Death Penalty Outline by decree


									                Death Penalty Outline – McCord – Spring 2006

Important Historical Cases:
Furman v. Georgia: Mandates that states limit the class of murderers to which
the death penalty may be applied.
       -Need statutory eligibility factor (aggravating circumstance).
-Ct. held that the capital punishment laws should be “even-handed, nonselective,
and nonarbitrary” in their application.

Gregg v. Georgia: Death penalty is not a per se violation of the Constitution. Two
prong test for proportionality: First, evaluated death penalty under “evolving
standards of decency.” Second, determined whether the death penalty for that
particular crime or class of people furthered an acceptable goal of punishment.
*Added bifurcated proceedings and incorporated aggravating circumstances.

Proffit v. Florida: Allowed jury to make an advisory decision to the trial judge,
who was the ultimate sentencer.

Jurek v. Texas: Statute did not have aggravating circumstances, but limited the
definition of “capital murder” to five specific types of killings. Penalty phase
consisted of three specific questions, and if the jurors answered yes to all three,
death must be imposed.

Woodson & Roberts: Mandated death penalty sentence for everyone convicted
of first degree murder. ∆ has a Constitutional right to present mitigating evidence.
The statute must provide for particularized consideration.

1. Bifurcated System
2. Concept of Aggravation
3. Concept of Mitigation
4. Sentencer has to be given “guided discretion” (there must be some rational
directions given for how to decide whether to sentence someone to death)

Categorical Bars to the Death Penalty
Murder Accomplices:
Tyson v. Arizona
To be death eligible the murder accomplice must be
      1) Major participant in the felony; and
      2) Acting with reckless or indifference to human life.

Enmund v. Florida
Felony-murder ∆ who neither killed; nor attempted to kill; nor intended to kill.
Death penalty is unconstitutional for a minor participant.
**IF they are on the scene of the crime, there is some argument that they
should’ve done something to stop their cohorts from allowing the situation to get
out of control.

Ring v. Arizona: ∆ has a constitutional right to a jury finding of the statutory
aggravating circumstances that make a case eligible for a sentence of death.

Roper v. Simmons: If ∆ was less than 18 years of age, the ∆ is not death eligible.

-Any ∆ that has the issue “live” gets the benefit of the Constitutional Principle.
-Or do ∆ who no longer have that issue live, nevertheless get the benefit of it?

Mentally Handicapped
Atkins v. Virginia: It is unconstitutional to execute a ∆ who is mentally retarded.
-Serves no deterrence or retribution effect b/c ∆ has diminished capacity and can
no longer understand why his actions are wrong, or why he is receiving the

Other Crimes
-Armed Robbery, Kidnapping, Raping an adult woman →not death eligible
-Still debatable: Rape of a child; Crimes against the Gov’t; Peacetime espionage

Eligibility v. Selection (separate & distinct questions of fact)
Eligibility: Is the ∆ within the class of ∆s on whom the death penalty could be
         Criteria: aggravating circumstances (act as a filter determining which
cases are eligible for a sentence of death). Each statute must identify the
characteristics that it believes makes certain murderers worse than the rest
(identifies “worst of the worst”).
Ring v. Arizona: ∆ has right to have jury make eligibility decision.

Selection: Should a sentence of death in fact be imposed on THIS ∆?
        Criteria: aggravating circumstance (including statutory and otherwise) and
mitigating evidence.
        -If gov’t wants to introduce non-statutory aggravating evidence (if allowed
in the jurisdiction), then the gov’t must give the ∆ notice.
        -Add’l aggravating evidence (non-statutory) guides the jury in determining
the future dangerousness of a ∆; ∆’s prior criminal record, childhood &
circumstances of the crime. This also includes evidence of the victim and the
victim’s family (if permitted)
*It’s debatable whether Ring gives ∆ the right to have every part of the selection
decision made by a jury (and beyond a reasonable doubt). Not yet addressed by
Supreme Court.
Guilt/Innocence Phase
*Supreme Court has declared that constitutional narrowing can take place during
the guilt phase of a trial so long as two criteria are satisfied:
        1) some narrowing process occurs for those eligible for the sentence of
death; and
        2) the language used to accomplish the narrowing is not unconstitutionally

Penalty Phase
Required finding by jury beyond a reasonable doubt of at least one aggravating
-Aggravating evidence (mainly character evidence that was not admissible during
guilt phase): ∆’s character, prior record + victim impact evidence (if permitted).

