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. FOUR BEDROCK PRINCIPLES OF MODERN CAPITAL PUNISHMENT LAW: 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. Juveniles Roper v. Simmons: If ∆ was less than 18 years of age, the ∆ is not death eligible. Retroactivity -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 punishment. 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 imposed? 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 vague. Penalty Phase Required finding by jury beyond a reasonable doubt of at least one aggravating circumstance. -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 evidence. (*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 evidence. 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 process. 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 evaluated. 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 harmless. 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 jeopardy. After ∆ is convicted and given the death penalty & affirmed on direct appeal: 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 Prerequisites: 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 appeal. 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) OR 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 innocent. 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: 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. Innocence: 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 affected. *∆ 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 penalty. 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. Volunteers -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.