Week 7- The Requirement of Heightened Reliability in Capital Sentencing

Causes of lethal injection problems: 1. Method 2. Problematic Formula 3. Administration 4. Supply

1. Ad hoc method (three drug protocol "invented" in arbitrary manner 2. Sedative/paralyzing agent/heart-stopping drug - but if sedative improperly administered, paralyzing agent will conceal pain 3. Exacerbated by non-medical personnel involved in administration of drugs 4. Apart from protocol problems, drugs begin to disappear from market as pharmaceutical companies and foreign countries object to their use in executions, leading states to use untested drugs

a. Lethal Injection Litigation contributed significantly to the decline in executions over the past 15 years (Two principal problems)

1. Concerned over the protocol (Created in a half-hazardous problem). Led to the States creating new protocols which resulted in the delay in the administration of the death penalty (Source new drugs, get it improved, make sure to have enough supply) 2. Dry-up of the Supply of drugs critical to the administration of the death penalty

Baze v. Rees (Stevenes Concurrence) What was his problems with the death penalty?

1. Death-qualifying juries do not reflect the wider views of the community ( He feels like these types of juries are more likely to support the State) 2. Risk of error Argument

Gossip v.s Gross (Breyer and Ginsburg Dissent) Broken down into 6 categories

1. Delay of imposing the death penalty (Death row). Cruel to impose a human being to such a long solitary confinement 2. Death Row Phenomenal (Double Punishment- You are being placed in prolonged solitary while being sentenced to death) 3. i. The death penalty has become unusual (violates the 8th amendment) 4. a. Arbitrariness i. He talks about race and the role it plays ii. He talks about Geography: Death penalty is only concentrated to a small area of the death penalty 5. a. Death Qualification of Juries- We don't have well-represented juries (Bias towards the commission of the death penalty) 6. a. Cruel- Lack of Reliability a. Severe unreliability of the death penalty, wrongful convictions (including wrongful executions), high error rate (more error in capital cases than in non-capital cases (4% is the margin of error rate)

3 Concern raised by Justice Stevens in Baze vs. Rees 1. Jury 2. Risk of Error 3. Discrimination

1. Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community. 2. Another serious concern is that the risk of error in capital cases may be greater than in other cases because the facts are often so disturbing that the interest in making sure the crime does not go unpunished may overcome residual doubt concerning the identity of the offender. 3. A third significant concern is the risk of discriminatory application of the death penalty. While that risk has been dramatically reduced, the Court has allowed it to continue to play an unacceptable role in capital cases

a. Focus in on Heightened Reliability (4th pillar of capital punishment) i. Death is different so the Constitution guarantees heightened reliability 1. Woodson 2. Capital Cases vs. Non-capital Cases

1. Ex: Woodson v. North Carolina- You cannot have a mandatory death penalty (even though non-capital mandatory sentencing is permissible) 2. Ex: Proportionality: Capital Offenses vs. Non-capital Offenses a. Court has rarely applied the proportionality principle from the 8th Amendment in non-capital offenses

Bucklew v. Precythe (Court Holding)

As-applied challenge to LI. Reiterates requirement of substantial risk of unnecessary pain AND pleading requirement of alternative, readily-implementable means of carrying out execution.

Case and Justice In my view, the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility.

Caldwell v. Mississippi (O'Connor Concurrence)

Summary: Justice Stevens concurrence in Baze v. Rees 1. What does he challenge? 2. Concern 3. What does he focus on?

1. J. Stevens writes lengthy concurrence challenging continuing constitutionality of dp. 2. Concern about retributive value of medicalized executions. 3. Focuses on problems in administration: discrimination, wrongful conviction, death-qualification of jurors.

Case and Opinion i. In my view, the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility. 1. The Court, however, seems generally to characterize information regarding appellate review as "wholly irrelevant to the determination of the appropriate sentence.

