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Death Penalty Outline
Professor Rambo
Fall 2009
Introduction
The 8th^ Amendment is applied through the 14th^ Amendment, cruel and unusual
punishment is defined by evolving standards of decency.
The 8th^ Amendment proscribes the imposition of “cruel and unsual” punishment.
The provision is applicable to the states through the 14 th^ Amendment. Furman v.
Ga. As the court explained in Atkins , the 8 th^ A guarantees individuals the right not
to be subjected to excessive sanctions. To determine which punishments are so
disproportionate as to be cruel and unusual, we look to “the evolving standards of
decency that mark the progress of a maturing society.” The beginning point is a
review of objective indicia of consensus, as expresses in particular by the
enactments of legislatures that have addressed the question. We then must
determine, in the exercise of our own independent judgment, whether the DP is a
disproportionate punishment for ___.
As in Atkins , the objective indicia of consensus in this case- the rejection of
the juvenile DP in the majority of States; the infrequency of its use even where it
remains on the books; and the consistency in the trend toward abolition of the
practice – provide sufficient evidence that today our society views ___, in the words
Atkins used respecting the mentally retarded, as “categorically less culpable than
the average criminal.”
Next, since DP is the most severe punishment, it must be limited to those
offenders who commit a “narrow category of the most serious crimes” and whose
extreme culpability makes them “the most deserving of execution.” Atkins.
A. Imposing the Death Penalty
A.1. Rolling v. State (Fla. 1997) Pur Curiam (court speaking as voice, no one claiming authorship) A.a. Rolling pled guilty to the murders of five college students. Jury recommended death. At issue was whether the jury instruction regarding heinous, atrocious, and cruel aggravating factor and whether the penalty was disproportionate. A.b. To see Aggravating & Mitigating Factors, see other outline. A.c. Rolling argues the TC erred in finding the heinous, atrocious, or cruel aggravating circumstance as to Sonya Larson because there was no evidence she, who was attacked in her sleep, anticipated her death or otherwise endured extreme pain or prolonged suffering. A.d. Heinous, Atrocious, or Cruel Aggravator- only look at D’s actions pre-death of victim A.i. Viewed from perspective of what society would view as HAC A.ii. No evidence victim anticipated death or endured extreme/prolonged pain & suffering, BUT A.iii. Evidence she was conscious 30-60 seconds before death, wounds characterized as defensive, moth taped and did not die instantaneously= Proper to find HAC aggravator A.e. Rolling argues TC gave an unconstitutionally vague Jury Instruction re: HAC factor A.iv. Heinous means especially wicked or shockingly evil
A.v. Atrocious means outrageously wicked and vile A.vi. Cruel means designed to influence a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others A.2. Harlan (Colo. 2005)- other jury instruction case. A.f. Jury cannot use an extraneous source to determine what words in instruction mean or what sentence should be imposed. The fact that a juror read the Bible and introduced specific references from it was not proper, cannot use the Bible for guidance in decision making. A.3. Gregg v. Georgia (USSC 1976)- H: DP is not cruel & unusual A.g. (^) Issue: whether the Death Penalty for the crime of murder is, under all circs, cruel and unusual punishment in violation of the 8 th^ and 14th^ Amendments. A.h. D argued that standards of decency had evolved to the point where capital punishment no longer could be tolerated. A.i. Court reviewed the history of the 8th^ and the imposition of the DP A.vii. Capital punishment was considered by framers and found that was intended. Next, must consider the parameters of when it can be imposed. 8 th demands that punishment be acceptable to contemporary society & must comport with concept of human dignity. A.viii. The 8 th^ A must draw its meaning from the “evolving standards of decency that mark the progress of a maturing society.” A.a. To define this must look at the direction state legislatures are taking A.b. The direction jurors are taking in regards to imposing DP or not A.c. The stance other countries have taken on this issue A.ix. A punishment must also accord with “the dignity of man.” So, the punishment cannot be excessive or disproportionate to crime committed. A.d. First, the punishment must not involve the unnecessary and wanton infliction of pain. A.e. Second, the punishment must not be grossly disproportionate to the severity of the crime. A.x. In assessing a punishment selected by the legislature we presume its