Capital Punishment in America Outline Steiker, Spring 2010 Table of Contents

THE BIG PICTURE: CAN WE EVER JUSTLY IMPOSE THE DEATH PENALTY?.............................................................. 4 FACTS AND FIGURES:..................................................................................................................................................................................4
Bedau, The Death Penalty in America (1997).........................................................................................................................................................5

TRACES HISTORY OF CP IN AMERICA. BEAR IN MIND THINGS HAVE CHANGED SINCE 1997 DNA EVIDENCE HAS LED TO INCREASED SKEPTICISM.......5 EXECUTIONS THEN AND NOW:.....................................................................................................................................................................6
Curriden, A Supreme Case of Contempt (2009)......................................................................................................................................................7 Banner, The Death Penalty An American History (2002)...................................................................................................................................8 Stone, The Killing of Charles Walker (1990) .........................................................................................................................................................8

THE (IN)JUSTICE OF CAPITAL PUNISHMENT....................................................................................................................................................8

Reiman, Justice, Civilization, and the Death Penalty .............................................................................................................................................8 Nathanson, Does it Matter if the Death Penalty if Arbitrarily Administered?........................................................................................................9 Van Den Haag, Refuting Reiman and Nathanson ................................................................................................................................................10 Weisberg, Deterrence and Jury Behavior Under New Scrutiny (2005): ..............................................................................................................10 Steiker, No, Capital Punishment is not Morally Required (2006) ........................................................................................................................10 Sunstein & Vermeule, Is Capital Punishment Morally Required? (2006) ...........................................................................................................11

THE CONSTITUTIONALIZATION OF CAPITAL PUNISHMENT......................................................................................... 12

McGautha v. CA (1971) and Crampton v. OH (1971) (Harlan, plurality)............................................................................................................12 Furman v. GA (1972) (plurality)...........................................................................................................................................................................13 Gregg v. GA (1976) (Stewart, plurality)................................................................................................................................................................15

CHANNELING SENTENCING DISCRETION AND NARROWING THE CLASS OF THE DEATH ELIGIBLE: THE USE OF AGGRAVATING CIRCUMSTANCES............................................................................................................................. 17
Godfrey v. GA (1980) (Stewart 4 justice plurality) ..........................................................................................................................................17 Zant v. Stephens (1982) (Stevens).........................................................................................................................................................................18 Clemons v. MS (1990) (White).............................................................................................................................................................................19 Arave v. Creech (1993) (OConnor)......................................................................................................................................................................19 Lowenfield v. Phelps (1988) (Rehnquist)..............................................................................................................................................................20 TN v. Middlebrooks (TN SC 1992).......................................................................................................................................................................21 Walton v. AZ (1990) (White)................................................................................................................................................................................21 Lewis v. Jeffers (1990) (OConnor)......................................................................................................................................................................22 Tuilaepa v. CA (1994) (Kennedy).........................................................................................................................................................................22 Brown v. Sanders (Scalia) (2006)..........................................................................................................................................................................23

THE REQUIREMENT OF INDIVIDUALIZED SENTENCING................................................................................................ 25 THE CONSTITUTIONAL FOUNDATION OF THE REQUIREMENT..............................................................................................................................25

Woodson v. NC (1976) (Stewart, 3-judge plurality).............................................................................................................................................25 Lockett v. OH (1978) (Burger opinion for parts I & II, plurality, part III)........................................................................................................26 Eddings v. OK (1982) (Powell).............................................................................................................................................................................26

THE TEXAS STATUTE................................................................................................................................................................................28

Jurek v. TX (1976) (Stevens plurality)...............................................................................................................................................................28 Franklin v. Lynaugh (1988) (White plurality).......................................................................................................................................................29 Penry v. Lynaugh (1989) (OConnor: court opinion except for part IV-C)..........................................................................................................29 TX v. Johnson (1993) (Kennedy)..........................................................................................................................................................................30

FURTHER DEVELOPMENTS..........................................................................................................................................................................30
Walton v. AZ: Scalia (concurring)........................................................................................................................................................................31 Callins v. Collins (1994) (Blackmun dissent) .......................................................................................................................................................31

THE EIGHTH AMENDMENTS PROPORTIONALITY PRINCIPLE:.................................................................................... 33 ARE ANY GROUPS CATEGORICALLY EXEMPT FROM CAPITAL PUNISHMENT?......................................................33 THE PRINCIPLE OF PROPORTIONALITY..........................................................................................................................................................33
Coker v. GA (1977) (White, plurality)..................................................................................................................................................................33 Harmelin v. MI (1991) (Scaliaonly Rehnquist on pts I-III; Court for pt IV) ...................................................................................................34

PROPORTIONALITY APPLIED....................................................................................................................................................................35 (a) Intent..........................................................................................................................................................................................35

Enmund v. FL (1982) (White)...............................................................................................................................................................................35 Tison v. AZ (1987) (OConnor)............................................................................................................................................................................36

(b) Insanity and Mental Retardation................................................................................................................................................36

Ford v. Wainwright (1986) (Marshall)..................................................................................................................................................................36 Panetti v. Quarterman (2007) (Kennedy)..............................................................................................................................................................37 WA v. Harper (1990) (Kennedy)...........................................................................................................................................................................37 Perry v. LA (1990) (per curiam)............................................................................................................................................................................37 Penry (revisited).....................................................................................................................................................................................................37 Atkins v. VA (2002) (Stevens)..............................................................................................................................................................................38

(c) Age.............................................................................................................................................................................................38
Thompson v. OK (1988) (Stevens plurality)......................................................................................................................................................38 Stanford v. KY (1989) (Scalia plurality)............................................................................................................................................................39 Roper v. Simmons (2005) (Kennedy)....................................................................................................................................................................39

(d) Offense.......................................................................................................................................................................................40
Kennedy v. LA (2008) (Kennedy).........................................................................................................................................................................40

PRESENTING AND REBUTTING A MITIGATION CASE.................................................................................................... 42 WHAT IS CHARACTER ?..........................................................................................................................................................................42

Dawson v. DE (1992) (Rehnquist)........................................................................................................................................................................42

THE PERSPECTIVE OF THE VICTIM...............................................................................................................................................................43

Payne v. TN (1991) (Rehnquist)............................................................................................................................................................................43 Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? (1998).....................................................................................44

THE CONSTITUTIONAL GUARANTEE OF EFFECTIVE ASSISTANCE OF COUNSEL................................................... 45 REQUIREMENTS FOR TRIAL COUNSEL...........................................................................................................................................................45
Strickland v. Washington (1984) (OConnor).......................................................................................................................................................45 Burger v. Kemp (1987) (Stevens) .........................................................................................................................................................................47 Williams v. Taylor (2000) (Stevens).....................................................................................................................................................................48 Wiggins v. Smith (2003) (OConnor)....................................................................................................................................................................49 Rompilla v. Beard (2005) (Souter)........................................................................................................................................................................50 Bounds v. Smith (1977) (Marshall).......................................................................................................................................................................50 PA v. Finley (1987) (Rehnquist)............................................................................................................................................................................51 Murray v. Girratano (1989) (Rehnquist, plurality)................................................................................................................................................51 Bright, Death Sentence not for the Worst Crime but for the Worst Lawyer (1994).............................................................................................51

THE REQUIREMENT OF HEIGHTENED RELIABAILITY IN CAPITAL SENTENCING..................................................... 53

Gardner v. FL (1977) (Stevens plurality)...........................................................................................................................................................53 Beck v. AL (1980) (Stevens).................................................................................................................................................................................54 Schad v. AZ (1991) (Souter plurality, except III, majority quoted below)........................................................................................................54 Caldwell v. MS (1985) (Marshall, except IV-A)...................................................................................................................................................55 Simmons v. SC (1994) (Blackmun, plurality).......................................................................................................................................................56 Brown v. TX (1997) (denial of cert) (Stevens) .....................................................................................................................................................57

INNOCENCE.......................................................................................................................................................................... 58
Herrera v. Collins (1992) (Rehnquist)...................................................................................................................................................................58 In Re Troy Davis (2009) (Stevens)........................................................................................................................................................................59 KS v. Marsh (2006) (Thomas)...............................................................................................................................................................................60 Baze v. Rees (2008) (Roberts plurality)................................................................................................................................................................61 US v. Quiones (2d Cir. 2002)..............................................................................................................................................................................62 D.A.s Office for the 3d Judicial Dist. v. Osborne (2009) (Roberts)....................................................................................................................63

THE STRUCTURE OF FEDERAL HABEAS........................................................................................................................ 64 INTRODUCTORY MATERIALS.......................................................................................................................................................................64

Law of Federal Courts Habeas Corpus...............................................................................................................................................................64 Relevant Portions of the Federal Habeas Statute (pre-1996 Reform)...................................................................................................................65

SCOPE OF REVIEW....................................................................................................................................................................................66
Brown v. Allen (1953) (Reed) (Frankfurter separate opinion joined by majority)............................................................................................66 Wright v. West (1992) (Thomas, plurality) ..........................................................................................................................................................68

EFFECT OF STATE DEFAULTS......................................................................................................................................................................69

Fay v. Noia (1963) (Brennan)................................................................................................................................................................................69 Wainwright v. Sykes (1977) (Rehnquist)..............................................................................................................................................................70

Note on Attorney Error as Cause for Procedural Default......................................................................................................................................72 Coleman v. Thompson (1991) (OConnor)...........................................................................................................................................................73 Sawyer v. Whitley (1992) (Rehnquist)..................................................................................................................................................................73

SUBSTANTIVE LIMITS ON HABEAS REVIEW...................................................................................................................................................74 (a) Fourth Amendment Claims.........................................................................................................................................................74

Stone v. Powell (1976) (Powell)............................................................................................................................................................................74

(b) Fifth Amendment Claims............................................................................................................................................................75

Withrow v. Williams (1993) (Souter) ...................................................................................................................................................................75

(c) New Rules and Retroactivity.......................................................................................................................................................75

Teague v. Lane (1989) (OConnor opinion pts I, II, III; plurality pts IV, V).....................................................................................................75

(d) Innocence...................................................................................................................................................................................76
Herrera (revisited)..................................................................................................................................................................................................76

HABEAS REFORM.....................................................................................................................................................................................77
Williams v. Taylor (2000) (OConnor)..................................................................................................................................................................78

JURY SELECTION AND JURY DECISION-MAKING IN CAPITAL CASES....................................................................... 81

Witherspoon v. IL (1968) (Stewart)......................................................................................................................................................................81 Wainwright v. Witt (1985) (Rehnquist).................................................................................................................................................................82 Morgan v. IL (1992) (White).................................................................................................................................................................................83 Lockhart v. McCree (1986) (Rehnquist)................................................................................................................................................................84 Miller-El v. Dretke (2005) (Souter).......................................................................................................................................................................85 Turner v. Murray (1986) (White, plurality in part, majority in part).....................................................................................................................86 Ring v. AZ (2002) (Ginsburg)...............................................................................................................................................................................87

RACE AND THE DEATH PENALTY..................................................................................................................................... 88

McClesky v. Kemp (1987) (Powell)......................................................................................................................................................................88 Kennedy, McClesky, Race, Capital Punishment and the Supreme Court (1988).................................................................................................90 Gross & Mauro, Analysis of Racial Disparities in Capital Sentencing and Homicide Victimizing (1984) ........................................................90 Radelet & Pierce, Choosing Those Who Will Die: Race and the Death Penalty in Florida (1991).....................................................................91

AMERICA IN THE WORLD................................................................................................................................................... 92

Steiker, Capital Punishment and American Exceptionalism (2005).....................................................................................................................92 Schabas, International Law and the Abolition of the Death Penalty.....................................................................................................................93

THE BIG PICTURE: CAN WE EVER JUSTLY IMPOSE THE DEATH PENALTY?
This course will operate overwhelmingly from a legal perspective. Well focus on CP and the Constitution, especially the 8th Amendment (but also due process clauses). Why take (/teach) this course? o Some people will become capital lawyers. o More people will clerk in federal courts, where understanding CP law will be crucial for reviewing habeas petitions. o Many firm lawyers work on capital cases for their pro bono work. o But the course is also valuable in non-practical ways. The course is an advanced procedure course. The Court has sent the message that death requires heightened process. What are our best and most reliable procedures? Are they good enough? The course is also an advanced criminal law course. o Yes, CP makes up a tiny part of our criminal justice system. But, despite the numbers, CP exerts a disproportionate influence on the law. Consider AEDPA, which was passed with the explicit purpose of making CP smoother, easier, and quicker. On the other side, Innocence Revolution people would love to find an execution of an innocent person to generate the political will needed to change investigatory and prosecutorial procedures across the board. The Supreme Court pays most attention to CP cases, as opposed to non-capital criminal cases.

Facts and Figures:

2 CitiesHong Kong and Singaporeboth have similar murder rates. o In 93, Hong Kong abolished the death penalty, while Singapores execution rate jumped bigtime, then decreased to a low level again. o Homicide rates remained parallel. o This is an example of sophisticated economists reverting to a city comparison. Shows the difficulty of accurately determining deterrent effects of capital punishment.

See the DPICs fact sheet about CP (p.1, Week 1 of course packet): o 35 states have CP, plus US Government and Military. 15 states plus DC dont. o Number of executions from 1976-2009: 1188. Peak was 1999 with 98. Theres been a significant downward trend since then. o 77% of Vs in cases resulting in execution were white, although 50% of murder Vs are white. o CA has the most death row inmates: 690. FL (403), TX (342), PA (225), and AL (200) follow. o Since 1973, 139 people have been exonerated. 23 were in FL, 20 were in IL, 11 in TX. o TX leads in # of executions, with 447. Next are VA (105), OK (91), MO (67), FL (68). o Most in 2009 were TX (24), AL (6), OH (5), VA/OK/GA (3). o Number of death sentences has dropped dramatically since 1999, from 284 to 111 in 2008.

o o

Most executions since 1976 have been via lethal injection (1016), then electrocution (156). Gallup Poll showed that when respondents given choice of LWOP/CP 48% choose LWOP, 47% choose CP, 5% undecided.

Bedau, The Death Penalty in America (1997) Traces history of CP in America. Bear in mind things have changed since 1997 DNA evidence has led to increased skepticism. o Early 1600s to 1790s: Criminal law that developed in the colonies was little more than a series of variations, colony by colony, on the law of England. All the colonies authorized public execution by hanging as the mandatory punishment for various crimes against the state, the person, and property. o 1790s to 1860s: The founding of the US and the adoption of the Bill of Rights worked no significant changes on the practice of capital punishment in the colonial period. In particular, the adoption of the 8th Amendment was understood to be a prohibition only against inflicting CP in its most aggravated forms, such as by crucifixion or burning at the stake. However, there were a number of responses to the growing abolition movement: Invention of degrees of murder invented to shape the law and administration of CP

so as to winnow the worst offenders from the bad. Ending public executions began in NY in 1935. Giving the trial jury sentencing discretion in keeping with populist practices, jurisdictions began to authorize binding jury recommendations for mercy. Reducing the variety of capital statutes American states rarely punished offenders with death except upon conviction for murder. Complete abolition of CP repealed in MI in 1847, RI in 1852, WI in 1853. Checkered

pattern of abolition by state legislative actionalmost succeeded in PA and OH, too. o 1860s to 1910s - Abolition movement languished after the Civil War, and few states significantly revised CP provisions of their criminal codes. o 1910s to early 1950s Outright appeal of CP accomplished in 9 states, but abolition tide rapidly receded and CP readopted. Movement never regained momentum, and executions reached highest levels in a century in 30s and 40s. However, 2 radical changes: Humanizing the method of execution.

Expanding the role of Federal appellate courts: bit by bit, at least perfunctory review

by state appellate courts became routine, although very few states went so far as to enact statutes requiring their appellate courts to review convictions and sentences in every CP case. Major change occurred only when state prisoners on death row sought and found relief in the federal courts. o 1950s to 1970s abolition movement was significantly revived and achieved some of its greatest successes. Increase in time served under death sentence: concomitant with the decline in executions in the 1950s, there has been a steady growth in the average time served on death row from imposition of the death sentence to the final disposition of the case. Challenges to the Constitutionality of CP: Yet the campaign failed to achieve its

principal aim. Within months after Furman, legislatures in many states enacted new CP statutes, and then came Gregg. o 1970s to Present current scene begins in 1976 when SCOTUS holds CP to be constitutional.

Increasing public support of CP no other factor has been so prominent, important, and enduring as the popular support for CP. Politicization of CP for several years if has been virtually impossible for any candidate for high elective office in the states to appear hesitant over CP. Declining use of executive clemency. Increasing complexity and cost of CP Declining importance of deterrence and incapacitation once CP is confined solely to criminal homicide, can be defined solely on grounds of just deserts/retribution. Regionalization of CPas of May 1996, two thirds of all executions since Furman have been carried out in just 5 southern states: TX, FL, VA, LA, and GA. Symbolic Role of CP in todays electoral politics, a candidates support for CP amounts to saying: Believe me, I care about you and I hear your anger and frustration. Thats why I support the death penalty, whether or not it would do any good in removing the objective causes of your distress.

Executions Then and Now:

The practice, law, social meaning, and debates about the death penalty have changed greatly over the centuries. o Methods of execution have changed: Hanging was pervasive in early America. Rope had to be just the right length to break the neck properly or else head would pop off or person would slowly strangle to death. Electrocution and lethal injection introduced as humanitarian measures, as hanging could be ugly. There have been recent challenges based on cruelty of lethal injection. o Executions used to be public: Public executions used to be great spectacles. Now they take place with very few witnesses inside prisons. o Number of capital crimes has shrunk to just murder, whereas arson, rape, treason, and other crimes used to be punishable by death. It is now unlawful to execute minors and the mentally retarded. o Length of time waiting to die has grown. Stephen Clarke (hanged in Salem, MA, for arson in 1821) waited only a few months. Average length of time spent on death row today is over a decade. Race has become much more of a factor. Southern slaveholders felt strongly that the CP had to be preserved because it was about the only thing they could threaten to do to slaves that they werent already doing. Laws used to be explicitly biased. In some southern states, for a black man to rape a

white woman was a capital crime, but white men wouldnt get killed for raping anyone. Race of the victim is still a major predictor of who gets CP. Geography:

CP essentially became confined to South during the latter half of the 20th Century.

New York, Illinois, and other very populous northern states used to be major executors. States that dont actually execute still issue death sentences. Why? o Function has shifted from religious to secular. Early Americans thought that the death penalty was important to save the convicts soul. The condemned used to try to get their executions delayed by claiming they were on the verge of repentance. Executions used to be accompanied by sermons. It was only when executions began to become fun spectacles that the authorities thought that maybe they shouldnt be public events. Now execution is about retribution, closure for victims families. o American use of the death penalty didnt used to be so peculiar internationally, c. 1810.

America used to be one of the most progressive countries when it came to CP.

The invention, in 1794 in Pennsylvania, of distinction between first-degree and seconddegree murder was inspired by worries about CP being too severe for most crimes. MI, WI, and RI abolished the death penalty in 1840s and 50s. Europeans thought this was nuts. o Death penalty is enormously expensive. The bulk of these expenses come at the trial phase, not in direct review or collateral attack. o Capital punishment has always been contentious, but it is especially contentious now. Last period like this was the 1960s. 1966 was only year in which more Americans were against the death penalty than were for it, according to the Gallup poll. Nowadays, a solid two-thirds majority of Americans are in favor of capital punishment. Peak of public support for CP was around 1990. Recently, N.J. and N.M. became the first two States to abolish CP legislatively. Other State legislatures have voted to abolish, but the bills were vetoed. ABA (late 1990s) and ALI (just recently) have pushed for a moratorium on CP. MPC (published in 1962) had a bunch of protections for CP cases that proved to be fairly prescient. No State adopted it. Then, in 1972, the Court struck down CP laws, and States started using the MPC to formulate new CP laws. ALI just voted to withdraw the MPC provisions on CP. The Innocence Revolution: DNA evidence has shown up holes in our machinery for investigating and prosecuting crime.

Curriden, A Supreme Case of Contempt (2009)

Discusses US v. Shipp, which dealt with false accusation of black man in TN rape of white woman. Mob killed Dfirst time SCOTUS granted federal habeas to pending state criminal case (1906). First SCOTUS stay of execution in state CP case. Etc

Banner, The Death Penalty An American History (2002)

The constitutionalization of capital punishment had yielded a narrower view of clemency in which the governor was in effect just another appellate court, a view that was politically expedient for governors newly fearful of the electoral consequences of commuting a death sentence.

Stone, The Killing of Charles Walker (1990) describes an execution.

The (In)Justice of Capital Punishment

Four positions on CP: o Unqualified Pro: CP should be available for at least some particularly heinous crimes, no reform necessary. o Absolutist Anti: No amount of reform can save CP.

o Procedural Reformist: CP may be all right in principal but serious procedural reforms are
necessary. o Dont Know: Not enough information.

Philosophical arguments about CP feature in legal arguments (esp. constitutional arguments) about CP. The Constitutional language (cruel and unusual, due process) invites debates of the philosophical/moral variety. Suppose the State of Ames abolished the death penalty 150 years ago. But recently there was a terrible crime, and now the people of Ames are pushing to reinstitute CP. o Popular consensus in the State is currently very much in favor of CP. Why dont we rape rapists and torture torturers? o Is it just aesthetic? Is it just that knights in shining armor kill people, but knights in shining armor dont rape or torture people? o Reiman talks about the infliction of pain having moral significance. H.L.A. Harts mixed theory of retributivism, sometimes called permissive retributivism: o Justice permits the punishment of criminal and puts an upper bound on how much punishment can be inflicted. But justice does not demand any particular punishments. o In the capital context, a retributivist of this sort could think that CP is allowed but not required. o If it deters, then CP could be justified. LWOP is a new innovation, dating back only to the 70s.

