18 states that permitted the death penalty had prohibited that punishment for juveniles, and the remaining 20 death penalty states that had not prohibited it, infrequently imposed it. Moreover, by 2005, the death penalty in general, and the juvenile death penalty in particular, had become politically embarrassing to the United States on the international stage. Yet perhaps most importantly, by 2005, J. Anthony Kennedy had changed his mind on the desirability of the death penalty for persons who were juveniles when they committed their offense(s). Based on these developments, in Roper vs. Simmons, 1 March 2005, SCOTUS affirmed by a 5 to 4 vote the decision of the Missouri state Supreme Court and ruled that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on offenders who were under the age of 18 at the time their crimes were committed. The Missouri state Supreme Court had accepted Christopher Simmons' claim that SCOTUS' reasoning in Atkins vs. Virginia also applied to the question of the execution of juveniles. In its decision in Roper, the United States Supreme Court identified three differences between juvenile offenders and adult offenders that the diminished the culpability of the former: 1) "Juveniles susceptibility to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult" 2) "Their own vulnerability and comparative lack of control over their immediate surroundings means juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment" 3) "The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character." In its ruling, the Court concluded: "When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life [Simmons] and his potential to attain a mature understanding of his own humanity. While drawing the line at age 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death penalty eligibility ought to rest" (emphasis added). About 2% (approximately 366) of the people officially executed in the United States since 1608 have been juveniles, that is, persons who committed their capital crimes prior to their 18th birthday. Since 1990, the United States was one of only eight countries that executed anyone under 18 years of age at the time of their crime: the others were China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. Interesting bedfellows, to be sure. Only 23 juveniles all but one of whom were 17 years old at the time they committed their crimes—have been executed under post-Furman statutes. The one exception was Sean Sellers, who was executed on Oklahoma on 4 February 1999, for a crime he committed when he was 16 years old. The last executed juvenile in the Unites States who was younger than 17 years old at the time of his crime, before Sellars, was 16-year-old Leonard Shockley, who was executed in Maryland on 10 April 1958. The last 15-year-old executed in the United States was Abraham Beard, who was executed in Florida on 29 December 1954. The last 14-year-olds executed in the United States were James Lewis Jr. and Charles Trudell, who were both executed in Mississippi on 23 July 1947. Juveniles as young as 10 years old have been executed in our country, but all of those executions occurred before 1900. The first juvenile executed under post-Furman statutes was Charles Rumbaugh, who was executed in Texas on 11 September 1985; the last was Scott Hain, who was executed in Oklahoma on 3 April 2003. The ages of the above 23 juvenile offenders at execution ranged from 23 to 38, reflecting the time they had spent on Death Row. Between 1973 and Roper in 2005, jurisdictions in the United States had imposed death sentences on 226 offenders under the age of 18 at the time of their crime, but the chances of any of those juveniles actually being executed was remote. The reversal rate for juveniles sentenced to death under post-Furman statutes was about a whopping 90%. The 226 juveniles sentenced to death between 1973 and Roper were sentenced in 23 different states—more than half of the death penalty jurisdictions at that time. However, half of the death sentences were imposed in only three states: Texas (58), Florida (32), and Alabama (23); only seven states imposed more than 10 juvenile death sentences during that period. As a result of Roper, 71 juvenile Death Row inmates had their death sentences commuted to life in imprisonment without parole and were removed from the Death Rows of 12 states. Again, Texas had the largest number of juveniles on Death Row, housing 29 (41%) of the total. All of the former juvenile Death Row inmates were male, and two-thirds of them were minorities. Eighty-one percent of their victims were adults, approximately two-thirds of victims were white, and about half were women. In 2005, the former juveniles on Death Row ranged in age from 18 to 43; 33% of them were white and 67% were members of minority groups. The time they had spent on Death Row ranged from six months to 24 years. During the mid-1980s, psychiatrist Dorothy Lieblich and her colleagues evaluated 14 (40%) of the then 37 juvenile Death Row inmates in the United States. They found that all of them had suffered some form of head injury as a child; 12 of them had been abused physically or sexually or both; 12 of them had IQ scores of 90 or less; 11 of them had well below-average reading abilities; nine of them had significant neuropsychological problems; seven of them had psychotic disorders since early childhood; seven of them had serious psychiatric episodes; their files indicated that 10 of them had been sodomized by relatives over an extended period. Whether juveniles should be subjected to capital punishment had been a controversial issue well before Roper. A Gallup poll conducted in 2002 found that 72% of Americans favored the death penalty for people convicted of murder, 25% opposed it, and 3% did not know or declined to answer. However, as noted above, only 26% of the respondents in that poll favored the death penalty for juveniles, 69% opposed it, and 5% did not know or declined to answer. This level of support (or lack thereof) of the death penalty for juveniles in 2002, three years before Roper, represented a dramatic shift from the results of the Gallup poll conducted in 1994. In the 1994 poll, 60% of Americans thought that when a teenager commits a murder and is found guilty by a jury, he should receive the death penalty (compared with 80% who favored the death penalty for adults in the same circumstances); 30% opposed the death penalty for teenagers, and 10% had no opinion. And 72% of those who favored the death penalty for adults also favored it for teenage killers.

Evolving Standards of Decency

In a 1961 article published in the University of Southern California Law Review, Los Angeles lawyer Gerald Gottlieb, active with the local chapter of the American Civil Liberties Union, argued that "the death penalty is unconstitutional under the Eighth Amendment because it violates contemporary standards of decency that mark the progress of maturing of a maturing society." Gottlieb argued that in Weems vs United States (1910) and the more recent Trop vs. Dulles (1958), SCOTUS had departed from the fixed or historical meaning it had always used in deciding whether a particular punishment was cruel and unusual punishment in violation of the Eighth Amendment. (In Weems, the issue was an overly long prison sentence for a crime that was not deemed as too serious; in Trop, the issue was the constitutionality of revoking US citizenship as punishment for a crime. More on the two cases below) The Court asserted in Weems that the cruel and unusual punishment provision "would only offer paper, illusory protection if it was restricted solely to the intent of the Framers." Gottlieb argued that consequently SCOTUS had declared that the meaning of the Eighth Amendment is not limited solely to the Framers' intent but that meaning changes with evolving social conditions—specifically, "the evolving standards of decency that mark the progress of a maturing society." Neither Weems or Trop was a death penalty case. Yet Gottlieb applied to the practice of capital punishment the Court's logic from these two cases not concerned with the death penalty. The key question raised by Gottlieb's interpretation, of course, was whether the United States, in fact, had evolved or progressed to the point where the current standards of decency no longer permitted capital punishment. In Weems, in 1910, SCOTUS did depart from its fixed or historical interpretation of the meaning of cruel and unusual punishment and created a more nuanced meaning of that famous phrase. Weems was a US Coast Guard disbursing officer in the Philippines, when it was a US territory, convicted of making two false accounting entries amounting to 616 or 612 pesos (both amounts are mentioned in the decision; the latter amount is the equivalent of $17 in 2020 dollars). Weems was fined and sentenced to 15 years of hard and painful labor and forced to wear chains on his ankles and his wrists. After the completion of his sentence, Weems was to be under government surveillance for the rest of his life, he was to lose rights to parental authority and guardianship of persons and property, he was to notify public authorities whenever he changed his place of residence, and he was to lose his voting rights, and the right to hold office as well. Weems argued that his punishment was disproportionate to his crime, and therefore was cruel and unusual. The Court agreed with Weems and reversed the judgment, with instructions to dismiss the proceedings. In doing so, SCOTUS broke with tradition, holding "that 1) the meaning of the Eighth Amendment is not restricted solely to the intent of the Framers; 2) that the Eighth Amendment bars punishments that are excessive; 3) that what is excessive is not fixed in time but changes with evolving social conditions." According to J. Joseph McKenna, writing for the majority in the case: "Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle in order to be vital must be capable of wider application than the mischief that gave it birth. This is particularly true of constitutions." Moreover, J. McKenna, again referring to the Eighth Amendment's prohibition of cruel and unusual punishment, wrote, "The clause of the Constitution, in the opinion of learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice." Henceforth, the Court no longer used the fixed or historical interpretation; it chose instead to interpret the concept in the context of "evolving social conditions." In his concurring opinion in Furman vs. Georgia, J. Marshall referred to Weems as "a landmark case because it represented the first time the Supreme Court invalidated a penalty prescribed by a legislature for a particular offense." As cited above, SCOTUS further clarified its position nearly 50 years later in another noncapital case, Trop. As punishment for desertion during World War II, Albert Trop was stripped of US citizenship, which he discovered in 1952 when he applied for and was denied a passport. Trop's action of desertion occurred in 1944 after he was confined in a stockade in Casablanca (plan to see the classic film if you have not done so already—you're not getting any younger; the leading lady is the most beautiful woman in the world as she walks into Rick's Café Americain for the first time, imho) for a breach of military discipline. He escaped from the stockade but shortly thereafter had a change of heart and surrendered willingly to an army officer who had spotted him walking back to the stockade. Trop was AWOL for less than a day. The US Supreme Court reviewed the case on appeal and ruled that the punishment—loss of citizenship—was cruel and unusual because it was an affront to human dignity. It noted that the "dignity of man" was "the basic concept underlying the Eighth Amendment," and it held that Trop's punishment exceeded "the limits of civilized standards." Referring to the earlier decision in Weems as precedent, the Court emphasized that "the limits of civilized standards ... draws its meaning from the evolving standards of decency that mark the progress of a maturing society." Those evolving standards are, in turn, according to the majority in Trop, determined by "objective indicators, such as the enactments of legislatures as expressions of the 'will of the people,' the decisions of juries, and the subjective moral judgments of members of the Supreme Court itself." In short, it appears that as long as a punishment has been enacted by a legislature, imposed by a jury, and approved by Supreme Court, it will not considered as cruel and unusual. To date, SCOTUS has never declared an execution as cruel and unusual (though Justices Breyer and Sotomayor have been vocal on this issue in particular recent cases). One final point in this regard. A problem with the Doctrine of the Evolving Standards of Decency, recognized by both the majority and minority in Stanford vs. Kennedy (we will return to this 1989 case) was the tendency of evolving standards analysis "to evolve toward a Justice's personal views." In his concurring opinion in Glossip vs. Gross, 2015, Justice Antonin Scalia derided the Court's decision in Trop, asserting that the "case has caused more mischief to our jurisprudence, to our federal system, to our society than any other that comes to mind" (a bit of an overreaction, perhaps?). J. Scalia lamented, "Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes. Time and again, this Court upheld that decision. And time and again, a vocal minority of this Court has insisted that things have 'changed radically," and has sought to replace the judgments of the People with their own standards of decency." Of course, this argument advanced by J. Scalia loses some of its currency as public opinion continues to shift away from the death penalty.

SCOTUS Decisions of Death Penalty Cases (1960-1967)

In the years 1960-1967, SCOTUS decided four death penalty cases. In Irvin vs. Dowd, 5 June 1961, the court held that Irvin did not receive a fair and impartial trial because the jury was "contaminated" by overwhelming exposure to adverse pre-trial publicity. With Griffin vs. California, 28 April 1965, the court expanded the protection against compelled self-incrimination by striking down a California law known as the 'Comment Rule,' which allowed judges and prosecutors to make adverse comments to the jury about the defendant's refusal to testify. Similarly, in Chapman vs. California, 20 February 1967, another case involving California's 'Comment Rule,' the Court established the "Harmless Error Rule." This rule provided that a constitutional violation could be considered harmless and, thus, not require remedy, if it could be proven beyond a reasonable doubt that the error did not contribute substantially to the outcome of the proceeding (conviction or sentence). Finally in Gilbert vs. California, 12 June 1967, SCOTUS ruled on three of Jesse Gilbert's four procedural claims. First, it held that the taking of handwriting samples did not violate Gilbert's constitutional rights. The Court reasoned that a handwriting sample, as opposed to the content of what is actually written, is not protected by the Fifth Amendment's privilege against compelled self-incrimination. The Court further maintained that Gilbert's Sixth Amendment right to legal counsel was not violated because the taking of handwriting samples is not a "critical" stage of criminal proceedings entitling him to the assistance of counsel. Second, the Court found no fault with the California Supreme Court's judgment regarding the admission of this co-defendant's statements, ruling that any error involving the statements was "harmless." Third, the Court determined that the admission of the in-court identifications of Gilbert without first ascertaining whether they were tainted by the illegal lineup procedure was a violation of Gilbert's constitutional rights. The Court asserted that a post-indictment pretrial lineup is a "critical" stage in criminal proceedings and the denial of counsel at that stage violated the Sixth Amendment's right to legal counsel.

