Capital Punishment

Capital Punishment

The Court's 1972 decision in Furman v. Georgia,56 finding constitutional deficiencies in the manner in which the death penalty was arrived at but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. In the long run the ruling may have had only minor effect in determining who is sentenced to death and who is actually executed, but it had the indisputable effect of constitutionalizing capital sentencing law and of involving federal courts in extensive review of capital sentences.57 Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review. Furman and the five 1976 followup cases that reviewed state laws revised in light of Furman re-affirmed the constitutionality of capital punishment per se, but also opened up several avenues for constitutional review. Since 1976, the Court has issued a welter of decisions attempting to apply and reconcile the sometimes conflicting principles it had announced: that sentencing discretion must be confined through application of specific guidelines that narrow and define the category of death-eligible defendants and thereby prevent arbitrary imposition of the death penalty, but that jury discretion must also be preserved in order to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class.

While the Court continues to tinker with application of these principles, it also has taken steps to attempt to reduce the many procedural and substantive opportunities for delay and defeat of the carrying out of death sentences, and to give the states more leeway in administering capital sentencing. The early post-Furman stage involving creation of procedural protections for capital defendants and premised on a "death is different" rationale,58 gave way to increasing impatience with the delays made possible through procedural protections, especially those associated with federal habeas corpus review.59 Having consistently held that capital punishment is not inherently unconstitutional, the Court seems bent on clarifying and even streamlining constitutionally required procedures so that those states that choose to impose capital punishment may do so without inordinate delays. In the habeas context, the interest in finality has trumped a death-is-different approach.60 Then, in In re Troy Anthony Davis,4 the Court found a death-row convict with a claim of actual innocence to be entitled to a district court determination of his habeas petition. Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, “refuse[d] to endorse” Justice Scalia's reasoning (in a dissent joined by Justice Thomas) that would read the Constitution to permit the execution of a convict “who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” The writ has also been restricted statutorily.61

56 408 U.S. 238 (1972).

57 See Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355 (1995).

58 See, e.g., Gardner v. Florida, 430 U.S. 349, 357-58 (1977): "From the point of view of the defendant, [death] is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance . . . that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion."

59 See, e.g., Barefoot v. Estelle, 463 U.S. 880, 888 (1983): "unlike a term of years, a death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding. Accordingly, federal courts must isolate the exceptional cases where constitutional error requires retrial or resentencing as certainly and swiftly as orderly procedures will permit." See also Gomez v. United States District Court, 503 U.S. 653 (1992) (vacating orders staying an execution, and refusing to consider, because of "abusive delay," a claim that "could have been brought more than a decade ago"—that California's method of execution (cyanide gas) constitutes cruel and unusual punishment).

60 In Herrera v. Collins, 506 U.S. 390, 405 (1993), the Court rejected the position that "the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus," and also declared that, because of "the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, . . . the threshold showing for such an assumed right would necessarily be extraordinarily high." Id. at 417.

4 130 S. Ct. 1 (2009).

61 See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

Changed membership on the Court has had an effect. Gone from the Court are Justices Brennan and Marshall, whose belief that all capital punishment constitutes cruel and unusual punishment resulted in two automatic votes against any challenged death sentence.62 Strong differences remain over such issues as the appropriate framework for consideration of aggravating and mitigating circumstances and the appropriate scope of federal review, but as of 2002 a Court majority still seemed committed to reducing obstacles created by federal review of death sentences imposed under state laws that have been upheld as constitutional.

62 Gone too is Justice Blackmun, whose early support for capital punishment gave way near the end of his career to a belief that the Court's effort to reconcile the twin goals of fairness to the individual defendant and consistency and rationality of sentencing had failed, and that the death penalty "as currently administered, is unconstitutional." Callins v. Collins, 510 U.S. 1141, 1159 (1994) (dissenting from denial of cert. and announcing that, “[f]rom this day forward, I no longer shall tinker with the machinery of death,” id. at 1145). Justice Stevens has also concluded that the death penalty violates the Eighth Amendment, but, because of his wish “to respect precedents that remain a part of our law,” he does not constitute an automatic vote against challenged death sentences. Baze v. Rees, 128 S. Ct. 1520, 1552 (2008) (finding the death penalty to violate the Eighth Amendment but concurring with the Court plurality that Kentucky’s lethal injection protocol does not violate the Eighth Amendment). In Thompson v. McNeil, 129 S. Ct. 1299 (2009), Justice Stevens dissented from a denial of certiorari where the defendant had spent 32 years on death row; Justice Stevens found “such delays . . . unacceptably cruel.” Id. at 1300. Justice Breyer dissented separately, and Justice Thomas concurred in the denial of certiorari.