Reiman, Justice, Civilization, and the Death Penalty

Answering van den Haag: I shall sketch out a conception of retributive justice that accounts for the justice of executing murderers, and then I shall argue that though the death penalty is a just punishment for murder, abolition of the death penalty is part of the civilizing mission of modern states.

o The challenge to the abolitionist: since we regard killing in self-defense or in war as morally
permissible, it cannot be that we regard killing as per se wrong. It follows that the wrong in

murder cannot be that it is killing per se, but that it is (among other things) the killing of an innocent person. Consequently, if the state kills a murderer, though it does the same physical act that he did, it does not do the wrong that he did, since the state is not killing an innocent person. Since we tolerate the death of innocents, in mines, or on highways, as a cost of progress, and, in wars, as an inevitable accompaniment to aerial bombing and the like, it cannot convincingly be contended that, kept to a minimum, the risk of executing as innocent is still so great an evil as to outweigh all other considerations. o The equality and rationality of persons implies that an offender deserves and his victim has the right to impose suffering on the offender equal to that which he imposed on the victim. o When, for moral reasons, we refrain from exacting the lex talionis, and impose a less harsh alternative punishment, it may be said that we are not doing full justice to the criminal, but it cannot automatically be the case that we are doing an injustice to his victim. Otherwise, we would have to say it was unjust to imprison our torturer rather than torturing him or to simply execute out multiple murderer rather than multiply executing him. o Thus the upper limit of the range of just punishments is the point after which more punishment is unjust to the offender, and the lower limit is the point after which less punishment is unjust to the victim. If this is true, then it is not unjust to spare murderers as long as they can punished in some other suitably grave way. o If civilization is characterized by lower tolerance for our own pain and that of others, then publicly refusing to do horrible things to our fellows both signals the level of our civilization and, by our example, continues the work of civilization. And this gesture is all the more powerful if we refuse to do horrible things to those who deserve them.

Nathanson, Does it Matter if the Death Penalty if Arbitrarily Administered? It is clear that simply knowing someone is factually guilty of killing another person is far from sufficient for determining that he deserves to die, and if prosecutors, judges, and juries do not have criteria which enable them to classify those who are guilty in a just and rational way, then their judgments about who deserves to die will necessarily be arbitrary and unprincipled. o Once we appreciate the difficulty and complexity of the judgments which must be made about guilt and desert, it is easier to see how they might be influenced by racial characteristics and other irrelevant factors. o Death is a much more severe punishment than imprisonment. o Though death is the most severe punishment in our legal system, it appears to be unnecessary for protecting citizens, while punishments generally are thought to promote our safety and wellbeing. o The argument from arbitrariness has special force against the death penalty because of its extreme severity and its likely uselessness.

Van Den Haag, Refuting Reiman and Nathanson

Punishment must, whenever possible, impose pain believed to exceed the pain suffered by the individual victim of crime. No less is deserved. Punishment must be determined by the total gravity of the crime, the social as well as the individual harm, and by the need to deter from the harmful crime. There are ordinal limits to deserved punishments, but cardinal upper limits are set only by harm, habit and sentimentnot by victim suffering. o Conditions such as poverty, just or unjust, may increase the temptation to commit crimes. But poverty is neither a necessary not a sufficient condition for crime, and thus certainly not a coercive one. o I do not oppose torture as undeserved or nondeterrent, but simply as repulsive. Death is not; nor is the death penalty. o No murderer becomes less guilty, or less deserving of punishment, because another murderer was punished leniently, or escaped punishment altogether.

o Nathanson quotes the late Justice Douglas suggesting that a law which deliberately prescribes
execution only for the guilty poor, or which has that effect, would be unconstitutional. Perhaps. But the vice would be in exempting the guilty rich; the guilty poor would remain guilty, and deserving of prescribed punishment even if the guilty rich escape legally or otherwise.

Weisberg, Deterrence and Jury Behavior Under New Scrutiny (2005):

Social science has long played a role in examining the efficacy and fairness of the death penalty. Empirical studies of the deterrent effect of CP were cited by SC in its landmark cases in the 70s; most notable was the 75 Ehrlich study, which used multivariate regression analysis and purported to show a significant marginal deterrent effect over life imprisonment, but which was soon roundly criticized for methodological flaws. Decades later, new econometric studies have emerged, using panel data techniques, that report striking findings of marginal deterrence, even up to 18 lives saved per execution. Yet the cycle of debate continues, as these new studies face criticism for omitting key potential variables and for the potential distorting effect of one anomalously high-executing state (Texas, sigh). Meanwhile, other empiricists, relying mainly on survey questionnaires, have taken a fresh look at the human dynamics of CP trials, especially the attitudes and personal background factors that influence capital jurors.

Three potential jujitsu moves in challenging statistical data (re deterrence?): o Look for data points that have a disproportionate effect on results. o Look for confounds. o Look for small changes to the model, that shouldnt make a difference, but drastically change the results. o Whos got the burden of proof if solid data on deterrence cannot be discovered?

Steiker, No, Capital Punishment is not Morally Required (2006)

Acknowledging that the government has special moral duties does not render inadequately deterred private

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murders the equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to nonpurposeful killing) and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of threshold deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven. Rather, arguments about catastrophic thresholds face special challenges in the context of criminal punishment. This Article also explains how Sunstein and Vermeules argument necessarily commits us to accepting other brutal or disproportionate punishments and concludes by suggesting that even consequentialists should not be convinced by the argument.

Sunstein & Vermeule, Is Capital Punishment Morally Required? (2006)

Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may compel, rather than forbid, that form of punishment. The familiar problems with capital punishment potential error, irreversibility, arbitrariness, and racial skewdo not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat statistical lives with the seriousness that they deserve.

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THE CONSTITUTIONALIZATION OF CAPITAL PUNISHMENT

(The moment where CP went from a state issue to one regulated by the Constitution) For the vast majority of US history, the constitutionality of the CP was not an issue. The first time it came up was in Powell v. AL (1932), where black men were accused of rape by white women. The trial was a travesty because no one wanted to represent them. NAACP finally sent someone. o SCOTUS: defendants must have a lawyer in capital cases. Nothing else for 40 years. Then, in Francis v. Resweber (1947), SCOTUS ruled that it was not cruel and unusual punishment to execute twice. Nothing after that until the 60s. Dershowitz was clerking for Goldberg, got him to dissent in cert denial (Rudolph v. AL (1963)), arguing that CP was cruel and unusual under the 8th. Subsequently, the NAACP began widescale challenge CP rape casesalmost all Ds were black men accused of raping white women. Witherspoon v. IL (1968) was the first big SC victory. Statute allowed court to excuse potential jurors who had objections to CP. SCOTUS responded with much stronger statement that jurors could only be excused if they could not follow judges instructions re CP. Between 1967 and 1972, no one was executed in the US. This was the longest period in history. SC knew it would have to make a statement on CP soon, granted cert in McGautha v. CA (1971) and Crampton v. OH (1971) (decided together).

McGautha v. CA (1971) and Crampton v. OH (1971) (Harlan, plurality)

Due process was at issue in both cases. Back then, anyone convicted of felony murder or premeditated murder was eligible for CPthere was no standard.

o McGautha (Harlan) (6-3): it would be impossible for a legislature to imagine all the
circumstances that would affect the development of a CP standard. Forcing them to do so would inhibit rather than expand justice. At the same time, requiring very general language would be meaningless boilerplate. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express those characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.

The States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. Brennan (dissent): surely the legislatures could do something. Why dont we at least let them try? Notes that MPC had written a model CP statute. Jurors there had to weigh aggravating factors against mitigating factors. Unlike the Court, I do not believe that the legislatures of the 50 states are so devoid of wisdom and the power of rational thought that they are unable to face the problem of capital punishment directly, and to determine for

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themselves the criteria under which convicted capital felons should be chosen to live or die. o Crampton (6-3): Question: should we bifurcate guilt and sentencing? What might you want to say in sentencing that you wouldnt in trial? Possibilities: V had it coming; D is sorry; D was sexually assaulted as a child; etc. If theres no bifurcation, D would make contradictory statements by apologizingthis reveals a tension between 5th amendment self incrimination and DP rights. SC says theres no Constitutional problem when guilt/sentencing not bifurcated. Douglas (dissent): if the right to be heard were meaningful, it would have to accrue before sentencing; yet, except for allocution, any attempt on the part of the accused during the trial to say why the judgment of death should not be pronounced against him entails a surrender of his right against self-incriminationhe often dare not speak lest he in substance be tried not for this particular offense but for all the sins he ever committed.

After the Crampton and McGautha losses on bifurcation and standardless discretion, looks like the question has been answered. But then

Furman v. GA (1972) (plurality)

o OH and MO governors established a moratorium on CP until the SC ruled on whether CP is

cruel and unusual under the 8th. In other words, the SC knew it was going to have to deal with it, granted cert on 4 more cases. While pending, the CA SC declared CA CP statute unconstitutional under the CA constitution. This was good for Ps in Furman because the CA murderer was the worst. o 9 opinions/dissents, 1 for each justice. No one joins another justices majority opinion. o Majority:

o Douglas: focus is on discrimination, speaking in the voice of Nathanson. The arbitrary/discriminatory implementation of CP renders it unconstitutional.
Pregnant with discrimination. Cites studies showing racial disparities; although he cant show causation, the reality is plain. Suspects that CP is reserved for poor/minorities because: 1) jurors have tremendous discretion, 2) Very few murders get CP, thus random in application. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. o Stewart and White: Switch sides between McGautha and Furman. Why? They argue that standardless discretion isnt a problem under DP, but it is under the 8th. (Steiker says this is really a puzzlereffective advocacy question?) Both of their arguments turn on degree of jury discretion and randomness.

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Stewart: CP is like being struck by lightningsimilarly c&u. Pure arbitrariness.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death

has in fact been imposed. White: We have to believe CP is doing something for it to be acceptable, but he cant believe its furthering a purpose as it stands. Nor could it be said with confidence that societys need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that

community values are measurably reinforced by authorizing a penalty so rarely invoked. o Brennan: Channeling Reiman. Problem of CP is its an affront to human dignity. Emphasizes the physical/psychological pain that comes with it. You cant treat people like things (close to Reimans idea of total subjugation). Proportionality argument rephrases Whites opinion. It is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Brennans and Marshalls stumbling block: 8th amendment tied to evolving standards of decency in Trop v. Dulles (1958). At the time of Furman, 40 states have CP. Public opinion indicated that people liked CP. o Dissenters: o Ms response: people havent been informed of the reality of CP. Bs response: if people were really for it, theyd impose it more often.

Blackmun: Doesnt like CP, but as a justice cant say its unconstitutional.

Thereon the Legislative Branch of the State or Federal Government, and secondarily, on the Executive Branchis where the authority and responsibility for this kind of action lies. The authority should not be taken over by the judiciary in the modern guise of

an Eighth Amendment issue. o Powell: Longest. Not included in course packet. But:

It seems to me that the sweeping judicial action undertaken today reflects a basic lack of faith and confidence in the democratic process. Many may regret, as I do, the

failure of some legislative bodies to address the capital punishment issue with greater frankness or effectiveness. Many might decry their failure either to abolish the penalty entirely or selectively, or to establish standards for its enforcement. But impatience with the slowness, and even the unresponsiveness, of legislatures is no justification for judicial intrusion upon their historic powers. Burger: One answer would be mandatory CP, but that would be really bad.

Real change could clearly be brought about if legislatures provided mandatory

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death sentences in such a way as to deny juries the opportunity to bring in a verdict on a lesser charge; under such a system, the death sentence could only be avoided by a verdict of acquittal. If this is the only alternative that the legislatures can safely pursue under todays ruling, I would have preferred that the Court opt for total abolition. It seems remarkable to me that with our basic trust in lay jurors as the keystone in our system of criminal justice, it should now be suggested that we take the most sensitive and important of all decisions away from them Since there is no majority of the Court on the ultimate issue presented in these cases, the future of capital punishment in this country has been left in an uncertain limbo. Note: whole development of criminal law is a response to mandatory CP. Crime of manslaughter was invented to get rid of mandatory CP. Then came voluntary/involuntary manslaughter, then degrees of murder, then jury discretion (accounting for context). After Furman, 12 states came back with mandatory CP statutes. o Note absence in Furman debate of things wed expect to see in a similar discussion today:

No assessment of other countries use of CP. This wasnt mentioned in Furman even though England abolished it in 1969. Originalism: 5th amendments statements that no person shall be deprived of life without due process and that no one should be be twice put in jeopardy of life or limb. This comes out some in Blacks concurrence in McGautha. Innocence. This is HUGE now.

A lot of states wanted CP back after Furmaneven new states/states that had never used their CP statute and the president vowed to bring back federal CP. In other words, there was a huge backlash, CP became a hot button political issue. Question: how do you make a Furman-friendly statute? Can you hide race? Class/poverty? What about victim attributes? Should you categorize? Limit eligibility by shrinking number of eligible? Provide better counsel for CP candidates? Limit prosecutorial discretion? Increase judicial review? This is a rare moment where SC says that everything in an area of law is no good, but they dont say it cant be done. Thus begins the development of a special status for CP. Question: why not extend this logic to other crimes?

Gregg v. GA (1976) (Stewart, plurality)

Decided with Proffitt v. FL, Jurek v. TX, Woodson v. NC, and Roberts v. LA. GA statute, post-Furman. Ds asked SC to review their death sentences, asking the Court to declare CP to be "cruel and unusual punishment." o Stewart: the most marked indication of societys endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 states have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. o The concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or

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capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

o It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an
informed manner. We have long recognized that [f]or the determination of sentences, justice generally requiresthat there be taken into account the circumstances of the offense together with the character and propensities of the offender. Otherwise, the system cannot function in a consistent and a rational manner. o As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the States Supreme Court.

o Proportionality not requiredthe isolated decision of a jury to afford mercy does not render
unconstitutional death sentences imposed on defendants who were sentences under a system that does not create a substantial risk of arbitrariness or caprice.

Note the basics of the GA statute upheld in Gregg:

o Structure of appellate review: auto review of CP conviction at GA SC. 3 things reviewed: Passion, prejudice, other arbitrary factor (look at context, voir direcreates incentive
for change of venue motions). Existence of aggravating factor. Proportionality (look at other cases).

o GA SC has not thrown a CP case out since 1981. Compare GA and FL statutes. Remember, whats important is how things actually play out. o Commonalities: Require consideration of aggravating factors, include a list. Appellate o review by state SC, bifurcation of guilt/sentencing. Both statutes not limited to murder. Differences: In GA, jurys verdict is final; in FL, only advisory (judges as experts, repeat playersbut subject to political pressure). In GA, jury must find 1 aggravating factor, can then consider any other aggravating/mitigating factors. Sounds a lot like the bird is in your hands. In FL, more of a balancing test. Weigh statutory aggravators versus statutory mitigators. These statutes are called guided discretion.

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CHANNELING SENTENCING DISCRETION AND NARROWING THE CLASS OF THE DEATH ELIGIBLE: THE USE OF AGGRAVATING CIRCUMSTANCES
In 1976, the Supreme Court in Gregg ensures its continuing regulatory role in the CP realm. Since then, SC has one or two CP cases on its docket each year. o Why is the 8th Amendment the basis for much of the Courts CP regulation? SC rejected the due process argument in McGautha. With due process, the Court has textured jurisprudence (Matthews v. Eldridge (1976)); 14ths requirement of purposeful discrimination is a problem. Whether or not the 8th amendment is any better here is an open question. Robinson v. CA (1962) extended 8th amendment to states. SC gives strong inklings of what to do with 8th amendment CP claims in Gregg, but a lot of questions remain. 3 different ways the court could approach cruel and unusual punishment in CP cases: o Retributivism/Deterrence. Is it permissible to punish people up to what they deserve? Marshall in Furman said that retribution has no place, but he was isolated. Consider Whites argument in Furman: if CP doesnt comport with punishment theories, then why bother? Note that incapacitation is another punishment justification not listed in Gregg. o Jury Verdicts/Statutes. Reflection of public opinion, supposedly objective. There are 35 CP states and lots of jury verdicts to consider. Question: should polls, prosecutorial discretion, and executive clemency be considered? o Evolving Standards of Decency. Steiker says a lot of navel gazingi.e., Justices gut feelings about CPis involved.

Godfrey v. GA (1980) (Stewart 4 justice plurality)

The validity of the petitioners death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of convicting, the Georgia Supreme Court can be said to have applied a constitutional construction of the phrase outrageously or wantonly vile, horrible or inhuman in that [they] involveddepravity of mind. o We conclude that the answer must be no. The petitioners crimes cannot be said to have reflected a consciousness materially more depraved than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma. Shortly after the killings, he acknowledged his responsibility and the heinous nature of his crimes. o Note that SC doesnt invalidate the aggravator, just says GA SCs construction is too vague. o Question: How can a state make less vague an aggravating factor of this catch all sort?

The states answer is to tell jury that the crime must have been worse than normal, but SC says this is not enough. There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as such.

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o Steiker: case exposes limitations on CP categorization, enumeration (think McGautha). Would

you limit to serious physical battery? In front of a loved one? Can you capture the few who deserve death from the many who dont without including some variation of really bad? Consider Marshalls concurrence: I believe that the Court in McGautha was substantially correct in concluding that the task of selecting in some objective way those persons who should be condemned to die is one that remains beyond the capacities of the criminal justice system. Marshall (concurrence): I am unwillingto accept the pluralitys characterization of the decision below as an aberrational lapse on the part of the Georgia Supreme Court from an ordinarily narrow construction.

Zant v. Stephens (1982) (Stevens)

The question presented is whether respondents death penalty must be vacated because one of the three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the Supreme Court of Georgia, although the other two aggravating circumstances were specifically upheld. The answer depends on the function of the jurys finding of an aggravating circumstance under Georgias capital sentencing statute, and on the reasons that the aggravating circumstance at issuewas found to be invalid. o Basically, GA SC threw out a prior record aggravator as invalid because the phrases substantial history and serious assault were too vague. However, it did not overturn the sentence because GA is a non-weighing state.

This means that the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its

function of narrowing the class of persons convicted of murder who are eligible for the death penalty. Once jury finds at least one aggravator, it can do what it wants. o The Georgia statute provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stageThe narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court. o Assuming that the instruction did induce the jury to place greater emphasis upon the respondents prior criminal record than it would otherwise have done, the question remains whether that emphasis violated a Constitutional right[but] any possible defect cannot fairly be regarded as a constitutional defect in the sentencing process. o Dissent (Marshall): Are you kidding?! Under todays decision all the State has to do is require the jury to make some threshold finding. Once that finding is made, the jurors can be left completely at large, with nothing to guide them but their whims and prejudices. They need not even consider any statutory aggravating circumstances that they have found to be applicable. Their sentencing decision is to be the product of their discretion and nothing else. There is simply no way for this Court to know whether the jury would have sentenced

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respondent to death if the unconstitutional statutory aggravating circumstance had not been included in the judges charge.

Clemons v. MS (1990) (White) D argued that it was unconstitutional for the MS SC to uphold a death sentence imposed by a jury that relied in part on an invalid aggravating circumstance. o MS is a weighing state, where the jury evaluates aggravators versus mitigators. In Mississippi, unlike the Georgia scheme considered in Zant, the finding of aggravating factors is part of the jurys sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances. o In weighing states, appellate review is necessary when one of the aggravators is thrown out. The court must either reweigh the aggravators/mitigators or find harmless error. Nothing in the Sixth Amendmentindicates that a defendants right to a jury trial would be infringed where an appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence. Even if under Mississippi law, the weighingwere not an appellate, but a jury, function, it was open to the Mississippi Supreme Court to find that the error which occurredwas harmless. o Nonetheless, SC vacated the judgment because the appellate court needed to clarify its decision i/l/o the record before it. The State repeatedly emphasized and argued the especially heinous factor during the sentencing hearing.. The State placed little emphasis on the robbery for pecuniary gain factor. Under these circumstances, it would require a detailed explanation based on the record for us possibly to agree that the error I giving the invalidinstruction was harmless. Note that on remand, MS just held a new sentencing hearingdemonstrating ambivalence?

Arave v. Creech (1993) (OConnor) D sentenced to death based in part on statutory aggravator that by the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life. The state supreme courts limiting instruction defines utter disregard as revealing the attitude of a cold-blooded, pitiless slayer. o On channeling: Contrary to the dissent's assertions, the phrase "cold-blooded, pitiless slayer" is not without contentDetermining whether a capital defendant killed without feeling or sympathy is undoubtedly more difficult thandetermining whether he "was previously convicted of another murder." But that does not mean that a State cannotauthorize sentencing judges to make the inquiry and to take their findings into account when deciding whether capital punishment is warranted. o On narrowing: Close question, but the state identified the subclass of defendants who kill without feeling or sympathy as more deserving of death. By doing so, it has narrowed in a

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meaningful way the category of defendants upon whom capital punishment may be imposed. o Court finds this instruction sufficient, but how is it different from the one in Godfrey? This shows that the SC is having real problems drawing the line.

Recap of significance of aggravating factors. The Gregg court praised aggravating factors because of their ability to narrow the class eligible for CP, channel jury discretion (objectivity). However, after Gregg it becomes apparent that only narrowing is required. Thus, court in Zant holds that the bird can be in the jurys hands after it has engaged in sufficient narrowing. Following graphic illustrates:

Lowenfield v. Phelps (1988) (Rehnquist)

Capital murder defined in LA statute with things that look like aggravating factors. The jury still had to find an aggravating factor, but that factor could be something listed in the definition. Thus, double-dipping possiblecapital murder could be aggravated by the same factor that made the crime capital murder in the first place. o D challenging because the single aggravating circumstance found by the jury and upheld by the Supreme Court of Louisiana merely duplicates an element of the underlying offense of firstdegree murder of which he was convicted at the guilt stage. o The aggravating factors idea came from the MPC, which didnt attempt to channel jury discretion. When states used such factors post-Furman, it sometimes translated into hybrid statutes like the one here, where aggravators appear to come in twice. o The Court says that as long as theres narrowing, the statutes fine.

The use of aggravating circumstances is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling

the jurys discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase. The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. o Here, the narrowing function was performed by the jury at the guilt phase when it found defendant guilty so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. o Marshall (dissent): Last gasp at channeling jury discretion. Narrowing happens apart from

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sentencing, and when the trial jury determines if an element of the offense is satisfied, its not told the implications of its decisioni.e., that the element is also an aggravating factor, rendering D eligible for CP. Marshall wanted the sentencing jury to find such a fact, not be told that they had already found it in the guilt phase. The only conceivable reason for making narrowing a constitutional requirement is its function in structuring sentencing deliberations. By permitting removal of the narrowing function from the sentencing process altogether, the Court reduces it to a mechanical formality entirely unrelated to the choice between life and death. o This decision raises 2 questions:

How clear do these narrowing factors have to be, and how much narrowing is necessary? They must apply only to a subset of murderers, but where to draw the line? What if you have a lot of non-vague narrowers? GA statute has this, and some people say that 90% of murders there are eligible for CP because there are so many narrowers. The growth of aggravating factors = an endless train of what about hims.

This question raises issues never tried in SC, appear promising. o Steiker: If states at Furman had known all the things the SC would say about CP, they probably would have made very different statutes.