Furman v. Georgia Aftermath

It is important to note, that SCOTUS did not declare the death penalty itself unconstitutional. This might seem to you to be a small distinction, but the Court held as unconstitutional only the statutes under which the death penalty was then being administered. Actually, the five justices in the majority split on this issue. Justices Brennan and Marshall held that capital punishment itself, by its very nature, violated the Eighth and Fourteenth Amendments. On the other hand, Justices Douglas, Stewart, and White rejected the position that capital punishment in and of itself was inherently unconstitutional, and asserted that capital punishment is now unconstitutional in the United States only because of the manner in which it was being applied under current statutes. Many observers of SCOTUS and other legal scholars believed that the three justices seemed to be implying that if the process for imposing the death penalty could be changed so as to eliminate the problems cited in Furman, then it would pass constitutional muster. Both Justices Burger and White believed that mandatory or automatic death sentences were still probably constitutional. Justice Stewart, on the other hand, was fairly certain that the states would not reenact the old, "barbaric" mandatory death penalty statutes—the last of which, as we have seen, were abolished in 1963. Ignoring for the moment SCOTUS' suggestion that the death penalty could be salvaged constitutionally, death penalty opponents were jubilant with the decision in Furman and its implications for death penalty jurisprudence. LDF lawyers, however, knew that their work was not concluded with the victory in Furman. There was still much legal work to be done to ensure that all the states followed the directive of the Supreme Court. They understood that capitulation to the Court's decree would not come automatically, and that it would have to be fought for in most of the states that had their capital punishment statutes invalidated. To fully implement Furman and to make sure that the death sentences of all Death Row inmates were vacated, each state's high court had to take action, which in many states required the prodding of the LDF lawyers and those who assisted them in courthouses throughout the country. Nevertheless, LDF lawyers could take pride in what had been accomplished. In seven years of dedicated and complicated work, they had achieved what had eluded American abolitionists for two centuries. Justices Burger and Stewart and all those who shared their beliefs, of course, were wrong! The backlash against Furman was immediate, widespread, and passionate. Part of the reason for the backlash has been attributed to public concern with high-profile murderers who had now escaped the death penalty, such as Charles Manson, Richard Speck, and Sirhan Sirhan. Other reasons cited for the fierce resistance to Furman among the many of the citizenry were the rising homicide rates across the country, an increase in the number of police officers being shot, and a rash of airplane hijackings, with more than 300 worldwide between 1968 and 1972. Yet for many people, including those who had never given the death penalty too much sustained thought or reflection, the backlash was mainly a response to the perceived arrogance of SCOTUS in ignoring the will of the majority of citizens of the country and its representatives. For this reason, and those above, people all over the country protested and organized demanding that the death penalty be restored. Obliging their constituents, and aware of the latest polling data on the issue, the legislatures of 35 states proceeded to adopt new death penalty statutes designed to meet the objections of SCOTUS as expressed in Furman. Florida was the first state to reinstate the death penalty after Furman. The Florida legislature met in special session to approve the revised death penalty statutes in December 1972, only five months after the Furman decision was issued. And by May 1973, 13 states had enacted new death penalty statutes, including New Mexico, which had abolished the death penalty prior to Furman, in 1969 (New Mexico abolished the death penalty again in 2009). By the one-year anniversary of Furman, 20 states had reinstated the death penalty with revised statutes, and by 1976, 35 states and the federal government had done so. The new death penalty laws took two forms. Several states removed all discretion from the process of mandating capital punishment upon conviction for certain crimes ('mandatory' death penalty statutes). Other states provided specific and detailed guidelines that judges and juries were to follow in deciding if death was the appropriate sentence in a particular case (known as 'guided discretion' death penalty statutes). Georgia became the first state to impose a post-Furman death sentence. Jesse Le Conley, a black man convicted of raping a white woman, was sentenced to death in April 1973, just a few weeks after Governor Jimmy Carter signed the state's post-Furman 'guided discretion' death penalty statute into law. Although that sentence was only one of a few death sentences imposed in 1973, the floodgates began to open in 1974, when a three-decade high of 149 death sentences were imposed. One might say the death penalty was staging a comeback with a vengeance. In 1975, the number of death sentences increased to 298—at the time, the highest year-end number ever recorded. The response of the state legislatures to Furman caused the LDF lawyers to begin preparing to challenge in court in the new death penalty statutes. In doing so, their immediate goal was to extend the year-by-year moratorium in the carrying out of the death penalty. But their ultimate goal was to abolish the death penalty completely, once and for all. And there was reason to be optimistic about both goals. In the first place, it was unlikely the Court would approve the new 'guided discretion' statutes when, just a few years earlier, J. Harlan maintained in McGautha that it was humanly impossible to create adequate guidelines to channel juror discretion. Second, because of the moratorium and the subsequent growth of the population of Death Row, a resumption of executions could go into overdrive in order to "clear the backlog"—something few people wanted. Third, SCOTUS was becoming weary of deciding death penalty cases every year. Fourth, as noted above, Justices Burger and Stewart did not think there would be any additional executions in the United States. Fifth, J. Powell who voted with the Furman minority, believed that either J. John Paul Stevens who was new to the Court (1975), or J. Blackmun would join the four justices left from the Furman majority and vote to bring closure to the issue. Sixth, J. Powell also assumed that Justices Stewart and White, who, in their Furman decisions, voted to strike down the death penalty, as then applied, but expressed their belief that it could be fixed, would vote to abolish the death penalty completely if given another chance. How could the death penalty be reinstated under such circumstances? The answer is that could be, and it was. As it turned out, each of the above reasons was wrong. In retrospect, the legal strategy backfired. It produced only a fleeting victory. Given the scope and intensity of the public reaction to Furman, the Court was put in a difficult position when the new death penalty statutes were challenged four years later. The LDF lawyers' strategy of invoking an 'evolving standards' argument was difficult to defend in light of the backlash. The Court's institutional prestige and authority were also challenged by the public backlash. Following Furman, seventeen members of Congress began promoting a constitutional amendment to restore the death penalty across the nation. By 1976, it appeared they had the votes to succeed. However, even if the attempt at a constitutional amendment failed, the very attempt to override the Court's decision would be seen as damaging to the Court's legitimacy. With public opinion polls showing the public in favor of the death penalty by a wide 2 to 1 margin, and both main political parties aligned on the issue in their 1976 presidential platforms, and with the request of the Solicitor General Robert Bork that SCOTUS overrule itself in Furman, the Court's decision to follow the solicitor general's recommendation is perhaps not difficult to understand. Had the response of the public to Furman been less vociferous, we can say that perhaps the outcome in subsequent cases might have been different. Justices Stewart and White suggested as much in later decisions. The lesson of Furman appeared to be that the abolition of the death penalty was a battle that would have to be won in the state legislatures rather than in the courts. Yet even the above conclusion is open to debate. During the 1970s, sociologists and social historians tell us that the meaning of the death penalty was transformed from a "rarely used penal sanction dogged by moral controversy to a hot-button political issue with multiple meanings" (Daniel Patrick Moynihan). For many Americans, by the mid-1970s, the death penalty had become "a litmus test in the politics of crime control, part of the 'law and order' strategy of the Nixon years" (Moynihan), a powerful symbol for states' rights, and a significant part of the conservative backlash against the Civil Rights Movement. The power and enduring appeal of these new understandings of the death penalty would be difficult to change, especially in certain regions of the country. Another response to Furman, though its importance was probably not fully appreciated at the time, was the passage of the first true life without the opportunity of parole statutes (LWOP). Afraid of a criminal justice landscape without a capital option and responding to public dissatisfaction with murderers sentenced to 'life' being paroled early, legislators who advocated a return to 'law and order,' with the support of prosecutors, passed the first LWOP or 'death by incarceration' statutes in Alabama, Illinois, and Louisiana. Other states soon followed. In our present time, all states but Alaska have LWOP statutes, and Alaska does not have a death penalty statute (since 1957). However, passage of the LWOP statutes following Furman soon became a classic case of 'be careful what you wish for.' When the death penalty was reinstated in 1976, many prosecutors no longer wanted the LWOP statutes because they wanted to use the possibility of parole to goad jurors to sentence defendants to death. Prosecutors frequently used the possibility of parole as a scare tactic by warning jurors that if a capital defendant was not executed, he or she would pose a grave future danger to society. Though at the same time, death penalty abolitionists began to realize that LWOP statutes could be promoted as a viable option to death sentences. The constitutionality of the new death penalty statutes was quickly challenged, and on 2 July 1976, the US Supreme Court announced its rulings in five test cases. The five cases were chosen to have their appeals heard by the justices because they were relatively straightforward, the fact patterns were clear, and there were no ancillary issues, such as the charge of racial prejudice. All five cases involved a white defendant; felony murders, none of which was especially brutal; and, perhaps most important of all, each case was selected from a state that had one of the five different types of new death penalty laws. In Woodson vs. North Carolina and Roberts vs. Louisiana, 2 July 1976, SCOTUS rejected, by a vote of 5 to 4, mandatory statutes that automatically imposed death sentences for defined capital crimes. In Woodson, the state's brief defending the law highlighted that the state enacted the statute to eliminate "all sentencing discretion" so that "there would be no successful Furman-based attack" on it. J. Stewart gave the reasons why the Court rejected the mandatory statutes. First, Stewart admitted that "it is capricious to treat similar things differently," and that mandatory death penalty statutes eliminated that problem. He added, however, that it also "is capricious to treat two different things in the same way. Therefore, to impose the same penalty on all convicted murderers, even though all defendants are different, is just as capricious as imposing a penalty randomly." To ameliorate the problem, then, some sentencing guidelines were necessary, in the mind of the Court.

Aeschylus Background

Lived from 525-455BC. He is regarded as the father of Greek Tragedy. He is the only author of an intact trilogy, and he wrote the Oresteia which consists of three plays: "Agamemnon," "The Libation Bearers," and "The Eumenides (The Furies)." In his trilogy, Aeschylus gives a mythological account of the beginnings of the Athenian justice/legal system - Athens was a turning point in Western Civilization in this regard.

What was the list of capital crimes in the Early Era?

Murder, Rape, Kidnapping, Robbery, Burglary, Horse Stealing, Forgery, Counterfeiting, Piracy, Arson, Treason, Espionage, and Rioting.

Summary of Pre-Modern Era

On 29 June 1972, the United States Supreme Court, for the first and only time in American history, declared the then current administration of the death penalty as unconstitutional. In seven short years, LDF attorneys, in coordination with other lawyers, had accomplished the goal that had eluded American death penalty abolitionists for two centuries. Unfortunately for the abolitionists, their accomplishment was of a short duration and, in retrospect, turned out to be a pyrrhic victory. The public backlash to Furman was both swift and overwhelming. Only four years later, the SCOTUS reversed itself and allowed the states to reinstate capital punishment. The Court approved capital punishment statutes that the majority believed would rid the death penalty process of the serious problems cited in Furman. Based on the 'death-is-different' principle, SCOTUS approved what Professor Lawrence Tribe refers to as "super Due Process." Super Due Process consisted of a guided discretionary process that requires juries to consider evidence of aggravated and mitigating circumstances presented during the sentencing phase of the bifurcated trial (the first phase in the bifurcated trial is the guilt phase). In addition, super Due Process includes automatic appeal usually of both the conviction and the sentence, and proportionality review, though neither process is constitutionally required. As noted, the Court's majority believed that the new provisions for super Due Process would rid the administration of the death penalty of the problems cited in Furman. Of course, this leap of faith on the Court's part was not based on any empirical evidence, as there was none.

PreModern Era of the Death Penalty

Perhaps it is no coincidence that, with the exception of one or two cases, none of the precedents established in the Premodern Era death penalty cases applies narrowly to only death penalty cases. Today, nearly all of these precedents are considered fundamental elements of Due Process of Law. That may be the reason that SCOTUS elected to hear these cases in the first place. Even if they had not been death penalty cases, SCOTUS likely would have addressed the issues raised anyway. For example, eventually, SCOTUS likely would have prohibited coerced confessions or racial discrimination in the selection of juries even if the issues had not been raised in death penalty cases. On the other hand, modern death penalty cases are different because SCOTUS probably would not have elected to consider the issues raised in many of them if they had not been death penalty cases. The reason is that many death penalty cases are limited in scope to refining the reforms in death penalty procedures initiated following the Gregg vs. Georgia (1976) decision.

