Death Penalty in a Nutshell
Authors:
Streib, Victor / Kamin, Sam / Marceau, Justin
Edition:
5th
Copyright Date:
2017
28 chapters
have results for Death Penalty in a Nutshell
Chapter 3 An Overview of the Death Penalty Through Furman v. Georgia (1972) 32 results (showing 5 best matches)
- About 99% of death penalty cases are state prosecutions alleging violations of state law, tried in state courts, and seeking to impose the death penalty according to state law provisions. Each state has its own constitution, and a state prosecution must follow the provisions and requirements of that state’s constitution as well as those of the federal constitution. This nutshell does not deal directly with the statutes and constitutional provisions of each death penalty jurisdiction.
- Justice Douglas reiterated the arguments from his dissent in the year before and stressed his fear that circa-1972 death penalty procedures leave the door open for discrimination based upon race and other inappropriate factors, in large part because they provide insufficient standards for determining who is deserving of the death penalty. Justice Stewart’s concurring opinion in concluded that death sentences are so “wantonly and freakishly imposed” as to be unconstitutional. In an oft quoted passage reflecting on the arbitrary administration of the death penalty, Stewart noted that: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” It was the unchecked, open-ended system of discretion, formally approved in , which was the source of constitutional concern. Along similar lines, noting the several ways in which the death penalty is unique among criminal punishments, Justice White provided an often quoted description of...
- Such state constitutional provisions can be instrumental in determining the outcome of a state death penalty case, and the state materials should be consulted in each case. Thankfully for the student of the overall American death penalty system, the state constitutional provisions of the death penalty states tend to be quite similar. Each state constitution, for example, requires Due Process and prohibits cruel and/or unusual punishment in its own state death penalty system. The concept of what constitutes a fair process or a cruel punishment evolves over time, so an individual state’s experiences with those concepts are relevant to determining death penalty cases in that specific state.
- was to invalidate the Georgia and Texas death penalty statutes. However, since all of the other death penalty jurisdictions had statutes and processes with similar characteristics, the practical impact of the decision was a nationwide moratorium on the imposition of the death penalty. Those offenders already sentenced to death had their sentences changed to various terms of imprisonment, and the nation’s death rows were emptied. Many assumed (and broadly announced) that the death penalty in America was history.
- Three Justices—Douglas, Stewart, and White—wrote separately but provided a joint framework for evaluating the modern death penalty that continues to represent the law of the land today. None of these Justices was willing to state that the death penalty is unconstitutional in all instances; rather, each focused his concerns on the death penalty as imposed.
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Chapter 18 Foreign and International Law Issues 30 results (showing 5 best matches)
- The American death penalty system does not exist in a vacuum. First, the criminal justice and death penalty systems of other countries provide the global context in which the American death penalty system operates. In addition to the subtle and informal pressures of death penalty practices of our neighbors and allies around the world, the United States is also party to and bound by international treaties and other agreements concerning the death penalty. International courts hand down rulings on American death penalty cases as well. As we continually measure those elusive “evolving standards of decency that mark the progress of a maturing society” in order to determine if the 8th Amendment prohibits a specific aspect of the death penalty, debates have arisen regarding whether foreign and international law should be a part of the calculus.
- The last third of the 20th century saw an ever-increasing number of countries formally reject the death penalty, however, either by constitutional amendment, by statutory amendment, or by high court ruling. During this period, 58 additional countries abolished the death penalty (46 totally and 12 for ordinary crimes). Many additional countries simply stopped using the death penalty without formal legal action, making them de facto abolitionist countries. The increased pace of countries abolishing the death penalty has continued into the early 21st century as well. A survey as of the end of 2015 found that the worldwide status of the death penalty was as follows:
- As described briefly in § 1.1, the death penalty has an extensive, worldwide history, dating back to our earliest records of civilizations. However, beginning in the mid-19th century, a movement to abolish the death penalty got underway. Although this movement met with less success than the move to abolish slavery, it has gathered steam in the last fifty years. A 1965 report to the United Nations noted that only 12 countries had abolished the death penalty completely, with another 11 countries having abolished it only for ordinary crimes during peacetime. Actual implementation of the death penalty had certainly fallen out of favor in most countries, but formal governmental action to abolish it was a rarity.
