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Author: Anonymous

School: University of Texas School of Law

Course: Capital Punishment

Year: Summer 2002

Professor: Steiker

Text: None

Text Authors: None


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Capital Punishment
I. The Big Picture: Can We Ever Justly Impose the Death Penalty?

A. Introduction

1. Default punishment for major crimes in early US history. Not until mid 19th century that we had a penitentiary system. Then started to make distinctions between degrees of murder. PA started this. Difference was one type was eligible for cap punishment.

2. Been periodic efforts to abolish the death penalty in the northeast. Abolitionist states did not have penalty. All southern states have death penalty.

3. In the last 30 years 90% of executions took place in southern and bordering states. Large group of states has large death penalty on the book but don’t really carry them out. Ie. CA, which has the biggest death row.

4. Entirely a state phenomenon. Fed does have one as well but it is not important as part of crim justice system in the last 40 years. 30 in fed death row vs. 4000 in states.

B. How do fed courts get involved?

1. State

a) State criminal cases start in the State trial court

b) State intermediate appellate court

c) State highest criminal court (Often called the Supreme Court. In TX it is the Ct of Crim Appeals)

d) Reviewable by the SCOTUS via discretionary direct review.

e) Cap death appeals usually go straight to the highest court.

1) Look at things on record for review.

2) Non record:

A) Postconviction comments

B) Might also look at things like misconduct (state habeous.) non-record claims like prosecutorial misconduct like withholding evidence.

C) Ineffective assistance of counsel

2. State Habeas - File petition for state habeous review.

a) State courts will be avail to hear both state and fed claims.

b) SCOTUS will only hear federal claims.

3. Federal Habeas - State prisoners have a constitutional right to have their claims heard in federal court

a) District ct

b) US court of appeals


d) Only if you are sentences to death do you get a paid lawyer if you are indigent. State and fed habeous almost entirely death penalty cases.

e) In fed hab, you can pursue claims rejected on direct appeal to USSC and state habeas

C. Why punish?

1. Deterrence

a) General – society at large

b) Specific – incapacitate

2. Incapacitation

3. Retribution

a) Vengence – Catharsis – societal release / Social order

b) Deserve it – Right moral response – Kant,. We have to punish even if it doesn’t serve a purpose.

c) Preserving equality – eye for eye. Restoring

1) Defense lawyer’s – No more than an eye for an eye. Should be proportional and no greater than harm done by defender

4. Rehabilitation

D. Reiman – Justice, Civilization, and the Death Penalty.

Accepts that some crimes deserve CP , and that evidence that CP was a substantially better deterrent to murder than life imprisonment would justify imposing it.

1. Death Penalty is a just punishment because lex talionis, an eye for an eye is just. Retributivist principle says that 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.

a) Hegel held that crime upsets the equality between persons and retributive punishment restores that equality by “annulling” the crime.

b) Kant held that since reason is no respecter of the sheet difference between individuals, when a rational being decides to act in a certain way toward his fellows, he implicitly authorizes action by his fellows toward him.

E. Nathanson – Does It Matter If the Death Penalty is Arbitrarily Administered?

1. DP ought to be abolished because it has been and will be imposed in an arbitrary manner.

2. Van Den Haag’s View

a) Van der Haag’s response to race as an impermissible factor. If there is a grp of deserving people, the fact that some escape the punishment isn’t a good argument. It’s an argument that we do more by throwing a wider net. If it’s a social or moral good then the fact that we can’t be perfect doesn’t mean we should get rid of the sys. We should retain as long as the people who deserve it continue to get punished.

b)van den Haag believes that justice of a particular punishment is a noncomparative matter; it depends solely on what a person deserves and not on how others are treated. For him, evidence of arbitrariness and discrimination is irrelevant so long as those executed are guilty and deserved their punishment.

3. Black said determination of who dies – the first step – is itself arbitrary. Even the most conscientious officials could not make pricipled judgments about desert in these instances, because our laws do not contain clear principles for differentiating those who deserve to die from those who do not.

4. Simply knowing that someone is factually guilty of killing another person is far from sufficient for determining that he deserves to die and if prosecutors, juriesm and judges do not have criteria which enable them to classify those who are guilty in a just and rational way, then their judgment about who deserves to die will necessarily be arbitrary and unprincipled.

a) It is unfair and arbitrary for picking one over another because of reasons that are irrelevant to the nature of the crime or the criminal

b) Individuals might not be aware that irrelevant factors are influencing them.

5. If we cannot be confident that those who are executed in fact deserve to die, then we ought not to allow executions to take place at all.

