Cruel and Unusual
o Post-trial Protections
can Request a new trial with brand new evidence (rarely granted)
o Marshall and Brennan argued Warren
went too far in protecting criminal's rights, then they argue the death penalty is always unconstitutional
o Disagreement over
what conditions classify as intellectually disabled
o Subsequent appellate courts
(DISCRETIONARY review)
o The test used in Gregg
"Evolving standards of decency of a maturing society" -a majority of states approve of the death penalty (Almost every state that had a death penalty prior to Furman reinstated it by 1976)
• Eighth Amendment
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
o Holding
"The judgement of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion"
o Georgia created the __ trial
"bifurcated trial" w 2 stages- the guilt phase and the penalty phase (must be unanimous)
o Conclusion,.. Death penalty for intellectually disabled is
"excessive and the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender." (8th and 14th)
• 3rd purpose of death penalty
"incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future"
o Textualism/Originalism interpretation
"it is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers"
o CJ Warren in trop v. Dulles
"the amendment (8th) must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" (Conservatives/Originalists argue doesn't constrain the justices who aren't elected)
o Can appeal to court above
(MANDATORY review)
o "deprived of life...without due process" means
*with* due process it is acceptable
o New GA Statute
10 aggregating factors, unanimous approval for at least 1 factor, no limit on mitigating factor, and Must be sent to Georgia's State Supreme court for automatic review
o penalty cannot be "excessive" (on 2 conditions)
1st cannot involve unnecessary pain and 2nd cannot be grossly disproportionate to the severity of the crime
• Confrontation clause guarantees
1st the defendants have a right to be present during their trials, 2nd the prosecution witnesses must be present in open court in the presence of the defendant to give their testimony under oath, 3rd cross-examination - witnesses must also be subject to questioning by the defense
o 3 strikes rule
3rd felony can get someone life in prison (only ruled cruel and unusual when someone wasn't given parole)
o 2nd hearing hired phycologists on both sides argued
Atkins (defense) said he had an IQ of 59 and was unable to interact on a daily basis. Prosecution (Virginia) said he was of average intelligence. The jury heard of Atkins 16 other felonies as well.
o Purpose
Bars multiple punishments for the same criminal offence (with exceptions, especially civil issues - U.S. v. Usery) and Prevent exhaustion of person and resources at repeated hearings & harsher punishments by gov.
o Basic facts in Akins
Daryl Renard Atkins and William Jones, Abducted, robbed, and murdered -shooting 8 times Eric Nesbitt (airman from Air Force Base), Each claimed that the other had shot Nesbitt, Jones plead guilty to first-degree murder in exchange for his testimony against Atkins (By pleading guilty, Jones could not face the death penalty under Virginia Law), Court believed jones account and upheld Atkins conviction, sentencing him to death. The Virginia Supreme Court upheld the conviction, ordering a new penalty phase...
o Justice Brennan's dissent
Death penalty is cruel and unusual punishment
o Test
Evolving standards of decency that mark the progress of a mature society (used in Tropp)
o The test decided
Georgia's capital punishment scheme did not constitute cruel and unusual punishment under the 8th amendment
o Gregg v. Georgia (1972) basic facts
Gregg was hitchhiking with a friend and after reaching Georgia one whiteness from the trip alleged that Gregg & his friend had murdered the two original drivers. Gregg argued the death sentence was cruel and unusual punishment and *always* violated the 5th amendment
o Gregg's ending
Gregg was put on death row, escaped Georgia State prison with three others, and was beaten to death in a bar in North Carolina before his execution date
• 3rd rule exception
If witnesses providing testimonial evidence against the defendant cannot be cross-examined in open court, prosecutors can introduce their testimony only if the witnesses are unavailable AND the defense has had an opportunity to question them through cross-examination (Crawford v. Washington)
o Question
Is the punishment of death always, regardless of the enormity of the offense, cruel and unusual punishment in violation of the Constitution?