TN v. Middlebrooks (TN SC 1992)

Statute at issue is much like LAs in Lowenfield, but the TN SC says the definition does not narrow enough, especially as regards felony murder. Finding another aggravating factor is necessary. o It is clear that Tennessee has a broad definition of murder and has not narrowed in the definitional stage. Accordingly, Lowenfield is inapposite and provides no rationale for constitutionality under the Tennessee Constitution. o We have determined that in light of the broad definition of felony murder and the duplicating language of the felony murder aggravating circumstance, no narrowing occurs under Tennessees first-degree murder statute.

Walton v. AZ (1990) (White)

In this case there is no serious argument that Arizonas especially heinous, cruel or depraved aggravating factor is not facially vague. But the Arizona Supreme Court has sought to give substance to the operative terms, and we find that its construction meets constitutional requirements. o AZ SC interpretation: a crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victims death, and that mental anguish includes a victims uncertainty as to his ultimate fate. o Blackmun (dissent): The trial judges familiarity with the State Supreme Courts opinionswill serve to narrow his discretion only if that body of case law articulates a construction of the aggravating circumstance that is coherent and consistent, and that meaningfully limits the range of homicides to which the aggravating factor will apply.

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Lewis v. Jeffers (1990) (OConnor)

Decided same day as Walton, challenged same aggravator. D claimed that AZs interpretation of the aggravator was unconstitutionally vague. Court adopted a deferential standard of review of state court applications of aggravators.

o A federal reviewing courts role is limited to inquiring whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Same for 8th amendment inquiries w/r/t CP. Blackmun (dissent): Problem is that the Arizona Supreme Court has identified so many such factors, and has shown itself so willing to add new factorsthat the body of its precedents places no meaningful limitations on the application ofaggravating circumstance. The constitutional infirmity of the courts approach cannot be recognized through examination of any one opinionbecomes very apparent upon examination of relevant decisions taken as a whole.

Tuilaepa v. CA (1994) (Kennedy) The question is whether, in addition to adequately narrowing the class of death-eligible defendants, the State must channel the jurys sentencing discretion when it is deciding whether to impose the death sentence on an eligible defendant by requiring the trial judge to characterize relevant sentencing factors as aggravating or mitigating. (Stevens, concurring). o In California, to sentence a defendant to death for first-degree murder the trier of fact must find the defendant guilty and also find one or more of 19 special circumstances. The case then proceeds to the penalty phase, where the trier of fact must consider a number of specified factors in deciding whether to sentence the defendant to death. (Kennedy) Definition of capital murder is not like LA statute in Lowenfield with factors in definition of offense, but its not like GA because of the factor weighing required at sentencing. Like statutes of weighing states MS, FL, and AZ, statute in CA also has heinous, atrocious, and cruel as a sentencing factor. o Vagueness argument: sentencing factors are not listed as aggravators or mitigators, so the jury canand doesconsider them either way (e.g. D deserves CP either because he killed for money or because he had no motive). Blackmun (dissent): factors make it worse because theyre putting ideas in the heads of jury, allowing them to capitalize on their prejudices (juries more likely to find circumstances of killing worse when D has dark skin). The absence of mitigating facts

weighs toward deathjuries often count factors when weighing. Despite the criticaleven decisiverole these factors play in the determination of who actually receives the death penalty, jurors are given no guidance in how to consider them. But Zant makes it hard to argue that no guidance is a problem.

o Again, the Court here says theres narrowing, so theres no problem with the statute. Difficulty in application is not equivalent to vagueness. Both the prosecution and
the defense may present valid arguments as to the significance of the defendants age in a particular case. Competing arguments by adversary parties bring perspective to a

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problem, and thus serve to promote a more reasoned decision, providing guidance as to a factor jurors most likely would discuss in any event. We find no constitutional deficiencya capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.

Brown v. Sanders (Scalia) (2006) The issue in the line of cases we confront here is what happens when the sentencer imposes the death penalty after at least one valid eligibility factor has been found, but under a scheme in which an eligibility factor or a specified aggravating factor is later held to be invalid. o Cert granted on question: is CA weighing or nonweighing? Answer: it doesnt matterCourt does away with the weighing/nonweighing distinction. Not an accident that CA statute is at o issue because no one can decide if it weighs or doesnt. Scalia: question is whether The reason for the invalidity of the eligibility factor is that it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. OR

The jurys consideration of the invalidated eligibility factor allowed it to hear

evidence that would not otherwise have been before it. But see Stevens dissent: Whether an aggravating circumstance finding plays a role in the jurys decision to impose the death penalty has nothing to do with whether the jury may separately consider all the circumstances of the crime. o In this case, all of the aggravating facts and circumstances that the invalidated factor permitted the jury to consider were also open to their proper consideration under one of the other factors. The erroneous factor could not have skewed the sentence, and no constitutional o violation occurred. Breyer (dissent): get rid of distinction, but look at the impact of the aggravator on the jury determination. The fact theyre called special circumstances may make the jury put special weight on them even if theyre later invalidated. Thus: could that mistake create harmful error, causing the jury togive special weight to its heinousness finding? Steiker: This case is important because: It shows the continuing evolution/openness of CP jurisprudence. Can see movement of the justices, i.e. Stevens (dissenting here). Blackmun too, but hes not in this case.

Is Narrowing Effective?

o Harlan in McGautha said that it was impossible for the legislature to tell juries what the worst
o o crimes are, so absolute discretion was ok. Marshall/Brennan also think its impossible, but they think this means CP should be abolished. Marshall (Lowenfield)/Blackmun: Aggravators arent doing their job, must really narrow. Court right now: as long as some narrowing (and thus discretion) takes place, its enough. GA, FL statutes in some sense denied juries discretion. Take home: must narrow class with some objective criteria. These cases stem from Stewart/White in Furman.

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Does the court have it right?

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THE REQUIREMENT OF INDIVIDUALIZED SENTENCING

The Constitutional foundation of the requirement

New line of cases: 10 states in wake of Furman adopt mandatory CP statutes. (e.g., NC, LA).

Woodson v. NC (1976) (Stewart, 3-judge plurality) 2 crucial considerations in 8th amendment analysis: juries and legislatures. o Much of the progress over the 19th century was a move away from mandatory CP. Steiker says the problem was that juries were hesitant to convict when the mandatory penalty was CP in other words, humanitarian concerns drove the shift. It is now well established that the Eighth Amendment draws much of its meaning from the evolving standards of decency that mark the progress of a maturing society. As the above discussion makes clear, one of the most significant developments in our society's treatment of capital punishment has been the rejection of the common law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. The Courts problem is that 10 states have mandatory statutescourts answer to this nose count is that the statutes are only in place because the states have tried to find an answer to Furman, and this was suggested as an option (by Rehnquist, dissenting). Question: how much can we judge state will by what they do post-Furman? o Real problem with mandatory CP is not withdrawing jury discretion but too much of it.

When one considers the long and consistent American experience with the death penalty in first-degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury discretion. In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict. North Carolina's mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to

determine which first-degree murderers shall live and which shall die. Steiker: this proves a little too much. o No consideration of character, record, circumstances of the offense. Relevant in CP cases because death is differentmandatory penalties ok in other criminal contexts. The difference is one of kind rather than degreea fundamental respect for humanity is reflected in the 8th amendment. Think Brennan in Furman (and a little Marshall, too).

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of

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compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Lockett v. OH (1978) (Burger opinion for parts I & II, plurality, part III)

OH statute at issue most closely resembles the FL statute (weighing state). The difference here is that the mitigating list is very short3 possible mitigators versus 7 possible aggravatorsand the mitigators are not what youd expect. o D here doesnt have any of the 3 mitigators, but theres lots of stuff youd want to consider. For example, D is young, no record, no intent to kill, played a minor part in the crime, the government didnt even want to give her CP (much lighter plea deals offered). Statutory mitigators: after "considering the nature and circumstances of the offense" and "history, character, and condition," finding by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she "was under duress, coercion, or strong provocation," or (3) the offense was "primarily the product of [Lockett's] psychosis or mental deficiency." o Once Woodson decided, Burger joins the majority.

We are now faced with those questions, and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than death. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. o So in this case: the limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with 8th, 14th amendments. o Question: how does this affect FL statute? Any discreet evidence that doesnt have some sort of catch all factor?

Eddings v. OK (1982) (Powell)

The facts here are very different from those in Lockett, where D was the poster girl for mitigating factors. Here, D was 16 when he ran away with several friends. Pulled over by OK police, killed officer with shotgun at close range. Statute at issue stated that evidence may be presented as to any mitigating circumstances and certain enumerated aggravators. Ds lawyer introduces mitigating evidence: story of a really awful childhood. o Trial judge found that the State had proved each of the alleged aggravators. But he refused, as

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a matter of law, to consider in mitigation the circumstances of Ds unhappy upbringing and emotional disturbance, and found that the only mitigating circumstance was Ds youth, which didnt outweigh the aggravators. The appellate court then says that the only real mitigator would be insanity. Compare this to the case of Leopold and Loeb: two wealthy University of Chicago students who murdered 14-year-old boy in 1924, and were sentenced to life imprisonment. Darrows summation in their trial is noted for its influential criticism of capital punishment. He popularized the notion that a defendant might not be guilty of his crime because of his inherited traits to use Darrow's term, Leopold and Loeb were "broken machines." This mentality was pervasive up to Eddings. o Not only does the statute say you have to introduce mitigating evidencethe trial judge/jury must also consider it. Thus, the sentencer needs instructions explaining this; they must be able to consider mitigating evidence as relevant to their decision. Just as the State may not, by statute, preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.

Recap: We saw in Lockett that the 8th Amendment requirement of individualized consideration bars restricting sentencers attention to a set list of mitigators. We saw in Eddings that mitigators not only cannot be barred from consideration by sentencer but also must actually be considered. o But what evidence must be considered as mitigating? Some possibilities include: Age, record, circumstances of offense, role (minor), psychiatric profile, family history (especially for youth). Chance of rehabilitation, remorse, victims education/talent, residual doubt, record during incarceration, good deeds, motive. o Residual doubt is the one consideration from the list of mitigators that the Supreme Court has said definitely does not warrant consideration in sentencing. (OR v. Guzek (2006)). What unites (many of) the factors we generated, esp. the factors derived from Lockett and Eddings? o Culpability (important for retributivist justifications of CP). Includes circumstances of offense.

o Evidence of good character tends to show that the offense was an aberration and due to
impingement on defendant by outside forces. Character points to possibility for redemption, danger for others. o But capacity for rehabilitation is obviously a factor as well. (Consider good behavior in prison, which the Court said, in Skipper, is definitely a mitigator.) o How do things like defendants good deeds and the impact on defendants family fit in? Its still an open question whether failure to consider a mitigator can be harmless.

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The Texas Statute

The Texas statute is like LAs in limiting capital murder, by definition, to five categories. Once capital murder is found, the jury must consider 3 questions: o Deliberateness o Future danger o Provocation If jury unanimously answers beyond a reasonable doubt yes to all 3, then death is automatic.

o Future danger ((b)(2)) is obviously the crucial question in most cases. Deliberateness is
easy if murder capital (intentional killing), and provocation never comes up. o Future dangerousness is just a hard call to make. Even social scientists are bad at such predictions. Tony Amsterdam (LDF lawyer in all the 76 cases) emphasized the arbitrariness that can seep into a judgment of future dangerousness. Woodson challenge failed in Jurek because individualization was supposed to be possible through future dangerousness judgment.

Note that every statute upheld in 1976 was later declared unconstitutional:

o Gregg the GA statute was struck down in Godfrey (1980) for vagueness. o Proffitt FL statute struck down in Hitchcock v. Dugger (1987) for having a finite list of
mitigators. o Jurek TX statute struck down in Penry (1989) on same grounds raised in Jurek.

o Woodson Woodson (NC) itself allowed that mandatory death sentences might be permissible
if the murderer is already serving a life sentence. In Sumner v. Shuman (1987), the Court struck down a NV statute that made death mandatory for those already serving life sentences. The Court pointed to what an outlier NV was relative to the rest of the country. Also NV had already repealed the law, and Sumner was the only person convicted under it.

Jurek v. TX (1976) (Stevens plurality)

The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.

o The second Texas statutory question asks the jury to determine "whether there is a probability
that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" if he were not sentenced to death. The Texas Court of Criminal Appeals has yet to define precisely the meanings of such terms as "criminal acts of violence" or "continuing threat to society." In the present case, however, it indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show.

o In the only other case in which the Texas Court of Criminal Appeals has upheld a death
sentence, it focused on the question of whether any mitigating factors were present in the case. o Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of

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mitigating circumstances the defense can bring before it.

Franklin v. Lynaugh (1988) (White plurality)

Requested special instructions did not violate 8th amendment right to present mitigating evidence. Neither the instructions actually given nor the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances, or otherwise unconstitutionally limited the jury's discretion.

o There is no merit to petitioner's contention that the sentencing jury was deprived of a
sufficient opportunity to consider any residual doubteven if the claimed "right" existed, the rejection ofproffered instructions did not impair that right, since the trial court placed no limitation onopportunity to press the residual doubts issue. o Since, at the sentencing hearing, petitioner was permitted to emphasize evidence of his good prison disciplinary record with regard to the second Special Issue concerning future dangerousness, the jury was not precluded from giving adequate mitigating weight to that evidence.

Penry v. Lynaugh (1989) (OConnor: court opinion except for part IV-C)

Penrys main argument was that he was mentally retarded, but that argument failed (but see Atkins). So his main argument was that he was sentenced in violation of the Eighth Amendment because the trial court failed to instruct the jury on how to weigh mitigating factors in answering the special issues and failed to define the term deliberately. o How could MR and a history of abuse bear on deliberateness and future dangerousness? Both MR and abuse may undercut deliberateness. But thats a stretch. Jurek [Penry?] had killed V in order to prevent V from testifying against him, and the jury had already found that Jurek had killed intentionally. MR and abuse both enhance future dangerousness (factor 2). Penry's mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future. o Deliberateness (factor 1) is not enough. It doesnt give the sentencer sufficient latitude to consider everything that bears on culpability. Without such a special instruction, a juror who believed that Penry's retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime deliberately.

o Finally, (factor 3): even if a juror concluded that Penry's mental retardation and arrested
emotional development rendered him less culpable for his crime than a normal adult, that would not necessarily diminish the unreasonableness of his conduct in response to the provocation, if any, by the deceased. o Penry shows how constantly in flux CP law is. o Question: is there any remaining way for the states to channel juries consideration of the

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mitigators that must be considered?

TX v. Johnson (1993) (Kennedy)

In denying Johnson's motion for rehearing, the state appellate court rejected Ds contentions that the special issues did not allow his jury to give adequate mitigating effect to evidence of his youth and that Penry required a separate instruction on the question. o There is no reasonable likelihood that Johnson's jury would have found itself foreclosed from considering the relevant aspects of his youth, since it received the second special issue instruction and was told to consider all mitigating evidence. That there is ample room in the future dangerousness assessment for a juror to take account of youth as a mitigating factor is what distinguishes this case from Penry.

What did Tex. judges do in Penry-like cases between 1989 and 1991 when TXs need statute was finally enacted (including Penrys own case, since he was charged with capital murder again)? o Theyd say, Consider all possible mitigators in answering the following three questions. This happened to Penry, and his case went back to the Supreme Court, which said that a court cannot tell the jury to lie and struck down Penrys conviction again. o The TX courts then developed a new instruction that said that MR and like mitigators must be uniquely severe and must have caused the offense. This too is struck down by the Supreme Court. o Penry was sentenced to death three times in all and had his conviction reversed by the Supreme Court three times. Finally, after Atkins, TX offered Penry a life sentence if he signed a paper saying he didnt have MR. He took the deal. What makes evidence Penry problematic? o Youth? It wouldnt seem to be. Youll outgrow anti-social behavior so youth detracts from future dangerousness. Youth also tends to undercut culpability. o Good behavior in prison? Franklin: no o Remorse? No because regret lessens chance of repeat. o Mental Illness? Probably because youre likely to repeat, but counter is that its curable. Note that SC has found cognitive impairment, neglect to be PP. o Family Ties? No court has treated as PPgood character. o Religiosity? Same as with family ties. o Substance Abuse? Can go either way; disease/lack of full choice but also dangerous. Many courts have treated as PP.

Further Developments
So now, mitigation evidence must be:

o Permitted by statute (Lockett) o Considered by sentencer (Eddings) o Considered as mitigating (Penry) 30

o Considered without legal interference.

There have been several reversals of TX Court of Criminal Appeals, 5th Circuit, after Penry. Narrowing and channeling has been minimal requirement, while mitigation has been a maximal requirement. Court has only enumerated one factor that cannot be admitted as mitigating (residual doubt). The 5th Circuit has held that Penry error is never harmless, and the SC will probably go that way too. Question: Does court require both? How can mitigation and channeling requirements coexist? o Narrowing/channeling is seen as preventing arbitrariness.

o Mitigation is necessary to prevent dehumanization.

Various court views on consistency of narrowing/channeling and mitigation. o Scalia: Theyre inconsistent, so hell never vote on any claim based on Lockett, Eddings. Thinks that mitigation is not Constitutionally based, so we should ditch it. o Blackmun: Theyre so inconsistent that hell no longer tinker with the machinery of death. Both are required, but theyre fundamentally irreconcilable. o Harlan: You just have to trust juries. He might agree you have a right to tell the jury anything probably sympathetic. However, channeling is not constitutionally required. o Gregg (most of court): Both are required. Address arbitrariness via channeling and mitigation. We can make CP good enoughindeed, weve made it better, forced legislatures to think more about the issue. If youre worried that these two pillars arent working, there are ways to address the problemnamely, excluding classes of people (i.e., making the pyramid smaller). Subtext: race and rape and CP.

Walton v. AZ: Scalia (concurring)

Scalia will no longer seek to apply, and will not, here or in the future, vote to uphold a claim based upon, the principle of Woodson or Lockett that the sentencer in a capital case may not be precluded from considering any mitigating factor.

o This principle is rationally irreconcilable with the principle of Furman -- that a sentencer's
discretion to return a death sentence must be constrained by specific standards, so that the death penalty is not inflicted in a random and capricious fashion. Furman requires constraints on the sentencer's discretion to "impose" the death penalty, while Woodson-Lockett forbids constraints on the sentencer's discretion to "decline to impose" it -- which are one and the same.

Callins v. Collins (1994) (Blackmun dissent)

Blackmun, dissenting from denial of cert says that from this day forward, I no longer shall tinker with the machinery of death. For more than 20 years, I have endeavored - indeed, I have struggled - along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations

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ever can save the death penalty from its inherent constitutional deficiencies. The basic question does the system accurately and consistently determine which defendants "deserve" to die? - cannot be answered in the affirmative. o Scalia (concurring): Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority's views upon the people.

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THE EIGHTH AMENDMENTS PROPORTIONALITY PRINCIPLE: ARE ANY GROUPS CATEGORICALLY EXEMPT FROM CAPITAL PUNISHMENT?

The Principle of Proportionality

Coker v. GA (1977) (White, plurality) Forbids CP for the crime of a rape of an adult woman. o Up to now, all the cases weve read are procedural. This is the first substantive onei.e., it tells you who can/cannot be executed. Here, the question is about rape. o You could read this case and never know about the racialization of CP, especially as it concerns rapeeven though this is very much at issue in the case. D tried to bring it up in this case, but SC ignoresenvisions doctrine of proportionality as a way to dispose of racism in CP without expressly addressing race. 3 elements of proportionality analysis: (1) the laws enacted by state legislatures; (2) the behavior of sentencing juriesboth objective. (3) Navel gazingmuch more subjective. o (1) Legislative endorsement. GA was the only state that authorized execution for rape of an adult woman. Lots of states post-Furman adopted mandatory CP, but they didnt want to make it mandatory for rape (then theyd have to kill white people). If the most marked indication of societys endorsement of the death penalty for murder is the legislative response to Furman, it should also be a telling datum that the public judgment with respect to rape, as reflected in the statutes providing the punishment for that crime, has been dramatically different. Compare this statement to the one made in Woodson, where the Court brushed aside post-Furman passage of mandatory CP, saying the states were just trying to respond to Furman. Here, the Court takes the opposite view. o (2) Juries willingness to sentence to death: Only 6 convicted rapists were sentenced to CP (1 was later reversed)convictions under statute were therefore rare. It is true that in the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence. Steiker: This is actually pretty frequent use, but Court thinks the opposite. o (3) Consulting navel: Whatever the 9 Justices think, supposedly whether the punishment promotes the goals of CP (retribution, deterrence). These recent events evidencing the attitude of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. Nevertheless, the legislative rejection of capital punishment for rape strongly confirms our own judgment. Rape is without a 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

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o o

murder, which does involve the unjustified taking of human life. Powell (concurring): Can imagine rapes that are CP rapes. NOW brief (Ginsburg deeply involved): Against rape for CP because of its paternalistic roots.

Compare proportionality test in Coker with its use in the non-CP context of 3-strikes laws for drug penalties. o Rummel v. Estelle (1980) Powell (dissent) wanted to use the 3-part proportionality test.

o Hutto v. Davis (1982) Powell (concurring) joined judgment because of Rummel majority but
still advocates 3-part test, thinks disproportionate. o Solem v. Helm (1983) Powell (5-4 majority) finally prevails. D, who had written false check, received 7th nonviolent felony conviction since 1964, got mandatory sentence of life in prison without parole. Powell wrote that D had "received the penultimate sentence for relatively minor criminal conduct."

Harmelin v. MI (1991) (Scaliaonly Rehnquist on pts I-III; Court for pt IV) D was convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. D subsequently claimed 8th amendment violation because punishment was significantly disproportionate to crime committed. o Court found that severe, mandatory penalties may be cruel, but they are not unusual in the Constitutional sense, having been employed in various forms throughout our Nations history. There can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is mandatory. o Scalia and Rehnquist say there is no 8th amendment proportionality requirement at all because it is inconsistent with drafters understanding of the Constitution. This is an extreme view. Dissent (White): identifies two dangers in this analysis: No mechanism for addressing a situation such as that proposed in Rummel, in which a legislature makes overtime parking a felony punishable by life imprisonment. Scalias position that the Eighth Amendment addresses only modes or methods of punishment is quite inconsistent with out capital punishment cases, which do not outlaw death as a mode or method of punishment, but instead put limits on its application. o Kennedy (with OConnor and Souter) want to use Powells Rummel test: (1) Gravity of the offense relative to the punishment (2) Intrajurisdictional comparison (3) Interjurisdictional comparison They claim to apply the 3-part test, but they dont get to (2) or (3) because for them (1) is a threshold you have to get over. The 8th does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. Thus, they say proportionality is in the 8th amendment, but its a narrow requirement. This is because of legislative primacythe legislature should be able to

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decide which purposes of punishment it should pursue.