6. Treatment of classes of people is relevant to determining the justice of punishments for individuals. When the influence of irrelevant factors is ineradicable, we cannot provide a just system of punishment.

7. There is arbitrariness in the penal system but this doesn’t mean we have to reject all punishment or reject the idea that this is sufficient grounds for abolishing the DP

a) Death is much more severe than imprisonment.

b) Death is unnecessary for protecting citizens, while punishment generally are thought to promote our safety and well-being.

Nathanson – because of its unequal application we should get rid of punishment.

Views DP as a luxury. Not an essential part of our crim justice sys
Not just arbitrary but it is ambiguous.
Arbitrary because it relies on irrelevant or invidious, discriminatory factors.

Penalty can be arbitrary by being underinclusive. Nathanson said the prob isn’t just underinclusion but overinclusion as well.

We don’t have any standard or guidance in figuring out who deserves to die and who does not.
Deserving Ds ? unprincipled exemptions  don’t counsel against punishment.

F. Van Den Haag – Refuting Reiman and Nathanson

Hindrance to the

Occurs in mostly nondemocratic societies

Vestige of totalitarian societies.
Atkins – Ct looks to international opinion. Dissent argues we should never look to world opinion.
Supporter say the US is a more direct democracy. Counter: poll # similar in Europe and us.
His response to retribution – people may deserve death penalty but there are separate reasons why we should withhold.

Whipping – for some crimes it is not an undeserved punishment. Torture might be deserved but we do not do this.


Notions of violations of bodily integrity. Denies human dignity, is degrading to person.

Depriving person of senses. Confinement is not as consuming.

van de hag – death is not like torture.

Possibility of error is not our problem.
Studies challenged as methodologically flawed.
Deterrence as the principle argument for the death penalty. This is not used as much today. Today almost no one who supports it argued it because 1) equivocal status of the empirical evidence as a deterrence 2) our society is increasing arguing retribution. Retributive argument is immune from empirical evidence.
In the past people were more reluctant to argue retribution because they were afraid to say people deserve to die. The system was viewed as one that had as a goal rehabilitation.
II. The Constutionalization of CP

A. McGautha v. California / Crampton v. Ohio Due process challenge to unguided discretion

1. Overview - Before 1960s there were no significant decisions by SC limiting state death penalty practices. Before 1960s there were tot to be very few federal provision that applied to the states. Ie. 5th amend, right to self incrimination, guarantee against double jeopardy, due process, 6th- jury trial, jury trial , 8th – cruel and unusual punishment, 4th – unreasonable search and seizures

a) 4th amend did not carry the exclusionary rule till 50s and 60s.

b) Through incorporation in the 1960s via 14th amendment due process clause 4,5,6,8 amendment was found to apply to states.

c) As part of the civil rights movement was the move against the death penalty. NAACP challenged in every capital case the newly recognized incorporations.

d) Dissent from denial of cert in 1962. first indication by SC that the constitution might address state death penalty practices.

e) 1968 Witherspoon - ability of state to exclude from cap jury anyone who had any reservations against death penalty. Argued that jury trial right violated. Right to a fair cross section of the community. Excluding those who oppose it would not represent a cross-section. Ct said you cannot strike people from jury. Only if they absolutely refuse to sentence someone to death.

f) By late 1960s, growing sense that DP will be abolished. Internationally DP is under tremendous pressure.

g) Civil Rights Movement  Shift in public attitudes toward due process  NAACP litigation strategy  incorporation of Bill of rights De facto moratorium

2. Facts: Decision whether the D should live or die was left to the absolute discretion of the jury.

3. Issues:

a) Whether the D’s constitutional rights were infringed by permitting the jury to impose the DP without any governing standards.

b) Whether the jury’s imposition of the death sentence in the same proceeding

and verdict as determined the issue of guilt was constitutionally permissible.

4. Court’s opinion (Harlan) beyond human ability  not constitutionally required

a) Standard-less. Absence of a standard is ok. Harlan says we cannot ask jury to do something it cannot do. If we try to write it down on paper it would be an endless task

b) Argument is it might be under or over inclusion. States should give greater guidance in decision who should live or die. Standards that communicate the state’s theory.

c) Unitary trial on both issues of punishment and guilt in capital case did not create an intolerable tension between defendant's constitutional right not to be compelled to be a witness against himself and alleged due process right to be heard on issue of punishment and not to have the sentence fixed without benefit of all relevant evidence by forcing him to choose whether to remain silent on issue of guilt at cost of surrendering any chance to plead his case on issue of punishment or testifying on issue of punishment at risk of damaging his case on guilt

5. Concurring Opinion (Douglas, Brennan, Marshall) “Undeniable tension”

a) Unitary trial does not satisfy the Due Process of 14th Amend.