Altitude Express v. Zarda

Question 1: Will federal law outlaw employment discrimination based on sexual orientation? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination "on account of sex." Zarda argues that the sex provision of Title VII also, in effect, prohibits employment discrimination based on sexual orientation. Question 2: What will the Courts decide?

Reaction to the McCleskey Decision

Reacting to the decision of the United States Supreme Court in McCleskey, Baldus and Woodworth offered two additional reasons why the Court may have rejected the claim of racial discrimination in McCleskey's particular case. First, "as a convicted murderer, McCleskey did not enjoy the same status of an 'oppressed minority' as would a blameless claimant seeking equal access to housing, employment, or schools." Second, "McCleskey's claim primarily pointed not to discrimination on the basis of race (over which he had not control) but rather to discrimination on the basis of the victim's race ... It was McCleskey, however, who 'chose' his victim, a fact that certainly weakened the moral appeal of his claim." And yet McCleskey's death sentence was the only one imposed in Georgia's Fulton County between 1973 (when Georgia's new death penalty statute was enacted) and 1980 (when LDF lawyers initiated his appeal). During that seven-year period, the all-white local prosecutors brought murder charges against 15 white defendants, who, like, McCleskey, killed police officers. However, the prosecutors did not seek the death penalty in any of the 15 cases. The only other case in which capital charges were brought during that period involved a black defendant and a black victim. In all these cases, the defendants were sentenced to life imprisonment. The only defendant sentenced to die was Warren McCleskey, as we have seen, a black defendant who killed a white police officer. As one might expect, many proponents of capital punishment insist that there is no longer any racial discrimination in its administration. Now, the more sophisticated among them concede that there may have been racial discrimination in the past, but the evidence under post-Furman statutes reveals racial disparities rather than discrimination. Based on his own statistical analysis, political scientist John C. McAdams, a methodically sophisticated proponent of the death penalty, concludes, "There is a general and quite robust bias against [using capital punishment in cases with] blacks victims, and there is not general bias against black defendants ... although there might be bias [against black defendants] in some places, under some circumstances." Similarly, concerning victim-based racial discrimination, Judge Paul Cassell, another death penalty advocate, believes it is implausible "that a racist criminal justice system would look past minority defendants and discriminate solely on the more attenuated basis of race of their victims." He asks, rhetorically, "If racists are running the system, why wouldn't they just discriminate directly against minority defendants?" Furthermore, according to Judge Cassell, what appears to be victim-based racial discrimination may simply be an artifact of the nature of interracial murders. Data shows that the vast majority of murders are intraracial and occur in circumstances where the death penalty is likely inappropriate. Judge Cassell highlights that black-on-white murders, on the other hand, frequently occur during the course of a serious felony. For example, in Georgia, fewer than 10% of the black-on-black murders involved armed robbery compared to two thirds of the black-on-white murders. Compared to murders involving other racial combinations, black-on-white murders are statistically more likely to involve aggravating factors such as the killing of a law enforcement officer (75-80% of whom are white), kidnapping and rape, execution-style killing, and torture. According to research done by Professor McAdams, other factors that could explain what appears to be victim-based racial discrimination are the victim's socioeconomic status, the defendant's refusal to accept plea bargains in such cases, black victims' families not demanding that the state pursue the death penalty, and the victim's role in the prosecutor's decision not to seek the death penalty. In the latter case, McAdams points to instances where the victim was a drug dealer, who was robbed and killed, or a rival gang member killed in a drive-by shooting. And not all research has shown victim-based discrimination. For example, a 2015 examination of capital murders in Texas between 1977 and 2010 showed that prosecutors were more likely to seek the death penalty in white-victim cases when the defendant was white, and not when the victim was black. This study showed that in Texas even if victim-based discrimination was a problem in the very recent past, it has decreased significantly over the decades. The study also provided date that the percentage of minority defendants sentenced to death for killing white victims in Texas declined from more than 90% in the 1970s to less than 50% in 2010. Other research has shown that the proportion of black-victim cases and white-victim cases resulting in death sentences was nearly identical when death-sentenced defendants were compared to homicide arrests in Texas between 1994 and 2010, and legally relevant variables were controlled. As seen above, the vote in McCleskey was 5 to 4. J. Powell, who write the majority opinion, also cast the deciding vote (in other words, he was the swing vote in this case). It was J. Powell's last year on SCOTUS. Four years after his retirement, J. Powell's biographer asked him if he wished he could change his vote in any single case (a rather standard question asked by interviewers). J. Powell responded in the affirmative: the vote he would change was in McCleskey. J. Powell, who had dissented in Furman and had regularly supported the death penalty in cases decided by the Unites States Supreme Court, stated, "I have come to believe that capital punishment should be abolished ... [because] it serves no useful purpose." The counterarguments of death penalty proponents notwithstanding, the United States Supreme Court has not, and likely cannot, rid the imposition of the death penalty from repugnant forms of racial discrimination. Yet, in McCleskey and other cases, the Court has clearly indicated that either defendant-based or victim-based racial discrimination in the administration of the death penalty, whether overt or covert, is constitutionally impermissible. However, even under post-Furman statutes, Professor Charles Ogletree of Harvard Law School observes that: "Race is a truly pervasive influence in the administration of the death penalty, one that is evident at every stage of the process ... it is an influence that persists despite separate sentencing hearings, explicitly articulated sentencing guidelines, and automatic appellate review of all death sentences."

Doctrine of a Test Case

Recall that according to Article III of the US Constitution, the courts can only rule on "actual cases and controversies." Thus the courts are not free to hear hypothetical cases or cases that solely pertain to a philosophical disagreement with a certain law. The courts can only rule on actual cases involving 'real' people, and the people involved must have been (or are about to be) directly affected by the law(s) in question (under challenge). The key to a Test Case is that a person who violates a law does so deliberately and publicly--thus provoking a penalty, prosecution or injunction—in order to challenge the validity of that law in court. And recall, if the Test Case is successful, that law is struck down (i.e. rendered legally null and void) and no future persons can be arrested for violating that law.

14th Amendment and the Death Penalty

Reference to capital punishment and the aforementioned guideline in the 5th amendment is repeated. Given such strong evidence about the legality of capital punishment and the beliefs of the Founding Fathers, most agreed that it made little sense and stood little chance of legal success to argue that capital punishment violated the Constitution itself. However, in the 1960s, as was true in so many other areas of American life, this conventional wisdom began to be challenged.

The Rule of Law

Restricting the excessive or arbitrary exercise of government power in the lives of citizens by subordinating it to well-defined and established laws.

Decision in United States v. Eichman

SCOTUS upheld the lower court's decision by a vote of 5-4 (each justice voting in the same way as in Johnson). The majority, again led by Justice William J. Brennan, ruled that the federal government, like the states, cannot prosecute a person for burning the US flag. The majority held that to do so is a violation of the right to Freedom of Speech guaranteed to all by the First Amendment. We can conclude then that Eichman was successful in achieving the goal of his Test Case. He believed the Flag Protection Act to be an unconstitutional violation of both the right of Free Speech and the Johnson precedent. Thus he was willing to violate the act both deliberately and publicly in order to obtain 'his day in court.' Once in court, his attorneys argued against the Flag Protection Act on it merits. How did Eichman achieve success in his Test Case? First, SCOTUS struck down, under Judicial Review, the Flag Protection Act as unconstitutional. It was no longer 'good' law. Second, now no future persons in similar circumstances can be arrested for violating the Flag Protection Act (because it is null and void). Eichman had achieved his goal of changing the law through a court verdict (under the auspices of Judicial Review). The Doctrine of the Test Case became the crucial tool used by the NAACP to fight unjust and unequal laws. (see Plessy v. Ferguson)

Defendants' Dual System of Collateral Review Steps

Stage 1: Direct Appeal Step 1: Trial and sentence in state court Step 2: Direct appeal to state's highest appeals court (state Supreme Court) Step 3: United States Supreme Court for Writ of Certiorari (discretionary) Stage 2: State Postconviction Review Step 1: Trial court Step 2: State highest court of appeals (state Supreme Court) Step 3: United States Supreme Court for Writ of Certiorari (discretionary) Stage 3: Federal Postconviction Review Step 1: Petition for Writ of Habeas Corpus in United States District Court Step 2: United States Circuit Court of Appeals Step 3: United States Supreme Court for Writ of Certiorari (discretionary)

The Doctrine of Precedent

Stare Decisis: "to stand by that which has been [previously] decided." Precedents makes up the foundational stones of the American Legal System. Precedents are legal principles established in past cases that are applied to new cases with "substantially similar facts." Past cases become binding precedent for new cases with substantially similar facts. Example: Case X established a precedent concerning internet privacy. There is a new case, Case Y, also concerning internet privacy. The precedent of Case X, will be applied in the new case, provided that that the facts of Case Y are substantially similar to the facts of Case X.

Transition from Mandatory to Discretionary Capital Punishment Statutes

Tennessee became the first state to enact a discretionary death penalty statute for murder. Alabama did the same four years later, followed by Louisiana five years after that. All states before then employed mandatory death penalty statutes that required anyone convicted of a designated capital crime be sentenced to death upon conviction. One reason for this change, at least at first, and in the South, undoubtedly was to allow all-white juries to take race into account when deciding whether the death was the appropriate penalty in a particular case. Another reason for this change was the phenomenon of jury nullification which refers to a jury's knowing and deliberate refusal to apply the law because, in this case, a mandatory death sentence was considered contrary to that jury's sense of morality, justice, or fairness. A third reason for this change was that many jurors during the Early Era were being influenced by new scientific claims that criminality was not freely chosen but rather was a product of biological and environmental factors. The jury felt that, if this were true, it would be unfair to hold someone completely responsible for criminal behavior that they could not fully control. The benefit of the discretionary death penalty statutes allowed juries the option of imposing a sentence of life in prison instead of death. Another interesting development that came about during this time was the increased use of the Insanity Defense. This was being used increasingly in this period in capital cases to allow defendants to escape the death penalty without being acquitted outright. This new deterministic view of criminal behavior that was coming from university-based social scientists in the late 19th century not only undermined the retributive and deterrent bases for capital punishment but also challenged the legitimacy of the death penalty itself. For example, in the case of retribution, how could it be just to execute a person for a crime she did not freely choose to commit? Similarly, in the case of deterrence, how could people be prevented from committing a crime if the crime was caused by uncontrollable biological, especially genetic, factors? By 1963, mandatory capital punishment laws were removed from all penal codes, except for a few rarely committed crimes in a handful of jurisdictions. This change from mandatory to discretionary death penalty statutes, which introduced unfettered sentencing discretion in the capital-sentencing process, was considered at that time to be a great reform in the imposition of the death penalty. Ironically, it was this unfettered sentencing discretion that SCOTUS declared unconstitutional in Furman v. Georgia.