validity. A.j. Twin Aims of Death Penalty : A.xi. Retribution - is a natural instinct of man, and channeling that instinct in the administration of criminal justice serves the purpose of promoting the stability of a society governed by law. When ppl begin to think that society is unwilling or unable to impose the punishment “deserved,” people are more likely to start taking self-help measures. A.f. Should the victim’s desire for retribution be taken into account? Now, we only permit victim impact statements as aggravating factor. A.xii. Deterrence - Specific/ General A.xiii. Possibly also incapacitation (not necessarily a goal but definitely achieved). A.4. Carey v. Musladin, 549 US 70 (2006)- optional A.5. Deck v. Missouri, 544 US 622 (2005)- optional- shackling- 5 th^ A DP challenge
B. Policy Points
A.6. Uttecht v. Brown (USSC 2007) 5-4, Kennedy opinion A.k. Issue: Did the TC violate Brown’s 6 th^ (right to fair trial) and 14 th^ A rights by excusing juror for cause on the ground that he could not be impartial in deciding whether to impose a death sentence. A.l. Rule : Criminal D has right to an impartial jury that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause, and the
A.a. Deterrence- executing insane provides no example to others and thus contributes nothing to whatever deterrence value capital punishment is intended to serve A.b. Retribution- if D cannot understand why he is being punished then it serves no retributive purpose, instead is just blind vengeance. Retributive force depends on D’s awareness of the penalty’s existence and purpose. A.i. The need to offset a criminal act by punishment of equivalent “moral quality” is not served by execution of an insane person, which has a “lesser value” than that of the crime for which he is to be punished. A.iii. Religious- insane can’t get “right” with God- i.e., cant prepare mentally and spiritually for afterlife A.iv. Insanity/madness is itself its own punishment A.v. Death of insane ≠ death of victim- i.e., no proportionality in punishment if D can’t understand A.vi. Cannot aid in assistance of counsel- participation in last minute appeals A.h. Next, look at the adequacy of procedures used to determine if he was insane. Decided on DP grounds must be accorded proper due process in determining the sanity of an individual. A.vii. Since FL’s procedures for determining sanity of a death row prisoner were not “adequate to afford a full and fair hearing” on the issue, the petitioner was entitled to an evidentiary hearing in the district court, de novo , on the question of his competence to be executed. A.viii. FL’s procedure: when Gov is informed an inmate may be insane, he must stay the execution & appoint 3 psychiatrists to examine the D at the same time. Then Gov determines whether D has the mental capacity to understand the DP and the reasons why it was imposed on him. FL’s scheme was deficient in that it precluded the D from presenting material relevant to his sanity, denied the opportunity to challenge or impeach the state psychiatrists’ opinions, and placed the decision wholly within the executive branch. A.i. Did not set a precise standard for incompetency A.3.Provezano v. State (Fla. 2000): In dissent, Anstead argues what is required should be more than awareness; the D should have a rational understanding of why he is being executed. Powell’s concurrence in Ford : If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. A.4. Panetti v. Quarterman (USSC 2007) 5-4 opinion. A.j. Kennedy, Stevens, Souter, Ginsburg, Breyer v. Thomas, Roberts, Scalia, Alito. A.k. Read Ford as 8 th^ prohibiting carrying out the execution of a prisoner who is mentally insane, and once the prisoner makes the requisite preliminary showing, the 8th^ Amendment, applicable to the States under the DPC of the 14 th^ A, entitles him to an adjudication to determine his mental condition. A.l. Issue: Does the 8th^ permit the execution of a prisoner whose mental illness deprives him of “the mental capacity to understand that he is being executed as punishment for a crime”? What is the standard a D need to show to prove he is incompetent to be executed? A.m. Panetti suffered from documented mental illness/gross delusions, but was not accorded hearing. A.ix. F: Defendant found competent to be tried and to waive counsel, and at trial he claimed he was not guilty by reason of insanity! D understood