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The Court's 1972 decision in Furman v. Georgia,56 finding constitutional deficiencies in the manner in which the death penalty was arrived at but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. In the long run the ruling may have had only minor effect in determining who is sentenced to death and who is actually executed, but it had the indisputable effect of constitutionalizing capital sentencing law and of involving federal courts in extensive review of capital sentences.57 Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review. Furman and the five 1976 followup cases that reviewed state laws revised in light of Furman re-affirmed the constitutionality of capital punishment per se, but also opened up several avenues for constitutional review. Since 1976, the Court has issued a welter of decisions attempting to apply and reconcile the sometimes conflicting principles it had announced: that sentencing discretion must be confined through application of specific guidelines that narrow and define the category of death-eligible defendants and thereby prevent arbitrary imposition of the death penalty, but that jury discretion must also be preserved in order to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class.

While the Court continues to tinker with application of these principles, it also has taken steps to attempt to reduce the many procedural and substantive opportunities for delay and defeat of the carrying out of death sentences, and to give the states more leeway in administering capital sentencing. The early post-Furman stage involving creation of procedural protections for capital defendants and premised on a "death is different" rationale,58 gave way to increasing impatience with the delays made possible through procedural protections, especially those associated with federal habeas corpus review.59 Having consistently held that capital punishment is not inherently unconstitutional, the Court seems bent on clarifying and even streamlining constitutionally required procedures so that those states that choose to impose capital punishment may do so without inordinate delays. In the habeas context, the interest in finality has trumped a death-is-different approach.60 Then, in In re Troy Anthony Davis,4 the Court found a death-row convict with a claim of actual innocence to be entitled to a district court determination of his habeas petition. Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, “refuse[d] to endorse” Justice Scalia's reasoning (in a dissent joined by Justice Thomas) that would read the Constitution to permit the execution of a convict “who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” The writ has also been restricted statutorily.61

56 408 U.S. 238 (1972).

57 See Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355 (1995).

58 See, e.g., Gardner v. Florida, 430 U.S. 349, 357-58 (1977): "From the point of view of the defendant, [death] is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance . . . that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion."

59 See, e.g., Barefoot v. Estelle, 463 U.S. 880, 888 (1983): "unlike a term of years, a death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding. Accordingly, federal courts must isolate the exceptional cases where constitutional error requires retrial or resentencing as certainly and swiftly as orderly procedures will permit." See also Gomez v. United States District Court, 503 U.S. 653 (1992) (vacating orders staying an execution, and refusing to consider, because of "abusive delay," a claim that "could have been brought more than a decade ago"—that California's method of execution (cyanide gas) constitutes cruel and unusual punishment).

60 In Herrera v. Collins, 506 U.S. 390, 405 (1993), the Court rejected the position that "the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus," and also declared that, because of "the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, . . . the threshold showing for such an assumed right would necessarily be extraordinarily high." Id. at 417.

4 130 S. Ct. 1 (2009).

61 See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

Changed membership on the Court has had an effect. Gone from the Court are Justices Brennan and Marshall, whose belief that all capital punishment constitutes cruel and unusual punishment resulted in two automatic votes against any challenged death sentence.62 Strong differences remain over such issues as the appropriate framework for consideration of aggravating and mitigating circumstances and the appropriate scope of federal review, but as of 2002 a Court majority still seemed committed to reducing obstacles created by federal review of death sentences imposed under state laws that have been upheld as constitutional.

62 Gone too is Justice Blackmun, whose early support for capital punishment gave way near the end of his career to a belief that the Court's effort to reconcile the twin goals of fairness to the individual defendant and consistency and rationality of sentencing had failed, and that the death penalty "as currently administered, is unconstitutional." Callins v. Collins, 510 U.S. 1141, 1159 (1994) (dissenting from denial of cert. and announcing that, “[f]rom this day forward, I no longer shall tinker with the machinery of death,” id. at 1145). Justice Stevens has also concluded that the death penalty violates the Eighth Amendment, but, because of his wish “to respect precedents that remain a part of our law,” he does not constitute an automatic vote against challenged death sentences. Baze v. Rees, 128 S. Ct. 1520, 1552 (2008) (finding the death penalty to violate the Eighth Amendment but concurring with the Court plurality that Kentucky’s lethal injection protocol does not violate the Eighth Amendment). In Thompson v. McNeil, 129 S. Ct. 1299 (2009), Justice Stevens dissented from a denial of certiorari where the defendant had spent 32 years on death row; Justice Stevens found “such delays . . . unacceptably cruel.” Id. at 1300. Justice Breyer dissented separately, and Justice Thomas concurred in the denial of certiorari.

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