Caldwell v. Mississippi; Justice Marshall

Herrera v. Collins: no Constitutional Right to

1. No right to some judicial forum after newly discovered evidence (This was the holding some probably wanted, but they did not want to deal with this news)

Simmons v. South Carolina (Influence point made by O'Connor in Ramos)

1. O'Connor: If States want to give accurate information about the sentencing scheme, then they are allowed to do so (Ramos)

What is the impact in Simmons

1. Protects against misrepresentations for the likely dangerousness argument (Discussion of parole eligibility) (Simmons) 1. But not a requirement for clarity about key terms (Simmons) (Ex: Life imprisonment; You can only talk about it if your need to rebut the claim; State needs to open the door)

Summary: Breyer and Ginsberg Dissent in Glossip 1. U, A, Time 2. Geogrpahy 3. Delay

1. Unreliability, arbitrariness, problems with delays (both in effect on dr inmates and ability of dp to secure meaningful penological benefits). 2. New metrics for evaluating present support (number of counties with dp/executions). 3. Cannot solve problem of delays without undermining fairness/accuracy of dp.

i. Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.

Caldwell v. Mississippi; Justice Marshall

Main Holding: Baze vs. rees (Alternative method Rule) 1. F 2. R I 3. Pain

A State's refusal to adopt proffered alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain

Why is this quote important?

Argues that the retributive value is undercut by the medicalization of the process BUT This point misses the market. From a retributive point, you are not worried about the brutality of the execution

A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place But a death penalty system that minimizes delays would undermine the legal system's efforts to secure reliability and procedural fairness. In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty's application. We cannot have both

Breyer Dissent in Glossip v. Gross

a. The Constitution allows capital punishment. i. Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a "capital" crime and "deprived of life" as a penalty, so long as proper procedures are followed. And the First Congress, which proposed both Amendments, made a number of crimes punishable by death

Bucklew v. Precythe

Quote It is his life or death—the decision you're going to have to make, and I implore you to exercise your prerogative to spare the life of Bobby Caldwell.... I'm sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It's going to be your decision. I don't know what else I can say to you but we live in a society where we are taught that an eye for an eye is not the solution.... You are the judges and you will have to decide his fate. It is an awesome responsibility, I know—an awesome responsibility.

Caldwell v. Mississippi (Defense Actions)

Lethal Injection Cases

Cases challenging lethal injection litigation become site for global reconsideration of dp.

Doctrine of Heightened Reliability 1. What is it? 2. What grows from this principle?

Death is different. We need to ensure that what we are doing is reliable Individual consideration grows from the principle

Bucklew v. Precythe: How does the Court deal with Trope?

Doesn't mention Trop but suggests question of dp constitutionality does not turn on "evolving standards of decency."

Case and Opinionn We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high

Herrera v. Collins; Justice Rehniqust

a. Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding

Herrera v. Collins;Justice Rehniqust

Why is this quote important?

It discusses the dilemma faced between heightened reliability and the death row phenonomial The delay is needed to ensure we have a system that gets it right. But the delay diminishes the role the death penalty plays in accomplishing its societal purposes: retribution and deterrence. thus, this inherent dilemma shows that the imposition of the death penalty is nearly impossible

What is the most important principle of this doctrine?

Individualization requirement is perhaps most important "heightened reliability" doctrine (states free to adopt mandatory sentencing in non-capital sphere)

i. This Court has repeatedly said that under the Eighth Amendment "the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination

Justice MArshall and Caldwell v. Mississippi

i. A broader conclusion that people should derive, however (and I would not consider this much of a leap either), is that the dissenters' encumbering of the death penalty in other cases, with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it, will be the product of their policy views—views not shared by the vast majority of the American people. 1. The dissent essentially argues that capital punishment is such an undesirable institution—it results in the condemnation of such a large number of innocents—that any legal rule which eliminates its pronouncement, including the one favored by the dissenters in the present case, should be embraced

Justice Scalia; Concurrence; Kansas v. Marsh

i. In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure. 1. And unless application of the Eighth Amendment no longer calls for reasoned moral judgment in substance as well as form, the Kansas law is unconstitutional

Justice Souter Dissent in Kansas v. Marsh

i. We cannot face up to these facts and still hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences, by requiring them when juries fail to find the worst degree of culpability: when, by a State's own standards and a State's own characterization, the case for death is "doubtful.

Justice Souter Dissent in Kansas v. Marsh

In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is *81 comparable to the suffering inflicted on his victim.16 This trend, while appropriate and required by the Eighth Amendment's prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based.