Constitutional and Procedural Outcomes of Gregg

Texas's current death penalty statute is an example of the 'structured discretionary' or 'directed' type. It is the most unusual type of guided discretionary statute, employed only in Texas, Oregon, and Virginia. In Texas, for a defendant to be convicted of capital murder, the state must prove beyond a reasonable doubt that the defendant committed the murder with at least one of the nine statutorily enumerated aggravating circumstances present. If the state fails in this effort, then the sentencing authority may still convict the defendant of murder or any other lesser-included offense. If the defendant is convicted of capital murder, then during the sentencing phase of the trial, the state and the defendant or the defendant's counsel may present evidence as to any matter the court deems relevant to sentence, that is, any aggravating or mitigating factors, as long as they have not been secured in violation of the United States or Texas Constitutions. The court then submits the following issues to the jury: 1) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and 2) (if raised by the evidence) whether the defendant actually caused the death of the victim or did not actually cause the death of the victim but intended to kill the victim or another or anticipated that a human life would be taken. During death penalty deliberations is Texas, juries must consider all evidence admitted at the guilt and penalty phases. Then, they must consider the two aforementioned issues. To answer 'yes' to the issues, all jurors must answer 'yes;' to answer 'no' to the issues, ten or more jurors must answer 'no.' If the two issues are answered in the affirmative, jurors are then asked if there is a sufficient mitigating factor (or factors) to warrant a sentence of life imprisonment without parole rather than a death sentence be imposed. To answer 'no' to this issue, all jurors must answer 'no,' to answer 'yes,' ten or more jurors must agree. If the jury returns an affirmative finding on the first two issues and a negative finding on the third issue, then the court must sentence the defendant to death. If the jury returns a negative finding on either of the first two issues or an affirmative finding on the third issue, then the court must sentence the defendant to life imprisonment without parole. Answering the first issue in the affirmative might prove difficult for many people serving on a jury in a capital case. Despite decades of endeavor, social scientists remain incapable of predicting, with a reasonable degree of accuracy (a debatable standard, of course), future human behavior, criminal or otherwise. Given what might seem to be the difficulty of getting all twelve jurors to answer 'yes' to the two issues of aggravation and 'no' to the issue of mitigation, one might surmise that states with structured discretionary statutes would have a more difficult time in sentencing offenders to death. This conclusion, however, would be incorrect: Texas has executed more people than any other state under its structured discretionary statute, executing more than four times as many people as any other of the 49 states. Apparently then, getting all members of a jury to answer in the ways necessary to return a death sentence can be relatively easy for prosecutors. Now, we will consider Automatic Appellate Review. Each of the guided discretionary statutes approved in Gregg vs. Georgia also provide for automatic appellate review of all convictions and death sentences. This reform was added by SCOTUS to ensure that all death penalty sentences were applied in a constitutionally acceptable manner. Prior to Furman, many Death Row inmates did not take advantage of the appellate process. During the 1960s, for example, one-quarter of prisoners were executed with no appeals process at all, and the federal courts did not review two-thirds of the death penalty sentences. The review is usually conducted by the state's highest appellate court. In an effort to reduce delays in capital cases, the Florida legislature has written its capital punishment statute instructions so that every effort is made to ensure "that all appeals and postconviction actions in capital cases are resolved as soon as possible after the date a sentence of death is imposed in circuit court (emphasis added). At the end of 2012 (the latest year for which full data is available), 33 of the then 34 states with capital punishment statutes provided for automatic review or direct appeal of all death sentences, regardless of the wishes of the defendant. South Carolina allowed the defendant to waive sentence review if the court deemed the defendant to be competent; also, the federal jurisdiction did not provide for automatic appellate review. Most of these 33 states automatically reviewed both the conviction and the sentence. Idaho, Montana, Oklahoma, South Dakota, and Tennessee required the review of the death sentence only. In Idaho, for example, review of the conviction had to be filed through appeal or forfeited. In Kentucky and Indiana, a defendant could waive review of the conviction. In Virginia, a defendant could waive an appeal of trial court error but could not waive a review of the death sentence for arbitrariness or proportionality. In Wyoming, neither case law nor statute precluded a defendant waiving an appeal. Arkansas statute required the review of specific issues relating to both capital convictions and sentences. The rationale for not allowing defendants to waive the automatic review is that the state has an independent interest in making sure that the death penalty is administered lawfully. On the other hand, the rationale for waivers is that the defendant's autonomy and freedom of choice ought to prevail. If either the conviction or sentence is overturned, then the case is usually sent back to the trial court for additional proceedings or for retrial. It is possible of course that the death sentence may be reimposed as a result of this process. A state appellate court has at least five options when a conviction and/or death sentence has been appealed to it: 1) it can vacate the conviction (and therefore the sentence) and remand (return) the case to the trial court for additional proceedings or retrial; 2) it can affirm the conviction and remand the case to the trial court for resentencing; 3) it can reduce the sentence to life imprisonment or life imprisonment without the opportunity of parole; 4) it can affirm both the conviction and the sentence; or 5) it can reverse both the conviction and the sentence and order the defendant to be freed, although this option rarely occurs. If the state appellate court affirms both the conviction and the sentence, an appeal may be made to the United States Supreme Court through what is known as the Writ of Certiorari. If the appeal to SCOTUS is unsuccessful, the capital defendant may then return to state postconviction proceedings and begin the appeals process anew. Even if the defendant's appeal is denied in the state appellate courts, because of the dual system of collateral review, the defendant may appeal to the appropriate United States District Court through a Writ of Habeas Corpus. If the appeal is denied in the federal district court, that decision may be appealed to the appropriate United States Circuit Court of Appeals. However, in order to appeal a district court's decision to a federal court of appeals, either the district court or the court of appeals must grant the inmate permission in the form of a Certificate of Appealability (what a title!), or COA. If the COA is granted but relief in the court of appeals is denied, a third appeal may be made to SCOTUS. Until recent years, it was possible for Death Row inmates to employ this dual system of collateral review numerous times. Now, however, because of decisions by SCOTUS, the passage of the Antiterrorism and Effective Death Penalty Act of 1996, and similar measures enacted by various state legislatures, access to both the federal and state appellate courts has been made more difficult. Proponents of these types of decisions and legislation believe that most appeals are frivolous or are simply delaying tactics, and they hope that the new standards will greatly reduce the long delays in executions, and the high costs associated with the entire capital punishment process. These proponents point to Death Row inmates such as James Hitchcock who was sentenced to death in 1977 for the rape and murder of his stepniece the year before. Hitchcock still sits on Florida's Death Row even though he has had at least three resentencings, four death sentences upheld, and 19 appeals. Needless to say, many years have passed since Hitchcock's original sentence, and he has had skilled lawyers to advocate for him. Yet what if many of the appeals are not frivolous or delaying tactics? What if the delays in the rates of executions are greatly reduced because Death Row inmates are unable to have their claims heard in the federal courts? Depending on the source one consults, between 40% and 70% of all convictions or sentences in death penalty cases from 1973 to 2018 have been overturned on appeal. Many appeals may indeed be in the realm of the frivolous or constitute delaying tactics; however, evidence demonstrates that many of them are not. These reversals have resulted from fundamental constitutional errors such as coerced confessions; ineffective assistance of counsel; denial of the right to an impartial jury; the withholding of exculpatory evidence by prosecutors; suborning perjury; the admission of tainted evidence; and unconstitutional jury instructions. In fact, the percentage of death penalty cases overturned by the appellate courts since the reestablishment of capital punishment in accord with Gregg has far exceeded the percentage of appellate reversals of all other noncapital felony cases—in most states, this probably does not exceed 1%. However, as even a cursory study will show, the number of death penalty appeal reversals has been decreasing dramatically in recent years, not because of greater fairness in the judicial system or fewer constitutional errors, but rather because inmates on Death Row are now simply less likely to prevail. Because of recent SCOTUS decisions, nearly all alleged constitutional errors are subject to 'Harm Analysis,' and, according to Professor Stephen Bright, "proving that an error made was harmful to the outcome of the case is more difficult or impossible." In sum, despite a very detailed process that includes guided discretionary statutes and bifurcated trials, a large number of convictions and/or sentences in death penalty cases are reversed on appeal or during postconviction review; as stated above, a reversal rate many times higher than the rate in noncapital cases. And it must be stated that errors that are discovered, moreover, are not insignificant legal technicalities but are the result of violations of fundamental constitutional privileges and immunities. Under such circumstances, a probable result of restricting the access of Death Row inmates to the appellate process is miscarriages of justice. In other words, without the ability to challenge arrests, warrants, indictments, convictions, sentences, and pending executions in the appellate courts, there will likely be an increase in the number of innocent people or people not legally eligible for execution involved in the capital punishment process. And of course, we are already aware of the significant number of inmates on Death Row who have been exonerated by DNA evidence.

6th Amendment: Defendant's rights in a criminal trial

The 6th Amendment lists a defendant's rights in a criminal trial: 1.) Right to be informed of the charges before the trial so as to be able to prepare an adequate defense 2.) The right to a speedy and public trial 3.) The right to a trial by a jury of your peers in the locality where the alleged crime has occurred. 4.) The right to cross-examine witnesses the state calls to testify against you. 5.) The right to call one's own witnesses in your defense. 6.) The right to the assistance of legal counsel

Gerry Commission Recommendations

The Gerry Commission made two recommendations: 1.) Hangings should be stopped; they should be replaced by the electric chair. 2.) Executions should no longer be public; they should be carried out behind the walls of the penitentiary, with only authorized personnel present. If adopted: a.) executions will no longer be carried out in the locality where the crime was committed. b.) the public will be barred from executions. Gov. Hill urged the NYS legislature to implement the recommendations of the Gerry Commission. The NYSL then passed the Electrical Execution Act of 1888.

Plot of Aeschylus' "Oresteia"

The House of Atreus is one of wrongdoing and murder. His son is Agamemnon who is the king of Mycenae. He is married to Clytemnestra. Agamemnon sacrificed his daughter Iphigeneia. Clytemnestra hated her husband for the murder of her daughter and never forgave him. He was fighting in Troy for 10 years. While he was away, Clytemnestra ruled the kingdom in his place; she also had a lover, Aegisthus. The son of Agamemnon and Clytemnestra, Orestes, is sent to another kingdom for safety. Agamemnon returns home, along with his mistress, Cassandra. So, Clytemnestra and Aegisthus lay a plot and murder both Agamemnon and Cassandra. Now Orestes returns to the kingdom. He now faces a dilemma: custom and tradition dictates that a son must avenge his father's murder by killing the murderer; however, there was a very strong religious and societal taboo against matricide. He agonizes as to what to do. Finally, he decides to kill his father's murderers; he kills Clytemnestra and Aegisthus. Then Orestes is pursued by the Furies who are viewed as the goddesses of vengeance, or as the ghosts of those who were murdered. The Furies in ancient literature represent revenge, violence, emotionalism, and the non-rational. Finally, Apollo intervenes and brings Orestes to Athena, the goddess of wisdom, law, and civilization. Athena establishes a court to decide Orestes' fate.

Implications of the Rule of Law

The Rule of Law limits the powers of the government. Second, if the government does wish to infringe on the rights of a citizen, it must prove to the satisfaction of the Courts that the infringement is reasonable and justified legally.

The Narrowing of Eligibility for the Death Penalty

The United States Supreme Court has established limits on who may or may not be executed and has adopted the principle that the Eighth Amendment's prohibition against cruel and unusual punishment requires at least a rough correspondence between the punishment imposed, the harm done, and the blameworthiness of the defendant. For example, as we saw last time, in Enmund vs. Florida, SCOTUS ruled on the legality of executing a person who had not killed another person, attempted to kill another person, or intended to kill another person. Now, we will look at a theory/doctrine that has undergirded this narrowing or limiting of death penalty eligibility over time. Although specific methods of execution had been legally challenged as early as 1890, and various procedural issues prior to that, the essential legality of capital punishment itself was not subject to challenge until the 1960s. One of the lines of legal attack was the theory known as the Evolving Standards of Decency.

Electrical Execution Act of 1888

The act said that on 1/1/1889, anyone convicted of first-degree murder and sentenced to death will be executed by means of the electric chair, and not by hanging. The act was silent on whether executions should still be public.

Modern Era of the Death Penalty

The current topic is the narrowing of the categories of those people who are eligible for the death penalty. This narrowing involves several categories of people, as well as several sets of circumstances in a capital case. The Unites States Supreme Court has established limits on who may or may not be executed and has adopted the principle that to avoid the violation of the Eighth Amendment's prohibition on cruel and unusual punishment requires a least a "rough correspondence" between the punishment imposed, the harm done, and the blameworthiness of the defendant. In the extreme, this means the Court would not allow an execution for jaywalking, however intentional the act may have been. The cases SCOTUS has decided were not as easy, of course. The first of the cases we will examine addressed the issue of whether a participant in a felony murder who did not kill, attempt to kill, or intend to kill, may still be executed. Many states include the crime of felony murder in their homicide statutes. In a felony murder, it is possible to find a defendant guilty of murder even though she did not intend to kill and may or may not have caused a death. Many states hold such a defendant guilty of first-degree murder because she committed a specified (in statute) felony that caused a death. For example, prior to Governor George Ryan's mass commutation in 2003, 60% of Illinois' Death Row inmates had been convicted of a felony murder. The felony-murder statute in Illinois listed 16 felony-murder offenses punishable by death. It has been estimated that, nationwide, about 40% of all capital indictments are for felony murder, but, in some jurisdictions, felony murders compromise 70 to 80% of all death sentences imposed. Statistically, most felony murders in capital cases are armed robberies.