the state claimed it wished to execute him for the murders, but he thought the state was really executing him to stop him from preaching. A.n. CoA: he was aware (1) he committed the murders (2) he will be executed & (3) the reason the State gave for execution is his commission of the crimes. Thus, he is aware of the reasons for his execution. A.o. USSC: A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. A.x. “Rational understanding” is difficult to define. And we must not ignore the concern that some prisoners , whose cases are not implicated by this decision, will fail to understand why they are to be punished on account of reasons other than those stemming from a severe mental illness. The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered “normal” or even “rational” in layperson’s terms. Some prisoners condemned to death may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept at transferring blame to others as to be considered out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petition contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It’s a psychotic disorder. A.c. Rambo Q : What is the court saying? Only concerned with psychotic disorder. What about narcissism? What about an amoral person who would never have a rational understanding? A.p. Rule : Petitioner’s submission is that he suffers from a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced. This argument, we hold, should have been considered. A.q. Even if D has awareness of state’s states reason, gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can no longer serve its purpose. A.xi. Rambo Q: Can this be extended beyond a death penalty context? If you have to have a rational understanding of what you are being punished in DP context, why not apply to all offenses? A.5. Syllabus Question : What if a prisoner says he just “can’t remember” the killings? A.6. Exam Question : What if you equally believed that you were being put to death because you committed the crime AND because you believed the state didn’t like the color of your eyes? A.7.Awareness v. Rational Understanding: Not just that you are aware of it (b/c you have been told by the state) v. understanding that I murdered someone & because I murdered someone, I will be executed.
B. Medicating to Execute- An Undecided Issue : Forced medication challenges
arising under the 5th^ Amendment due process “liberty” interest and under the 8 th^ Amendment. A.8. Sell v. US (USSC 2003) 6-3- medicating to render competent to stand trial A.r. Issue: does forced administration of antipsychotic drugs to render Sell competent to stand trial unconstitutionally deprive him of his “liberty” to reject medical treatment? 5th^ Amendment. A.xii. Precedent ( Harper ) recognized that an individual has a significant constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs. State law authorized forced medication
rendering the D competent to stand trial. A court need not consider whether to forcibly medicate for that kind of purpose if it is warranted for a different purpose , such as the purposes set out in Harper related to the individual’s dangerousness, or purposes related to the individual’s own interests where refusal to take drugs puts his health gravely at risk. There are strong reasons for a court to determine whether forced medication is be justified on these alternative grounds before turning to the trial competence Q. A.xviii. So on exam, say: Since there are no other interests justifying forced medication, we now turn… A.9. Singleton v. Norris (8 th^ Cir 2003) A.w. Interrelated issues= whether the State may forcibly administer antipsychotic medication to a prisoner whose date of execution has been set and whether the State may execute a prisoner who has been involuntarily medicated under a Harper analysis.” A.xix. Singleton argues that the involuntary med regime, initially constitutional under Harper , becomes unconstitutional once an execution date is set b/c it ceases to be in the his best medical interest. A.xx. Good language re: Ford & Harper p. A.x. This issue is one of first impression for this court and is a question of law we review de novo. A.y. The govt has an essential interest in carrying out a lawfully imposed sentence. Society’s interest in punishing offenders is at its greatest in the narrow class of capital murder cases in which aggravating factors justify imposition of the death penalty. This societal interest must be weighed against Singleton’s interest in being free of unwanted antipsychotic medication. Here, Singleton prefers to take the medication rather than be in an unmediated and psychotic state. In addition, he has suffered no substantial side effects. On these facts, the State’s interest in carrying out its lawfully imposed sentence is the superior one. A.z. The factor Singleton contends takes him outside the scope of Harper is not the existence of serious harmful side effects or an insufficient medical need, but the very psychosis-reducing effect of the medicine. Eligibility for execution is the only unwanted consequence of the medication. The DP interests in life & liberty that he asserts have been foreclosed by the lawfully imposed sentence of execution & the Harper procedure. In