- Sometimes more formal international relations are impacted negatively by domestic death penalty decisions. For example, in August 2002, Texas executed a Mexican national, sentenced to death for a murder in that state, over the repeated objections of President Fox of Mexico. President Fox promptly canceled his scheduled trip to meet with President Bush in Texas to discuss a variety of issues. This illustrates that even such a close alliance as that between Mexico and the United States and between Presidents Fox and Bush can be chilled by an isolated, state-level death penalty case. Other examples include the refusal of foreign courts to authorize extradition of alleged murderers sought by the United States unless our leaders provide assurances that the death penalty will not be imposed. In an era of international terrorists inflicting unthinkable mass murder on American soil, limits on our ability to bring those killers to justice can prove to be a powerful inducement. Ironically,...
- The Council of Europe, a strong opponent of the death penalty, has discarded even its wartime exception to this policy. Any country wishing to become or remain a member of the Council of Europe is required to abolish the death penalty, and this has provided the final push for many European countries to exact formal legislation doing so.
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Chapter 1 History and Evolution 18 results (showing 5 best matches)
- As the newly-formed United States grew and expanded westward, reliance upon the death penalty began to wane. Many states reduced the number of crimes for which the death penalty could be imposed, and, in 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. In the early 20th century, about a dozen other states joined Michigan in abolishing the death penalty. The use of the death penalty became concentrated in the southern states, a pattern that has continued into the 21st century.
- As of mid-2016, a total of 31 states have death penalty statutes in effect. The federal government has two death penalty statutes, one applying to crimes by members of the military and the other applying to nonmilitary crimes. By contrast, nineteen states and the District of Columbia do not have the death penalty. These abolitionist states are located primarily in New England and in the upper Midwest. However, even among the 32 official death penalty jurisdictions, the number of actual death sentences and executions varies widely. There is great disparity among states, and even among counties within the death penalty states in terms of the frequency with which the death penalty is pursued. Some states, such as Colorado, that have the death penalty have not executed a person in two decades; in Texas only a handful of counties account for nearly all of that State’s death row population.
- A common error in descriptions of the modern death penalty system is the premise that the current era began with the Supreme Court’s holding in rejecting a challenge to Georgia’s death penalty statute under the Cruel and Unusual Punishment clause of the Eighth Amendment. But the actual beginning of the era of the modern death penalty system. That era was terminated by the Supreme Court’s decision in , which in effect struck down all then-existing death penalty statutes. However, both Florida and Utah enacted new death penalty statutes before the end of 1972, and 15 more states followed suit in 1973. By the date of the decision (July 2, 1976), at least 35 states and the federal government had enacted new death penalty statutes, although none had carried out an execution in almost 10 years. Demonstrating the resolve of these death penalty states, more than 460 capital offenders had already been sentenced to death under these new death penalty statutes by early 1976. The current...
- The early colonies in what is now the northeastern United States restricted the death penalty’s scope. By the late 18th century, capital crimes were generally limited to murder, a few other violent crimes, treason, and various acts of sodomy. In the geographical area that was to become the southern states, the death penalty was seen as instrumental in maintaining the institution of slavery. More generally, the death penalty took firmer roots in the southeast and has continued there through today much more consistently than in any other part of the United States.
- During the time period in which the American colonies were being formed and our early laws were being established, the death penalty was alive and well in Western Europe and around the world with only occasional outcry about the brutality of such executions. In fact, the death penalty in Western Europe survived until the middle of the 20th century, at which time it was abolished throughout the continent. England greatly limited the death penalty beginning in the late 19th century before completely abolishing it in 1965.
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Chapter 2 Arguments for and Against the Death Penalty 35 results (showing 5 best matches)
- A major part of this apparent chance and caprice is simply the luck of the draw. Each capital jury is different, with some juries clearly leaning more toward the death penalty than others. Prosecuting attorneys have similar differences regarding their interest in seeking the death penalty. Even the same individual prosecutor may see political advantage in seeking the death penalty in one case while not in a nearly identical case falling at a different point in her term. Judges must also keep one eye on the political polls if they face reelection, well aware that they may face stiff political opposition for their decisions in death penalty cases. In almost any death penalty state one can find hot spots and cold spots with regard to the actual imposition of the death penalty, even though state law is supposed to be uniform across the entire state.