SCOTUS Decisions of Death Penalty Cases (1930-1939)

The decade of the 1930s saw SCOTUS decide five death penalty cases. In Aldridge vs. United States, 20 April 1931, the Court ruled that the questioning of potential jurors in a death penalty case about religious or racial prejudices was permissible, and even desirable. In the well known case of Powell vs. Alabama, 7 November 1932, the Court established the precedent that defendants in capital cases are entitled to an attorney, at least when they are deemed to be "incapable of making their own defense adequately because of ignorance, feeblemindedness, illiteracy or the like." If they cannot afford to hire a lawyer under such circumstances, the state is required to provide one at state expense. It should be noted that Powell remained in force even after the Court's ruling in Betts vs. Brady 10 years later. The third case from the 1930s, and also related to Powell was Norris vs. Alabama, 1 April 1935. Both precedents were the result of the unjust treatment at the hands of the judicial system of nine young black men charged with the rapes of two white women; the young men, in the parlance of the time, were known as the 'Scottsboro Boys.' In Norris, the Court held that the Fourteenth Amendment's Equal Protection Clause prohibited the exclusion of qualified "Negroes" from both grand juries and regular juries "solely because of their race or color." In Brown vs. Mississippi, 17 February 1936, the Court for the first time held that a coerced confession, brutally beaten out of a suspect, was inadmissible as evidence in a state trial because such is a violation of the Due Process Clause of the Fourteenth Amendment. Finally, in Palko vs. Connecticut, 6 December 1937, the Court ruled that the protection from Double Jeopardy was not a fundamental right (i.e. in the same protected category as freedom of speech, press, etc.) or, in the words of the majority, a right "implicit in the concept of ordered liberty." Thus, the Court rejected Frank Palko's claim that he was the victim of Double Jeopardy when the state of Connecticut appealed and then won a new trial following Palko's conviction for second-degree murder (he had killed two police officers) and his subsequent sentence to life imprisonment. At the new trial, Palko was convicted of first-degree murder and sentenced to death (which was carried out on 12 April 1938).

SCOTUS Decisions of Death Penalty Cases (1940-1949)

The decade of the 1940s represented the 'heyday' of the Court's involvement in death penalty cases in the Premodern Era. That being said, SCOTUS decided only nine cases during this decade, and all nine cases were decided during the second half of the decade—because 1940-1944, the Court's docket dealt with cases arising for the country's full mobilization for war, and then the consequences for the country being at war. In Malinski vs. New York, 26 March 1945, SCOTUS expanded the precedent it established in Brown vs. Mississippi by ruling that a conviction must be set aside if it is based at least in part on a coerced confession, even though there is other evidence besides the confession that might be sufficient to sustain the conviction. In Robinson vs. New York, 5 March 1945, a case involving the federal kidnapping statute, the Court upheld the trial court's jury instruction that in determining whether the victim had been "freed unharmed," the jury was limited to a consideration of the victim's condition at the time she was freed, and that it was not authorized to recommend the death penalty if at the time of her freeing she had recovered from the injuries inflicted upon her at the time of the kidnapping. In Francis vs. Resweber, 13 January 1947, the Court established the precedent that a second electrocution (and, by implication, a second attempt at execution), conducted after the first execution attempt had been botched, does not violate the Eighth Amendment's prohibition against cruel and unusual punishment; that it neither constitutes torture nor the degradation of a human being as long as it is an "unforeseeable accident," "an innocent misadventure," and unintentional on the part of the state. In Andres vs. United States, 26 April 1948, the court ruled that the jury instructions in his trial were unclear and granted Andres a new trial. The problem was, according to SCOTUS, that the instructions were not clear as to whether jury unanimity was required in both the determination of guilt and the decision to qualify the verdict with the designation "without capital punishment." Federal law required unanimity on both, but as construed by the Court, not only was unanimity required in the decision to grant mercy ("without capital punishment") but it was also required in the decision to withhold it. In Patton vs. Mississippi, 8 December 1948, as in Norris vs. Alabama, the court held that the Equal Protection Clause of the Fourteenth Amendment prohibited the exclusion of qualified "Negroes" from both grand juries and regular juries "solely because of their race and color." Similarly, Watt vs. Indiana, 27 June 1949, expanded the precedent established in Brown vs. Mississippi by adding that the coercion used in a coerced confession could be mental as well as physical; that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." Turner vs. Pennsylvania and Harris vs. South Carolina, also both decided in 1949, expanded the prohibition against coerced confessions. Finally, in Williams vs. New York, 6 June 1949, the Court held that the Due Process Clause of the Fourteenth Amendment does not render a death sentence void simply because a judge receives additional out-of-court information to assist him or her in the exercise of the awesome power of imposing a death sentence.

Defendants Sentenced to Death While Suffering from Cognitive Intellectual Disabilities

The first case to be looked at, in terms of background, is Penry vs. Lynaugh, 26 June 1989, 5 to 4. The issue in Penry was whether the Eighth Amendment categorically prohibits the execution of a capital offender who is mentally retarded. The court transcripts reveal that Johnny Paul Penry, who was 22 years old when he allegedly committed the brutal rape and murder for which he was convicted and sentenced to death, had the reasoning capacity of a seven-year-old. During the trial's proceedings, the trial judge did not instruct the jury that it could consider the mitigating circumstance of Penry's intellectual disability in imposing its sentence. The question then, before SCOTUS on appeal, was whether Penry's sentence of death constituted cruel and unusual punishment, and thus was in violation of the Eighth Amendment's prohibition of such. In Penry, the United States Supreme Court partially affirmed and reversed the lower court's ruling. The justices in the majority held that the jury had been improperly instructed by the judge, and should have been told that it could have considered Penry's intellectual disabilities when imposing its sentence. However, the majority rejected what it termed the "blanket claim" that generally the Eighth Amendment does not allow death sentences for defendants who are intellectually disabled. The majority of the justices upheld Penry's death sentence. Writing for the majority, J. Sandra Day O'Connor provided the following rationale for the Court's decision: "In sum, mental retardation is a factor that may well lessen a defendant's culpability for a capital offense. Yet we cannot conclude today that the Eighth Amendment precludes execution of any mentally retarded person of Penry's ability convicted of a capital crime simply by virtue of his or her mental retardation alone. So long as juries, when imposing sentence, can consider and give effect to mitigating evidence of mental retardation, an individualized determination whether 'death is an appropriate punishment' can be made in each particular case. While a national consensus against execution of the mentally retarded may someday emerge reflecting the 'evolving standards of decency that mark the progress of a maturing society,' there is insufficient evidence of such consensus today." By 2002, a national consensus against the execution of the mentally retarded had indeed emerged. The results of a 2002 Gallup poll showed that only 13% of the respondents favored the death penalty for an intellectually disabled person who had been convicted of a capital crime, 82% opposed such a sentence in those circumstances, and 5% did not know or declined to answer. Among the subgroups identified in this poll, only 18% of men, 9% of women, 13% of whites, and 14% of nonwhites favored the imposition of the death penalty on mentally retarded capital defendants. Furthermore, by 2002, 18 death penalty states had prohibited the execution of the intellectually disabled. By way of contrast, in 1989, when Penry was decided, of the 50 states, only Maryland and Georgia prohibited their execution. The United States Supreme Court, whose composition had changed since Penry was decided, was influenced by these developments (or 'evolving standards of decency'). Accordingly, in Atkins vs. Virginia, 20 June 2002, 6 to 3, SCOTUS ruled that it is cruel and unusual punishment to execute the mentally retarded. The Court reasoned that the death penalty's two societal purposes—retribution or vengeance, and deterrence of capital crimes by prospective offenders—were not served by the execution of mentally retarded capital offenders. Regarding the issue of retribution, SCOTUS believed that the "lesser culpability" of intellectually disabled offenders by virtue of their cognitive and behavioral impairments did not merit that form of retribution by society. With regard to the issue of deterrence, the Court averred that these impairments make it less likely that the intellectually disabled can "process" the information of execution as a possible penalty and, therefore, control their future behavior accordingly based on that information. In its ruling, the Court also surmised that exempting the mentally retarded from execution would not lessen the death penalty's deterrent effect for potential offenders who are not intellectually disabled. Additionally, in Atkins, the Court noted it was especially concerned that mentally retarded offenders faced a "special risk" for execution because they might unwittingly confess to crimes they did not commit in order to try and please others (i.e. police and prosecutors), be less able to meaningfully assist their attorneys in preparing a compelling defense, be "poor witnesses," and their demeanor in the courtroom and on the witness stand might create the impression among the jury that they lacked proper remorse for their crimes. A key problem with Atkins is that SCOTUS did not set a standard for what constitutes mental retardation for the purpose of a capital defendant seeking to avoiding execution because of that condition. Unhelpfully, one would have to say, the issue was left to the states to sort out. In Schiro vs. Smith, 17 Rocktober 2005, the United States Supreme Court held that the states can develop their own methods for determining an inmate's mental competency, and does not have to conduct a jury trial to resolve the mental retardation claim of a capital defendant. The Court presumed that the current clinical definition of intellectual disability as promulgated by the American Psychiatric Association and the American Association on Intellectual and Developments Disabilities will be used by the states in assessing the claim of mental retardation made by a defendant in a capital case. That clinical definition has three main components: 1) Significant subaverage intellectual functioning (two standard deviations below the mean; typically an IQ score below 75 2) Significant limitations in adaptive functioning in two or more categories (communication, self-care, home living, social skills, self-direction, health and safety, functional academics, leisure, and work) 3) Onset before the age of 18. In practice, however, a number of lower courts have departed from the accepted standards in the clinical definition of intellectual disability in cases involving capital defendants. For example, in a case from several years ago in Florida, a man named Freddie Lee Hall, through his attorneys of course, requested that a Florida state court overturn his death sentence. At trial, he presented evidence that included an IQ of 72, and thus below the threshold followed by the American Psychiatric Association. The court denied relief to Hall on the grounds that a law passed by the Florida legislature in 2005 required that Hall show an IQ score of 70 or below before he could present any other evidence of his intellectual disability. Following the Florida state Supreme Court's rejection of his appeal (it found the state's 70 IQ threshold constitutional), Hall filed an appeal with SCOTUS. The United States Supreme Court did agree to hear to Hall's appeal—because similar issues around this IQ threshold were cropping up in other states, and at least four of the justices determined that the issues raised had national significance. In Hall vs. Florida, 27 May 2014, the Court, by a vote of 5 to 4, held that Florida erred in using a single IQ score as definitive evidence of intellectual capacity. According to the Court, the lower court failed to recognize "the inherent imprecision of measurement," noting that in medical practice a single score is best understood as within a range. Also, the Court cited the lower court's improper exclusion of other relevant evidence of Hall's intellectual disability, such as deficits in adaptive functioning. In this regard, the Court held that when a defendant's IQ score is within the test's acknowledged and inherent margin of error, a defendant has the right to present additional evidence of intellectual disability to the court. Despite instances like the Florida IQ law, Atkins is likely to have spared, and will spare, the lives of dozens, if not hundreds, of convicted killers. It has been variously estimated that 12% to 20% of the Death Row population is intellectually disabled, and that at least 27 mentally retarded defendants had been executed under post-Furman statutes. Ironically, on 5 August 2005, a Virginia jury found Daryl Atkins (the plaintiff in Atkins vs. Virginia) mentally competent for execution, despite his IQ of 59, and he was rescheduled for execution (one of the reasons offered by the state for the reasonableness of Atkin's execution was its contention that because of his many conferences with his lawyers over the years in the various phases of the case, his IQ was higher than it had been previously because of his frequent contact with lawyers!). However, in January 2008, a state court in the Commonwealth of Virginia, citing prosecutorial misconduct in the case, commuted Atkin's death sentence to life in prison. So, Atkin's lawyers succeeding in sparing the life of their client, but not on the grounds they felt should rightfully have made Atkins 'death penalty ineligible.' Now a related case, before we move to another category in the narrowing of those eligible for the death penalty. In Panetti vs. Quarterman, 28 June 2007, 5 to 4, the United States Supreme Court expanded its definition of insanity for the purposes of interpreting the Eighth Amendment. The Court held that it is not enough to consider only whether an inmate on Death Row is aware that he is going to be executed and why, without considering delusions that may prevent the defendant from comprehending the meaning of the punishment to be inflicted. In 1992, Scott Panetti was convicted of the capital murders of his parents-in-law and was sentenced to death despite his well-documented history of mental illness. Nevertheless, during the initial state and federal proceedings against him, Panetti did not argue that mental illness rendered him incompetent to be executed. However, when his execution date was set, Panetti for the first time filed a motion claiming that he was incompetent to be executed because of mental illness. The trial court judge dismissed the motion, and the Texas Court of Criminal Appeals dismissed Panetti's appeal for lack of jurisdiction. In response, Panetti filed a Writ of Habeas Corpus. But the federal district court did not grant him relief, arguing that Panetti was competent to be executed because he knew he was going to be executed and the reason why. The US Court of Appeals for the Fifth Circuit (based in New Orleans) affirmed the decision of the federal district court. For technical reasons having to do with the Antiterrorism and Effective Death Penalty Act of 1996's restriction on successive Habeas Corpus petitions, the appellate court reviewed the lower courts' decisions and concluded that although Panetti knew he was going to be executed, he believed the reason for the execution to be a "sham." Panetti believed that the state of Texas was "working in legion with the devil and sought his execution to stop him from preaching his version of the Gospel." The Fifth Circuit decided that Panetti's delusion was irrelevant. (It is instructive to note that in the two decades before Panetti, during which Texas had carried out 360 executions, the Fifth Circuit Court of Appeals had not found a single Death Row inmate too incompetent to be executed.) The United States Supreme Court disagreed, holding that the ruling of the Fifth Circuit was inconsistent with the precedent of Ford vs. Wainwright, 26 June 1986, which held that "the Eighth Amendment forbids the execution of those who are unaware of the punishment they are about to suffer and why they are to suffer it because of the ravages of mental illness." The Court found that Panetti's delusion caused by a severe form of mental illness was so far removed from reality that the punishment of death could serve no proper societal function. Thus, the Court reversed the death sentence and remanded the case. Part of the Court's analysis was grounded in several clinical studies that estimated that 40% to 70% of Death Row inmates may be mentally ill or chronically psychotic.