these circs, the best medical interests of the prisoner must be determined without regard to whether there is a pending date of execution. Thus the mandatory medicine regime does not become unconstitutional under Harper when an execution date is set. A.aa. Closely related to his DP argument, Singleton also claims that the 8th Amendment forbids the execution of a prisoner who is “ artificially competent .” See Perry discussion below. The findings below support a conclusion that the state was under an obligation to administer antipsychotic medication, thus any additional motive or effect is irrelevant. Ford prohibits only the execution of a prisoner who is unaware of the punishment he is about to receive and why he is to receive it. A State does not violate the 8 th^ A as interpreted by Ford when it executes a prisoner who became incompetent during his long stay on death row but who subsequently regained competency through appropriate medical care. A.bb. DISSENT: I believe that to execute a man who is severely deranged without treatment, and arguably incompetent when treated, is the pinnacle of what Justice Marshall called “the barbarity of exacting mindless vengeance.” Ford. MY reasoning is guided by the decisions of the USSC, and supported by the rulings of state courts which have considered the issue, the overwhelming majority of scholarly commentary, and the ethical standards of the medical profession.
A.xxi. II.A- thinks Singleton’s drug-induced sanity is not the same as true sanity. He is not cured, and underneath his mask of stability, he remains insane. Ford ’s prohibition on executing the insane should apply with no less force to Singleton than to untreated prisoners. A.xxii. Also, forcing medication that will lead to execution may be violative of the 8th^ Amendment’s prohibition against excessive punishment. A.xxiii. II.B- It is difficult to determine whether the State is medicating a prisoner to protect him from harming himself or others, or whether the State is medicating him to render him competent for execution (an invalid purpose). Here, even the majority recognizes two competing state interests: the safety of the prison guards and inmates and its interest in exacting punishment. At the very least, setting an execution date calls into question the State’s true motivation. The circs of the case changed once the execution date was set, and changed so that Harper no longer supports forced medication. A.xxiv. II.C-the majority holding will result in forcing the medical community to practice in a manner contrary to its ethical standards. Physicians are duty bound to act in their patient’s best interests. A.10. State v. Perry (La. 1992)- see intro A.cc. The Perry court, noting that the Louisiana provision is an expansion on the protections of the 8th^ Amendment, concluded that the execution of an insane inmate who had been forcibly medicated into competence would violate the state constitution. The Perry court accepted the view of “best medical interests” that the Singleton rejected. The Perry court also found Perry’s medication was ordered solely for purposes of punishment and not for legitimate reasons of prison security or medical need. A.dd. Distinguishes Harper p.8. Harper implies that forced administration of antipsychotic drugs may not be used by the state for the purpose of punishment. A.11. Syllabus Question : Do you agree more with the reasoning of Sell or Singleton? A.12. Please consider the following in the context of the “medicating to execute” issue: A.ee. What if it is against your religion to take drugs of any kind? A.ff. What if you are prisoner and you have a tumor that is rendering you mentally incompetent. Should the prison/court/governor be able to order you to undergo an operation to remove the tumor in an attempt to restore you to competency? A.gg. What if you are a prisoner and you intentionally take a drug or substance that will render you insane or mentally incompetent? What if you deliberately render yourself mentally incompetent (i.e., you run into the wall and suffer deliberate brain damage)? A.hh. What if the govt finds that prisoners simply do better when they are on Prozac. Should the govt be able to order prisoners to take it (i.e., to serve the interest of efficiently administering the prison)? A.13. Class Questions : A.ii. Think about how you would apply the Sell standard to medicating to execute, since the std is to stand trial. A.jj. What would the rule be if you had to apply to say whether someone could be executed? What standard would you create to determine whether you can medicate to execute. A.kk. Q: What do you think the proper rule is to determine whether you can medicate to proper sanity? A.xxv. Ford prohibits executing someone in a vegetable state (b/c does not understand).