Compare Harmelin to Coker proportionality test: both look at legislative/jury verdicts, but in Coker the Court has lots of discretion to determine whether theories of punishment are relevant. Harmelin is much more deferential to the legislature, acknowledges the role of incapacitation theory.

The Court will be addressing differences between capital and noncapital 8th amendment jurisprudences this year, but up to now, Rummel and Hutto = nonconstitutional deadend.

Proportionality Applied

(a) Intent
Post Furman, felony murder is an incredibly common statutory aggravator. Felony murder also makes you eligible for CP, even if you didnt kill. So

Enmund v. FL (1982) (White) Question is whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life. o Record supported no more that the inference that Enmund was the person in the car by the side of the road at the time of the killings, waiting to help the robbers escape. This was enough under Florida law to make Enmund a constructive aider and abettor and hence a principal in first-degree murder upon whom the death penalty could be imposed. D was not present when the killing took place; he didnt intend, attempt, or actually kill. Intent is important here because it excludes people who hire hitmen from the analysis. o Bulk of analysis centers on legislatures that do/dont condone CP in this instance. Nontriggermen hadnt been executed in decades, etc. Basically, the Court identifies a strong trend against CP for Enmund.

Legislatures: only a small minority of jurisdictionseightallow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed. Juries: survey revealed only 6 cases out of 362 where a nontriggerman felony murderer was executed. All six executions took place in 1955.

o Court goes on to argue that CP for Enmund wouldnt serve aims of CP because it wouldnt
deter effectively. There is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts.

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o This completes the Coker analysis.

Tison v. AZ (1987) (OConnor) The question presented is whether Ds participation in the events leading up to the murder of four members of a family makes the sentences of death imposed by the Arizona courts constitutionally permissible although neither D specifically intended to kill the victims and neither inflicted fatal gunshot wounds. o Tison brothers broke dad and friend out of prison in AZ with a cooler of guns. They flagged down a family, which dad and friend slaughtered while brothers were getting family some water. o This decision trims Enmund. Reasons Enmund doesnt control: The brothers were much more involved in the crimehelping inmates escape with a cooler of guns translates into a reasonable probability of murder. The question is thus one of degree.

Ds do not fall within the intent to kill category of felony murderers for which Enmund explicitly finds the death penalty permissible under the Eighth. On the other hand, it is equally clear that petitioners fall outside the category of felony murderers for whom Enmund explicitly held the death penalty disproportional: their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life.

Such extreme recklessness is implicit in knowingly engaging in criminal activities known to carry a grave risk of death. Court also notes that substantial and recent legislative authorization of the death penalty for the crime of felony murder regardless of the absence of a finding of an intent to kill powerfully suggests that our society does not reject the death penalty as grossly excessive under these circumstances. Moreover, state courts have interpreted Enmund to permit the imposition of the death penalty in such aggravated felony murders. SC is on the edge here; the MI SC strikes down a similar statute under the MI constitution.

The move from Coker (1977) Enmund (1982) Tison (1987) Penry/Stanford (1989) (saying its ok to execute mentally retarded/juveniles) meant that most thought proportionality analysis was done. But then along came Atkins, which overruled Penry, and Simmons, which overruled Stanford.

(b) Insanity and Mental Retardation

Ford v. Wainwright (1986) (Marshall)

8th Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane. o D had become increasingly mentally unstable after incarceration. Psychiatrists concluded D had no understanding of why he was being executed... & sincerely believed that he would not be executed because he owned the prisons and controlled the Governor through wind waves.

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Marshall found Constitutional prohibition on executing the insane was rooted in CL and contemporary practice. Such an execution simply offends humanity.

Panetti v. Quarterman (2007) (Kennedy)

Had long suffered from severe mental illness, acted crazy at trial, but issue before SC involved Panettis more recent mental healthhis competence to be executed. Panetti knew in some minimal sense that he was being executed because he killed his in-laws, but was convinced that this stated reason was a sham and the real reason was to stop him from preaching. o 5th Circuits narrow and formalistic test for competence, which foreclosed any consideration of the rationality of a prisoners awareness of his pending execution was too restrictive, but the Court also acknowledged that a concept like rational understanding is difficult to define, and it declined to set down a rule governing all competency determinations. Instead, remanded for further development of the record and factual findings, invited District Court to formulate and employ a more precise standard.

WA v. Harper (1990) (Kennedy) Prison inmate challenged the prisons policy of requiring him to take antipsychotic drugs against his will. The Court acknowledged that the inmate possessed a significant liberty interest in avoiding the unwanted administration of the drugs but nonetheless held that the Due Process clause permits such treatment if the inmate is a danger to himself and others.

Perry v. LA (1990) (per curiam)

D was sentenced to the death penalty in LA. After his sentencing the trial court found that his competence to be executed depended on his taking psychiatric medication and ordered that he be forcibly medicated to be sure he remained competent. o Supreme Court vacated the lower court's ruling without issuing an opinion. o Upon remand, the lower court ruled against the forcible medication of individuals in order to maintain their competency for execution. This decision was based on the distinction that, unlike Harper, which was concerned with involuntary medication for treatment issues, forcing medication for the purposes of execution was not medical treatment but punishment.

Penry (revisited)

The Court refused to hold that the 8th precludes execution of a mentally retarded person simply by virtue of his or her mental retardation. OConnor conceded that a national consensus against execution of the mentally retarded might signify evolving standards of decency which could enter into the 8th Amendment analysis, but she concluded that no such consensus existed. o Due to the insanity defense, such a person is not likely to be convicted or face the prospect of punishment.

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Atkins v. VA (2002) (Stevens) The Constitution places a substantive restriction on the States power to take the life of a mentally retarded offender. o SC somewhat modifies proportionalityuses the popcorn argument, accounting for sudden legislative movement in one direction, even if majority of states havent changed.

It is not so much the number of these states this is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminalMoreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Scalia (dissent): The Courtmiraculously extracts a national consensus forbidding execution of the mentally retarded from the fact that 18 statesless than half (47%) of the 28 States that permit capital punishment (for whom the issue

exists)have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. o Denominator debate: when doing legislative nose count, should we consider abolitionist states? In other words, should the denominator be 18/38 or 18/50? Scalia thinks the denominator should be 38. o FN 21 looks at foreign law, religious leaders, public opinion polls, social science organizations. This sort of analysis is new to proportionality nose count. Scalia hates this, of course (zzzzzz). The Prize for the Courts Most Feeble Effort to fabricate national consensus must go to its appealto the views of assorted professional and religious organizations, members of the so-called world community, and respondents to opinion pollsEqually irrelevant are the practices of the world community, whose notions of justice are (thankfully) not always those of our people.

(c) Age
Thompson v. OK (1988) (Stevens plurality) The imposition of CP for offenses committed by persons less than 16 years old made no measurable contribution to the legitimate goals of punishment and therefore violated the 8th Amendment. o OConnor (concurring) although I believe that a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist, I am reluctant to adopt this conclusion as a matter of constitutional law without better evidence.

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Stanford v. KY (1989) (Scalia plurality) Court rejected Ds claim that a national consensus exists against the imposition of CP on 16- and 17- year old offenders. o Plurality: Although several of the Court's cases have engaged in so-called "proportionality" analysis those decisions have never invalidated a punishment on that basis alone, but have done so only when there was also objective evidence of state laws or jury determinations establishing a societal consensus against the penalty. o OConnor (concurring) In Thompson I noted that [t]he most salient statistic that bears on this case is that every single American legislature that has expressly set a minimum age for capital punishment has set that age at 16 or above. It is this difference between Thompson and these casesthat convinces me there is no national consensus.

Roper v. Simmons (2005) (Kennedy)

Three years after Atkins, the Court overruled Stanford, holding that the death penalty is a disproportionate punishment for Ds who were juveniles at the time of their offenses.

o Looks like Atkins on the merits, though less popcorn effect. The number of CP states that
had formally abandoned the juvenile CP (18) was identical to the number at issue in Atkins, and number of executions was similar too. Court acknowledged that the recent rate of change was less dramatic as Atkins, but same consistency and direction of change was evident, likely attributable to earlier recognition that this was bad. The Court noted that the comparative immaturity and irresponsibility of juveniles, that juveniles are more vulnerable or susceptible to negative influences and outside pressures, and that the personality traits of juveniles are more transitory, less fixed. Relied on common knowledge and scientific/sociological studies. Once the diminished culpability of juveniles is recognized, it is evident that the

penological justifications for the death penalty apply to them with lesser force than to adults. Kennedy thinks international opinion is important, tells Scalia to fuck off. Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Whats left that we dont know the answer to in this realm? See how Kennedy v. LA adds new move.

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(d) Offense
Kennedy v. LA (2008) (Kennedy)

Recent case, struck down CP for sexual assault of young children.

o Courts analysis looks like proportionality of Atkins, Simmons in that Kennedy begins with a
nosecount. The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions-36 States plus the Federal Government--have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. Also, last execution for child rape was in 1964. However, Kennedy must deal with a number (4?) of recently passed statutes capitalizing the crime of child rape. Appears that weight of evidence that most states still outlaw, trend not too significant, overrides this concern. Count off in embarrassing way: Congress passed relevant statute w/r/t servicemen in 2006 (part of military appropriations bill). SG declined to file brief because no federal interest, didnt realize statute was on the books. LA filed a petition for rehearing i/l/o statute, SC declined. o After nosecount, Kennedy moves to his own analysis, where he says something extraordinary: any crime that doesnt involve a death is per say disproportionate. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken.

o Since 1976, no one had been executed for non-homicide. Threw in some considerations from
Atkins and Simmons: deterrence doesnt work here because to hold otherwise might encourage the criminals to kill the children rather than assault them. Moreover, people might not come forward to report if they know death could result. A State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.

The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victims family members may be

more likely to shield the perpetrator from discovery. o New move: Atkins, Simmons were united via the notion of lessened culpability. Scalia would say that not all mentally retarded and juveniles are less culpable. The culpability argument is harder to make w/r/t child rape. Instead, Kennedy makes a harrowing argument, invoking the Scalia/Blackmun debate. He says that the risk of putting such groups into the mix is that it will lead to injustice to many of those in that category. These cases are a response to the failure of statutory narrowingmore robust narrowing rationale. The problem of unreliable, induced, and even imagined child testimony means

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there is a special risk of wrongful execution in some child rape cases. Court is still talking in code about race. Avoids being explicit, but implies that its an important issue.

Is this the end of the line w/r/t proportionality review? Kennedy explicitly says hes not addressing things like treason, espionage, federal drug kingpin, terrorismcrimes against the state. Would evolving standards of decency allow for a new capital crime to be established? o Compare to similar statutes allowing non-murder CP. o State of war CP internationally o Public opinion (overwhelming in terrorism cases), relevant experts. o Own judgment Question also open about mental illness short of proof of insanity. Obvious analog to youth, retardation, but also involves differences that make determination difficult. Mental illness is a much bigger spectrum with much more disagreement of what it is, how it affects people. Should we just let the jury

decide if mental illness is sufficient, or try to carve out a particular category? Steiker finds the logic of the Court in Kennedy, Atkins, and Roper less than satisfying, even as she likes the political result.

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PRESENTING AND REBUTTING A MITIGATION CASE

What can the government introduce to rebut mitigating evidence?

What is Character?
Dawson v. DE (1992) (Rehnquist)

The question presented in this case is whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding. We hold that they do. o There was no problem finding aggravators in this case. In response, D introduced mitigating evidence about his family loving him, participation in drug treatment programs. The government tries to preempt by stipulating that hes a member of the Aryan Brotherhood. Stipulation: Aryan Brotherhood refers to a white racist prison gang that began in the 1960s in California in response to other gangs of racial minorities. Separate gangs calling themselves in the Aryan Brotherhood new exist in many state prisons including Delaware. o The Court says no: the stipulation is too narrow and doesnt relate to the circumstances of the crime. It says nothing about his particular chapter of AB, or his propensity to commit bad acts. Before the penalty hearing, the prosecution claimed that its expert witness would show that the Aryan Brotherhood is a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates murder of fellow inmates. If credible and otherwise admissible evidence to that effect had been presented, we would have a much different case. The inference which the jury was invited to draw in this case tended to prove nothing more than the abstract beliefs of the Delaware chapter.

Delaware might have avoided this problem if it had presented evidence showing

more than mere abstract beliefs on Dawsons part, but on the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Nor was the Aryan Brotherhood evidence relevant to rebut any mitigating evidence offered by Dawson. Resounding affirmation that mere belief cant be used, but belief connected to future

dangerousness can. o Thomas (dissent): We let in all sorts of beliefs that we dont know to be relevant (e.g., religion). Can the government introduce lack of religious belief/fall out with belief as aggravating? Imposes a double standard for determining relevance o At the end, the Court leaves consideration of harmless error to DE SC. That court found the error was not harmlessit didnt want to play the role of the second guesser. Dawson was then sentenced to death by a juryreflection of the weirdness of the holding. o Takeaway: Probably the opposite of initial impressionyou can actually introduce belief

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evidence (as rebuttal to mitigating evidence) in a major way. As long as you can connect the evidence to propensity for violence, then its fine. Answer to open-endedness of mitigation. o Question: Is there a problem with P countering mitigating video evidence with a video?

The Perspective of the Victim

Payne v. TN (1991) (Rehnquist)

We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendants moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. The State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family. Change from Booth v. MD (1987) to Payne raises interesting questions. o No one has ever suggested theres reason to limit victim impact statements in noncapital cases because of Constitutional problems. Yet the Court disallowed victim impact statements in capital cases for 5 years. Why?

Concern of arbitrariness; do loved people count more than people without VIS? Reason trumped by passion; Evidence Rule 403the prejudicial effect

outweighs the probative value. Booth and SC v. Gathers (1989) were based on two premises: that evidence relating to a particular victim or to the harm that a capital defendant causes a victims family do not in general reflect on the defendants blameworthiness, and that only evidence relating to blameworthiness is relevant to the capital sentencing decision. o When Booth is overturned, retributivism concerns are relevant. When you risk/intend to take a life, its reasonably foreseeable that you can cause this harm. Counter: people who kill less sympathetic victims are punished less, which doesnt make sense. The assessment of harm caused by the defendanthas understandably been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment. (e.g. bank robber aims gun at guard, pulls trigger, hits/misfiresdifferent charge). Stevens (dissent): If a defendant, who had murdered a convenience store clerk in cold blood in the course of an armed robbery, offered evidence unknown to him at the time of the crime about the immoral character of his victim, all would recognize immediately that the evidence was irrelevant and inadmissible. Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty. o Theres a fair amount of litigation about VIS. Is there any limit to emotional content in videos? What if Vs family makes video saying that it will only find peace if D receives CP? FN in Payne: General impact statements ok, but not specific opinions on sentence. Booth controls there. What if Vs family doesnt want CP? Have to admit as mitigation? Most courts dont

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allow either way, rather than permitting one over the other. Possible compromises: MD: VIS is written and read. NJ: One family representative testifies. IN: V impact evidence has to be relevant. Other states suggest curative instructions to tell the jury not to weigh lives. SCOTUS has said nothing about this.

Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? (1998) Capital Juror Project in South Carolina interviewed jurors who sat in 41 murder cases, asked jurors a range of qs relating to crime, the D, the V, the Vs family, jurors deliberations, the conduct of counsel, and background characteristics of the jurors. Essay examines data from the Project relating to importance jurors attach to various aggravating/mitigating factors. o Results suggest that jurors have a discernible moral compass. According to the data, jurors found especially brutal killings, killings w/ child victims, future dangerousness, and lack of remorse to be significant aggravating factors. Conversely, jurors pointed to residual doubt over Ds guilt, evidence of mental retardation, youthfulness, circumstances over which the D had no control and which diminished his individual responsibility, and circumstances that helped form Ds character as mitigating factors.

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THE CONSTITUTIONAL GUARANTEE OF EFFECTIVE ASSISTANCE OF COUNSEL

Requirements for Trial Counsel

Quality of counsel is a particular problem in CP cases. Theres no incentive for the state to provide good lawyers against prosecutors, plus budgetary considerations. o In CP cases, legal work is very time-intensive, which complicates defense work significantly. It also costs a lot of money to try CP cases, and most of the costs come at the trial phase (you have to pay experts, conduct investigation, etc). o Its very tough to get people to agree to take on these cases. SC has finally articulated the Constitutional standard for challenging your lawyer as ineffective in CP cases. Prior to Strickland, courts had more or less converged on a reasonableness standard.

Strickland v. Washington (1984) (OConnor)

This case requires us to consider the proper standards for judging a criminal defendants contention that the Constitution requires a conviction or death sentence to be set aside because counsels assistance at the trial or sentencing was ineffective. o Facts: L says strategy was to focus on the judges preference for Ds to take responsibility. On appeal, D says L should have presented mitigating evidenceL didnt really pursue this. He didnt do a psychological evaluation, didnt dig around for family and friends (aside from calling mom), waived pre-sentence report. Didnt do crap. He cut his efforts shortand experienced a sense of hopelessness about the case when he learned that, against his specific advice, respondent had also confessed to the first two murders. o Standard 2-part test: (1) counsels performance deficient; (2) prejudice. This is no different from an ordinary counsel standard; death is not different here.

A capital sentencing proceedingis sufficiently like a trial in its adversarial format and in the existence of standards for decision that counsels role in the proceeding is comparable to counsels role at trialto ensure that the adversarial testing process works to produce a just result under the standards governing decision. For purposes of describing counsels duties, therefore,[the] proceeding need not be distinguished from an ordinary trial. Deficient performance framed as: Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of a particular case, viewed as of the time of counsels conduct.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The Court suggests ABA guidelines, but not dispositive. Duties: (1) Loyalty/conflict of interest (2) Advocacy (consultation, keeping client informed)

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(3) Skill and knowledge These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance.

o The Court could have enunciated a checklist, which is often used by defense lawyers, but it was
worried about too much litigation. This would be bad for the lawyer-client relationship by undermining independencelawyers know better than judges and would be discouraged from trying novel theories, cant be strategic in focus. Compare to Harlan in McGautha discretion is necessary because judges and legislators arent able to think of everything lawyers should do. It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a courtto conclude that a particular act or omission of counsel was unreasonable. o Marshall (dissent): Who is the reasonably competent attorney? A reasonable appointed attorney? Is there regional variation? The debilitating ambiguity of an objective standard of reasonableness in this context is illustrated by the majoritys failure to address important issues concerning the quality of representation mandated by the Constitution. o Standard is even tougher because OConnor reiterates a presumption of competence/strong deference to lawyers decisions. She doesnt want to interfere with Ls autonomy, identifies two contexts where Ls decision is unchallengeable:

(1) My client told me to do it. (2) Strategic purposes. Strategic defenses could be brilliant/stupid depending on the

outcome. The Court wants to protect Ls. Even if you overcome the presumption, you still dont win without prejudice. Debate over prejudice standard: Conflict standard: Adversely affected. Presumption of prejudice, not outcomedependent very D-friendly. Court says this is too easy. Newly discovered evidence standard: More likely than not (preponderance). Less Dfriendly. Court says this is too tough. The Court opts for the Brady standard, which is an outcome standard. The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (less than a preponderance (20-40%??)). Why this strict standard? Counsel function of the adversarial system. Its there to give confidence in a result. Reasonable probability standard ensures sufficient reliance on the verdict. The

implication is that it would be a windfall to D to have a looser standard. Also worried about the large number of bad lawyers out there; wed have to overturn lots of guilty verdicts that were correct. (Not mentioned explicitly in standard) Perverse incentives: Ds attorney would have incentives to miss something at trial to preserve an appeal.

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o o

Should we conceive of right to counsel as a dignity right? An end in itself (i.e., justice)? Compare to right to represent yourself. Marshall (dissent): In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair proceedings. Judges usually evaluate the prejudice prong first to avoid getting into competence issues. Marshalls problem with the prejudice prong is that prejudice is related to competence. What would W have said if L had asked the right question? The counterfactual is hard to figure out. It is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. What about prejudice in this case? This is a case of a terrible lawyer with a really terrible case. The prejudice analysis here is pretty compelling, but theres probably not much for D to do here. Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances, and, hence, the sentence.

Direct appellate judges can only look at the record, so in ineffective assistance claims, they could only look at how lawyers failed to make obvious objections, or said something terrible, etc. Ineffective assistance claims should come on collateral attack. Ramifications:

o (1) No Constitutional right to be represented by counsel on collateral attack. Where do

new lawyers come from here? Often NGOs and big firms going pro bono, although now all states but AL pay for lawyer post-conviction. Federal statute pays for habeas in federal capital cases, and they cant challenge their efficacy. Better hope theyre good!

o (2) Its tough to learn about strategic decisions from trial lawyer. Most lawyers do not fall
on their sword; many of them go on to become judges and prosecutors, dont want to admit they fucked up bigtime.

Burger v. Kemp (1987) (Stevens) D contends he was denied his constitutional right to the effective assistance of counsel because his lawyer [failed] to make an adequate investigation of the possibly mitigating circumstances of his offense. o L put on no mitigating evidence. Asked D if there was anyD said no, but was borderline retarded, had neglectful/violent childhood, etc. L didnt have mom testify because it would reveal a petty offense from juvenile days. Didnt employ another lawyer who offered to help because he was black, and the case was in the South. o The record at the habeas corpus hearing does suggest that Leaphart could well have made a more thorough investigation than he did. Nevertheless, in considering claims of ineffective assistance of counsel, [w]e address not what is prudent or appropriate, but only what is constitutionally compelled. We have decided that strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable

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professional judgments support the limitations on investigation. Applying this standard, we agree with the courts below that counsels decision not to mount an all-out investigation into petitioners background in search of mitigating circumstances was supported by reasonable professional judgment. o Standard here is a toothless version of Strickland. Anything L says was strategy flies. Stevens wrote this opinion, which is simply unbelievable. Says D led L down the wrong path; this makes it pretty much impossible to survive Strickland. No one prevailed for a long time after this case.

However, from 2000 to 2005, the Strickland meter goes in the opposite direction. After AEDPA in 1996, which was meant to streamline capital cases, Federal courts can only reverse state court decisions of law if contrary to/unreasonable application of clearly established SCOTUS law. In other words, Ls have to be unreasonably wrong. The Court finds this standard satisfied in 3 cases (Williams, Wiggins, Rompilla).