b) Right to avoid self-incrimination is burdened in a unitary trial because any attempt to argue for mitigation might entail a surrender of one’s right against self-incrimination.

c) D should not be restrained when putting before the court all relevant facts. He does not have this freedom where the issues are tied to question of guilt.

d) Mitigating evidence might include past convictions and other information which may prejudice the jury’s decision on guilt. (ie. Drug use, prior crimes)

6. Dissenting Opinion (Douglas, Brennan, Marshall)

a) Due process requires States to protect individuals against the arbitrary exercise

of power by assuring that the fundamental policy choices underlying any exercise of state power are explicitly articulated by some responsible organ of government.

b) Due process is denied by state procedural mechanisms that allow for the exercise of arbitrary power without providing any means whereby arbitrary action may be reviewed or corrected.

c) Where federally protected rights are involved, due process is denied by state

procedures which render in efficacious the federal judiciary machinery that has been established for the vindication of those rights.

7. Class discussion

a) Bifurcation into Guilt / innocent and Punishment phase

1) Reason: D has to concede guilt or take risk that he will get executed.

2) Ct ruled : Bifurcation is not constitutionally required.

b) At the state level we communicate more clearly offenses that qualify for death

instead of at a lower political level.

c) Does it make sense to direct juries to relevant circumstances to consider?

1) Even if it isn’t helpful it will get the jury talking in those terms rather than on discriminatory terms.

B. Furman v. Georgia / Jackson v. Georgia / Brach v. Texas - Concerned about the distribution of the DP. Held that the DP in these cases was in violation of the 8 and 14th amend.

1. Douglas concurring - Equal protection take on the 8th Amendment.

a) Death penalty inflicted on one D is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it imposed under a procedure that gives room for the play of such prejudices.

b) A penalty is “unusual” is it is administered arbitrarily or discriminatorily. Extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.

c) With no standards because live or die, depending on the whim of one man or of 12.


To address the concerns of Douglas, White and Stewart, the state must create a standard or increase the # of people who are executed. Have problem with arbitrariness. W+S with infrequency
) Caste application - Very few people get executed and people who are executed are usually poor and minority. Total discretion lets people to discriminate. Cruel and unusual if unequally applied.

1) Absence of standard we have discrimination based on race and class.

2) “cruel and unusual” clause requires laws that are evenhanded, nonselective, nonarbitary, and requires judges to see that they are not selectively applied to unpopular groups.

3) Only way to get rid of discrimination is to have articulated standard.

2. White – If goal is deterrence or retribution, these purposes cannot be served

unless a large number are put to death. The # of people who could be put to death is large yet only a small fraction is sentenced to death.

a) When imposition of penalty reaches a certain degree of infrequency, doubtful

general need for retribution would be measurable satisfied.

b) Specific deterrence is not met when so few are put to death. Ceases to be a

credible threat to criminals.

c) Cruel and unusual because it does not serve any social purpose

3. Stewart – Like a lottery. Because it is like a lottery it is too arbitrary. Did not rationally distinguish between who would live and who would die.

a) Arguments focused on the DP as a mode of punishment.

b) DP differs from other punishment in kind. It is unique because

1) It is irrevocable

2) Rejections rehabilitation as the purpose of the system

3) Renounces all that is embodied in our concept of humanity.

c) DP is cruel because they go beyond, not in degree but in kind, the punishments that state legis have determined to be necessary.

d) Sentences are unusual if infrequently imposed.

e) Capriciously selected – “wantonly and so freakishly imposed” similar to being “struck by lightening”

4. Brennan – the wide gap between those eligible and those who are sentenced to death reflects reluctance. DP is unique. Violates human dignity.

a) Americans had demonstrated their rejection of the death penalty by their gradually mounting refusal to put it into practice.

b) 4 principles

1) A punishment must not be so severe as to be degrading to the dignity of human beings

A) It is a denial of human dignity for the State to arbitrarily

subject a person to an unusually severe punmishment 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.

B) Death is unique because of its extreme severity. Unusually severe in its pain, finality, and enormity. Nothing comparable to it in its physical and mental suffering.

2) A gov’t “must not arbitrarily inflict a severe punishment”

A) In a country of over 200M people, 50 executions/yr is a

strong inference that the punishment is not being regularly and fairly applied. When punishment of death is inflicted in a trivial # of cases in which it is legally avail, conclusion is that it is being inflicted arbitrarily. Like a lottery system.

Brennan and Marshall unambiguously declared the DP unconstitutional. Contrary to evolving stands of decency/violates human dignity Stewart, White, and Douglas has found fault only with the way the states administered CP.
) Disparity - Steady decline in executions while number of cap crimes committed has gone up.