A.v. In cases involving a consensus, the court’s own judgment is brought to bear by asking if there is a reason to disagree with the judgment reached by citizens and the legislature A.xxix. Factors diminishing the MR personal culpability: MR categorically less culpable- clinical definitions require not only subaverage intellectual functioning , but also significant limitations in adaptive skills such as communication, self-care, & self-direction which manifest before 18. MR know difference b/w right and wrong and are competent to stand trial, but because of their impairment , they have diminished capacity to understand & process info, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses (anger management people?), and to understand the reactions of others. They act on impulse rather than pursuant to a premeditated plan , and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. A.n. These characteristics are tied to diminished culpability. What other groups can you apply this to? Sociopaths, young people, the elderly, children, and narcissists. A.uu. In light of these deficiencies, our DP jurisprudence provides 2 reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded. First, there is a serious Q as to whether either justification we recognize as a basis for the DP applies to mentally retarded offenders. Gregg v. Ga identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the DP. Unless the imposition of the DP on a mentally retarded person measurably contributes to one or both of these goals, it is nothing more than the purposeless & needless imposition of pain and suffering, & hence an unconstitutional punishment. A.xxx. Retribution , the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg , our jurisprudence has consistently confined the imposition of the DP to a narrow category of the most serious crimes. The lesser culpability of the mentally retarded does not merit this form of retribution. A.xxxi. Deterrence , capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation. Exempting retards will not affect the cold calculus of other potential murders. A.vv. The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making them ineligible for the DP. Retards are less able to give meaningful assistance to their counsel, are poor witnesses, and their demeanor may create an impression of lack of remorse. Also, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found. A.ww. Conclusion: Our independent evaluation of the issue reveals no reason to disagree with the legislatures. We are not persuaded that the execution of the mentally retarded will measurably advance the deterrent or retributive purpose of the death penalty. Construing and applying the 8th^ amendment in light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford. A.xx. Court never defines MR- leaves that up to state legislature to determine A.yy. Scalia DISSENT: See for a great discussion of majority opinion. Federalist Argument.
A.xxxii. Under our 8th^ A jurisprudence, a punishment is “cruel and unusual” if it falls within one of two categories: those modes of punishment considered cruel & unusual at time Bill of Rights adopted, and modes of punishment that are inconsistent with modern “standards of decency” as evidenced by objective indicia, the most impt of which is legislation. A.xxxiii. Court got “national consensus” from the fact that 18 states- less than half (47%) of the 38 States that permit capital punishment have very recently enacted legislation barring execution of the mentally retarded. Note- 11 of these Js only prohibited for Ds convicted after the date of the leg. A.zz. Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” A.17. If the Justices say that lower IQ makes you less morally culpable, is that to say that people with higher IQs are more morally culpable? A.18. Cherry v. State (Fla. 2007) A.aaa. Facts: Cherry convicted of two counts of 1st^ degree murder. He now claims he falls under Adkins. The FL SC denies on the basis he did not fit within the statute. Significant subaverage intelligence= 70 IQ. Cherry’s IQ was found to be 72. A.bbb. Court’s statement of Rule: Cherry must establish that he has significantly subaverage general intellectual functioning. If this is established, Cherry must also establish that this significant subaverage general intellectual functioning exists with deficits in adaptive behavior. Finally, he must establish that these things manifested before the age of 18. A.ccc. In FL, once IQ over 70, don’t analyze other factors. A.19. Bobby v. Bies (USSC 2009): H: (1) hearing on whether D qualified as mentally retarded under Atkins did not twice put D in jeopardy, and (2) issue preclusion doctrine did not bar Atkins hearing.