- The centuries-old debate over the death penalty typically focuses on theoretical, philosophical and religious considerations. However, the issues that arise in the day-to-day operations of the American death penalty system often encompass less lofty but perhaps more troubling concerns. The fundamental question here is not whether certain crimes and certain offenders deserve the death penalty in an abstract sense. Rather, it is whether we can trust a hodgepodge of loosely-connected government agencies to carry out the death penalty in a fair and rational manner and whether society obtains any tangible benefit from doing so. The following is a sketch of the most common arguments for and against the death penalty, drawing on both criminological and religious theory and the day-to-day operation of the capital system in the real world.
- This cycle of violence debate is part of a larger concern about the nature of human dignity. Death, obviously, is inevitable, so executing a convicted murderer simply accelerates his death. In essence, the death penalty does not require a life-or-death decision, it only imposes an “unnatural” death now in lieu of a “natural” death whenever nature would otherwise take its course. Death penalty opponents, however, argue that the inevitability of death does not justify the government’s imposition of an “early” death on a convicted offender.
- Only very rarely, however, does the defense team equal the prosecution team in terms of numbers, experience, and funding. Most pro-death penalty advocates have no wish for the defendant to have inadequate counsel, although some have voiced criticisms of defense teams that “try too hard” to avoid the death penalty for their client. However, anti-death penalty advocates regularly claim that the mismatch between prosecution and defense too often results in a denial of a full and fair consideration of the defendant’s guilt and sentence. Capital defendants with inadequate defense teams may receive the death penalty while essentially identical cases result only in a prison sentence, with the only difference being the quality of the defense attorney or the level of state funding. There is no question that the level of state funding and support for capital defense lawyers varies dramatically among the 31 death penalty states.
- The ultimate form of arbitrariness in the death penalty is the sentencing to death of an innocent defendant. The death penalty system is operated and controlled by human beings who are not immune from human error. Innocent people are sentenced to death and, in some cases, actually executed. Whether one is for or against the death penalty, there is no one who accepts innocent people being executed. Execution of the innocent involves not only obvious tragedy of the death of an innocent person; it also means that the real murderer is still at large and that law enforcement has called off its search.
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Chapter 7 Special Defenses 22 results (showing 5 best matches)
- However, the issue did not fade away after 1989. An intensive political action campaign kept the death penalty for the intellectually disabled in the news, and state legislatures in death penalty states were pressed to address the issue. As a result, nearly half of the death penalty jurisdictions amended their death penalty statutes in the 1990s to exclude such offenders, generally using an IQ cutoff of below 70, and this legislative movement continued to grow steadily in the early years of the 21st century.
- A first cousin to the juvenile death penalty issue is the concern about the death penalty for the intellectually disabled. One overly simplistic characterization of intellectual disability (formerly called mental retardation by the Court) is that it is comparable to having the mental age of a juvenile. Death penalty opponents argue that the defendant’s mental age should determine death penalty eligibility, and that an offender with a mental age under 18 should be just as ineligible for execution as a defendant with a chronological age under 18.
- The intersection of mental illness and the death penalty is still very much being sorted out in the courts and legislatures. Many argue that mentally ill capital defendants who are not legally insane (and thus can be tried and convicted of capital crimes) should nonetheless not be eligible for the death penalty. The Supreme Court in identified mental and emotional characteristics that render intellectually disabled or juvenile capital defendants less culpable for their crimes and thus less able to understand and participate in their trials. Death penalty opponents now ask whether some mentally ill capital defendants have very similar mental and emotional characteristics and therefore should be excluded from the death penalty as are juveniles and the intellectually disabled. As a conceptual matter, it is difficult to deny the relevance of the reasoning in in addressing the appropriateness of the death penalty for the severely mentally ill.
- Even if an offender has committed the acts necessary to be convicted of a capital crime, and even if the mitigating evidence does not outweigh the facts in aggravation, that defendant may nonetheless remain ineligible for the death penalty. The severity of the death penalty has led the Supreme Court to create defenses that are particular to the punishment of death, and that may be available to a defendant even if they do not prevent his murder conviction.