o Not considered punishments
Megan's laws do not attempt to say or predict whether an individual is dangerous (So States are not barred by principles of procedural due process for maintaining them)
o Key ideas
Must follow Evolving standard of decency, cannot be grossly disproportionate to the crime, the impact should show deterrence and retribution
• McCleskey v. Kemp
Need to prove discrimination in each particular case, Subconscious bias, Difficult to prove, Not one precedent has proved they need to be sparred because of racial discrimination.
o Precedent of Atkins
Penry v. Lynaugh, held that intellectually disabled facing capital punishment did not violate the constitution
o Furman v. Georgia
Previous death penalty state laws were arbitrary, argued vagueness of the laws (racially discriminatory)
o Attitudinal model shows
Same test with different results because of motivated reasoning (left v. right look at different statistics), Reasoned with biases, simple politics
o Conclusion of case
The statutory system under which Gregg was sentenced to death does not violate the Constitution. Judgement of the Georgia Supreme Court is affirmed.
• Capital punishment allowed?
With indictment by grand-jury you can have a capital punishment (punished by death), Can be put in jeopardy of life or limb
o Only direction they could have gone was
against it because precedent upheld it
o Also require the jury to
consider the circumstances of the crime and the criminal before it recommends sentence
o Judicial review of other laws (1990-2000 several states passed legislation forbidding or limiting the execution of intellectually disabled) involving intellectually disabled
direction of change shows "powerful evidence that today our society views intellectually disabled criminals as less culpable than the average criminal"
o Goes back to reason for death penalty; evaluates level of retribution and deterrence on an intellectually disabled
does not measurably contribute to or take away from one or both of these goals
o Different set of post-trial protections
double jeopardy clause of the 5th amendment
o Petitioners (anti-death penalty) argue "standards of decency" have
evolved to a mature enough point to prevent the death penalty for any crime
o Criminals who are not intellectually disabled will still be
frightened/deterred by the possible sentence
o Post-Furman statutes make clear that capital punishment itself
has not been rejected by the elected representatives of the people
o Mode of interpretation
interpretivist / preferred freedoms because argues facts should be applied to current standards of decency & denies right to a "discrete and insular minority"
o The U.S. Supreme Court accepted the case in order to reconsider
its ruling in Penry v. Lynaugh (constitutionality of sentencing an intellectually disabled to death)
o Justice Scalia, CJ, Justice Thomas dissent argue too much
judicial review/discretion/interpretivist, Argue inadequate "evolving standards of decency consensus" (47% of death penalty states forbid against intellectually disabled), Compared It to other higher consensus' for similar death penalty cases, "Ignores 3rd social purpose of death penalty", intellectually disabled are not entirely blameless (know the difference between right and wrong) - should be decided on case-by-case basis. Argues too many irrelevant religious, professional, and "world community views"
o Look at standards through
legislation rather than the subjective views of the individual Justices
o Following the supreme court ruling, the Virgina legislature revised the state's capital punishment laws to
prohibit the execution of the intellectually disabled
o Indv. found not guilty cannot be
prosecuted a 2nd time for the same offense (or same gov. cannot appeal a defendant's non-guilty verdict) but Separate governments (with different criminal laws violated by 1 crime) may both prosecute
o Marshall's dissent
questions whether retribution (&deterrence) can provide a moral justification for this punishment; says death penalty is excessive and in violation of the 8th and 14th amends.
• 2nd rule exception
rape and child abuse (Maryland v. Craig)
• Death penalty is said to serve two social purposes
retribution and deterrence of capital crimes by prospective offenders
o New statutes ensure
sentencing authority (jury) is given adequate information and guidance
o Megan's laws
sex offenders must register with the state's dept. or local police (first passed by the federal gov. "Congress called on the states to pass their own Megan's laws...")
Can face for same crime if violates both
state and federal criminal codes
o Holding
the Death penalty is not a form of punishment that may never be imposed
o Jury's discretion is channeled and it is always circumscribed by
the legislative guidelines
o The new Georgia sentencing procedures focus the jury's attention on
the particularized nature of the crime and the particularized characteristics of the individual defendant
o The practice has become
unusual (doesn't occur often) & national consensus has developed against it
o Burger thought rewriting to conform with the Furman case
was a start to abolition of the death penalty