Justice Stevens concurrence opinion in Baze vs. Rees

What is the Supreme Court response?

Majority opinion appears to foreclose constitutional claim, emphasizing that "bare innocence" claims have never been cognizable even though innocence is relevant in other contexts (e.g., for getting around procedural default)

Caldwell v. Mississippi (Justice Marshall Argument and the majority)

Marshall argues for broad principle forbidding states from attempting to minimize jurors' sense of responsibility for verdict

Why is the Quote important?

O'Connor, relying in part on Ramos, provides narrower rationale prohibiting misleading information about the scope of appellate review (presumably would permit accurate info even if might "minimize" sense of responsibility for verdict

a. If we were to travel down the path that Justice BREYER sets out for us and once again consider the constitutionality of the death penalty, I would ask that counsel also brief whether our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop, should be overruled.

Scalia Concurrence in Glossip

a. The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.

Scalia Concurrence in Glossip

Why is this quote important?

This is the Supreme Court agreeing with Scalia in Glossip and announcing that DP invulnerable to constitutional attack because of textual/historical support at time of founding. Bucklew embraces Scalia critique:

Why is the quote important?

SCT assumes for purposes of decision that a truly persuasive claim of actual innocence might require some judicial forum, but holds that Herrera has not satisfied threshold showing

Why is the quote important

Souter (for four Justices) suggests need for new jurisprudence to respond to the demonstrated risk of error

Souter Concurrence (Simmons v. South Carolina)

Souter argues for broader "heightened reliability" requirement of defining key terms in capital sentencing. i. Thus, whenever there is a reasonable likelihood that a juror will misunderstand a sentencing term, a defendant may demand instruction on its meaning, and a death sentence following the refusal of such a request should be vacated as having been "arbitrarily or discriminatorily" and "wantonly and ... freakishly imposed."

Simmons v. South Carolina (Question)

a. This case presents the question whether the Due Process Clause of the Fourteenth Amendment was violated by the refusal of a state trial court to instruct the jury in the penalty phase of a capital trial that under state law the defendant was ineligible for parole.

Herrera v. Collins: What could a defendant do to get around this new rule?

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high

How does the prosecutor respond in Caldwell?

They disagree with the defense, and minimize the role of the jury

Caldwell v. Mississippi (Defense Actions

They emphasize the ten commandments and their responsibility (The life of his hand is in your hands; eye for an eye quote)

What is the problem with Herrera v. Collins? How does it impact the heightened reliability pillar?

a. This case highlights that the Court was not willing to go far enough to say that Death is different that requires heightened reliability 1. Even in 2022, the Supreme Court has still not declared that there is a constitutional right to provide a judicial forum for this evidence to be heard

Professor Incorrect thoughts: What is a problem with lethal injection case (Existential Concern)

a. Existential concern- If you're fighting against the death penalty and you're fighting against the method of how the death penalty would be done, then how can you fight it. You're basically agreeing that it is a legal practice i. Professor felt that this was not a political and social movement that was vibrant (Professor was wrong)

Stevens inn Baze vs. Reez (retribution)

a. General arbitrariness, race discrimination, and argues that the retributive value is undercut by the medicalization of the process i. Retribution- How do you get a retributive value from a sedated process? (Professor thoughts: This point misses the market. From a retributive point, you are not worried about the brutality of the execution)

Herrea v. Collins (What is the big fact in this case)

a. Herrera newly discovered evidence is revealed a decade later i. Evidence (Brother dead): Brother's attorney says that the brother confessed the crime to me (His brother confessed to him that him, not Herrera, committed the offense) 1. Cellmate of the brother as well agrees to this testimony 2. The brother's son says he saw his dad, not Herrera, commit the crime

Kansas v. Marsh (Follow-up to Herrera) What does the case deal with?

a. Highlights the concern about wrongful convictions i. Kansas has a default rule where if it's a tie, then you grant the death penalty 1. Ex: You need sufficient mitigation evidence to support a non-death sentence

What is the holding in Caldwell v. Mississippi?

a. Main Opinion: You can give a jury an accurate view of the system and describe where they fit (But it needs to be accurate) i. Thus, this permits the State to emphasize how the jury is only a piece in a much large system

One is the one things unique about Steven's concurrence in Baze and Bryer's dissent in Glossip

a. No Human dignity argument made in either Steven's concurring or Breyer's death penalty

Breyer in Glossip (Risk of Error Argument)

a. Severe unreliability of the death penalty, wrongful convictions (including wrongful executions), high error rate (more error in capital cases than in non-capital cases (4% is the margin of error rate)

What is the question the Supreme Court is faced with in Herrera v. Collins?

a. So, the Supreme Court needs to decide whether newly discovered evidence of innocence warrants a constitutional right to hold a judicial forum to give the defendant an opportunity to present this evidence?