- The Supreme Court reversed course, however, in , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Christopher Simmons was 17 years old when he committed murder in Missouri, and the Supreme Court reversed to hold that the minimum age for the imposition of the death penalty is age 18. The Court held (5–4) that in the time between the “evolving standards of decency” had brought us to the point that the death penalty for 16- and 17-year-olds was no longer acceptable under the 8th Amendment. More states were prohibiting it, fewer juries were imposing it, and no other country in the world condoned it. In addition, the Court’s 2002 decision in had found the death penalty for mentally retarded defendants to be unconstitutional for reasons that apply with equal or greater force to juveniles. removed 72 juvenile offenders from the death rows of 12 states and ended the nation’s three and a half centuries of permitting the execution of juvenile offenders.
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Chapter 15 Assistance of Defense Counsel 29 results (showing 5 best matches)
- The most glaring problems capital counsel face may be a lack of information and education, a lack of staff and funding, and unnecessary pressure to hurry the death case through regardless of the defense attorney’s ability to keep up. The first problem may be on its way to solution. Most law schools are now offering courses on the death penalty, educating a new generation of able capital defenders. Continuing legal education (CLE) on death penalty issues is also growing in availability and sophistication, so that death penalty defense attorneys can learn and relearn the basics as well as the latest developments. While one used to see a steady stream of cases in which the trial attorney did not even realize that a separate sentencing hearing was to follow the guilt stage or who failed to raise basic points about the defendant’s character and background at that sentencing hearing, such gross errors now seem to be less common. This may be in part because of the widespread availability...
- The second source of solutions to these problems is the courts of last resort in death penalty jurisdictions. A significant trend appears to be developing for these state supreme courts to enact court rules requiring an enhanced level of qualification for court-appointed defense counsel in death cases. Some jurisdictions, such as Ohio, require that eligibility for such appointment must be certified by a state-level commission, empowered to investigate the credentials and background of members of the bar seeking eligibility. The third source of such actions can be the legislatures of death penalty jurisdictions, which can make funding available to local jurisdictions for such expenses and establish criteria for the appointment of counsel in death penalty cases.
- Defense attorneys in death penalty cases must also be able to gather evidence and prepare legal cases on the issue of life or death sentencing. Most criminal defense attorneys may be fluent in guilt stage proceedings but have little if any experience in gathering and putting together evidence regarding the appropriate sentence in a capital case. It is common, therefore, for death penalty lawyers to work with mitigation specialists to achieve this task.
- The most vocal critics of the death penalty system and of the death penalty itself have long decried the ubiquitous problem of defense attorneys in death cases who are grossly underpaid, shockingly inexperienced, and denied funding for the investigators or experts needed to assist them. Stories abound not only of sleeping lawyers but of corrupt and incompetent lawyers with serious drug and alcohol problems who struggle just to get out of bed in the morning, let alone to put on a trial for life for a capital defendant.
- Probably the most constant and persistent difference for defense attorneys in death cases is the very high profile, media-intense nature of these cases. To resort to a sports analogy, a felony case is akin to the big game on Saturday but a death penalty case is the Superbowl and World Series wrapped into one. The pressure is intense and the media attention is relentless.
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Chapter 5 Defining Capital Crimes 25 results (showing 5 best matches)
- Similarly, the Black Codes of the South imposed death sentences for many more crimes by blacks than by whites. In the early 19th century, Virginia law authorized the death penalty for black slaves committing any of about 70 crimes, but had only five death penalty crimes for whites. Georgia required the death penalty for a black male who raped or attempted to rape a white female, but a white male who raped a black female was punished by only a fine and/or imprisonment. The Civil War brought an official end to the Black Codes, but the same politics and attitudes persisted in southern capital punishment systems and, in a less blatant manner, throughout the country. The race of the offender and of the victim continue to be important determinants of who does and does not get the death penalty.