Williams v. Taylor (2000) (Stevens)

The questions presented are whether Terry Williamss constitutional right to the effective assistance of counsel as defined in Strickland was violated, and whether the judgment of the Virginia Supreme Court refusing to set aside his death sentence was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by SCOTUS. We answer both questions affirmatively. o Lawyers fucked up bigtime: In closing argument, Williams counsel characterized Williams confessional statements as dumb, but asked the jury to give weight to the fact that he had turned himself in, not on one crime but on fourthat the police otherwise would not have solved. The weight of defense counsels closing, however, was devoted to explaining that it was difficult to find a reason why the jury should spare Williams life. State judge found conviction valid, but found that trial attorneys had been ineffective during sentencing. VA SC assumed counsel had been ineffective but disagreed with the trial judges conclusion that Williams had suffered sufficient prejudice to warrant relief. o Cites ABA standards (written in 89, updated in 03) as guidance for capital defense lawyers.

o VA courts made a legal mistake, misinterpreted the Strickland standard. The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell
(1993) modified or in some way supplanted the rule set down in Strickland. They read our decision in Lockhart to require a separate inquiry into fundamental fairness even when Williams is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding. The State Supreme Courts prejudice determination was unreasonable insofar as

it failed to evaluate the totality of the available mitigation evidenceboth that adduced at trial, and the evidence adduced in the habeas proceedingin reweighing it against the evidence in aggravation. o Mitigating evidence unrelated to dangerousness may alter the jurys selection of penalty, even if it does not undermine or rebut the prosecutions death-eligibility case.

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The Virginia Supreme Court did not entertain that possibility. It thus failed to accord appropriate weight to the body of mitigation evidence available to trial counsel. o Rehnquist (dissent): Here, there was strong evidence that petitioner would continue to be a danger to society, both in and out of prison. It was not, therefore, unreasonable for the Virginia Supreme Court to decide that a jury would not have been swayed by evidence demonstrating that petitioner had a terrible childhood and low IQ.

Wiggins v. Smith (2003) (OConnor) Two well-respected lawyers who took the case seriously. There was a lot of circumstantial evidence against D. Lawyers want to bifurcate the sentencingfirst show that it wasnt D who did it (residual doubt). Didnt want to get into sexual abuse history in this context because of the circumstances of the murder. Secondly, Ls wanted to say that if D had committed the crime, then sexual abuse was a mitigating factor. They didnt get bifurcation, so they focused on residual doubt and didnt bring up the mitigating evidence. o Court here cites the same Strickland standard but applies it differently:

o In terms of effective assistance of council, the Court says the inquiry into mitigation was
not enoughi.e., unreasonable. Strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation. Funds were available to file background report, but they didnt use them, which was kind of inexplicable. Report would have revealed widespread evidence of mitigating factors. The judge observed from the bench that he could not remember a capital case in which counsel had not compiled a social history of the defendant, explaining not to do a social history, at least to see what you have got, to me is absolute error. I justI would be flabbergasted if the Court of Appeals said anything else. Counsels decision not to expand their investigation beyond the PSI and the DSS records fell short of the professional standards that prevailed in Maryland in

1989. As Schlaich acknowledged, standard practice in Maryland in capital cases at the time of Wiggins trial included the preparation of a social history report. Lawyers were on notice to dig more (channels ABA standards). In assessing the reasonableness of an attorneys investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.

In argument, lawyers referred to Ds difficult life but didnt go into detail. o In terms of prejudice, all evidence would have to do is change one jurors mind. So would Ls failures have made a difference in this case? Under this interpretation, its pretty likely. Wiggins' sentencing jury heard only one significant mitigating factor--that Wiggins had no prior convictions. Had the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance.

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o Scalia (dissent): The only thing that mattered was that Schliach knew, and testified under oath
that he knew, enough about Wiggins background to make it reasonable to proceed without a report by a social worker.

Rompilla v. Beard (2005) (Souter) Case turns on the fact that Rompilla had a similar offense. Ls were on notice, didnt look at Ds file, which was a treasure trove or mitigating evidence. Hadnt discovered this via a not-so-great investigation of family history. o Counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving Rompillas prior conviction of rape and assault, and would emphasize his violent character by introducing a transcript of the rape victims testimony given in that earlier trial. There is no question that defense counsel were on notice[but they] did not look at any part of that file, including the transcript, until warned by the prosecution a second time.

Without making reasonable efforts to review the file, defense counsel could have had no hope of knowing whether the prosecution was quoting selectively from the

transcript, or whether there were circumstances extenuating the behavior described by the victim. o We hold that even when a capital defendants family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial. o Prejudice: This evidence adds up to mitigation that bears no relation to the few naked pleas for mercy actually put before the jury, and although we suppose it is possible that a jury could have heard it all and still have decided on the death penalty, that is not the test. It goes without saying that the undiscovered mitigating evidence, taken as a whole, might well have o o influenced the jurys appraisal of Rompillas culpability. D wants SC to create a duty to compile social history, but SC doesnt find it because L should have looked at the file. ABA standards! As the District Court points out, the ABA Standards for Criminal Justice in circulation at the time of Rompillas trial describes the obligation in terms no one could misunderstand in the circumstances of a case like this oneWe have long referred to these ABA standards as guides to determining what is reasonable. Alitos 3rd Circuit decision was the one SC overturned. Now Alito is in OConnors seat, so whats going to happen next?

Bounds v. Smith (1977) (Marshall)

The fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or

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adequate assistance from persons trained in the law.

PA v. Finley (1987) (Rehnquist) Neither the DP Clause of the 14th not the equal protection guarantee of meaningful access required the State to appoint counsel for indigent prisoners seeking state postconviction relief.

Murray v. Girratano (1989) (Rehnquist, plurality) Neither the Eighth Amendment nor the Due Process Clause requires States to appoint counsel for indigent death row inmates seeking state postconviction relief.

o This Court's decisions require the conclusion that the rule of Finley should apply no differently
in capital cases than in noncapital cases. State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceeding, and serve a different and more limited purpose than either the trial or appeal. Eighth Amendment safeguards imposed at the trial stage -- where the court and jury hear testimony, receive evidence, and decide the question of guilt and punishment -- are sufficient to assure the reliability of the process by which the death penalty is imposed. o There is no inconsistency whatever between the holdings in Bounds and Finley. The right of access at issue in Bounds rests on a constitutional theory considered in Finley. Extending Bounds would partially overrule the subsequently decided Finley and would' reject a categorical rule -- the usual tack taken in right to counsel cases -- for the adoption of a case-by-case determination based on "factual" findings, which, under a "clearly erroneous" standard, could result in different constitutional rules being applied in different States.

Bright, Death Sentence not for the Worst Crime but for the Worst Lawyer (1994)

Poor people accused of capital crimes are often defended by lawyers who lack the skills, resources, and commitment to handle such serious matters. This fact is confirmed in case after case. It is not the facts of the crime, but the quality of legal representation, that distinguishes this case, where the death penalty was imposed, from many similar cases, where it was not. o Lack of a Functioning Adversary System: In Alabama, Georgia, Mississippi, Louisiana, Texas, and many other states with a unique fondness for capital punishment, there is no similar degree of specialization or resources on the other side of capital cases. A poor person facing the death penalty may be assigned an attorney who has little or no experience in the defense of capital or even serious criminal cases, one reluctant or unwilling to defend him, one with little or no empathy or understanding of the accused or his particular plight, one with little or no knowledge of criminal or capital punishment law, or one with no understanding of the need to document and present mitigating circumstances. o Lack of Indigent Defense Programs: In many jurisdictions where capital punishment is frequently imposed, there are no comprehensive public defender systems whose resources can parallel the prosecutorial functions of the district attorneys' offices. There are no appellate defender offices that parallel the function of the capital litigation sections of the attorneys

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general's offices. In fact, there is no coherent system at all, but a hodgepodge of approaches that vary from county to county. o Role of Judges: But even when choosing from among those who seek criminal appointments, judges often appoint less capable lawyers to defend the most important cases.

o Minimal Standard of Legal Representation Tolerated in Capital Cases: Errors in judgment

and other mistakes may readily be characterized as "strategy" or "tactics" and thus are beyond review. o Politics of Crime and the Lack of Leadership to Remedy the Situation: What is needed to provide competent legal representation to any litigant, rich or poor, is no secret. But significant improvement in the quality of representation for the poor is unlikely because of the unpopularity of those accused and the lack of leadership and commitment to fairness of those entrusted with responsibility for the justice system.

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THE REQUIREMENT OF HEIGHTENED RELIABAILITY IN CAPITAL SENTENCING

These cases are those in which SC has listed heightened requirements for the capital sentencing process. This notion of heightened reliability comes from the 8th Amendment. Narrowing the class of eligible offenders and presenting mitigation evidence are both pillars of SCs CP jurisprudence. Both are unique to the CP contextthey are heightened requirements in themselves. These cases list more. Steiker criticizes the heightened reliability cases as oddballas the Supreme Court creates these procedural requirements for CP, its important to ask if these would be the procedural requirements youd prioritize. They probably arent. o What about problems affecting unbiased decision-making: the use of forensics (junk science, think Willingham), false confessions, false ids, prosecutorial suppression of exculpatory evidence? o Strengthen the public criminal defense system! Without good counsel, you basically have no rights. Adversary system works better when adversaries are good lawyers. o Independent review: require federal review because federal judges arent elected, while many state judges are. Yet SC has been surprisingly silent about the right to counselits surprising that death is not different when considering competence of counseland Congress has tried to close down federal habeas review.

Gardner v. FL (1977) (Stevens plurality) When the trial judge imposed the death sentence he stated that he was relying in part on information in a presentence investigation report. Portions of the report were not disclosed to counsel for the parties. Without reviewing the confidential portion of the presentence report, the Supreme Court of Florida, over the dissent of two justices, affirmed the death sentence. We conclude that this procedure does not satisfy the constitutional command that no person shall be deprived of life without due process of law. o Jurys advisory verdict recommended life after 25 min. Judge overruled. o Overrules Williams v. NY (1949) as it relates to capital cases. Case concerns a confidential portion of the pre-sentence investigation report.

Court cites the 14th Amendment (Due Process; life, liberty, property). Not having access to the confidential portion prevents you from rebutting evidence. Our belief that debate between adversaries is often essential to the truthseeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases. Lack of access undermines the viability of appellate review. Since the State must administer its capital sentencing procedures with a even hand, it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed. Jury didnt have the info, so it couldnt properly weigh it.

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The Court didnt engage in a jurisdictional nosecount, probably because restricting parts of the report was a widely practiced process. o Suggests possible exceptionssecret agents, reporting a death threat. You probably dont want to reveal the identity of an informant (usually, you must show good cause to do so). You cant have a blanket rule in this area. o Its tricky to explain why death is different herewhy is it ok to hand out a 25-year sentence using similar info? SC uses a string cite rather than make the argument.

Beck v. AL (1980) (Stevens)

May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense, and when the evidence would have supported such a verdict? o Under the Alabama death penalty statute, the requisite intent to kill may not be supplied by the felony murder doctrine. Felony murder is thus a lesser included offense of the capital crime of robbery-intentional killing. However, under the statute, the judge is specifically prohibited from giving the jury the option of convicting the defendant of a lesser included offense. o Instead, the jury is given the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime. AL had this provision because its CP statute was semi-mandatory, wouldnt let jury override capital offense with lesser punishment. Problem is one of proving intent. o While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense -- but leaves some doubt with respect to an element that would justify conviction of a capital offense -- the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be o tolerated in a case in which the defendant's life is at stake. In some senses, this is an easy choice for the Court because the law made it worse for CP defendants than for other defendants. LIO was almost always an option for the jury in a noncapital case. This is one of the few cases where the Court is catching CP jurisprudence up with regular practices, although its unclear whether the Court would have found this Constitutionally required in a non-capital case. Few effects on CP jurisprudence in general because the law was such an outlier.

Schad v. AZ (1991) (Souter plurality, except III, majority quoted below)

Defendant is found possessing the property of a recently murdered V and is charged with first degree murder under two theories: premeditated murder or murder in the course of a robbery. Ds theory at trial is that he didnt commit the murder notwithstanding his possession of some of the decedents

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property. The court refuses the instruction because under state law robbery is not LIO of murder. Instead the court gives instruction on LIO of second degree murder.

o D argues Beck violation. If jury believed that D committed robbery, it had to choose between
felony-murder and acquittal, because a murder committed in the course of a robbery cannot be second-degree murder. o Beck did not entitle Schad to a jury instruction on robbery. Beck was based on the concern that a jury convinced that the defendant had committed some violent crime, but not convinced that he was guilty of a capital offense, might nonetheless vote for a capital conviction if the only alternative was to set him free with no punishment at all. This concern simply is not implicated here, since the jury was given the "third option" of finding Schad guilty of a lesser included noncapital offense, second-degree murder.

Caldwell v. MS (1985) (Marshall, except IV-A)

This case presents the issue whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury, but with the appellate court which later reviews the case. o Steiker thinks this is one of the most important of the heightened reliability cases. o Prosecution senses that the defense is making inroads with the juryD describes decision as awesome responsibility, cites the 10 Commandments, etc. In response, P says to jury that theyre not the final decision makers, that the state SC will review and overturn if the jury makes a mistake. Moreover, if the jury wants the state SC to review, it should vote death because life isnt reviewable in the same way. (1) Implies that only way for the jury to unload its responsibility is to vote death.

(2) Appellate review is not de novo. In MS, theres a presumption that the jury is

correct. The standard is no reasonable juror, but its tough for juries to understand the nuances of Standard of Review. o On reaching the merits, we conclude that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. o Court finds that (1) is bias error and (2) is misleading error. But for a sentencer to impose a death sentence out of a desire to avoid responsibility for its decision presents the specter of the imposition of death based on a factor wholly irrelevant to legitimate sentencing concerns. The death sentence that would emerge from such a sentencing proceeding would simply not represent a decision that the State had demonstrated the appropriateness of the defendant's death. The prosecutors argument simply had nothing to do with the consequences that would flow from the life sentence mentioned by defense council. o OConnor joins opinion, except part IV-A, making that part a plurality. Her caveat is that she doesnt think theres a problem with giving accurate information to the jury about their role. She doesnt see how its irrelevant, while Marshall/plurality does think its irrelevant.

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Jurors may harbor misconceptions about the power of state appellate courts or, for that matter, this Court to override a jury's sentence of death. Should a State conclude that the reliability of its sentencing procedure is enhanced by accurately instructing the jurors on the sentencing procedure, including the existence and limited nature of appellate review, I see nothing in CA v. Ramos (1983), to foreclose a policy choice in favor of jury education.

Caldwell litigation hasnt made it up to the SC much, while Simmons and its progeny have.

Simmons v. SC (1994) (Blackmun, plurality)

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. 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. o Vast majority of states have LWOP as the alternative to death, but this is a recent, post-Furman development. For many decades prior to Furman, life did not mean life. o In this case, D cited a survey showing lack of public understanding about life sentence; most thought it was much less than life, not LWOP. Petitioner then offered into evidence, without objection, the results of a statewide public opinion survey conducted by the University of South Carolina's Institute for Public Affairs. The survey had been conducted a few days before petitioner's trial, and showed that only 7.1 percent of all jury-eligible adults who were questioned firmly believed that a inmate sentenced to life imprisonment in South Carolina actually would be required to spend the rest of his life in prison. o Jury sent note to judge asking if D would ever get parole. Judge said that the question was irrelevant, and the jury returned death. Under the court's order, defense counsel was forbidden even to mention the subject of parole, and expressly was prohibited from questioning prospective jurors as to whether they understood the meaning of a "life" sentence under South Carolina law. o So does the judge need to tell the jury that life means life? Even when P doesnt argue that D will be in danger in the future? o The plurality here says that when future dangerousness is at issue, the jury must be informed that D is parole ineligible.

The State thus succeeded in securing a death sentence on the ground at least in part, of petitioner's future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its non-capital sentencing alternative, namely,

that life imprisonment meant life without parole. We think it is clear that the State denied petitioner due process. o Here, the jury was left to speculate about petitioner's parole eligibility when evaluating petitioner's future dangerousness, and was denied a straight answer about petitioner's parole eligibility even when it was requested.

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o Dissent (Scalia): The overwhelming majority of the 32 States that permit juries to impose or
recommend capital sentences do not allow specific information regarding parole to be given to the jurythis picture of national practice falls far short of demonstrating a principle so widely shared that it is part of even a current and temporary American consensusThe rule the majority adopts in order to overturn this sentence therefore goes well beyond what would be necessary to counteract prosecutorial misconductIf the rule is changed for defendants, many will think that evenhandedness demands a change for prosecutors, as well.

SCOTUS subsequently puts South Carolina in its place twice after Simmons. o Slapdown #1: Shafer v. SC (2001) (Ginsburg) South Carolina legislature passes new statute to get around sentencing. If aggravating factor, the jury chooses between LWOP and death. Otherwise, no LWOP chosen by the judge. Thus, no LWOP instruction because LWOP no necessary alternative to death in jury deliberation. SC goes 7-2 and tells South Carolina to stop being so annoying. Slapdown #2: Kelly v. SC (2002) (Souter) Prosecutor never explicitly argued future dangerousnessbut he said lots of things that strongly suggested it. Character evidence? Doesnt that point toward dangerousness anyhow? Court goes 5-4, Souter says prosecution only has to put future dangerousness as issue, not explicitly argue.

Brown v. TX (1997) (denial of cert) (Stevens)

The situation in Texas is especially troubling. In Texas, the jury determines the sentence to be imposed after conviction in a significant number of noncapital felony cases. In those noncapital cases, Texas law requires that the jury be given an instruction explaining when the defendant will become eligible for parole. Thus, the Texas Legislature [is crazy but] has recognized that, without such an instruction, Texas jurors may not fully understand the range of sentencing options available to them. Perversely, however, in capital cases, Texas law prohibits the judge from letting the jury know when the defendant will become eligible for parole if he is not sentenced to death. The Texas rule unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose. o Reiterate[s] the important point that the Courts action in denying certiorari does not constitute either a decision on the merits of the questions presented, or an appraisal of their importance the likelihood that the issue will be resolved correctly may increase if this Court allows other tribunals to serve as laboratories in which the issue receives further study before it is addressed by this Court.

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INNOCENCE
The preservation of evidence that could ultimately exonerate via DNA analysis was random. With time, were able to test more and more, but when DNA has proven innocence, we can look to see what went wrong with the case. These investigations have revealed unreliability of forensics, confessions, ids, etc. Heightened reliability sometimes looks to sentencing rather than innocence (see cases from previous section). It does look to actual innocence sometimes, but it often takes a back seat. Furman and other early CP cases dont talk much about the possibility of innocence the post-DNA world has forced the debate in light of the surprising number of wrongly convicted people on death row. The number of people supporting CP has dropped since the advent of DNA testingthe concern is one of innocence. Thus, lots of SC justices have begun to insert innocence discussions into cases that have nothing to do with innocence. Drives Scalia nuts.

Herrera v. Collins (1992) (Rehnquist)

Petitioner Leonel Torres Herrera was convicted of capital murder and sentenced to death in January, 1982In February, 1992 - 10 years after his conviction - he urged in a second federal habeas petition that he was "actually innocent" of the murder for which he was sentenced to deathHe supported this claim with affidavits tending to show that his now-dead brother, rather than he, had been the perpetrator of the crime. Petitioner urges us to hold that this showing of innocence entitles him to relief in this federal habeas proceeding. We hold that it does not. o Probably the most important innocence case. Can a bare assertion of innocence entitle D to relief in federal court? The Court asks if hes being held in violation of the Constitution by the state when presenting new evidence of actual innocence. Herrera appears to be making some sort of Brady violation argument, but for our purposes, he needs to make the argument that being held with the new evidence is itself a violation of due process. o Rehnquist: What due process entitles you to is a fair trial, and D already got a fair trial. What he now wants is another try. As the foregoing discussion illustrates, in state criminal proceedings, the trial is the paramount event for determining the guilt or innocence of the defendant. Federal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings. Our federal habeas cases have treated claims of "actual innocence," not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive.

o Sneaks paragraph in at the end assume for the sake of argument that a bare claim of
innocence = Constitutional violation. The threshold is very high for such a showing, and Herrera has not made such a showing. Steiker says this is the most convincing part of the opinion because Herrera is hardly the poster boy for innocence. We may assume, for the sake of argument in deciding this case, that, in a capital case,

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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. The showing made by petitioner in this case falls far short of any such threshold. This paragraph turns Rehnquists writing into the Courts opinion rather than a plurality; it leaves the door open for some kind of federal habeas relief in compelling situations, without holding for some kind of standard.

Rehnquist also not worried about innocence because in such compelling circumstances, the prisoner would be pardoned. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency. But often with DNA cases, prosecutors say its not good enough; someone else could have participated in the rape (unindicted co-ejaculator) or maybe consensual sex with boyfriend earlier in the day left the semen. No pardon granted would you get a federal hearing? The Court doesnt want to say.

In Re Troy Davis (2009) (Stevens) All witnesses recant testimony, except the one who they say now actually did commit the murder. The government is in an uncomfortable position; lots of people say Davis is actually innocent. o SC has original federal habeas jurisdiction, which it rarely uses. Sends the case to District Court for a hearing on innocence. o Stevens (with Ginsburg and Breyer) Justice Scalias dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murderSimply put, the case is sufficiently exceptional to warrant utilization of this Courts RuleSecond, Justice Scalia assumes as a matter of law that, even if the District Court were to be persuaded by Daviss affidavits, it would have no power to grant relief in light of AEDPA. o Scalia thinks that Herrera Court held that this isnt a Constitutional claim. Federal courts may order the release of convicted state prisoners only in accordance with the restrictions imposed by AEDPA. Quite to the contrary, we have repeatedly left that question [whether the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is actually innocent] unresolved, while expressing considerable doubt that any claim based on alleged actual innocence is constitutionally cognizable. o This case may be the one where the Court will have to answer the question re o nature/threshold of bare habeas assertion of innocence. Steiker thinks there are 5 justices now who in unindicted co-ejaculator situation without

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government pardon, would grant federal habeas hearing. Court would still have to answer the threshold question. Blackmuns dissent in Herrera suggests one possible standard: showing that probably innocent (aka more probable than not preponderance). Another possibility: clear and convincing (75%ish) o This determination will open a huge can of worms; in Davis, the District Court will have to determine the standard, which inevitably will be appealed.

KS v. Marsh (2006) (Thomas)

Mostly technical legal issues KS statute said that if there was an equal balance between mitigators and aggravators, then jury must return CP. o The Court says theres no problem with this and that States could put even more of a burden on Ds if they wanted. o Souter writes a dissent speaking for the 4 liberal justices. He talks about how many people are on death row. It doesnt have anything to do with the cases legal issue. Steiker says even she had a huh? moment when she first read the dissent. Souter: Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests. 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 States own standards and a States own characterization, the case for death is doubtful. Scalia: But as the Court observes, guilt or innocence is logically disconnected to the challenge in this case to sentencing standards. The only time the equipoise o o provision is relevant is when the State has proved a defendant guilty of a capital crime. Souter versus Scalia: how do you prove actual innocence? Has anyone post-76 been wrongfully executed? Scalia says no, uses Coleman as an example of how liberals are duped by guilty people saying theyre innocent. And does innocent mean not-guilty standard or really, actually innocent, i.e. we know they didnt commit the crime? Being acquitted of a crime doesnt prove you didnt do it. Instead of identifying and discussing any particular case or cases of mistaken execution, the dissent simply cites a handful of studies that bemoan the alleged prevalence of wrongful death sentences.