D. Executing the Young
A.20. Roper v. Simmons (USSC 2005) 5-4. See p.8 for good language re: Atkins. A.ddd. Kennedy, Stevens, Souter, Ginsburg, Breyer v. O’Connor, Scalia, Rehnquist, Thomas A.eee. Facts: D 17 at time of the murder; premeditated and particularly heinous murder of woman- threw over bridge alive, face duct taped (Roper was the worst of the worst!) A.xxxiv. Aggravating factors- committed for purpose of receiving $, preventing arrest of D, depravity of mind outrageously and wantonly vile, horrible, and inhumane A.xxxv. Mitigating- no prior convictions, close relations with friends/family, age A.fff. Precedent: State brought case to SCT; convicted MO upheld, then Atkins decided and in light of decision there MO SCT said could not execute under 18 A.xxxvi. Stanford v. Kentucy (1989 same date as Penry)- contemporary standards of decency and the 8th^ does not proscribe the execution of juveniles over 15 but under 18. A.ggg. (^) RULE: Execution of individuals who were under 18 at the time of their capital crimes is prohibited by the 8 th^ Amendment (refining Stanford ). A.hhh. Evolving Standards of Decency National Consensus A.xxxvii. 30 states prohibit & in those states that do not prohibit the practice is infrequent (consensus evidence similar to Atkins post-Penry decision where states made point to abolish DP for MR, but not nearly as frat
A.jjj. Sentencing kid to life in prison for non-homicide offense is worse than death! = cruel & unusual? A.kkk. If their brains aren’t that developed, how can we as a society justify putting them in jail?
E. Atkins/Roper Taken Together :
A.22. (1) National Consensus; (2) Penalty must be proportionate to the crime committed, DP is limited to the most serious crimes and if applied must serve the twin aims of DP established in Gregg retribution & deterrence; (3) Look at international opinion; (4) Judges exercise their own independent judgment. A.23. Roper - retribution is not proportional if punishment is imposed on those whose culpability and blameworthiness is diminished by youth and immaturity A.24. Atkins - the same factors that make the MR less morally culpable make it less likely that they can process information about the possibility of execution as a penalty and thus control their conduct. There can be no deterrent effect.
F. Psychopaths?
A.25. Why don’t we categorically exempt psychopaths? A.lll. Do the twin aims of the DP, Retribution & Deterrence, still apply with someone incapable of feeling empathy? A.26. Do you look at under culpability rationale or ability to understand? A.mmm. Psychopath- can’t they, although they lack impulse control, stop themselves? Whereas children & retards, they lack impulse control and, because of developmental issues also lack ability to stop? A.nnn. Lack of empathy- are they the worst of the worst? A.ooo. Is this because we group some as vulnerable/weak and the other as powerful? A.27. ET thought- malum in se, malum Prohibitum. If psychopaths lack the ability to feel empathy, doesn’t this make all crimes- to them- malum Prohibitum? Wrong just because someone tells them it is? Also, the reading suggests that the parents can impact the development of the child into a psychopath, so, are we punishing adult psychopaths because of poor parenting? A.28. Characteristics of Psychopaths- do they meet the criteria that an individual must be legally competent to be executed? A.ppp. Arrogant and believe they are superior human beings- grandiose self worth; superficial charm A.qqq. Prone to boredom, excessive need for stimulation and prone to risk taking behavior. A.rrr. Low self discipline- lack of control; impulsivity; irresponsibility & fail to accept responsibility for actions A.29. Issues to think about- should there be a categorical exemption for psychopaths under the Atkins/Roper rule/reasoning; if not then should psychopath be considered aggravating factor b/c of likeliness of future harm and danger to others (depends on statute) or mitigating because this is a documented mental disorder that they are unable to control or cure A.30. State interest in executing incapacitation may not be enough (life sentence) can still harm guards A.31. Are the principles of the DP served when you execute a psychopath (twin aims) A.sss. Deterrence- no because they are so self-absorbed that they think they will never get caught and therefore deterrence means absolutely nothing to them A.ttt. Retribution- should you care whether or not they are “soulless” A.xliii. Less culpable as a result of their mental disorder and inability to experience remorse A.xliv. More culpable because they are the worst of the worst