Kansas v. Marsh (Justice Souter Argument)

a. Souter: He highlights that we should have a new focus on the problem of wrongful convictions i. We need a new jurisprudence around the problem of wrongful convictions and wrongful executions

Stevens in Baze vs. Rees and Breyer in Glossip (Risk of Error)

a. Stevens and Breyer: Now that we know about all the errors in the capital system, then we need to get rid of it

Caldwell (What does O'Connor and the majority say is problematic about the prosecutor's comments?)

a. The O'Connor and the majority emphasize that the main problem is the defense portraying this inaccurate picture of the role of the Appellate Court i. They make it seem like the appellate will do their own review of the Case, and apply their own analysis (They misstate the role of the appellate court)

Herrea v. Collins (How do the Texas Courts respond to this finding?)

a. The Texas Court says that you're outside the 30-day period, so now you need to go the execute clemency route

What is the main focus of lethal injection cases?

a. The main focus of these cases is centered around whether the Supreme Court should re-consider Gregg (Is the prevailing American death penalty constitutional?)

Herrea v. Collins (What is the basic question)

i. Alternative framing (Less morally fraught): Whether or not should there be a judicial forum to hear newly discovered evidence of innocence if there is a certain power?

Dangers of Bias (Caldwell v. Mississippi)

i. Bias against the defendant clearly stems from the institutional limits on what an appellate court can do—limits that jurors often might not understand i. Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to "send a message" of extreme disapproval for the defendant's acts i. Bias could similarly stem from the fact that some jurors may correctly assume that a sentence of life in prison could not be increased to a death sentence on appeal.

Glossip v. Gross: Breyer thoughts on the Delay

i. Breyer highlights that the length of time being in death row is unavoidable. (This is something we cannot avoid) 1. Cruel to the inmate 2. Undermines the social purpose of the death penalty i. The problems of reliability and unfairness almost inevitably lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row, alive but under sentence of death. 1. First, a lengthy delay in and of itself is especially cruel because it "subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. 1. Second, lengthy delay undermines the death penalty's penological rationale.

a. Three areas where the Court has been robust in treating death differently (We have discussed two of them)

i. First, individualization requirement (Very strong commitment to individualized sentenced) ii. Second, IAC (ineffective assistance of counsel) 1. The Court gives a higher expectation in sentencing in capital cases compared to non-capital cases iii. Third, proportionality cases (The Court has a more excessive review in sentencing for capital compared to non-capital cases)

Baze v. Rees (Stevens concurrence)

i. He feels that the Court should revisit the constitutionality of the death penalty and he asserts that he would vote against the death penalty

Scalia Concurrence in Gossip (what does Scalia think we should?)

i. LOOK AT QUOTE: Scalia believes that the Court should re-consider Trope

a. Given the concerns surrounding lethal injections, it is confusing why the States never moved towards firing squad executions. Why did they avoid this method?

i. Less to do with the defendant and more to do with observers (People were not comfortable to witness this form of execution)

Main holding of the lethal injection cases (Baze vs. Rees, Glossip, and Bucklew)

i. Main holding of the three cases: For an inmate to prevail on a death penalty method, they need to show that there is a significant, objective risk of SEVERE pain 1. Need to show that there is a botch or serious pain ii. Plus, in order to prevail, you need to show to the Court that there is a permissible alternative method

Simmons v. South Carolina (Narrow Approach by the Court)

i. Narrow Approach by the Court: No general right for the jury to be aware of the defendant's eligibility 1. Rather, the State cannot argue future dangerousness and disarm the defense from rebutting this point (Allow the defense to discuss parole eligibility)

What is the impact in Herrera?