Victim Impact Evidence
Payne v. Tenn.
-Introducing victim impact evidence goes toward the severity of the harm caused.
-Two types: Character evidence of victim; and impact evidence. DID NOT permit
victim’s family’s opinion about ∆ or about appropriate sentence.

*But, think about how capital punishment is supposed to be reliable…how is it
reliable if it depends on WHO gets killed?
Arguments against: Irrelevant; unfairly prejudicial…however, it seems
counterbalancing to allow victim’s friends & relatives to explain how victim’s
death affected them, after ∆ takes stand & testifies about his character.

Booth v. Maryland: No witness at the penalty phase is supposed to give their
personal opinion about what the punishment should be.
*Generally prosecutors are fairly moderate when putting on victim impact
evidence. They don’t want to risk reversal if too much impact evidence is put on.

Basis for Evidence During the Penalty Phase:
1. ∆’s character; → (possible victim evidence if ∆ knew victim?)
2. ∆’s record;
3. Circumstances of the offense ;→ (possibly victim evidence fits here?) or
Possibly Payne adds a fourth basis for evidence:
4. Victim’s Character
Theory of Mitigating Evidence: It’s offered “not to justify or excuse the crime, but
to explain it.”
Two Principles Regarding Mitgation:
1) All relevant mitigating evidence must be admitted (Lockett); and
2) Once the mitigation is allowed, the state is free to structure the use of the
(*plus each individual juror is allowed to decide which mitigation factors exist)

Two Constitutional Requirements for imposing the death penalty are
guided discretion and individualized consideration (Woodson).
(Lockett) – Sentencer cannot be precluded from considering relevant, mitigating
Walton v. Arizona – burden on ∆ to establish the mitigating factors by a
preponderance of the evidence.
Ake v. Oklahoma – ∆ has a constitutional right to psychiatric expertise at the
state expense. (When the mental state of ∆ is at issue).

Blystone: Ct. upheld jury instructions that mandated a death sentence if they find
the existence of an aggravating circumstance and no mitigation.

Can’t Affirmatively Mislead the Jury about their Sentencing Role:
Caldwell: can’t tell jury their decision is not final, even though there is an appeals
Romano: Can tell jury that ∆ has a prior death sentence b/c it is true.

Life without Parole
-Jurors are not instructed that life w/out parole is life w/out parole, unless ∆’s
future dangerousness is called into question at the trial. (evidence showing ∆ will
be dangerous & prosecution arguing future dangerousness)

Hung Jury
Judge is not required to inform jury the consequences of a hung jury

Weighing v. Non-Weighing Statutes
Weighing: The jury is told to balance all of the aggravating evidence against all
of the mitigating evidence.
Non-weighing: The jury must still find the presence of at least one aggravating
circumstance beyond a reasonable doubt. However, in making the selection
decision they are given little, if any, guidance as to how the evidence should be

Appeals Process
Direct Appeal: In most jurisdictions, ∆s get an automatic appeal that goes directly
to the Supreme Ct.
Harmless Error: Error must be “harmless beyond a reasonable doubt” or it will
trigger reversal. Ct. must find beyond a reasonable doubt that the error did not
contribute to the verdict. Burden is on the state to demonstrate that the error was

Aggravating circumstance that is found invalid on appeal:
Non-weighing state: an appellate court may affirm a death sentence without even
conducting a harmless error analysis (Zant v. Stephens)
Weighing state: Two options (Clemons v. Miss.)
       1. The appellate court can reweigh the aggravating and mitigating
circumstances w/out the invalid aggravator (puts appellate court in a
questionable fact-finding position); or
       2. The appellate court can use a harmless error analysis (but is it really
possible to determine the effect that an error has on individual decision-makers in
a penalty decision?)
*Ring might affect this and mandate that the appellate court use the harmless
error analysis.