Theories for Racial Discrimination in the Imposition of the Death Penalty

The first, and perhaps most obvious theory, is that prosecutors, judges, jurors, and even defense attorneys intentionally discriminate against African American defendants and victims because blacks are feared, disliked, or both. Such an explanation is certainly credible, given the history of race relations in the United States, particularly in the South. Statistical data shows that support for the death penalty by many whites, particularly in more rural areas of the country, continues to be associated with prejudices against African Americans. A second theory is that many participants in our legal system today, even in the South, believe they are not racially prejudiced or are not conscious that they are prejudiced. Yet, racially discriminatory outcomes can be produced through a sometimes unconscious psychological process of racial identification. Psychologist and researcher Dorothy Lieblich refers to the same phenomenon as the "emphatic divide." She describes it as such: "We are more readily horrified by a death if we can empathize or identify with the victim, or if we see the victim as similar to ourselves or a friend or relative, than if the victim appears to us as stranger. In a society that remains segregated socially if not legally, and which the great majority of jurors are white, jurors are not likely to identify with black victims or to see them as family or friends. Thus, jurors are more likely to be horrified by the killing of a white person than that of a black person, and are more likely to act against the killer of a white person than the killer of a black person. This reaction is not an expression of racial hostility; rather it is a natural product of the patterns of interracial relations in our fractured society." Victim-based racial identification, or the empathic divide, also may affect judges, prosecutors, and defense attorneys. Thus, if victim-based racial identification significantly affects the participants in the administration of capital punishment and, further, if nearly all those participants are white, then it follows that racial discrimination against black defendants, particularly those who have killed white victims, may be a real, albeit unintended outcome of the process. Another unconscious psychological process by which racially discriminatory outcomes can be produced is through what has been variously called 'modern racism,' 'symbolic racism,' 'subtle prejudice', and 'aversive racism.' 'Modern racism' has been described as "cool, distant, and indirect" and is manifested not by negative attributions toward out-group members (e.g. members of minorities) but rather by attributing more positive attributes to in-group members (e.g. whites). These 'modern racists' still rely on cultural stereotypes but conceal their racism by expressing ostensibly nonprejudicial values and opinions that, in practice, prove damaging to out-group members (e.g. endorsing tough-on-crime policies, bans on affirmative action, and immigration restrictions). A third theory is that racial disparities are the result of structural racism. Structural racism occurs when members of a race are subordinated, disadvantaged, or overrepresented in negative outcomes through the regular functioning of social institutions, whether or not that subordination, disadvantage, or overrepresentation is consciously or deliberately intended. It is possible that racial disparities are not so much a product of overt racial animus as they are the pragmatic goals of the courtroom participants. What do I mean? Let's consider two prosecutor examples. First, prosecutors may not underrepresent African Americans in jury pools because of racial prejudice per se, but rather because of the belief that African Americans are more likely than whites to oppose the death penalty and thus to acquit capital defendants if they are jurors, particularly when the defendant is black and the victim was white. Evidence from various studies shows that in black defendant-white victim cases, a death sentence is imposed more than twice as often if there at least five white men on the jury. Only the other hand, these same studies demonstrate that the presence of a single black man on the jury reduces the chances of a death sentence by nearly 50%. Quite a statistic. Because prosecutors are constrained by limited resources and highly motivated to win their trials, many try to increase their odds of winning by excluding as many African Americans as possible from juries in capital cases. The second prosecutorial example may not be the result of overt racial enmity but rather of political considerations. Many elected prosecutors may believe that their key constituencies want the limited resources of the prosecutor's office to be expended on white-victim cases rather than black ones. Many prosecutors themselves might not be racially prejudiced (they would focus their efforts on the prosecution of any social group if such efforts would win them more votes), but they may bow to the racial prejudices of their constituents. In sum, whether racial discrimination is the product of structural racism or of intentional or purposeful action, its existence in the administration of capital punishment is odious and intolerable. I think it is interesting to note that the United States Supreme Court has implicitly recognized the existence of structural racism in certain types of cases (e.g., housing, public accommodations, jury selection, and employment) and has held it to be legally impermissible. Yet as we have just seen, the Court has not been equally responsive to structural racism affecting death penalty cases but, instead, requires proof of intentional or purposeful discrimination in individual cases. J. Powell gave one reason for this insistence in the majority opinion in McCleskey: "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system ... If we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we would soon be faced with similar claims as to other types of penalties."

Athenian Justice System Before Athena's Intervention

The system of justice was based upon a blood feud or blood vendetta - a person kills another person. The family of the victim is permitted to retaliate by killing the murderer to avenge the murder of his family member (proportional revenge). Then a member of the family of the first murder will kill in retaliation for that murder, and so on. This led to a perpetual cycle of blood and violence. Aristotle said, "There were no winners in this arrangement." So moving from the blood feud to a new system of justice was completely new.

Justice Stewart's 5 Normative Principles Established in Gregg

These are the principles that Justice Stewart believed should guide the future judicial decisions on the Death Penalty: 1) An arbitrary death sentence is unconstitutional. 2) A discriminatory death sentence is unconstitutional. 3) A death sentence that flouts 'evolving standards of decency' is unconstitutional (more on this topic later). 4) A death sentence that flouts substantive Due Process is unconstitutional. 5) A death sentence that flouts the dignity of the person is unconstitutional.

Tison v. Arizona

This case was decided 5-4 on 21 April 1987. Several years after the Enmund case, SCOTUS revisited the issues that were raised in that case. In this case, as in Enmund, , brothers Raymond and Ricky Tison were participants in felony murders—in this case, also involving robbery and kidnapping. Also, like Earl Enmund, the Tison brothers did not do the killings or intend to kill. Unlike Enmund, however, the Tison were major participants in the crimes. The charges had originated from a plot by the Tisons and another brother of theirs to free their father from prison though violent means. The escape was successful and did not cause loss of life at the prison. In the course of trying to cross state lines from Arizona into California, a family of four was murdered and their car was stolen by the escapees after their own getaway car had a flat tire. The Tison brothers, Raymond and Ricky, were convicted under Arizona's felony-murder statute and sentenced to death. At the sentencing hearing for the brothers, three aggravating factors were introduced and proved: the brothers had created a grave risk of death to others, the murders were committed for pecuniary gain, and the murders were especially heinous, cruel, or depraved. Upon appeal, the Arizona state Supreme Court upheld the death sentences. Several years later, SCOTUS decided Enmund, a decision that led the Tison brothers to appeal their death sentences first to the Florida state Supreme Court, and then to SCOTUS, claiming that the precedent of Enmund demanded that their death sentences be overturned as they had killed no one and intended to kill no one. Arizona's highest court rejected the brothers' appeal, holding that the requirements of Enmund had been fulfilled because the 'intent requirement' of that case could be inferred from the fact that death was a foreseeable result of the brothers participating in a dangerous felony. Likewise, in ruling against the Tisons, the SCOTUS majority held that unlike Earl Enmund, the brothers were major participants in the crimes and showed a "reckless indifference to human life" by their criminal actions. The majority held that even though the killing or intent to kill were absent, the other circumstances of the case and degree of the brothers' participation in it were sufficient to support a sentence of death. Later, the death sentences of Raymond and Ricky Tison were reduced to life imprisonment because both had been under the age of 20 at the time of the crimes.

McCleskey v. Kemp

This case was decided on April 22, 1987. It is the most sweeping challenge to the constitutionality of the new death penalty statutes wherein SCOTUS considered evidence of racial discrimination in the imposition of Georgia's new death penalty statute. Recall that in Furman vs. Georgia, racial discrimination was cited as one of the most significant flaws with the pre-Furman statutes. Warren McCleskey, a black man, was convicted of murdering a police officer in Georgia. He was sentenced to death. The most compelling evidence offered by McCleskey's lawyers were the results of an elaborate statistical analysis of post-Furman death penalty cases in Georgia (more on this study below). This analysis showed that Georgia's new statute produced a pattern of racial discrimination based on the both the race of the offender and the race of the victim. The study found that black defendants who kill white victims are the most likely to receive death sentences in the state. In reviewing his appeal, the question before SCOTUS was whether the statistical study proved that McCleskey's death sentence violated the Eighth and Fourteenth Amendments? In McCleskey, the Court held that evidence such as this scholarly statistical analysis—which did conclusively show a pattern of racial discrimination in the imposition of the death penalty—is not enough to render the death penalty unconstitutional. By a vote of 5 to 4, the Court found that death penalty statutes are constitutional even when statistics indicate that they have been imposed in racially biased ways. The Court ruled that racial discrimination must be shown to have existed in particular, individual cases—something the majority held that McCleskey has failed to prove in his own case—so the court found no constitutional violation. J. Lewis Powell, who wrote the majority's opinion, suggested that the data McCleskey's lawyers presented to the Court should be more appropriately presented to the state legislature and not the courts. J. Powell insisted in the opinion that individual criminal cases cannot be decided on the basis of social science research, however sound. I think it fair to say that for death penalty opponents, McCleskey represented the best, and perhaps last, chance of having SCOTUS again declare the death penalty unconstitutional in its application. McCleskey and his lawyers relied on the extensive research done by David Baldus and George Woodworth (also working with Charles Pulaski) examining the presence of racial discrimination in death penalty sentencing in Georgia. They began their multi-year study after Gregg seemed to indicate that race has been extracted from the death penalty process. They intended to test that assumption. Their study examined more than 2,000 murders, controlling for 230 variables. I think it fair to state that the study's findings have often been misunderstood or misrepresented. The results did not show that African Americans were significantly more likely to be sentenced to death than whites. No, what the study did conclude was that people accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims. In other words, the study concluded that a death sentence in Georgia often hinged not on the race of the defendant but on the race of the victim.

Early Era of the Death Penalty

This era spans from 1608-1929. On May 14, 1607, the Jamestown colony was chartered. The following year, in 1608, Captain George Kendall, a counselor of the Jamestown settlement, was convicted and executed. Kendall has the distinction of being the earliest execution in what would become the US. Kendall's execution differed in two ways from most of the executions that would follow his; 1) Kendall was convicted of treason and espionage against the Jamestown settlement - these are rare charges. 2) Kendall's method of execution was unusual - he was killed by a firing squad. The importance of Kendall's execution is that it demonstrates that the early colonists brought the DP with them from England. Otherwise, the DP would not have even been considered in the case.