Exonerations just prove that the system works. And even if we executed an innocent, does that make a difference? We arent perfect. We do things all the time knowing some people will die as a result (vaccinations, big construction sites like Big Dig, or even sending to war). Remarkably avoiding any claim of erroneous executions, the dissent focuses on the large numbers of non-executed exonerees paraded by various professors. It speaks as though exoneration came about through the operation of some outside

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o o

force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system. Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out. Big debate: How many mistakes will the system tolerate? Abolitionists say none. Otherwise, youre in the uncomfortable position of making analysis. Steiker: if we execute too many innocent people is there a Constitutional problem?

Baze v. Rees (2008) (Roberts plurality)

When we granted certiorari in this case, I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the threedrug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.

o Stevenss concurrence is a nice bookend to Blackmuns similar 94 declaration in Callins.

Stevens is one of the 3 justice plurality in Gregg who allowed statutes to go forward postFurman. Gives up on CP. Cites White we dont do it enough for it to serve its purpose. Of decisive importance is the risk of executing innocent. Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a "death qualified jury" is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.

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. 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. Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.

o In sum, just as Justice White ultimately based his conclusion in Furman on his extensive
exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any

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discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment. o Stevens differs from Blackmun in that he follows court precedent, upholds the sentence (lethal injection). Doesnt pull a Brennan/Marshall/Blackmun, feels bound by stare decisis. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. o Another example of member of the Court doing a long disposition on innocence that has nothing to do with the case. Suggests that change may be coming. Will courts ever accept an argument of the Judge Rakoff type? (Rakoff = judge in district court, overturned in Quiones, says innocence = as applied problem). 2nd Circuit says the claim is foreclosed, but is it really? What would you need to make that claim?

US v. Quiones (2d Cir. 2002)

Defendants Alan Quinones and Diego Rodriguez were indicted for murder in aid of racketeering. Shortly thereafter, the Government filed notices of its intention to seek the death penalty against them. In response, Quinones and Rodriguez filed a motion to strike the death penalty notices on the ground that the FDPA is unconstitutional.

o Federal District Court held thatFDPA violates substantive and procedural due process rights
guaranteed by the Fifth Amendment. The District Court found the Supreme Court's decision in Herrera to be inapposite because it was not informed by the ground-breaking DNA testing and other exonerative evidence developed in the years since.

o However, 2nd Circuit rejected SDNY arguments that CP is unconstitutional because of

possibility of executing innocents, says that the claim was foreclosed by Herrera and Gregg. Despite suggestions by the District Court and the defendants that they are embracing a novel challenge to the constitutionality of capital punishment, the idea that a convicted person has a right to the continued opportunity for exoneration during the course of his natural life is not new: Because this proposition has been presented to the Supreme Court on a number of occasions and repeatedly rejected by the Court, we hold that the continued opportunity to exonerate oneself throughout the natural course of one's life is not a right so rooted in the traditions and conscience of our people as to be ranked as fundamental.

Arguments for unconstitutionality of FDPA: o 76 cases upheld statutes that were, at that point, provisional. So those cases could not have foreclosed later reconsideration in light of more information about how the CP regimes play out. o Killing an innocent person is obviously cruel and unusual. Statistics on exonerees show that this is not such a remote possibility. Argument against unconstitutionality: o Exonerations show the system is working. Mistakes are being caught.

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The objective measures of whats cruel and unusual (legislative behavior and jury behavior) do not show any movement in the direction of barring CP because of possibility of executing innocents. o Constitutional guarantees ensure fair process, not substantively just results.

D.A.s Office for the 3d Judicial Dist. v. Osborne (2009) (Roberts) Osborne convicted partly on basis of a partial DNA testing that said he belonged in the 20% of people who could have left a DNA sample. Full-on DNA tests were available at the time of Osbornes original trial, but his lawyer decided not to ask for one. Osborne later asked Alaska to do the full DNA test, and the State refused. o SC (54) said Osborne had no due process right to DNA tests. Robertss opinion for the conservative majority said that federalism requires giving states a chance to do the right thing of their own volition.

Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? Federal courts should not presume that state criminal procedures will be inadequate to deal with technological change. The criminal justice system has

historically accommodated new types of evidence, and is a time-tested means of carrying out societys interest in convicting the guilty while respecting individual rights. That system, like any human endeavor, cannot be perfect. DNA evidence shows that it has not been. But there is no basis for Osbornes approach of assuming that because DNA has shown that these procedures are not flawless, DNA evidence must be treated as categorically outside the process, rather than within it. o So, as of right now, Ds do not have a constitutional right to access to the genetic material in governments possession that the government alleges came from D. At this point, Stevens, Souter, and Breyer have all expressed a fear of executing innocents. Steiker predicts that arguments re innocence couched in constitutional terms will increase in near future.

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THE STRUCTURE OF FEDERAL HABEAS

Introductory Materials
People usually discover the evidence tending to show actual innocence after conviction and sentencing: DNA, witness recantation, Brady violations. CP appeals process generally: Direct Appeal 1. State trial ct. (Go to 2 or 3.) 2. State app. ct. (Go to 3.) 3. State sup. ct. (Go to 4 or 5.) 4. U.S. Sup. Ct. (Go to 5.)
3 1

State Habeas 5. State trial ct. (Go to 6.) 6. State app. ct. (Go to 7.) 7. State sup. ct. (Go to 8 or 9.) 8. U.S. Sup. Ct. (Go to 9.)
4

Federal Habeas 9. Fed. dist. ct. (Go to 10.)2 10. Fed. cir. ct. (Go to 11.) 11. U.S. Sup. Ct.

If the U.S. Supreme Court denies cert on a habeas petition or affirms a conviction and sentence, the petitioner can apply for habeas again. District courts can grant a new hearing if they want, but theyre not required to do so unless new evidence turns up. All the states make postconviction proceedings available. They need a forum for hearing evidence for Strickland and Brady claims. State habeas available only after a conviction becomes final. A conviction is final when cert has been denied, the conviction has been affirmed by the U.S. Supreme Court, or the deadline for applying for cert has passed. Postconviction proceedings are technically civil proceedings. Exhaustion means you have to try everything that the state offers by way of attacking your conviction before you can take your case to federal court. The language of the original habeas statute is very flexible. Its essentially an equitable grant.

Law of Federal Courts Habeas Corpus The writ of habeas corpus, by which the legal authority under which a person may be detained can be challenged is of immemorial antiquity. o The Great Writ, as it has been called by the Supreme Court from John Marshalls day to this, is available by statute in four different situations. (1) Where a foreign citizen is in custody for some act done under color of authority from his country and international law is involved (little used). (2) It will issue also where a person is held by a state for some act done pursuant to federal authority (also little used). (3) To test the detention of any person held under custody of the US. (not of

1 2

In some states, appeals of death sentences go straight to the state supreme court. In others, appeals go to an intermediate court first. A Petitioner has to ask the Circuit Court to hear his case. The Circuit Court has to grant a certificate of appeal (a.k.a., a certificate of probable cause). 3 This depends on whether the Court grants cert. 4 This depends on whether the Court grants cert.

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significance w/r/t federal criminal prisonersmust pursue other statutory motion). (4) The most important part of the statute today is the provision, first adopted in 1867, authorizing issuance of the writ where persons are held in violation of the federal Constitution or laws, which permits a federal court to order discharge of any person held by a state in violation of the supreme law of the land.

The writ need not actually result in the discharge of the prisoner. Indeed in most cases grant of the writ is expressly made conditional in order that the state may retry the prisoner in a fashion meeting constitutional demands. o It is now clear that federal habeas is available whenever the state proceeding fails to meet the standards of procedural fairness that the 14th Amendment requires of the states.

o However, federal habeas is a controversial and emotion-ridden subject. There is an affront to

state sensibilities when a single federal judge can order discharge of a prisoner whose conviction has been affirmed by the highest court of a state. Federal judges, fully sensitive to the importance of human rights, do feel the burden of processing the flood of habeas applications and the Supreme Court, while recognizing the honored position habeas has in our jurisprudence, has gone on to point out that the Great Writ entails significant costs. The scope of habeas corpus has never been static in the federal courts and further change seems likely. But in recent years there has been increased support for the view that the writ must be saved from itself.

Relevant Portions of the Federal Habeas Statute (pre-1996 Reform) o See p.8 of Week 9 course pack.

5 Main Issues in Habeas Proceedings (see below for more in-depth analysis):

o (1) Standard of Review. See Brown v. Allen: de novo review most of the time. In Wright,
Thomas tried to make the standard of review much more deferential to states. o (2) Procedural Default. Failure to preserve a claim in state court i/l/o state procedural barrier to a Constitutional right. Court in Faye said that habeas was a separate proceeding and established a D-friendly doctrine (deliberate bypass). However, Court in Wainright changed that, adopted the cause and prejudice standard, but said that it was still a matter of judicial discretion. In Coleman, the Court said that the right to counsel was not present on collateral attack. Thus, the law of habeas here meets the law of counsel. Assertions of cause usually involve ineffective assistance of counsel, but only when the 6th Amendment right to counsel is involved (trial, direct appeal). So no cause when your habeas lawyer screws up. Open question of whether ineffective assistance of counsel in state habeas constitutes cause when claiming trial ineffective assistance in that proceeding o (3) Cognizable Claims.

Explanation for limiting federal review of Constitutional claims concerning the Exclusionary Rule (Stone v. Powell): the Rule is not an individual right, its meant to

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deter and doesnt go to the ultimate fairness of the verdict. Withrow v. Williams makes it clear that Exclusionary violations are unique, Powell analysis doesnt carry over much. Here, Miranda claim is one of an individual right, that of protecting an individual from participating in own prosecution. o (4) Retroactivity. Teague no retroactive determination of new law on federal habeas. Two exceptions: if underlying conduct could not be punished, or fundamental to justice. Penry upsets both liberals and conservatives. Court had to say the law already existed, but it wasnt apparent that it did. Courts have expanded the first Teague exception beyond the underlying conduct vindicatednow its a broad notion of conduct vindicating status (juveniles, mentally retarded). Status thus seen as part of conduct when D committed the offense. o (5) Other Procedural Issues. In Herrera, the cert question was whether executing innocent people violates the Constitution. Evidence of innocence does not equal Constitutional violation.

Scope of Review
General history of habeas review sheds light on the competing values at stake. o Its not entirely CL/statutory. Its also a judicially created area with Constitutional overlay. Basically, its a weird mix of the 3 (statute, CL, judge-made) o The Writ existed in English CL before US. o Not defined by the Constitution, but it was written into it: (Art. I, 9 says that [t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it). Lincoln suspended it during the Civil War, and its in play right now w/r/t terrorism. o In the First Judiciary Act, 2nd Congress authorized Writ to challenge detentions by the federal government only. o At the end of the Civil War, 1867, Writ was used to promote Reconstructionanyone held in custody in violation of Federal law could go to Federal court. It wasnt thought the Writ would often apply to criminal processes because Feds left state processes untouched. o It wasnt until the Warren Court, which extended these criminal processes to the states (via 14th), that the Writ was really relevant to state criminal processes. The number of federal habeas cases ballooned after incorporation. Federal judges arent elected and have life tenure, while state judges are elected and hostile to apparently guilty Ds. o Since the Warren Court, the Writ has been highly controversial. Standard of review = one of the 5 main habeas issues (listed above)

Brown v. Allen (1953) (Reed) (Frankfurter separate opinion joined by majority)

What is actually the main holding in this case? It was error for the district court to take the SCs denial of cert as evidence that petitioners claim lacked merit.

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o The fact that no weight is to be given by the Federal District Court to our denial of certiorari
should not be taken as an indication that similar treatment is to be accorded to the orders of the state courts. So far as weight to be given the proceedings in the courts of the state is concerned, a United States district court, with its familiarity with state practice, is in a favorable position to recognize adequate state grounds in denials of relief by state courts without opinion. But SC didnt overturn the district courts decision to deny habeas as there was an adequate alternative ground: the evidence the district court had before it from the state proceedings was adequate to find no merit in petitioners constitutional claims. From the findings of fact and the judgments of the District Court, we cannot see that such consideration as was given by that court to our denials of certiorari could have had any effect on its conclusions as to whether the respective defendants had been denied federal constitutional protection. District courts have discretion on question of whether its necessary to hold a hearing. They are supposed to defer to state courts on issues of fact. They review questions of law and mixed questions of law & fact de novo just as an appellate court on direct appeal would. State courts determinations of fact are given a presumption of correctness. See 2254(d) (pre-AEDPA). o Frankfurter (separate opinion, joined by majority): It may be a matter of phrasing whether we say that the District Judge summarily denies an application for a writ by accepting the ruling of the State court or by making an independent judgment, though he does so on the basis of what the State record reveals. But since phrasing mirrors thought, it is important that the phrasing not obscure the true issue before a federal court.

If we are to give effect to the statute and at the same time avoid improper intrusion into the State criminal process by federal judges -- and there is no basis for thinking there is such intrusion unless "men think dramatically, not quantitatively," Holmes, Collected Legal Papers, p. 293 -- we must direct them to probe the federal question while drawing on available records of prior proceedings to guide them in doing so. Where the ascertainment of the historical facts does not dispose of the claim, but calls for interpretation of the legal significance of such facts, the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-

called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge. More Frankfurter: The uniqueness of habeas corpus in the procedural armory of our law cannot be too often emphasized. It differs from all other remedies in that it is available to bring into question the legality of a person's restraint and to require justification for such detention. Of course, this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is inadmissible to deny the use of the writ merely because a State court has passed on a Federal constitutional issue. The discretion of the lower courts must be canalized within banks of standards governing all Federal judges alike, so as to mean essentially

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the same thing to all and to leave only the margin of freedom of movement inevitably entailed by the nature of habeas corpus and the indefinable variety of circumstances which bring it into play.

The pre-AEDPA federal habeas statute didnt give habeas petitioners the right to be heard, but courts were given plenty of discretion. Most federal habeas petitioners are denied, dismissed out of hand. But in capital cases, convictions are reversed ~40% of the time. Why should this be? o Petitioners have a right under federal statute to a lawyer in capital habeas proceedings.

Wright v. West (1992) (Thomas, plurality) Thomas and OConnor are bickering about the historical context of standard of review in habeas cases (specifically, the context of mixed question review). o Brown v. Allen established that mixed questions of law & fact get de novo review.

o Thomas says review should not be de novo. He thinks that subsequent cases, especially
Teague, changed that. He thinks its better (as a matter of policy, not precedent) to defer to/respect states decisions and protect finality. He thinks that reversals on habeas should not be allowed if the state courts provided petitioner with a full and fair hearing. Also says that in the early 20th century, there was habeas only when fair and full hearing was denied. Basically, if states jump through the right hoops, then defer to them. Only correct when they acted in really bad faith. Despite our apparent adherence to a standard of de novo habeas review with respect to mixed constitutional questions, we have implicitly questioned that standard, at least with respect to pure legal questions, in our recent retroactivity precedents. o OConnor says mixed questions should get de novo. She argues that the early 20th Century cases from which Thomas derived the full-and-fair-hearing rule were applying only the due process clause, not the rights that got incorporated into the due process clause over the course of the 20th Century. Since the early 20th century, there has been a significant expansion. OConnor (plus Blackmun and Stevens), along with other concurring justices makes this the de facto majority opinion. First, Justice Thomas errs in describing the pre-1953 law of habeas corpus. While it is true that a state prisoner could not obtain the writ if he had been provided a full and fair hearing in the state courts, this rule governed the merits of a claim under the Due Process Clause. It was not a threshold bar to the consideration of other federal claims, because, with rare exceptions, there were no other federal claims available at the time. So, while Justice Thomas says that we "defer" to state courts' determinations of federal law, the statement is misleadingAs Justice Kennedy convincingly demonstrates, the duty of the federal court in evaluating whether a rule is "new" is not the same as deference; federal courts must make an independent evaluation of the precedent existing at the time the state conviction became final in order to determine whether the case under consideration is meaningfully distinguishable. Teague does not

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direct federal courts to spend less time or effort scrutinizing the existing federal law, on the ground that they can assume the state courts interpreted it properly. o This is essentially a policy debate: if you want to change policy, wait for Congress. Thomas ultimately wins because Congress changes the law in 96. His vision gets more weight in o Wainwright. Note that the pre-AEDPA statute said nothing about the standard of review. In AEDPA, Congress established as a matter of statutory law Thomass view of what habeas should be as a matter of common law interpretation.

Effect of State Defaults

Remember that procedural default = one of 5 main habeas issues identified by Steiker.

Fay v. Noia (1963) (Brennan)

The question before the Supreme Court: Did independent and adequate state ground rule bar federal courts from hearing habeas claims of defaulters? o Noia and 2 others were convicted of felony murder. The others appealed, eventually conviction was reversed because their confessions were coerced. Noia did not direct appeal to the state, no state collateral attack, etc. After the other 2 convictions were thrown out, he goes back to the state (via coram nobis proceeding), state denies his claim because he didnt litigate the issue on direct appeal. In other words, D doesnt lose on the meritsits a procedural default. Subsequently seeks federal habeas relief. o Question: Does independent and adequate state ground rule apply in Federal habeas/Federal direct appeal? (Brown says yes to both). However, SC here overrules Brown, says habeas is different from direct appeal. Thus, the rule does not apply to habeas proceedings.

o Brennan says the issue in habeas proceedings is detention, not the judgment of the state
court (wants to force this distinction). Habeas opinions wouldnt be advisory opinions.

Says the federal substantive interest is more important than the state procedural

interest, and that its important to have a federal forum to hear federal claims. Federal courts have expertise in federal law; a federal determination of what federal law is/should be would lead to greater consistency. Also, this was 1963, and there was a lot of distrust of southern state courts. In Noia's case, the only relevant substantive law is federal -- the Fourteenth Amendment. State law appears only in the procedural framework for adjudicating the substantive federal question. The paramount interest is federalstate interest competes against an idealthe ideal of fair procedure. o Even Brennan recognizes that permissive habeas rules create perverse incentives, la Harlans worry: defense counsel will want to decline to raise issues in state courts when they think federal courts will be more sympathetic. But Brennan says federal judges can and should decline to hear issues that were deliberately bypassed by petitioner in state

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proceedings.

Echoes 2244(b) as long as not deliberately withheld. Deliberate, technical violation. We therefore hold that the federal habeas judge may, in his discretion, deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. Brennan thinks most procedural noncompliance comes from attorney incompetence. We shouldnt permit unlawful detention because Ds trial lawyer sucked. This is a practical, realistic view. Compare to Harlan in dissenthes more wary of attorneys strategic decisions. At all events, we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. A choice made by counsel not participated in by the petitioner does not automatically bar relief.

Harlan (dissent): But to carry this principle over in full force to cases in which a defendant is represented by counsel not shown to be incompetent is to undermine the entire representational system. o In this case, had Noia appealed initially, he would have been subject to the death penalty. Brennan calls this a grisly choice, but doesnt this seem like the essence of strategic bypass? Brennan differentiates by noting that D here was not forum shoppinghe just didnt want death penalty. The state forum came with a big price tag. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence. He declined to play Russian roulette in this fashion. This was a choice by Noia not to appeal, but, under the circumstances, it cannot realistically be deemed a merely tactical or strategic litigation step, or in any way a deliberate circumvention of state procedures. o Harlan (dissent): [W]hen it comes to apply the "waiver" test in this case, the Court then, in effect, reads its own creation out of existenceWhat the Court seems to be saying in this exercise in fine distinctions is that no waiver of a right can be effective if some adverse consequence might reasonably be expected to follow from exercise of that right. Under this approach, of course, there could never be a binding waiver, since only an incompetent would give up a right without any good reason, and an incompetent cannot make an intelligent waiver.

Wainwright v. Sykes (1977) (Rehnquist)

This case was decided 13 years after Noia. The composition of the Court has changed. The court consider[s] the availability of federal habeas corpus to review a state convict's claim that testimony was admitted at his trial in violation of his rights under Miranda v. Arizona (1966), a claim which the Florida courts have previously refused to consider on the merits because of noncompliance with a state contemporaneous objection rule. o Court creates a new rule: Cause and prejudice showing required to explain procedural default. It is the sweeping language of Noia, going far beyond the facts of the case eliciting it, which we today reject. Prejudice = reasonable probability of different outcome (familiar Strickland

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standard outcome determinative). The implication is that accuracy, innocence are the

aims of habeaswhat counts is the significance of the claim to the conviction. Cause = reason for attorneys failure to raise the claim (ineffective assistance, Brady

violation, external, etc). See below. o Whats at stake here, according to Rehnquist? The cause and prejudice rule promotes finality. He wants to create strong incentives to bring the issue up early.

The trial is the main eventWe believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the main event, so to speak, rather than a tryout on the road for what will later be the determinative federal habeas hearing. If D is acquitted, then were done. Plus, we have a record. Also creates good incentives for prosecutors to follow Constitutional procedure. Freshness also important. Sandbagging D will deliberately withhold/go forum shopping. (Think Brennan/Harlan debate in Noia). We think that the rule of Noiamay encourage "sandbagging" on the part of

o o

defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off. Respect for state courts, comity. Most of this boils down to the same debate: do crappy lawyers or good lawyers strategizing lead to these procedural defaults?

Conflicting values: innocence versus Constitutional rights versus finality/repose/freshness versus respect for states/comity. Different Justices weigh these differently, which you can see in the differing decisions. o Steiker: Kind of like Harry Potter, when you have to say the magic words (cause, prejudice) o to get the fat lady to open the door to the Gryffindor common area. What constitutes good cause to default on a state procedural rule? Three general types: Ineffective assistancelawyers interferencemost common. However, unless that error rises to the level of ineffective assistance of counsel (Strickland), its not cause. In other words, error has to be straight up incompetence.

State interference: Brady violations and other instances of state interference with meeting the procedural requirements. External factor: The evidence for the claim might have been unavailable for some

other reason. (Examples: new statute made retroactive, new witness, DNA evidence). o Statute appeared to allow successive (i.e., same claim, new grounds) and abusive (new) claims, but the Court says cause and prejudice standard applies to these too. However, if youve defaulted, or are bringing a successive or abusive claim, and you cant meet the causeand-prejudice standard, theres still an out: if you can show that denying the opportunity to be heard on habeas would result in a miscarriage of justice. Here, actual innocence can come in to open the door to federal habeas.