G. Rape
A.32. Coker v. Georgia (USSC 1977)- rape of an adult woman not punishable by death. Plurality opinion. A.uuu. F: D escaped from prison, raped and kidnapped woman. Raped her in front of husband, V only 16 and had just had child. Captured & charged with rape, escape, armed robbery, kidnapping & sentenced to death. A.vvv. Issue: whether the rape of an adult woman was unconstitutional pursuant to the 8th^ A? A.www. Rule: the rape of an adult woman cannot be a death eligible offense. A sentence of death is grossly disproportionate & excessive punishment for the crime of rape and is therefore forbidden by the 8th^ Amendment as cruel & unusual punishment. A.xxx. Proportionality the 8th^ Amendment bars not only those punishments that are “barbaric,” but also those that are “excessive” in relation to the crime committed. A.xlv. Under Gregg v. Georgia , a punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain & suffering; or (2) is grossly out of proportion to the severity of the crime. A.xlvi. Historically, DP not cruel & unusual but must be applied proportionally, it is cruel & unusual if a crime does not warrant death- must look at if crime is so heinous that cased on societal standards DP should be imposed. A.yyy. Consensus Seek guidance in history & from the objective evidence of the country’s present judgment concerning DP for rape of adult woman death for rape has not been authorized by majority of states in last 50 years; Furman limited the imposition of the DP (could not be imposed arbitrarily/ capriciously). A.xlvii. Current Judgment is that Georgia is the only state that authorizes DP as sentence for the rape of an adult woman (other states FL/Miss authorize DP but only when V is child and rapist adult)- clear legislative rejection of DP for rape. A.xlviii. Jury as indicator of contemporary values- vast majority of cases, jury has NOT imposed a death sentence for rape A.zzz. Section IV- court exercised independent judgment & policy. “The Constitution contemplates that in the end our own judgment will bear on the Q of the acceptability of the DP under the 8 th. Nevertheless, legislative rejection of capital punishment for rape strongly confirms our own judgmt.” A.xlix. (^) Rape is deserving of serious punishment, but in terms of moral depravity and of injury to the person and to the public , it does not compare with murder , which does involve that unjustified taking of human life A.l. Ultimate violation of self (aside from murder), but does not involve the taking of a life. A.aaaa. Does the DP for rape of adult woman further the twin aims of the DP? A.li. Deterrence- what is to stop from just killing, the D actually has incentive to kill therefore dispose of witness (no deterrent effect) A.lii. Retribution- reserved to most culpable (worst of the worst) individuals and crimes (for example murder must be heinous/atrocious/cruel) rape by definition not as serious as murder. A.bbbb. Even where killing is deliberate, it is not punishable by death absent aggravating circs; thus it cannot be accepted that rapists should be punished
A.lviii. The Court’s decision is consistent with the justifications offered for the DP, retribution & deterrence. “Our decision is consistent with the justifications offered for the DP. Gregg instructs that capital punishment is excessive when it is grossly disproportionate to the crime or it does not fulfill the two distinct social purposes served by the DP: Retribution & Deterrence of capital crimes.” A.35. Kennedy v. Louisiana (USSC 2008, Mem.): Considered fact that military law includes the DP for rape
H. Mitigating & Aggravating Circumstances