i. No special protection against wrongful convictions/executions (Herrera) 1. No right that grants individuals to a judicial forum to hear new evidence of actual innocence

What is the impact in Caldwell?

i. Protects against misrepresentations of the scope of the appellate review (Caldwell) i. But not a requirement for a general right to undiminished the scope of responsibility for the verdict (Caldwell) (State is allowed to give an accurate picture of the system which in its nature diminishes the scope of responsibility felt by the jury)

Scalia response in Gossip (Risk of Error)

i. Scalia: It's okay to have errors because the system is the one who helps identify these mistakes (Thus, in a way, the system cleans it up)

Simmons v. South Carolina (What did States try to hind?)

i. Simmons v. South Carolina: State did not want the jury to be aware of the defendant parole ineligibility 1. In fact, the State utilizes the fact that the defense cannot bring up this fact by emphasizing the future dangerousness of the defendant

Stevens Concurrence in Baze v. Rees (risk of Error Argument)

i. Stevens: # of errors in the system show that it doesn't work (Response to Scalia in Herrera) 1. Too much error to make it a legitimate practice

Breyer in Glossip on Arbitrariness

i. Such studies indicate that the factors that most clearly ought to affect application of the death penalty—namely, comparative egregiousness of the crime—often do not. Other studies show that circumstances that ought not to affect application of the death penalty, such as race, gender, or geography, often do.

Simmons v. South Carolina (Supreme Court)

i. The Court takes a narrow view: States do not have to tell the jury about the sentencing scheme. BUT if they are going to argue future dangerousness, then the State is required to informed the jury of parole eligibility

Bryer in Glossip (Proportionality argument) 1. Usage 2. Concentration 3. People 4. Trend

i. The death penalty has become unusual 1. He points to the incredible diminish of death sentence 2. He points to the concertation of death penalties in only a handful of areas 3. He talks about how so many people live in areas where either the death penalty is abolished or haven't executed someone in many years 4. He talks about the trend of abolishment, opinion polls, world opinions x

What is the main finding in Bucklew?

i. The majority signs on the proposition that the death penalty is constitutional because of the commitment made to the death penalty in the Constitution and at the time of the founding

a. Are these comments appropriate? What's problematic?

i. The nature of this argument is that the death penalty is immoral (You can be mercy; Eye for an eye is not a solution) i. The Prosecutor feels like this is not a legitimate argument because it overstates the role of the jury 1. This jury is being led off a path that doesn't really apply them

Kansas v. Marsh (Scalia response)

i. The wrongful convictions phenomenal shows that the system works. There is no proof that someone who has been wrongful convicted be executed. This system is working to protect people from executions

How has it worked (Existential Concern)

i. This has worked. It shows that if the execution is so costly and difficult to do, then why even do it in the first place

Simmons v. South Carolina (Chapter Reading) a. Highlight everything that the Simmons team does that lead him to prevail under his claim: 3 Things

i. Timing matter: Under South Carolina law, there was parole ineligible for people who were not first-time offenders. Thus, when Simmons got arrested for his murder crime, he had also been accused of other crimes a. Here, the Simmons teams pushed forward to get him to plead guilty to one offense so that he would be eligible for this exemption by the time we got to the sentencing phase i. They obtained a study to show how jurors understand the phrase "life imprisonment" a. The study was meant to communicate to the Court of this misunderstanding problem (Wide spread belief is that people view life imprisonment to be accompanied with parole consideration after 17 years) i. They preserved the claim by requesting an instruction (wanted the court to explain parole ineligibility) about parole ineligibility 1. The trial court denies this instruction because there was a previous law that did not permit the Court to provide this instruction

Glossip v. Gross: Breyer thoughts on Death Row Phenomenal

i. Undermines Retribution- So long in time for the execution ii. Undermines the other societal purpose 1. Deterrence- If it takes you 20 years to be executed, then what deterrent effect does this have on the community iii. Damaging effect: Physiological toll of being alone; Mental Health effects on the individual

Simmons v. South Carolina (Holding)

i. We hold that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible

Scalia Concurrence in Gossip (His response to Breyrer)

i. We shouldn't do any of this analysis because the death penalty is Constitutional (Points towards Originalism and Texts)