Conclusion of the Six Aspects of the New Justice System

This is all based upon the end of the trilogy. At the end there is a pervasive sense of closure in the case having been achieved - Aeschylus links this closure to the finality that a court decision brings. Transferring the authority to retaliate in the name of a murder victim from the family to the state circumvents the never-ending cycle of murders that then span generations. At the end of the trilogy, Orestes is acquitted and the Furies object vehemently. So, to bring peace, Athena offers the Furies an "honored place" in the new legal system. However, it must be noted that at the end of the trilogy, the Furies are not converted to gentle spirits or agents of reason. Aeschylus makes 2 key points by the non-conversion of the Furies: 1.) He insists that the law/legal system can never be divorced from passion, emotions, and the non-rational 2.) He also insists that vengeance or retribution must be an integral part of every system of justice. NOTE: This trilogy never addresses the question of whether the death penalty is an appropriate response to a serious crime - it assumes that it is appropriate. His main focus is on by whose authority a person should be executed.

Strickland v. Washington

This is the prime case on the Doctrine of Ineffective Assistance of Counsel. This case was decided by the Supreme Court on May 14, 1972, with a decision of 7-2. This case gave categories for what ineffective assistance looks like: a.) A lawyer who does not do adequate preparation for trial b.) A lawyer who sleeps during trial c.) A lawyer who is addicted to alcohol or other drugs d.) A lawyer in very poor health or verging on senility e.) A lawyer who struggles with mental illness f.) Conflicts of interest on the part of the defense lawyer NOTE: Even if one establishes extreme incompetence, it will not automatically grant a new trial or appeal if: 1.) There is already independent and substantial information pointing to the defendant's guilt. 2.) It is highly probable that the verdict of a new trial would be the same, even with competent assistance of counsel.

Enmund v. Florida

This wasEarl Enmund was the driver of the 'getaway' car in a robbery in which the two people, a husband and wife, were murdered. The two accomplices who did the killings were sentenced to death. Enmund did not kill himself and was not present at the killings (he was parked a distance from the farmhouse that was the scene of the robbery and murders). Yet the fact that through his driving of the car, he helped the killers to escape, was enough under Florida law to make him "a constructive aider and abettor and hence a principal in first-degree murder upon whom the death penalty could be imposed." Enmund appealed his sentence of death to the Florida state Supreme Court. His lawyers argued that a sentence of death was disproportionate to his participation in the crimes that took place. The state Supreme Court rejected his contention that the death sentence was inappropriate because he did not kill or intend to kill the victims. In denying Enmund's appeal, the Court held that "the state's felony-murder rule and the law of principals combine to make a felon generally responsible for the lethal actions of his co-felon." Enmund's lawyer appealed his sentence to the United States Supreme Court, and the tribunal agreed to hear his appeal. Subsequently, the Court ruled in Enmund's favor (though it was a closely divided Court). In addressing the central issue of Enmund's blameworthiness for the two murders upon which the case revolved, the Court ruled that to impose the death penalty on someone who did not kill another, attempt to kill another, intend to kill another, and who had no idea that anyone would be killed, violated the Eighth Amendment's prohibition against cruel and unusual punishment. J. White, in writing the majority opinion, also held that putting someone to death for two killings he did not commit is disproportionate retribution and thus violates the Due Process Clause of the Fourteenth Amendment. Thus, the Court reversed the judgment of the Florida state Supreme Court upholding Enmund's death sentence and remanded the case back to Florida in light of its ruling. Subsequently, Enmund's sentence was reduced to a prison term, and he was eventually released from custody.

5th Amendment and the Death Penalty

Though specific methods of execution had been legally challenged as early as the 1890s, and procedural issues were challenged before that, the fundamental legality of capital punishment itself was not subject to legal challenge until the 1960s. It had long been argued that the US Constitution, or more specifically, the 5th Amendment authorized capital punishment, and that a majority of the Founding Fathers did not object to it (this being another aspect of their legal inheritance from England). The three specific references to capital punishment in the 5th Amendment have been taken as prima facie evidence that the Founding Fathers did not object to its use; crucially, however, they also show that the Founding Fathers expected capital punishment to be carried out according to the constitutional guidelines they provide with "Due Process of Law."

Gregg v. Georgia Decision

Thus, in the consolidated cases of Gregg vs. Georgia, Jurek vs. Texas and Proffitt vs. Florida, also all on 2 July 1976, (hereafter referred to as Gregg), SCOTUS by a vote of 7 to 2 (with Justices Marshall and Brennan dissenting), approved guided discretionary statutes that set standards for judges and juries to use when deciding whether to impose the death penalty in a case. J. Harlan's McGautha opinion notwithstanding, the Court's majority concluded that the guided discretionary statutes struck a reasonable balance between giving the jury some direction and allowing it to consider the defendant's background and character and the particular circumstances of the crime. In the words of J. Stewart, "no longer can a jury wantonly and freakishly impose the death penalty; it is always circumscribed by the legislative guidelines." In addition, the new guided discretionary statutes would respect the defendant's human dignity, as required by the Eighth Amendment, and also prevent our old friend jury nullification—the practice of a jury's refusal to convict guilty defendants in order to avoid imposing unjust death sentences. Not all of the justices were sanguine with their decisions in Gregg. For example, Justice White, who cast his vote with the majority, complained, "Mistakes will be made and discriminations will occur which will be difficult to explain." Death penalty scholar Stephen Bright (who taught me back in the day) maintains that one of the great ironies of both Furman and Gregg (and several other subsequent death penalty cases) is that "the litigant with the law on his side lost. In Furman, conventional sources of constitutional law supported the death penalty, but the Court still invalidated the procedures by which it was imposed. In Gregg, precedent finally cut against the death penalty, but the Court reinstated it anyway." Bright concludes, "The decisions in both of those cases make sense only when viewed in light of the larger historical context in which they were decided." Bright's point—a point he shares with many observers of the Court—is that 'extralegal' factors (e.g. "broader social and political forces"), rather than the law only, frequently influence the justices' decisions. The Supreme Court also approved three other major procedural reforms in Gregg: bifurcated trials (i.e. a separate trial phase and a separate sentencing phase), automatic appellate review of convictions and sentences, and Proportionality Review. Proportionality Review is the process by which state appellate courts compare the sentence in the case before it with sentences imposed in similar cases in the state. Its purpose then is to identify sentencing disparities, and thus aid in their elimination in the future. Ironically, in the case—Gregg—that would set the standards for the modern death penalty, no mitigating evidence was presented during the new, special sentencing hearing. Mitigating evidence, along with aggravating evidence, is the hallmark of guided discretionary statutes. Yet the jury heard absolutely nothing about Gregg's background and character. In fact, in a trial that lasted only four days, Gregg's court-appointed attorney presented no evidence at all, expect to put Gregg on the witness stand to testify that he did not commit the murders with which he was charged. In any event, the primary justification for the unique procedural safeguards approved in Gregg was the 'death-is-different' principle originated by J. William Brennan and first articulated by him in Furman. In Furman, the Court observed that death is "an unusually severe punishment, unusual in its pain, in its finality, and in its enormity." Later, in Gardner vs. Florida, 22 March 1977, the Court elaborated on this principle: "Five members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country. From the point of view of the defendant, it is different both in its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other state action. Thus it is of vital importance to the defendant and the community that any decision to impose the death penalty be, and appear to be, based on reason rather than on caprice or emotion."

Doctrine of Ineffective Assistance of Counsel

Until 1963, we did not have a definitive ruling on the meaning of the assistance of counsel clause. From 1791-1963, this was unclarified until Gideon v. Wainwright overturned Betts v. Brady. The charge of ineffective assistance of counsel is brought by a convicted criminal defendant who alleges that his legal representation was so ineffective and incompetent so as to violate his constitutional right under the "assistance of counsel" clause of the 6th Amendment. A defendant has the right to be represented by a competent lawyer. "Competence" is defined as "reasonable professional assistance rendered according to prevailing legal norms and practices." In order to prove ineffective assistance of counsel, a defendant must show two things to the court: 1.) Deficient performance by your lawyer 2.) Resulting damage to your case, in that 'but for' this deficient performance the outcome of your trial would have been different.

Furman v. Georgia Background

William Henry Furman, whose name is associated with this landmark SCOTUS decision, was sentenced to death on 20 September 1968, in Savannah, Georgia, for the August 1967 murder of William J. Micke, Jr., a 30-year-old petty officer in the United States Coast Guard and the father of four children and the stepfather of six others. Furman, 25 years old at the time of the murder and with an IQ of 65, shot Micke during a burglary attempt at Micke's home. It is instructive to note that Furman's African American, court-appointed defense attorney, Bobby Mayfield, was paid a total of $150 to defend him. At the time of the trial, Mayfield argued that the paltry fee made it impossible for him to mount an effective defense on Furman's behalf because of financial constraints. Nevertheless, the trial judge denied Mayfield's request for additional funds to hire an investigator and to pay for the additional time and expense needed to prepare a proper defense for Furman. The entire trial—from jury selection (eleven white jurors and one black juror) to the jury's rendering a death sentence—was (incredibly) completed in just a single day, between 10:00 AM and 5:00 PM. During the trial, Mayfield made no mention of Furman's mental impairments. (Furman was diagnosed as 'mentally deficient' with convulsive disorder and psychotic episodes.) According to J. William J. Brennan, "the jury knew only that he [Furman] was black and that, according to his statement at trial he was 26 years old and worked at Superior Upholstery." Justice Brennan's statement is not entirely accurate, according to legal affairs journalist Robert Warden, because, at his attorney's request, the judge did allow Furman to make an 'unsworn statement' to the jury telling them his version of events, which differed substantially from the one he told the police following his arrest. Furman claimed that his gun discharged accidentally when he tripped on an electrical cord and fell backward trying to get away. He said to the jury, "I didn't intend to kill anybody. I didn't know nothing about no murder until they arrested me, and when the gun went off, I was down on the floor and I got up and ran. That's all there is to it." The statement did not matter. Furman, as noted above, was sentenced to death. He had little chance. According to Warden, "At the time of Furman's arrest, blacks constituted 27% of Georgia's population, but made up more than 85% of its Death Row inmates. In the previous three decades, 340 of the 421 convicts executed in Georgia were African Americans." However, following sentencing, surprisingly, Furman was not sent to Death Row but rather to a state psychiatric hospital for "a mental deficiency, mild to moderate, with psychotic episodes associated with convulsive behavior." On 17 January 1972, less than nine months after McGautha, Furman's new lawyers argued to the US Supreme Court that unfettered jury discretion in imposing the death penalty for murder resulted in "arbitrary" or "capricious" sentencing. However, Furman's lawyers, per the Court's stipulation, and unlike in McGautha, claimed that unfettered jury discretion violated both their client's Fourteenth Amendment right to Due Process of Law and his Eighth Amendment right not to be subjected to cruel and unusual punishment.

2 Major Trends of the Early Era of the DP

1) The gradual transfer of the authority to impose the DP from local officials to state officials. 2) The gradual reduction in the number of crimes that merited the death penalty.

When will a precedent not be applied in a new case?

1.) A case is distinguished from the precedent. Prima facie a new case seems to have substantially similar facts to a previous case. However, after careful consideration it becomes apparent that the facts of the new case are substantially dissimilar from the facts of the precedent. So, another precedent will be applied in the case. 2.) The precedent is overruled and a new precedent is a established. This is very rare.