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The rule will not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who, in the absence of such an adjudication, will be the victim of a miscarriage of justice. The standard for showing actual innocence is given in footnotes 5 and 6 of Sawyer. o Brennan (dissent): Any realistic system of federal habeas corpus jurisdiction must be premised on the reality that the ordinary procedural default is born of the inadvertence, negligence, inexperience, or incompetence of trial counsel. The case under consideration today is typical. Thus, I remain concerned that undue deference to local procedure can only serve to undermine the ready access to a federal court to which a state defendant otherwise is entitled. But federal review is not the full measure of Sykes' interest, for there is another of even greater immediacy: assuring that his constitutional claims can be addressed to some court.

Note on Attorney Error as Cause for Procedural Default In a serious of subsequent cases, the Court examined the effect of attorney error on a petitioners attempt to obtain federal habeas review of a defaulted claim. o Engle v. Isaac (1982) (OConnor): Ds counsel failed to object to state rule requiring Ds to prove an affirmative defense. SC subsequently concluded that Due Process requires state to disprove an affirmative defense. In federal habeas petition, D argued that the novelty of his Constitutional claim established cause for his procedural default. SC rejected assertion: Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default. o Murray v. Carrier (1986) (OConnor): Ds counsel inadvertently failed to include one of Ds constitutional claims in his state petition for appeal. In VA, failure to raise a claim in the petition constitutes a default of the claim. Carrier conceded that his counsel was not constitutionally ineffective, but argued nonetheless that a mistaken omission of the claim, as opposed to a tactical decision to withhold it, constituted cause for the procedural default. SC disagreed: Just as with inadvertent defaults that occur during the trial, mistakes by otherwise competent counsel in filing an appeal do not constitute cause. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. o Smith v. Murray (1986) (OConnor): Counsels decision not to pursue an issue on appeal based on a mistaken belief that the claim was without merit was not an error of such magnitude as to constitute ineffective assistance of counsel, and therefore did not constitute cause.

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Coleman v. Thompson (1991) (OConnor) This is a case about federalism. It concerns the respect that federal courts owe the States and the States procedural rules when reviewing claims of state prisoners in federal habeas corpus. o D filed a notice of appeal of his denied state habeas petition three days late, and the state court and state supreme court dismissed the appeal. o [C]ounsels ineffectiveness will constitute cause only if it is an independent constitutional violationWe thus need to decide only whether Coleman had a constitutional right to counsel on appeal from the state habeas trial court judgment. We conclude that he did not. o Given that a criminal defendant has to right to counsel beyond his first appeal in pursuing state discretionary or collateral review, it would defy logic for us to hold that Coleman had a right to counsel to appeal a state collateral determination of his claims of trial error. Because Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman's claims in state court cannot constitute cause to excuse the default in federal habeas. o Blackmun (dissent): One searches the majority's opinion in vain, however, for any mention of petitioner Coleman's right to a criminal proceeding free from constitutional defect or his interest in finding a forum for his constitutional challenge to his conviction and sentence of death. Federalism, however, has no inherent normative value: it does not, as the majority appears to assume, blindly protect the interests of States from any incursion by the federal courts. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.

Sawyer v. Whitley (1992) (Rehnquist) Sawyer claims he is innocent of the death penalty, given his role and background. He wants to introduce mitigation evidence that he didnt participate in the worst part of the murder. LA narrows at the definition stage. Sawyer says the jury would have come to a different conclusion with this evidence. o Thus, this case deals with the miscarriage of justice exception mentioned in Wainwright. As explained here, even if cause/prejudice standard not met, the miscarriage of justice exception applies where a petitioner is actually innocent of the crime of which he was o convicted or the penalty which was imposed. What does this mean? If he could show that what he did was not capital murder by definition, that would definitely make him innocent of the death penalty. He wanted the standard to be that he could show some mitigators were ignored or some aggravators didnt apply. The Court split the difference: Exception applies only if no reasonable juror could find the eligibility factors. o The "actual innocence" requirement must focus on those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.

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There must be, based on the evidence proffered plus all record evidence, a fair probability that a rational trier of fact would have entertained a reasonable doubt

as to the existence of those facts which are prerequisites under state or federal law for the imposition of the death penalty. o Because this evidence goes to the jury's finding of aggravated arson, it goes both to petitioner's guilt or innocence of the crime of first-degree murder and the aggravating circumstance of a murder committed in the course of an aggravated arson. However, we conclude that this affidavit, in view of all the other evidence in the record, does not show that no rational juror would find that petitioner committed both of the aggravating circumstances found by the jury.

Substantive Limits on Habeas Review

(a) Fourth Amendment Claims

Stone v. Powell (1976) (Powell)

The question is whether state prisoners -- who have been afforded the opportunity for full and fair consideration of their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and on direct review -- may invoke their claim again on federal habeas corpus review. The answer is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims. Court finds exclusionary claims not reviewable on habeas. o Explanation for limiting federal review of Constitutional claims concerning the Exclusionary Rule: the Rule is not an individual right, its meant to deter and doesnt go to the ultimate fairness of the verdict. The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any "[r]eparation comes too late." Instead, "the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect." Still, on direct review SC would overturn Exclusionary Rule violations. Why arent exclusionary violations reviewable on habeas? The major deterrent for cops is conviction, so finding a habeas violation down the road wont affect cops calculus more than on a marginal levelits not worth it. The additional contribution, if any, of the consideration of search and seizure claims of state prisoners on collateral review is small in relation to the costs. Also, we should be wary of using habeas except when someone has been grievously wronged. The Exclusionary Clause is judge-created, not an individual right. Most all Ds claiming an exclusionary violation are actually guilty, meaning they havent been grievously wronged. Conservatives on Court use this grievously wronged analysis, implying that innocence is the

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touchstone. Liberals say innocence is sufficient for federal habeas, but its not necessary. Irony that the Court doesnt hold in Powell that claims of innocence are themselves cognizable on habeas.

(b) Fifth Amendment Claims

Withrow v. Williams (1993) (Souter)

Today we hold that Powells restriction on the exercise of federal habeas jurisdiction does not extend to a state prisoner's claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda. o We have made it clear that Powells limitation on federal habeas relief was not jurisdictional in nature, but rested on prudential concerns counseling against the application of the Fourth Amendment exclusionary rule on collateral review. o Quotes Rose v. Mitchell (1979), where Court says that habeas is an important way of addressing race in jury selection, allows claims to go through (equal protection claim of racial discrimination there) (p. 12). Also quotes Kimmelman v. Morrison (1986), where Court finds a fundamental right, so the violation there wasnt analogous to the Exclusionary violation case. By Withrow, starting to become clear that Exclusionary violations are unique.

o In other words, the Powell analysis doesnt carry over much. o Here, the Court finds Ds Miranda claim to be one concerning an individual right, that of
protecting an individual from participating in own prosecution. This right is therefore more important to the truth-seeking function of the system more generally. Lots of forced confessions are false, versus physical evidence that is usually probative. View this case in context of the Courts hostility to Miranda at the time. o Looks like Withrow shuts the door on argument for a hierarchy of Constitutional values/Courts ability to prohibit habeas claims one-by-one. OEDPA cements this and undermines the project.

Both Withrow and Powell should be viewed as examples of one of the 5 main issues confronting habeas proceedingsthat of cognizable claims.

(c) New Rules and Retroactivity

Retroactivity is another of the 5 main issues of habeas proceedings.

Teague v. Lane (1989) (OConnor opinion pts I, II, III; plurality pts IV, V) Before the 1960s, there was no retroactivity debate. It was only during the Warren Court (incorporation of the exclusionary rule, other new Constitutional protection doctrines, extension of these criminal procedure doctrines to the states) that the debate became important. The Court there was faced with a dilemma: if its new doctrines were retroactive, then tons of criminals would be set free. It was therefore clear that SC would have to create a non-retroactivity doctrine. Both liberals and conservatives were in agreementit was the price liberals had to play for their broad extension of rights.

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o Court thus established the Linkletter test, a 3-pt balancing test that permitted ad hoc
determinations re retroactivity. The Court said that Ds had the benefit of Mapp, exclusionary extension, only if tried and convicted after Mapp. Sucks for you if youre still on direct review. This created a lot of discomfort because Mapp himself was tried a long time before. o Teague new blanket rule: no retroactive determination of new law on federal habeas. Two exceptions:

1) If it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. (e.g., Griswoldproviding contraceptives to married adultsSC finds due process right; Lawrence). This exception has minimal application in CP context. 2) If it requires the observance of "those procedures thatare implicit in the concept of ordered liberty.'" In other words, fundamental to justice. This means the watershed rules: can you imagine a fair and just society without the rule in question? The Court has yet to identify a single rule that satisfies this exception.

o Soall retroactivity litigation is about whether the rule the court recognizes is new. In
other words, is the law new or simply a vindication of long-standing Constitutional principles? The Court says that a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. Penry upsets both liberals and conservatives. Conservatives think this undermines Teague by applying the law retroactively to Penrythe Court had to say the law already existed, but it wasnt apparent that it was. o Another post-Teague question: are claims re executing juveniles, etc, litigable on habeas? Theyre clearly new lawbut do exceptions apply? Courts have thus expanded the first Teague exception beyond the underlying conduct vindicated (like in Lawrence)now its a broad notion of conduct vindicating status (juveniles, mentally retarded). Status thus seen as part of conduct when D committed the offense.

(d) Innocence
Steiker lists innocence as 1 of the Other Procedural Issues that make up the 5th important habeas issue.

Herrera (revisited) In this case, the cert question was whether executing innocent people violates the Constitution. TX did not allow evidence of innocence after 30 daysinnocence was thus a noncognizable claim. o The 5th Circuit said there was no claim, only new evidence, and it didnt assess innocence o substantively. Thus, evidence of innocence does not equal Constitutional violation. This should be interesting now with Davis. Is there a Constitutional violation in his case? If so, can it be litigated on federal habeas?

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Habeas Reform
Federal habeas post-AEDPA is a labyrinth of procedural requirements. Once you get to review, its something other than de novo. The 1996 Congressional move aimed to speed up the CP process, shift the balance of power. While clearly rewritten with CP cases in mind, most of the statute applies to all federal habeas. In any event, drafters attempts to streamline habeas have largely been frustrated. Habeas Pre- and Post-AEDPA: Procedural Default

o Pre-AEDPA, the standard was cause & prejudice (Sykes), or fundamental miscarriage of
justice (innocence). Reflects move from Noia to Sykes. o Post-AEDPA, those opinions still govern (i.e., Sykes, Teague, though Teague is tougher because of the standard of review question. Statute doesnt mention procedural default except if state opts into procedural provisions. Then the federal court is restricted to claims that have previously been raised and decided on the merits in state court, unless Authorities prevented the claim Claim rests on new, retroactively applicable rule of Constitutional law Claims factual predicate couldnt have been discovered previously via due diligence. This does away with ineffective assistance of counsel claims. However, no state has successfully opted in and gotten the benefits (fed cts used to have to certify, but now its the AG) (Steiker says maybe AZ got it but hasnt successfully applied). This is probably because AEDPA was good enough. Also, the carrots offered (procedural defaults, 6month SOL) didnt change things that much, while states would have to spend money and subject themselves to political outcry. Not worth it i/l/o cost-benefit analysis. Successive/Abusive Petition

o Pre-AEDPA, determinations were equitable, discretionary, in the interests of justice.

Judges rejected claims if they constituted abuse of the writ. o Post-AEDPA, abusive (same) claims are dismissed without exception. New claims are dismissed unless the law on which its based is new, retroactive, or the factual predicate could not have been discovered earlier with due diligence, and the new facts, taken together with the case in general, lead to clear and convincing evidence that no reasonable factfinder would find guilty. This is a very tough standard. Statute of Limitations o Pre-AEDPA, laches or abuse of writ o Post-AEDPA, 1 year, or 6 months with opt-in Court of Appeals o Pre-AEDPA, district court o Post-AEDPA, 3-judge panel specific issues Cognizable Claims o Pre-AEDPA, all Constitutional claims except 4th amendment Exclusionary claims; innocence can be untethered to a Constitutional claim.

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Note: innocence as a gateway trying to get federal habeas courts to hear claim (probably innocent). If probably innocent, then listen to Constitutional claims they dont litigate innocence but the Constitutional claim. Weird paradoxin a post-AEDPA successive petition, clear and convincing evidence just opens the door. o Post-AEDPA, same. Teague and its 2 exceptions also remain same. Conceptually, Teague is about what kind of claims you can make. Compare to AEDPA, which is about the standard of review/the attitude the Court should take w/r/t habeas. Standard of Review o Pre-AEDPA, Brown v. Allen, Wright v. West o Post-AEDPA, Law: Reverse state interpretation when contrary to or unreasonable application of clearly established Federal law, as determined by SCOTUS (so basically, application of SCOTUS precedent). The phrase unreasonable application of sounds more relevant in the mixed question context, so with law questions, interpretation must be contrary to. But what does contrary mean? Really contrary? Kind of? See Williams, below. Problem: if states, lower federal courts agree on something (e.g., mental retardation being a Teague exception), but SC hasnt directly addressed it, it isnt SC precedent, so couldnt bring habeas based on this as SC precedent. This is the view that federal habeas exists to make sure states are doing due diligence/good faith/reasonable. Federal courts should only intervene when states really screw upi.e., act in bad faith. Compare this to Brennans view that if civil rights have been violated, Courts need to fix itend of story. Steiker says she goes with Brennan because of rights, but the other interpretation has appeal. In one case, Breyer says he would have come out the other way without AEDPA because it was unreasonable, but it wasnt contrary to SC precedent, so he had to defer to the states interest. Mixed Questions: Unreasonable application. OConnor says the standard is what reasonable jurors would all agree is unreasonable. Fact: Presumption of correctness for state findings of fact. Evidentiary Hearing: o Pre-AEDPA, presumption of correctness (contingent on sound process in state court, listed procedural standards) discretion o Post-AEDPA, presumption of correctness without regard for process. To overcome, must show that the rule is new and retroactive and that the facts underlying the claim lead to clear and convincing evidence that means no reasonable factfinder would have found applicant guilty.

Williams v. Taylor (2000) (OConnor)

Stevens (4 justices) says in Williams that its basically de novo + Teague. The only change is the law in question is SC law rather than federal law more generally. Contrary to includes unreasonable applicationsthe two are not mutually exclusive.

o In Stevenss view, 2254(d)(1) merely coded Teague. In only one respect did 2254(d)(1) 78

restrict habeas corpus more broadlyby permitting review only when law has been clearly established by the Supreme Court, rather than by other courts. o Re contrary to/unreasonable application of, he was not persuaded that the phrases define two mutually exclusive categories of questions. For example, an erroneous conclusion that particular circumstances established the voluntariness of a confession, or that there exists a conflict of interest when one attorney represents multiple defendants, may well be described either as contrary to or an unreasonable application of the governing rule of law. o His difference with OConnor is as to the cases in which, at first blush a state-court judgment seems entirely reasonable, but thorough analysis by a federal court produces a firm conviction that that judgment is infected by constitutional error. In our view, such an erroneous judgment is unreasonable within the meaning of the act even though that conclusion was not immediately apparent. o OConnor (majority) say that contrary to means substantially different. So unreasonable application doesnt have to be contrary. This is the real change in AEDPA more state deference here now. Thus, under the contrary to clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the unreasonable application clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Courts decisions but unreasonably applies that principle to the facts of the prisoners case.

Lindh v. Murray (1997) Congress knew how to say applicable to pending cases and didnt in AEDPA, so its not applicable to pending cases (however, opt-in applies to pending). Slight retroactivity discrepancy: AEDPA says federal courts wont overturn state court decisions unless theyre contrary toclearly estd SC law. When does SC law count as established? When the state court addressed the question (meaning the judgment under review, so it doesnt have to be the first time the state court addressed it). In other words, the last time the state court addressed the question on the merits. Why is this so? Because the state court purported to apply the Constitution then. Its not the state courts fault if the law changes later on. AEDPAs radical change to successive and abusive petitions, compared to previous state of law: Sawyer Court mentions line of cases addressing the SCs successive and abusive petition rule: cause and prejudice with miscarriage of justice exception (same as procedural default). Moved from that to AEDPA, where such claims are pretty much never heard. 2244(b)(2)(a) of AEDPA concerning getting a new evidentiary hearing: D must show retroactivity/innocence. Either/or (both not required). However, in 2254(e)(2), both retroactivity and innocence are required. Its not clear that Congress intended this. An example showing the power of AEDPA: In Buntion v. Quarterman (5th Cir. 2008), the trial judge (before the trial) says hes doing Gods work to make sure D is executed. Among other crazy things, he hangs postcard of Judge Roy Beanthe TX hanging judgeat his podium and follows Ds lawyers to their hotel and threatens them, etc. D appeals, but another judge finds no problem with the trial. D appeals again and gets same judge, who of course finds no bias/error in his previous decision. Federal District Court

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reverses, but the 5th Circuit reverses the District Court because of AEDPA the District Court had not relied on Supreme Court law. OMFG.

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JURY SELECTION AND JURY DECISION-MAKING IN CAPITAL CASES

The Special Role of Juries in Capital Punishment Juries are hugely important in capital cases for a number of reasons. Theyre a good part of the story why capital trials are so expensive. In these tight economic times, states are aware of the high costs of capital trials relative to noncapital trials, even when LWOP costs are factored in. Why? o (1) Mitigation: Lots of expert testimony in CP cases, plus state pays for the mitigation investigation, etc. o (2) Layers of Post-Conviction Review: Lots of lawyering is expensive. Trial phase accounts for the majority of these costs and voir dire takes forever. Attorney costs are substantial, but not the lions share. Most states have criminal sentencing by judges, but the overwhelming majority of capital statutes have the jury decide or at least act in an advisory capacity. The SC has held that there is no right to a jury in sentencing, so the reason juries are so common in CP sentencing is not grounded in the Constitution.

Witherspoon v. IL (1968) (Stewart)

A sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction o Remember that the 60s were exceptional because the majority of Americans said they were against CP. This case is pre-McGautha, Furman, Coker, etc. It was seen as a huge victory. o Doesnt answer the question whether the death-qualified jury affected the guilty determination (answered in Lockhart). o Prior to Witherspoon, IL statute made cause for challenge having conscientious scruples against CP. In that case, half of the potential jury was excused on these grounds. Through this provision the State of Illinois armed the prosecution with unlimited challenges for cause in order to exclude those jurors who, in the words of the State's highest court, "might hesitate to return a verdict inflicting [death]." At the petitioner's trial, the prosecution eliminated nearly half the venire of prospective jurors by challenging, under the authority of this statute, any venireman who expressed qualms about capital punishment. From those who remained were chosen the jurors who ultimately found the petitioner guilty and sentenced him to death. o D presented evidence that death-qualified jurors were more likely to convict. The Court said the science was too fragmentary for it to decide on the guilt question. However, it did find the conviction invalid under the 14th (no right to jury sentencing, so not the 6th). In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was. But it is self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth

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and Fourteenth Amendments. A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of itsuch a jury can speak only for a distinct and dwindling minority. o Those opposed to CP should be able to sit on juries because theyre part of the community too. Draws the line at those whose views mean they wouldnt be able to apply the law and consider CP as a possibility. In other words, theres no right to nullify the verdict, and the Court views those who wouldnt consider CP as nullifiers. If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply "neutral" with respect to penalty. Douglas (concurring) thinks that even those who wouldnt consider CP should serve not nullification in his view. If a particular community were overwhelmingly opposed to capital punishment, it would not be able to exercise a discretion to impose or not impose the death sentence. o FN 21: Nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were, in fact, excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.

Wainwright v. Witt (1985) (Rehnquist)

It is now 1985, and the Court has moved sharply to the right. Its also post-Furman/Gregg, so the bird isnt in the jurys hands anymore. o Lots of courts had cited Witherspoon footnote 21 (standard is unmistakably clear that juror would automatically vote against CP w/r/t evidence; or attitude prevents impartiality).

o The Court says this is the wrong standard. Instead, it applies the Adams v. TX (1980) standard
someone cant sit as a CP juror if views would prevent or substantially impair the performance of his/her duties as a juror, in accordance with instructions and oath. This is the usual standard the Court employs to determine whether jurors are impermissibly biased. According to the Court, these arent really death penalty cases, so the Court doesnt want to put an 8th Amendment overlay on the problem. That standard is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. We note that, in addition to dispensing with Witherspoon's reference to "automatic" decision-making, this standard likewise does not require that a juror's bias be proved with "unmistakable clarity." This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.

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Morgan v. IL (1992) (White)

This case concerns jurors who will vote for CP no matter what. Sort of the mirror image of Witherspoon. We decide here whether, during voir dire for a capital offense, a state trial court may, consistent with the Due Process Clause of the Fourteenth Amendment, refuse inquiry into whether a potential juror would automatically impose the death penalty upon conviction of the defendant. o A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. o Scalia (dissent): such jurors are still capable of weighing, theyre just not weighing anything. Steiker calls this argument sketchy, but it still raises an interesting question: What if the juror says he/she wont buy into certain excuses (e.g., D was addicted to drugs)? Morgan doesnt answer that question. Scalia thinks striking the juror there would be ridiculous. The fact that a particular juror thinks the death penalty proper whenever capital murder is established does not disqualify himthe requirement that a more defense-favorable option be left available to the jury [does not] convert into a requirement that all jurors must, on the facts of the case, be amenable to entertaining that option. Scalia elaborates in footnote 3: how do we consider jury statements about faith/belief in certain mitigators? The fact that the jury has the discretion to deem evidence to be mitigating cannot establish that there is an obligation to do so. Indeed, it is impossible in principle to distinguish between a juror who does not believe that any factor can be mitigating from one who believes that a particular factor - e.g., extreme mental or emotional disturbance, - is not mitigating. o Lawyers often make judgment not based on what a person says in voir dire but on demographic information (race, gender, social class, age, religion, employment). These are short cuts. But in capital cases, voir dire is much more extensive than usual.