3) A severe punishment must not be unacceptable to contemporary society

A) DP rejected by contemporary society.

B) Progressive decline in and rarity of infliction of death demonstrates that society seriously questions the appropriateness of the punishment.

C) When an unusually severe punishment is authorized for wide-spread application but inflicted in few instances, we can infer that there is a deep-seated reluctance to inflict it.

4) A severe punishment must not be excessive in view of the purposes for which it is inflicted.

A) Deterrence – Risk of death is remote and improbable. No reason to believe that as currently administered, DP is necessary to deter cap crime.

B) Just punishment – Cannot be justified as a necessary means of exacting retribution when the overwhelming # of criminals who commit cap crimes go to prison.

C) Does not serve a penal purpose.

5. Marshall

a) Cruel and unusual language must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

b) Way to gauge public opinion is not polls or what legislature thinks but what it would think if it were informed.

c) CP is abhorrent to currently existing moral values.

6. Dissent Go out of their way to say it is unnecessary and abhorrent.

b) Burger

1) No objective indication that it is rejected by the public

2) If what is needed is a withdrawal of discretion he would find this to be worse. He would prefer no DP if this was the only alternative.

3) Infrequency of DP imposed by juries attests to their cautious ad

discriminating reservation of that penalty for the most extreme cases.

c) Blackmun

1) Authority to make this decision should not be taken over by the


C. Effect of Furman

1. 35 states redraft their DP statutes.

2. New Types of Statutes

a) Guided discretion statutes (TX, FL, GA) enumeration of aggravating factors

1) GA Statute – To inflict DP, jury must find at least one aggravating

circumstance beyond a reasonable doubt and recommend such sentence. Shall consider any mitigating circumstance.

2) FL Statute – Jury weighs the aggravating and mitigating circumstances.

A) Does not leave ultimate decision to a jury but to a judge after the jury recommends death

B) Florida enumerates mitigating factors.

b) Mandatory DP (states enacted this. LA, NC)

D. Gregg vs. Georgia – Aftermath was states that had enacted mandatory death sentences after Furman quickly switched to guided discretion schemes

1. Judgment of the Court (Stewart, Powell, Stevens) New safeguards address the arbitrariness

a) GA Statute Highlights: None of these individual things appear indispensable but as a whole they bring us sufficiently away from the pre-Furman era.

1) There’s a mandatory appellate review

2) Consideration of mitigation

3) There’s proportionality review

4) Bifurcation

b) Public endorsement of DP - Large proportion of American society continues to regard DP as an appropriate and necessary criminal sanction.

1) This goes against the evolving “standards of decency” argument

2) Legislative response – 35 states enacted new statutes that provide for DP. Congress enacted statute proving for DP in aircraft piracy cases.

A) Statute tried to address Furman concerns

1] By specifying the factors to be weighed and the procedures to be followed in deciding when to impose a cap sentence; or

2] By making the death penalty mandatory

3) 8th amend demands more than that a challenged punishment be acceptable to contemporary society. Court must also ask whether it comports with the basic concept of human dignity.

c) Sanction cannot be imposed without penological justification that results in gratuitous infliction of suffering.

d) DP serves social purposes of retribution and deterrence

e) In absence of more convincing evidence, DP is not without justification and is

not unconstitutionally severe.

f) Death penalty is unique in its severity and irrevocability but we cannot say that it is invariably disproportionate to the crime of murder.

g) Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of life/ death, discretion must be suitably directed and limited so as to minimize risk of wholly arbitrary and capricious action.

h) Furman concerns that DP not be imposed arbitrarily and capriciously can be met by a carefully drafted statute that ensures that sentencing authority is given adequate info and guidance. Best met thru a bifurcated proceeding.

1) Procedural rule alone is not sufficient to guarantee that information will be properly used by the jury in sentencing. Problem is alleviated if jury is given guidance regarding the factors about the crime and the D that is relevant to sentencing.

2. Marshall’s Dissent

a) DP is excessive. An excessive penalty is invalid under the cruel and unusual punishments clause even though popular sentiment may favor it.

b) Retribution is vengeance and that is not a good reason.

c) Punishment must comport with basic concept of human dignity

E. Florida System

1. Proffitt v. FL

a) Upheld FL statute

b) Judge sentencing is not unconstitutional. Might lead to greater consistency in sentencing since judge is more experienced in sentencing than a jury.

2. Huge debate over the exclusiveness of the mitigation list. What about provocation?

Ultimately the court said you can’t limit the range of mitigating factors.

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