A.36. Pre-Furman: juries had ultimate power to impose death penalty- no guidelines A.37. (^) Post 1972: Must be some form of substantive and procedural guidance in DP cases. Under Furman & Gregg , a state capital sentencing system must: A.ffff. Rationally narrow the class of death-eligible defendants; and A.gggg. Permit a jury to render a reasonable, individualized sentencing determination. A.38. Kansas v. Marsh (USSC 2006) 5- A.hhhh. Thomas, Roberts, Scalia, Kennedy, Alito v. Souter, Stevens, Ginsburg, Breyer A.iiii. Finding 3 aggravating circs that were not outweighed by mitigating circs, a Kansas jury convicted Marsh of capital murder and sentenced him to death. Marsh claimed that the Kansas statute established an unconstitutional presumption in favor of the DP by directing imposition of the DP where aggravating & mitigating circs were in equipoise. i.e., the mitigating factors had to outweigh the aggravating in order to give life. A.jjjj. H: Kansas’ capital sentencing statute is constitutional since it satisfies the two prongs of Ferman. A.lix. A State DP statute may give the D the burden to prove that mitigating circs outweigh aggravating circs. Kansas’ DP statute, may direct imposition of the DP when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including when the two are equal A.lx. (^) Even if Walton does not control, general principals of DP jurisprudent lead to the same conclusion. As long as State capital sentencing system satisfies Furman v. Ga & Gregg v. Ga - that a system must (1) rationally narrow the class of death-eligible defendants and (2) must permit a jury to render a reasonable, individualized sentencing determination – a State has a range of discretion in imposing the DP, including the manner in which mitigating & agg circs are weighed A.lxi. Kansas’ statute satisfies Furman because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. It does not create a general presumption in favor of the DP. A.kkkk. Souter Dissent: equal aggravating & mitigating factors don’t equal the worst of the worst! Also, dissent essentially argues that capital punishment is such an undesirable institution- it results in the condemnation of such a large # of innocents- that any legal rule which eliminates its pronouncement should be embraced. A.39. Abdul-Kabir v. Quarterman (USSC 2007) A.llll. Precedent requires that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty. A.lxii. (^) Remember Rolling case- how many seconds = heinous, atrocious, and cruel
A.lxiii. Take away- how in depth you need to go into a D’s life to determine whether to take their life A.mmmm. NOTE: many things start out as a mitigating circ and then becomes an absolute bar A.40. Cone v. Bell (USSC 2009) A.nnnn. PTSD & drug addiction- do they constitute sufficient mitigating circs? A.oooo. The D was suffering from a mental or physical condition….however, voluntary use does not count. A.pppp. The right to a fair trial is guaranteed to criminal Ds by the DPC of the 14 th^ A. In Brady , held that when a State suppresses evidence favorable to an accused that is material to guilty or to punishment, the State violates the D’s right to due process. A.qqqq. We have held that when the State withholds from a criminal D evidence that is material to his guilt or punishment, it violates his right to due process of law in violation of the 14 th^ A. Brady. In determining whether the suppression of evidence violates the D’s right to a fair trial, the court must distinguish between the materiality of the evidence with respect to guilt and with respect to punishment. A.rrrr. Here, the suppressed evidence falls short of being sufficient to sustain Cone’s insanity defense- i.e., it is not material to the determination of his guilt. However, there is a critical difference b/w the high standard Cone was required to establish insanity as a matter of law and the far lesser standard that a D must satisfy to qualify evidence as mitigating in a penalty hearing. See Bell (Stevens, dissenting)(“There is a vast difference between insanity- which the D utterly failed to prove- and the possible mitigating effect of drug addiction incurred as a result as honorable service in the military.”) A.41. FLSC- evidence of Masterson suffering from PTSD enough to be mitigating factor. A.42. Barefoot : Psychiatric testimony- can testify about probability D will commit future acts. i.e., give opinion. I. Statistics : Rambo- concept of using statistics to try and prove an EP claim as well as trying to prove the arbitrariness for an 8th^ A analysis. What is the role of statistics in any individual decision. A.43. Sometimes will accept evidence from studies, and sometimes the court won’t. J. Deckle : A.44. The Worst of the Worst: The worst crime; The worst defendant A.45. 3 cases where can legally get the DP: (1) Death Eligible; (2) Death Obtainable; (3) Death Sustainable A.46. The Vowel Theory of capital litigation (need all vowels to have death sustainable): A.ssss. Atrocious Crime A.tttt. Egregious Fact Pattern A.uuuu. Innocent Victim A.vvvv. Odious Defendant A.wwww. Undeniable Guilt
Counter Arguments :