Furman and Gregg Consequences

As a result of these decisions, the death penalty, unlike any other punishment prescribed by law, requires special procedures that ensure its lawful application. Law professor Lawrence Tribe refers to these special procedures as "super Due Process." Stephen Bright has noted that the Court in Gregg and Woodson attempted to cleverly reconcile two seemingly irreconcilable goals: consistency in application and the consideration of individual circumstances in a particular case. Whereas in Woodson, mandatory statutes would guarantee consistency in application, they would preclude 'individualized' sentencing decisions. In Gregg, guided discretionary statutes would allow for the consideration of factors peculiar to the case but would necessarily produce disparities in sentencing. If one of the two goals had to be sacrificed for the other, SCOTUS apparently opted (if it ever considered it a dilemma) for the consideration of individual circumstances over consistency in application. Inconsistency in application, however, was one of the key problems cited by the Court in Furman. Also, it must be noted that the Court approved the guided discretionary guidelines on faith, assuming that the new statutes and their procedural reforms would rid the administration of the death penalty of the problems cited in Furman. Because guided discretionary statutes, automatic appellate review, and Proportionality Review had never been required or employed previously in death penalty cases, the Court could not know whether they would make a significant difference. Now, some 45 years later, it might be possible to evaluate the results. Law professor Brandon Garrett, who specializes in death penalty jurisprudence, claims the statutes have not made much (positive) difference: "The Supreme Court's death penalty laws, by creating an impression of enormous regulatory effort, while achieving negligible effects, effectively obscures the true nature of our capital sentencing system. The pre-Furman world of unreviewable sentence discretion lives on, with much the same consequences in terms of arbitrary and discriminatory sentencing patterns." Of course, reasonable people can disagree on this point. Certainly, however, the late Justice John Paul Stevens would have agreed. In a 2015 interview, J. Stevens confessed that he particularly regretted one vote during his 35 years (1975-2010) on the Court: his 1976 vote to uphold the death penalty in Gregg. He stated, "I thought at the time ... that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate." "But over the years," he continued, "the Court constantly expanded the number of cases eligible for the death penalty, so that the underlying premise of my vote had disappeared, in a sense." He concluded, "I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing in 1976." Indeed, over time, Justices Stevens, Blackmun, and Powell—all of whom voted with the majority in Gregg—changed their minds about the death penalty and no longer believed it was constitutional. Had those three justices voted differently in Gregg, the Supreme Court would have abolished the death penalty in the United States in 1976 by a vote of 5 to 4. One of the problems was that SCOTUS, which endorsed the aforementioned reforms, did virtually nothing to guarantee that defendants benefited from them. For example, despite the emphasis placed on the presentation of mitigating evidence during the penalty phase of a bifurcated trial, the Court ignored the fact that many of the lawyers in capital cases lacked the training, experience, and resources to present such evidence effectively. The Supreme Court actually accepted several different types of guided discretionary statutes that varied in the restrictions placed on judges and juries. Some of these statutes were modeled after ones proposed in the American Law Institute's 'Model Penal Code of 1959.' Two of the most common types of guided discretionary statutes are 'aggravating versus mitigating' or 'weighing' statutes and 'aggravating only' or 'threshold' statutes; a third type, 'structured discretion' or 'directed' statutes is one of the most frequently used types of guided discretionary statutes. Aggravating circumstances (or factors) refer "to the particularly serious features of a case, for example, evidence of extensive premeditation and planning by the defendant, or torture of the victim by the defendant." Mitigating circumstances (or factors), on the other hand, refer "to features of a case that explain or particularly justify the defendant's behavior, even though they do not provide a defense for the crime of murder" (e.g., youth, immaturity, being under the influence of another person, etc.). Florida's current death penalty statute is an example of the 'aggravating vs. mitigating' or 'weighing' type of guided discretionary statutes. It is the most widely used type of death penalty statute. Under it, at least one aggravating factor must be found in the defendant's crime(s) before death may be considered as a penalty. If one or more aggravating factors are found, they are weighed against any mitigating factors. If the aggravating factors outweigh the mitigating factors, then the sentence is death. If the mitigating factors outweigh the aggravating factors, then the sentence is life imprisonment without the possibility of parole. If aggravating and mitigating factors are of equal weight, a death sentence may be imposed. I think several aspects of Florida's death penalty statute in particular, and aggravating versus mitigating death penalty statutes in general, are worthy of brief note. First, until recently, Florida was one of only three death penalty states (along with Alabama and Montana) where a jury's sentencing recommendation is only advisory. In other words, a Florida trial judge was legally entitled to ignore the jury's recommendation and impose the sentence (either life or death) that she believed was most appropriate. Since 2001, the judge had to give the jury verdict 'great weight.' In addition, since 2004, for a Florida trial judge to sentence a defendant to death over a jury's recommendation of a life sentence, "the facts suggesting a sentence of death had to be so clear and convincing that virtually no reasonable person could differ" (source: Florida Judge's Manual). Between 1972 and 2010, Florida judges overturned 167 jury decisions to sentence defendants to life in prison and instead sentenced the defendants to death. Since 2010, Florida judges have largely refrained from overruling juries, even though the law still allowed it, because so many of those death sentences had been overturned on appeal by the Florida Supreme Court. In Alabama, trial judges overrode juries and imposed death sentences in 86% of the first 107 'overrides' after Alabama adopted its post-Furman death penalty statute. None of this should have mattered any longer because, on 24 June 2002, the US Supreme Court ruled in Ring vs. Arizona that the Sixth Amendment right to a jury trial requires that juries and not judges determine whether death is the appropriate punishment in a capital case. This decision arguably should have ended the practice in Florida, Alabama, and Montana of making the jury's decision in capital cases merely advisory. However, until recently, as noted, all three states had withstood several Ring challenges to override their provisions. That changed on 12 January 2016, when SCOTUS announced its decision in Hurst vs. Florida. By a vote of 8 to 1, the Court held that Florida's sentencing scheme was unconstitutional because it violated the Sixth Amendment in light of its decision in Ring. According to the majority opinion in Hurst, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's opinion in such circumstances does not qualify as advisory." A second issue is that the weighing of aggravating versus mitigating factors was not intended by SCOTUS as a simple exercise in adding and subtracting. Jurors are not supposed to count the number of aggravating factors and then subtract them from the number of mitigating factors, or vice versa. Why? Not all factors necessarily count equally. It is conceivable that single aggravating factor could outweigh several mitigating factors, or, again, vice versa. A problem with this weighing process is that it gives the sentencing authority tremendous discretion—something that guiding discretionary statutes were intended to control. Without rules guiding how much weight should be given to specific aggravating and mitigating factors, judges and jurors are forced to use their common sense in making their sentencing decisions.

States Abolish the Death Penalty

In 1846, the state of Michigan abolished the death penalty for all crimes except treason and replaced it with life imprisonment. The new law took effect the next year, making Michigan, for all intents and purposes, the first English-speaking jurisdiction in the world to abolish capital punishment. Michigan did not abolish the death penalty for treason until 1963, at which time the state legislature enacted a constitutional provision requiring a 'supermajority' for any reintroduction of the death penalty. Research from sociologists from the University of Michigan demonstrate that mostly Puritan/Yankee colonists and the later citizens of Michigan have always evidenced an aversion to capital punishment, and that aversion contributed to the state's eventual abolition of the death penalty. Prior to abolition, the geographical area that became the state of Michigan only conducted 11 executions. Eight of those 11 executions occurred in the 1770s under colonial rule; the other three occurred while Michigan was still a US territory. Two of the latter three who were executed were Native Americans, and both were executed in 1821. The other, Stephen Simmons, was executed in 1830, seven years before Michigan gained statehood. Simmons, in a drunken rage, killed in his wife in Detroit. Following Simmons's execution, a public outcry against the death penalty occurred both in newspapers and public meetings, while the executions of Native Americans drew little public interest. Simmons, incidentally, is the only non-Native American ever executed under state or territorial authority in Michigan. Michigan has continued to resist the death penalty through the ensuing decades, despite high murder rates in comparison to other states. The first state to outlaw the death penalty for all crimes, including treason, was Rhode Island in 1852; Wisconsin was the second state to do so a year later in 1853. Although no other states abolished the death penalty during this era, by 1860, no northern state punished by death any crime except for murder and treason. Further, those states that had divided the crime of murder into degrees limited the death penalty to first-degree murders. The last person executed for the crime of rape in the northern states was probably a man named Horace Carter, a white man hanged in Massachusetts in 1825. The opponents of the death penalty, who generally benefited from the general abolitionist sentiment, saw the focus on capital punishment wane as the impending Civil War approached, and attention and public enthusiasm by and large shifted to the growing antislavery movement. Following the Civil War, the general lawlessness that accompanied Reconstruction convinced the majority of Americans in all geographical regions of the country that capital punishment was needed to help restore social order. As a result, not until well after the Civil War did Iowa, in 1872, and Maine, in 1876, became the next states to abolish the death penalty; and yet, because of public opposition, the legislatures in both states reversed themselves and reinstated the death penalty in Iowa, in 1878, and in Maine, in 1883. Interestingly, Maine reversed itself again in 1887 and abolished capital punishment and, to date (2020), has never reinstated it. Also, Colorado abolished the death penalty in 1897, but that decision proved extremely unpopular with many of its citizens. Thus the death penalty was restored in Colorado in 1901.

Maxwell v. Bishop

This was the LDF's first test case. William L. Maxwell was a 22-year-old black man who in 1961 was charged with the rape of a white woman. Maxwell was convicted of the crime and sentenced to die the following year. His initial appeal to Arkansas Supreme Court asserted that there was a pattern of racial discrimination in the way Arkansas juries dealt with rape cases. His appeal was denied. Then Maxwell's attorneys, with the assistance of LDF lawyers, drafted a Writ of Habeas Corpus for review by the federal courts. In each of the courts—first the US District Court, then the US Court of Appeals for the Eighth Circuit, and, finally, SCOTUS—the writ was rejected. All this occurred during 1964 and 1965. In 1966, a second Writ of Habeas Corpus was presented to the US District Court in Arkansas on Maxwell's behalf. This time, the court agreed to hold a hearing. Although his lawyers were able to show, through the use of social scientific data, that there was a pattern of racial discrimination in death penalty cases for rape in some Arkansas counties, the result was the same. The court rejected all of Maxwell's claims, and also refused his request for a stay of execution. Maxwell's lawyers then challenged this decision at the US Court of Appeals for the Eighth Circuit, which upheld the lower court ruling. Maxwell and his lawyers, however, were not yet finished. In 1967, Maxwell won a stay of execution from SCOTUS, and the Court sent the case back to the US Circuit Courts of Appeals for the Eight Circuit for further review. In 1968, the appellate court again denied Maxwell's petition and upheld his death sentence. Still, Maxwell and his lawyers persevered. In 1968, Maxwell petitioned the US Supreme Court a third time, and SCOTUS agreed to hear arguments about Arkansas's lack of clear guidelines in jury sentencing and its single-verdict procedure (i.e. not having a trial phase of the case, and a sentencing phase). The LDF lawyers wrote the brief, and the case was argued before the justices on 4 March 1969. Following the oral arguments, the Court voted 8 to 1 to declare the way that Arkansas carried out the death penalty unconstitutional. However, the decision was never announced, and no one aside from the justices knew of it. Because of unusual personnel issues facing the court (the unexpected resignation of J. Abraham Fortas on 14 May 1969, and the retirement of Chief Justice Earl Warren that June), the Court ordered that Maxwell be reargued at the beginning of the Court's new term on 13 October 1969. The reargument, however, was postponed until 4 May 1970, because President Nixon had trouble getting his first two nominees to replace Fortas confirmed. The Senate, under the Doctrine of Advice and Consent, rejected both Clement Haynsworth and G. Harold Carswell. Finally, the Senate confirmed Nixon's third choice for the post, Judge Harry A. Blackmun of the Eighth Circuit Court of Appeals. However, since Blackmun had written the Eighth Circuit's opinion in Maxwell, he recused himself from the case. Thus, the Court was left with only eight justices to decide Maxwell. As an historical aside, one of the consequences of Maxwell was the unofficial suspension of all executions in the country until some of the more problematic legal aspects of the death penalty could be resolved. Thus the last execution in the United States occurred on 2 June 1967, when Luis Jose Monge was executed in Colorado's gas chamber for the murder of his pregnant wife and three of their children. This unofficial moratorium on executions would last 10 years, until 1977, when Gary Gilmore requested to be executed by the state of Utah (more on this later). The US Supreme Court finally determined William Maxwell's fate on 1 June 1970. The Court, however, did not address Maxwell's principal claim that racial discrimination on the part of the jurors, who had total discretion in the sentencing, tainted death penalty verdicts in rape cases in some Arkansas counties. Instead, the Court vacated (i.e. set aside) Maxwell's death sentence on the narrower grounds that several prospective jurors in Maxwell's case were improperly removed during voir dire because of their general opposition the death penalty. On 29 December 1970, Arkansas Governor Winthrop Rockefeller, at least in part in response to the urging of LDF lawyers, commuted Maxwell's death sentence, as well as Arkanas' other 14 death row inmates, to life in prison. Asked about the decision, Rockefeller asked rhetorically, "What earthly mortal has the omnipotence to say who among us should live, and who among us should die?" On 14 November 1974, Arkansas Governor Dale Bumpers commuted Maxwell's life sentence to 20 years and eight months; Maxwell was paroled on 3 June 1975. Maxwell subsequently violated parole and was returned to prison on 25 June 1978. But he was paroled again on 27 July 1978. From that time on, no record of Maxwell could be found.