The jury selection process, generally: a group of jurors is chosen from a pool (venire)this is called the panel. The panel are all asked to fill out questionnaire (exposure to cases, biases, etc). After comes voir dire. Theres no Constitutional requirement to have individual voir dire, even in capital cases, but most judges do. o Then come interviews. Lawyers make arguments to the judge about who should be excused for cause. There are unlimited excusals for causesuccessful challenges leave. If D moves to remove for cause, but the judge rejects the challenge, and the juror serves, then if the juror is later determined not to be impartial, then it results in an automatic reversal. o Peremptory challenges: sometimes the D gets more than the P (remember, the accused has the right to an impartial jury). Both sides get a certain #. Theyre not for cause, are based on hunches. Those less likely to sympathize with the client get them. The Court has listed 3 categories on which neither side can base these challenges: race, gender, and ethnicity. This is i/l/o the history of attempts to have prominent white men only serve. The 6th

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Amendment was incorporated to the states, so women and minorities must be able to serve, but theres still lots of bias, much of which comes from peremptory strikes. o Theres very little law in jury selection its up to judges, who have extraordinary leeway.

o In Ross v. OK (1988), the Court found that all D lost was a peremptory strike. The juror in
question didnt remain on the jury, so theres no problem. Thus, if theres a real legal problem with the peremptory process, it doesnt affect the trial in the long run. D just loses strikes. o Accordingly, voir dire is a big deal in CP cases, and jurors are asked lots of questions about their feelings on CP. Witherspoon excludables wouldnt vote for CP ever, but whats the formulation for keeping these guys off the jury? Note the move from Witherspoon (I could never, ever) to Witt (attitudes prevent/substantially impair ability to follow oath). So if it becomes clear that someone has scruples, you dont have to get the juror to say shed never impose CPyou just have to show some view that would get in the way. This reframes the questioning. Its still easy to get jurors thrown out, using, e.g., a graphic script like the one in Miller-El. In other words, its easier to get jurors to say it would affect them under Witt. Whats less decided in Witherspoon/Witt is the reverse situation of life qualification, but Morgan answered that. o What about jurors opinions about aggravators/mitigators? The Court doesnt clarify and hasnt o yet, even i/l/o Scalias footnote in Morgan dissent. Side question: How much do jurors need to know about their power? E.g., in TX, theres no requirement that juries know what would happen if they hang (CP off table).

Lockhart v. McCree (1986) (Rehnquist)

Question whether a death-qualified jury is more conviction-prone. Most social scientists would say absolutely, but Steiker says its tough to prove. There have been accusations that prosecutors charge CP to make juries death-qualified. Either way, theres skepticism that death qualified juries are the same as non-death qualified. o There was a study that questioned death qualified/non-death qualified juries about what theyd do given the same fact pattern. SC says studies didnt actually have the juries deliberate, and some are Witherspoon/Witt excludableand so would be excluded because theyre nullifiers which is the studys fatal flaw. All three of the "new" studies were based on the responses of individuals randomly selected from some segment of the population, but who were not actual jurors sworn under oath to apply the law to the facts of an actual case involving the fate of an actual capital defendant. We have serious doubts about the value of these studies in predicting the behavior of actual jurors. The Court says there were 2 claims re unfairness of death qualified juries at guilt phase: Skewed, not fair cross section. The Court says its ok because jurors are being excluded for cause. Plus, the fair cross section requirement is designed for groups like women/minorities. Also, the fair cross section requirement applies only to veniretheres no right to a fair cross-section on the jury.

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The limited scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly representative petit jury. On a more practical level, if it were true that the Constitution required a certain mix of individual viewpoints on the jury, then trial judges would be required to undertake the Sisyphean task of "balancing" juries, making sure that each contains the proper number of Democrats and Republicans, young persons and old persons, white-collar executives and blue-collar laborers, and so on.

Miller-El v. Dretke (2005) (Souter) The District Court denied habeas relief, and then the 5th Circuit denied the certificate of appealability. The SC rarely gets involved in this type of case, but it does here, tells the 5th Circuit it should have granted review. The 5th hears the claim and denies it, so it moves back up to the SC. o Souter: reeks of afterthought. The numbers describing the prosecution's use of peremptories are remarkable. Out of 20 black members of the 108-person venire panel for Miller-El's trial, only 1 served. Although 9 were excused for cause or by agreement, 10 were peremptorily struck by the prosecution. The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire membersHappenstance is unlikely to produce this disparity. o A lot of whats going on is SC reviewing state findings of fact so post-AEDPA (clear and convincing evidenceunreasonable, plus contrary to SC law), its pretty amazing that the SC did this. Cases leading up to this one: Swain: Warren Court decision saying that D must show racial discrimination by evidence of case after case discrimination, regardless of the circumstances of the discrimination. It creates a presumption of legitimacy.

Batson: Can show discrimination in a single case. D can make a prima facie case of discrimination by totality of the relevant facts regarding the prosecutions conduct during the trial. Then the state must come forward with race-neutral explanation.

In general, hasnt changed practices much because racism has shifted in voir dire to rational racism. Prosecutors told not to choose minorities not because

theyre inferior but because of a statistical trend. It thus becomes a game of not getting caught. Plus lawyers, especially prosecutorial lawyers, are repeat players. If the judge calls a prosecutor out on racism, theres a negative effect on the relationship between the two. o Starting with Miller-El, SC has taken a hard line theyre empowering lower courts to do this, sets an example.

o It gets around AEDPA by: Comparing similarly situated black/nonblack jurors. Looks at the prosecutions
reasons for striking black jurorsthe pattern of strikes makes the prosecutor a liar. Whites werent struck for the same reasons.

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Phrasing of questioning. Differential questioning for black/white jurors. Graphic script for blacks, much less so for whites. Also didnt tell blacks the minimum murder sentence was 5 years, then removed them because of anti-defendant bias when response to question re minimum sentence was higher than 5 years. Very disingenuous. Other techniques, like jury shuffle. History of overt jury discrimination in Dallas County. Old DA had written a manual

telling prosecutors to strike black, Hispanic, fat people, free thinkers, etc. The prosecutor in Miller-El had written down the weight of potential jurors, implying that was still using the manual. Steiker: Still foolproof way of dismissing black jurors: problem with demeanor. Tough because no one watching juror all the time. Plus, its a matter of interpretation what facial expressions mean.

Turner v. Murray (1986) (White, plurality in part, majority in part)

D in a capital case involving interracial crime is entitled to have prospective jurors informed of race of V and questioned on issue of racial bias.

o This is not so outside of the CP contexttheres no general right unless you can show race is
o somehow at issue at trial. Court cited a conjunction of three factors: the fact that the crime charged involved interracial violence, the broad discretion given the jury at the death-penalty hearing, and the special seriousness of the risk of improper sentencing in a capital case. Once rhetoric is put aside, it is plain that there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence; the only question is at what point that risk becomes constitutionally unacceptable. We are convinced that [the discretion entrusted to a jury at the capital sentencing hearing] gives greater opportunity for racial prejudice to operate than is present when the jury is restricted to factfinding. o This is one hint that the 8th amendment could change racial dynamics in the jury context. Q: How do you even do this, though (meaning, question jury about racial attitudes)? Would you be afraid if a black man was walking behind you at night? or Do you have friends/family members of another race? Race-switching exercise: tell jury to reverse race of V & Ddoes it make jury think, or is it accusatory? o The Court recognizes that peoples racial biases are important, provides access to this information (in CP cases), but its not clear how to utilize the information.

Apprendi v. NJ (2000) mentioned in Ring, establishes a new bright line rule that any fact found by the judge that increases the penalty beyond the statutory maximum (as determined by jury fact finding) is impermissible. It must be found by the jury. The reason for this is that the fact found makes the offense a more severe crime. Thus, any fact thats necessary is an element of the crime. o This has enormous ramifications for CP. Reason for Stevens got a majority is that he promised his holding has nothing to do with CP. In Ring, the Court says we lied. Apprendi totally affects Walton, so Walton is overruled.

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Ring v. AZ (2002) (Ginsburg)

Is an aggravating factor an element of the crime in the CP context? Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. o This is important because judges determine punishment in many states. So where finding of an aggravating factor is necessary for the establishment of CP eligibility, it must be found by the jury. (Advisory verdicts ok). The dispositive question, we said, is one not of form, but of effect. If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact--no matter how the State labels it--must be found by a jury beyond a reasonable doubt. A defendant may not be expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. In effect, the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury's guilty verdict." o Scalia concurs is in a funny position because he loves the death penalty but doesnt think judges should be finding these facts. Whether or not the States have been erroneously coerced into the adoption of aggravating factors, wherever those factors exist they must be subject to the usual requirements of the common law, and to the requirement enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a reasonable doubt. o Breyers concurrence concerns judges ability to be sentencers. Ring shifted the balance from judges to juries (5 states shifted to jury sentencing in wake of Ring), but still no fundamental right to jury sentencing. Breyer hates Apprendi but thinks there should be a fundamental right to jury sentencing in CP cases (8th amendment). Compare this to Blackmun in Callins (no longer tinker) and Stevens saying he gives up on CP, etc. This is a major indictment on capital punishment. Sounds a lot like Amnesty International is writing. Lists wrongful convictions, etc weird opinion. The importance of trying to translate a community's sense of capital punishment's appropriateness in a particular case is underscored by the continued division of opinion as to whether capital punishment is in all circumstances, as currently administered, cruel and unusual. Those who make this claim point, among other things, to the fact that death is not reversible, and to death sentences imposed upon those whose convictions proved unreliable They point to the potentially arbitrary application of the death penalty, adding that the race of the victim and socio-economic factors seem to matter.

Its an interesting statement about CP law when you get these sorts of soap box opinions you can see why Scalia gets upset. While I am, as always, pleased to travel in Justice Breyer's company, the unfortunate fact is that today's judgment has nothing to do with jury sentencing.

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RACE AND THE DEATH PENALTY

Wed be surprised if race of the D and V would have no effect on jury decisions. Considering this question brings us full circle historically. Recall Goldbergs lengthy dissent from denial of cert in 1963 and the subsequent NAACP lunch in Central Park where activists decide that CP is a racial justice issue potential way to foster discussion about racism in the justice system.

McClesky v. Kemp (1987) (Powell)

The question of racial justice is finally addressed in this case. Does statistical evidence demonstrate discrimination? Coker really changed the argument by taking rape out of the CP equation race of D was really important in rape cases, but not as relevant elsewhere. Ultimately, the Court is unwilling to draw the inference from statistical information that there was purposeful discrimination against D. o The Baldus study uses multiple regression analysis, accounts for 230 other factors affecting the use of CP (e.g., # of aggravators, mitigators, nonracial characteristics of D/V, etc). Divides cases into three tiers. Finds very little racial effect on top and bottom tiers, but in middle tier, where there was room for discretion, there was a considerable effect. Interesting because a glance at raw data showed that not just white Vs, but also white Ds were more likely to yield a death sentence. However, post-regression, race of V was still important, while race of D no longer was. The reason for this is that most murders are intraracial, so if juries care more about white Vs, theyre going to sentence white people to CP pretty often. Stevens thinks this boosts his argument the CP should be only for the very worst crimes, but the response is that the tiering itself is subjective (how do we agree which crimes are the worst?). Also, each factor controlled for reduces the racial effect, so maybe if all factors are accounted for, then the effect disappears. Counter: some nonracial factors are really racial (e.g., prior convictions). The question for the Court is the significance of the study. It assumes the study is valid, still rejects Ds claims (equal protection, 8th). Equal Protection: Court in Washington v. Davis (1976) says that you must show purposeful discrimination, which McClesky cant dohe just shows a pattern. Court refuses to infer purpose from the pattern (but see Batson, Title VII, where it does). The application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII case. In those cases, the statistics relate to fewer entities, and fewer variables are relevant to the challenged decisions. Brennan (dissent): death is different, so this should be one of those corners where we make an inference.

Equal Protection (continued): Juries are unique. We give them power here to grant mercy. The Court here opts to protect jury discretionsurely we should expect

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discrepancy given the discretion inherent to the job. 8th Amendment: The Court tries to limit analysis to the question whether the punishment is in the permissible range post-Gregg, finds that the punishment does

fall in the range. Moreover, if McCleskys claim was granted, it would challenge the entire criminal system. Basically, the Court is ignoring the death is different argument. Brennan (dissent): The Court is worried about too much justice. Bottom Line: Racial discrimination is part of our society. Were just going to have to live with it to an extent. McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to

gender. o At the time, this case was viewed as Furman 2 i/l/o Ds claim that CP was unconstitutional because of the study. Whats interesting is that was Powell wrote the opinion and retired shortly thereafter. Later, when asked if hed change any opinion he joined (wrote?), he cited McClesky. The opinion was 5-4, so it was a near missthe SC was almost at the moment of overturning CP. But instead it goes the other way, kicks question to the legislative sphere. Why didnt the Court infer discrimination from the study? It probably didnt want to because doing so would basically admit that discrimination plagued the justice system. See Kennedys article below: outlawing CP is like turning off electricity for everyone i.e., denying them all a good.

Federal attempt at statutory overrule of McClesky on p.58 of Week 12 course packet. The statute passed the House and was narrowly defeated in the Senate. It would have applied to states, too. Since then, 2 states have passed such a statute, though the wording is different. o Federal Act: Could use statistical evidence to infer purposeful discrimination. Judge had to make a finding of validity of statistical evidence, as well as if it provides a basis for the inference. A bazillion methodological considerations would a federal judge be able to declare a study, such as Baldus, valid? Rebuttal once statistical inference of discrimination, burden is on the government to rebut via a preponderance of the evidence. But what would be enough/should the government be able to rebut? Could the government just say that D met statutory requirements? Etc. In other words, statute subject to attack from both sides of the CP debate. o State remedies to McClesky:

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KY racial justice statute passed about 12 years ago. Its not a burden shifting statute (i.e., no rebuttal), and the burden is on D to show particularity of racism in case. Obviously, this is difficult to prove, and no D has prevailed. NC statute passed last summer, could signal movement. D has to state with particularity how racism has prevailed in local jurisdiction. This particularity requirement is not like KYs more general to the area. Similar to the Federal statute that failed in that its a burden-shifting statute. Remarkable this is happening now probably because were in a period of questioning/reduction of CP. Should be interesting to see whats next.

Kennedy, McClesky, Race, Capital Punishment and the Supreme Court (1988)

Usually, we move up, protect more when we worry about discrimination. But outlawing CP is like turning off electricity for everyone (ratcheting down) i/l/o unequal electrical distribution among white/black neighborhoods then everyone loses.

o Thus thinks of CP as a social good. Right now, the problem is that the racism protects white
Vs without affording black Vs the same protection. We should protect both, not turn off the lights for everyone. o I emphasizethe unfairness that race-of-the-victim discrimination visits upon the black community by denying it equal treatment with respect to those who kill its members. McCleskys theory is defendant-oriented, while mine is community-oriented. Although there is considerable congruence between the two, their points of departure and remedial destinations are different. In Georgias marketplace of emotion the lives of blacks simply count for less than the lives of whites. This reality grows out of Americas tragic history of race relations. But it is also a reality related to a wider, perhaps even universal problemwe devalue the rest of the world in relation to our own small circle of loved ones. Abolitionis a painful medicine to the extent that the death penalty constitutesas most Americans believe that it doesa useful and highly valued public good. Paradoxically, this would mean more black Ds convicted since majority of black Vs are killed by black Ds. o Steiker: Ratcheting up is maybe a better solution, but not without its own problems (e.g., more black Ds). Doing away with jury discretion wouldnt fix the problem i/l/o jury nullification and prosecutorial discretion.

Gross & Mauro, Analysis of Racial Disparities in Capital Sentencing and Homicide Victimizing (1984) Causes of Discrimination o Since death penalty prosecutions require large allocations of scarce prosecutorial resources, prosecutors must choose a small number of cases to receive this expensive treatment. In making these choices they may favor homicides that are visible and disturbing to the majority of the community, and these will tend to be white-victim homicides. o Most jurors (but not all) will probably try to exclude racial considerations from their evaluation of

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the defendant; they may or may not succeed, but at least they are likely to be aware of the problem. The race of the victim, however, is a different matterit takes more than sympathy for the victim to induce jurors to condemn a murderer to death. They must feel horror at the defendants acts[and] we are more readily horrified by a death if we empathize or identify with a victim. o Jurors who are influenced by the race of the victim are not likely to be aware of it. How could they be? The cognitive and affective processes involved operateunconsciously. o Jurors, of course, are not the only actors in the legal system who determine who is sentenced to death. More often than not jurors play no direct role in that decision because potentially capital cases are weeded out before they come to trial, primarily at the hands of prosecutors. But what juries do has repercussions down the line. Prosecutors try to avoid wasting resources to no end, or losing expensive battles that they can sidestep.

Radelet & Pierce, Choosing Those Who Will Die: Race and the Death Penalty in Florida (1991) After a brief historical overview, the article presents a review of the research that explores the possibility that racial bias affects the imposition of the death penalty under Floridas current statuteThe article then examines data on all Florida homicides and death sentences over a twelve-year period, 1976 through 1987, to determine whether race affects contemporary death sentence decisions in Florida. o Although this study controlled for the most plausible variables that might have explained the race-sentencing correlations, the correlations did not disappear, and in fact remained strong. These results are strikingly consistent with those found by David Baldus and his colleagues in Georgia. o The best evidence available provides strong support for the argument that, to this day, race influences the decision of who will die in Floridas electric chair.

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AMERICA IN THE WORLD

(American Exceptionalism)

The development of abolition in Europe paralleled the period of CP skepticism in the US (60s/70s). o Portugal was the Minnesota of Europe (i/t/o early abolition) and got rid of CP in the 19th century. Scandinavian countries did so in the early 20th century. The movement didnt really pick up until post-WWII. Immediately after the war, not a huge movement to abolish i/l/o war crimes prosecutions. Only Germany and Italy abolished immediately after WWII. o In the 1960s, there was real skepticism of CP, as was the case in the US, too. At that point, we didnt execute much, either. No one would have argued for American exceptionalism then. Furman could be seen as our temporary abolition of CP, like what happened in UK Parliament. But in the 70s, Europes and the USs CP paths diverged bigtime. Why? European adoption of human rights as a framework. Important to note that in Europe theres a backstop, i.e. once CP is abolished you cant bring it back this secret weapon is Protocol 6, to which agreement is required for economic integration into EU. Compare this to situation in Mass., where were one bad murder away from having CP. The federal government couldnt pull a Protocol 6 on the states because criminal justice is thought of as a state matter. But see the post-McClesky statute that almost passed, which would have applied to the states.

o o

Steiker, Capital Punishment and American Exceptionalism (2005)

Class lecture mirrors main points of article. Arguments why we diverged from the EU and still have CP. Most of are pretty deterministic some notion that its in our national DNA:

o (1) Crime rates are higher in the US, especially homicide. CP exists here because we need
more deterrence. o (2) Politics/political economy (Lacey).

Populism versus parliamentarism. Tight party control over the political process in Europe. Plus, we have more populist government structures and a culture of populism. Think Reagan, or GWB, or really any US politician (PALIN). This reflects our culture of politics less trust in elites in the US.

The government as a welfare state. EU provides more social welfare programs less of a permanent underclass locked out of labor force. Connection between

existence of such an underclass and need to control them. o (3) Race/vigilantism (Zimring). States that execute a lot also lynched a lot racism, culture of vigilantism. Racial control, existence of sizeable racial minority (black) in jurisdiction means state exercises control over them to maintain social disparities. More CP. o (4) Culture (Whitman). Favorite of Europeans. History of different punishments for aristocrats (guillotine for elites, other CP for peasants). Idea of preserving dignity was later extended to

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non-elites over time seen most in European prisons, where inmates wear their own clothes, get vacation time. Compare this to the US idea of prison that comes from the Quakers idea of dignitys not there. Humiliation.

Steiker is skeptical of all of these explanations, except with the possible exception of crime rates, since there was a huge spike in the crime rate when we diverged from Europe. But there was a similar spike in Europe then, too. Her main concern with these is that they dont explain why, if determinism, we didnt diverge the 1st 200 years. Why in the 70s?

o She says the problem was one of SC timing Furman had hit in 63, Warren could would
have overturned CP. But instead, took up CP at the end of the huge criminal procedure revolution people are sick of it, many of the liberal justices had left. So a lot of what happened was because of historical accident. Timing was unfortunate backlash against Warren Court. If the Supreme Court had managed to speak more clearly, emphatically, and unanimously on the issue in the original Furman decision, or if the Courts membership had changed differently between 1972 and 1976, abolition might well have been permanent. But the Courts legitimacy was weakened by its decisions promoting integration, regulating the police, and legalizing abortion, and by 1976, it was willing to retrench on the issue of capital punishment in response to the outpouring of rage that Furman had generated.

Significantly, the Court chose constitutional regulation of capital punishment rather than abolition as its mode of retrenchment. As I have argued at greater length elsewhere, this choice helped to legitimize and stabilize the practice of capital punishment in the United States. Moreover, the Courts validation of the continuing use of the death penalty as a matter of constitutional law also created an impediment to American acceptance of capital punishment as a violation of international human rights law.

Schabas, International Law and the Abolition of the Death Penalty

o Death penalty jurisprudence provides one of the most dramatic examples ofsynergy between
international and domestic human rights law. Courts of several states [i.e., countries]have found international law to be particularly helpful in interpreting concepts such as the right to life and the protection against cruel, inhuman, and degrading punishment. o Unlike their counterparts in other parts of the world, judges and legislators in the United States have given short shrift to the growing body of declarations, treaties, and judgments described in this chapter.

The Future of CP: o In the last decade, rates of execution have dropped in half. 3 states abolished in the last 5 years (including NJ, which failed to reinstate after NJ SC struck down). Lots of state statutes

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restrict CP, as has SCOTUS. Meanwhile LWOP has surged in popularity, and the financial crisis has further promoted reduced use of CP on neutral, non-ideological groups (CP is $$$$). o Also, lots of Furman-esque cases are being litigated. Successful challenges will probably take the form of Roper/Atkins, and while not going on in a majority of states, theres still a significant movement. o ABA and ALI (more conservative) withdrew CP portions of MPC. Etc o As for SCOTUS, its unclear whether were at a moment where abolition could happen. Breyer and Ginsburg are open to it. Sotomayor, future justice (to replace Stevens), maybe Kennedy? o But do we want judicial abolition i/l/o Roe backlash?

What will probably happen is an increasing marginalization of CPmost counties in TX dont even execute. So its a movement toward marginalized counties in

marginalized states. Lumpiness. In this marginalized context, do we want the Court to take a Furman risk? o The return to the go go 90s is not likely because of the costs CP is super expensive, which factors not just in state decisions to abolish but also in their decisions not to expand CP.

If youre concerned about injustices throughout the criminal justice system, is it better to have CP? CP inmates bring attention to the system that it might not otherwise get (e.g., innocence and DNA), but this isnt always good (AEDPA limits for everyone). But also, death is different jurisprudence limits extension of CP protections. Criminal justice versus CP justice are sometimes in tension.

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