Double Jeopardy
Pt of DJ: To preserve the finality of a judgment and to protect a ∆ from the
“ordeal” of a second trial.
-In order for an issue to be subject to double jeopardy, there must be a direct,
express or implied acquittal of that specific issue.
       -Ex. A hung jury does not terminate double jeopardy with regard to a
capital case because there is no decision on the guilt. There is no decision of
“not guilty” on the crime. (Sattazahn)

Sattazahn: During the penalty phase there was a hung jury and the statute
provided for a mandatory sentence of life. The ∆ appealed and his conviction
was reversed, and the prosecution sought the death penalty again. The
Supreme Court held there had been no “acquittal” of the death penalty; therefore,
the prosecution could seek the death penalty in the second trial.

Bullington v. Missouri: The issue of death was submitted to the jury and the jury
returned a non-death verdict. The prosecution is barred from going back and
trying for the death penalty again.
*Anything short of acquitting the ∆ of the death penalty will not invoke double

After ∆ is convicted and given the death penalty & affirmed on direct
Post-Conviction Remedy Action (State Habeas Corpus Action)
       -Rarely gets to the U.S. Supreme Ct.
Next, Federal Habeas Action (28 U.S.C. § 2854 et. seq.)
-Purpose was to allow federal review of southern death penalty sentences that
were deemed biased and unfair against African Americans.
Federal Habeas Law
1. Petitioner is in “state custody”;
2. In violation of federal law;
3. Petitioner met statute of limitations (filing deadline);
4. Petitioner exhausted state remedies (state can waive exhaustion, but
petitioner can’t).

Procedural default circumstances:
1. ∆ tried to present evidence, court denies it, and ∆ does not sufficiently show
why the evidence is needed.
2. Evidence was presented and not objected to in a timely manner.
3. On appeal → issue was properly raised during trial but ∆ failed to raise it on
4. ∆ missed a filing deadline.

Circumstances where federal court authorized to ignore a procedural default:
1. Petitioner shows cause for default (an objective factor external to defense –
i.e. ineffective assistance; prejudice) – but ∆ must still have successfully litigated
it independently in the state system. (Wainwright v. Sykes)
2. Failure of habeas court to review will result in a fundamental miscarriage of
justice in the sense of continued incarceration of a petitioner who is actually

Five Kinds of Claims of Error:
1. Petitioner alleges state court made an incorrect factual finding based on
evidence available at the time → requires ∆ to show determination was
“unreasonably wrong”.
2. Petitioner alleges state court made an incorrect ruling of constitutional law
based on law existing at time of ruling → requires ∆ to show ruling was
unreasonably wrong.
3. Petitioner alleges newly discovered facts concerning the constitutional
violation → evidentiary hearing granted on very narrow circumstances.
(evidence must not have been available at the time, or ∆ exercised due diligence
in trying to obtain the information)
4. Petitioner claims entitlement to retroactivity of a rule of constitutional law
announced after petitioner’s conviction became final (Teague) → 2
Circumstances must exist: 1) the new rule places certain kinds of primary, private
conduct beyond the power of criminal lawmaking authority to prescribe; or 2) it is
a watershed rule of criminal procedure implicating the fundamental fairness and
accuracy of the proceeding. (Atkins – mentally retarded)
*Most matters are NOT RETROACTIVE!
5. Petitioner alleges newly discovered evidence of innocence – only available for
death sentenced petitioners, and only if evidence is very convincing. (Herrera)
Subsequent Habeas Petitions: almost impossible to pursue
Right to Counsel
Gideon v. Wainright – ∆ is entitled to an attorney in a criminal trial (whether state
or federal).

Effectiveness of Counsel:
Strickland Two Prong Test:
        1. ∆ must show that counsel’s performance was deficient.
               -Ct. starts w/ presumption of effectiveness;
               -Ct. give great deference to atty’s explanations of his actions (esp.
               if described as “tactical” or “strategic”)
        2. ∆ must establish prejudice
               -Requires ∆ to show counsel’s failures were so serious that the
               sentence of death was not reliable.
               -Lower cts. have found prejudice where there is a reasonable
probability that absent the errors, the sentencer would have concluded that the
balance of the aggravating and mitigating circumstances did not warrant death.

Examples of ineffective assistance of counsel:
T. Williams: Williams suffered mistreatment, abuse & neglect in his childhood; he
was borderline mentally retarded; and he had an exemplary prison record; none
of which was introduced as mitigating evidence. Atty tried to say it was strategy,
but the Supreme Ct. didn’t buy it and reversed.
Wiggins: ?

Learned Counsel: Requirement that ∆ have counsel that has had
training/experience in death penalty cases. Mainly applies in states that don’t
have the death penalty, but have cases of federal death penalty.

Clemency is completely up to the executive branch. There are no standards or
any way to review it. It has become less frequent since Furman.

2 Ways to think about “innocence”
1) Innocence in a non-legal sense = blameless
2) Legal Innocence = not guilty
*Utilitarian pt. of view – DP acceptable as long as benefit of dp outweighs
possibility of executing an innocent person.

Freestanding Claim of Innocence:
∆ raises a claim of innocence, but there were no constitutional errors at his trial.
Herrera Test:
1) A ∆ must make a truly persuasive showing of his innocence before he is
entitled to a hearing.
2) In addition, ∆ must show there are no state avenues available to present this
claim. (this usually fails if ∆ has clemency option available)

Innocence as a Gateway:
∆ uses claim of innocence to gain review of other constitutional violations that
occurred at trial.
Schlup: ∆ must show only that is it more likely than not that no reasonable juror
would have found the ∆ guilty beyond a reasonable doubt.

Insanity at the time of execution
Ford v. Wainwright: Sup. Ct. held it is unconstitutional to execute a person who is
“insane” at the time of execution.
Test (from Concurrence):
Insanity includes 1) those who are unaware of the punishment of death; or 2)
those who do not understand why the punishment of death is being imposed.
These cases are not common. Insanity at time of execution does not mandate a
mental disease or defect, but the ∆’s mental reasoning must be severely
*∆ might raise a successive petition for habeas claiming insanity; it is good for at
least a delay if the ∆ has a plausible claim.
Malingerer: person who fakes insanity.
Medicating ∆ to make him competent? – make own moral judgment

Death Row Phenomenon – The theory that Death row ∆s have increased anxiety
b/c they are unsure whether they will be executed; they are isolated 23 hours a
day; this leads to a decrease in mental abilities.
*countries won’t extradite ∆s to the U.S. if there is a possibility of the death

Race & the Death Penalty:
*In a cross-racial capital case, there is a constitutional right to voir dire the jury on
racial issues. (ask open-ended questions – hypos)
McCleskey v. Kemp: ∆ questioned whether death penalty could be imposed in a
racially neutral fashion. ∆ wanted to show that ∆s who kill white victims get the
death sentence far more often then ∆s who kill non-white victims.
-Sup. Ct. held that ∆ had to show that in THIS PARTICULAR CASE, the ∆ was
discriminated on the basis of race (a virtually impossible standard to meet).
*Race bias occurs in mid-level cases most often →a way to fix the system might
be to make only HIGHLY aggravating murders death eligible.

Baldus Study: Did not matter b/c ∆ had to show racial bias was present in HIS
case, and committed by specific people involved in HIS case; not only in general.

-no ineffective assistance of counsel if atty followed the ∆’s wishes to forego
mitigation and advocate death.
Characteristics of a good capital punishment system:
-Provides adequate safeguards;
-Time efficient;
-Monetarily efficient;
-Painless mode of execution;
-Deter crime;
-Unbiased system by race, gender or economic level of ∆/victim;
-100% accuracy in getting right culprit;
-Special training for attorneys involved in capital cases.

Goal of capital defense lawyer: Get everyone to understand why ∆ did what the
∆ did. “To understand all is to forgive all”

Sanders: An invalidating sentence factor (whether an eligibility factor or not) will
render the sentence unconstitutional by reason of its adding an improper element
to the aggravation scale in the weighing process unless one of the other
sentencing factors enables the sentencer to give aggravating weight to the same
facts and circumstances.

International Treaty Rights:
Vienna Convention: provides that authorities must notified a detained foreign
national of the right to contact his or her consulate, must contact the consulate if
requested, and must allow consular officials access to the prisoner.
*Although most courts found a Vienna claim to be procedurally defaulted if raised
for the first time on habeas, the ICJ issued an opinion in 2001 holding that the
Vienna Convention must be given full effect and cannot be dismissed as
procedurally barred.

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