- was to invalidate all death penalty statutes in the country at that time. For a short period, therefore, there were essentially no capital crimes because no constitutionally valid death penalty statutes existed. However, following almost immediately on the heels of , at least 35 states reenacted death penalty statutes and, in doing so, recreated their lists of capital crimes in their jurisdictions. Of these 35 post- death penalty states, 16 had authorized the death penalty for rape of an adult woman prior to but only three (Georgia, North Carolina, and Louisiana) of those 16 reenacted that death penalty for rape. The latter two made the mistake of enacting mandatory death penalty statutes, which were struck down by the Supreme Court as inconsistent with the 8th Amendment. . Both states almost immediately passed new death penalty statutes, but this time they restricted them to the crime of murder. This left Georgia alone in authorizing the death penalty for the rape of an adult...
- By the mid 20th century, support for the death penalty appeared to be waning. Very few states considered increasing the number of crimes eligible for the death penalty, and the execution rate was falling precipitously, particularly outside the south. The death penalty seemed to be limited essentially to murder cases in the northern states, with the southern states also using the death penalty for rape. In 1925, 18 states, the District of Columbia, and the federal government authorized the death penalty for rape. By 1971, that number had declined only slightly to 16 states and the federal government. A smattering of death penalty states also included treason, kidnaping, and robbery. As actual executions began to fade rapidly in the 1960s, most executions nationwide were for murder with a very few for rape or robbery.
- Beyond this sporadic approach, a general theme over time can be discerned. In our earliest Colonial Period, Americans largely adopted the criminal punishment schemes of Western Europe, particularly England. During that time period, the death penalty was popular and was attached to what today would be seen as a very wide range of crimes. The Pilgrims in Massachusetts provided the death penalty for Biblical crimes such as idolatry, witchcraft, blasphemy, sodomy, and adultery, as well as to murder and manslaughter. The wholesale hanging of witches in Massachusetts in 1692 demonstrates their commitment to that approach. Most other colonies used the death penalty much more sparingly, with some Quaker colonies not authorizing it at all. Overall, by the time of our Declaration of Independence, the American colonies generally authorized the death penalty for treason, murder, rape, robbery, burglary, piracy, and sodomy. Meanwhile, in England the number of capital crimes had doubled and...
- The evolution of the death penalty in the southern states had different origins and took different paths. In the South, the death penalty was a primary means of keeping the slave population submissive and under control. The death penalty was attached to the same standard crimes as in the northern colonies, but also to major thefts, arson, statutory rape, and all forms of “crimes against nature” (buggery, sodomy, bestiality, etc.). Moreover, in the southern slave states, the death penalty was imposed for such additional crimes as slave-stealing, inciting slave insurrection, and circulating seditious literature among slaves, all in an effort to keep anyone from interfering with the rights of slave owners.
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Postscript Future of the Death Penalty 10 results (showing 5 best matches)
- For the first time since the 1960s, the United States appears to be having second thoughts about the death penalty. Public opinion surveys which had shown about 80% support in 1994 were down significantly to 62% in late 2011. When more sophisticated questions are posed, providing a choice between the death penalty or life imprisonment for murder, less than half favor the death penalty.
- It appears that the American death penalty is in its final stages—in its death throes, if you will. Every other society anything like ours has already relegated the death penalty to history, and now they look back to us, wondering when we will step into the modern world. Cracks in the foundation of support for the death penalty are clearly evident, and few seem to have much eagerness to repair the cracks and to undergird the death penalty system. It is likely to fade slowly, to go out with a whimper and not a bang. This nearly happened in the late 1960s when executions simply stopped, essentially from disinterest and not from major revisions in law or policy. The system reared up again in the 1970s for one last hurrah, and now it appears to be fading for good. As it does, the United States may once again be welcomed as a full-fledged member of the international community of human rights.
- common. The mistake we fear most in the death penalty system is getting the wrong guy—executing an innocent person. Research has uncovered an ever-growing list of such fatal errors, with over 140 persons released from death row as of mid-2012 because they were found to be innocent. If we could have blind faith that death penalty errors almost never occurred, we might endorse both the principle and the practice of the death penalty. Now even the strongest proponents of the principle of the death penalty for the worst of the worst murderers are concerned about mistaken execution of the innocent.
- While there are those who think the real world death penalty system discriminates in ways that are fine, even most of those strongly in favor of the idea of the death penalty don’t want it to continue to be so biased. Our courts, and to a lesser degree our legislatures, have made a variety of changes to reduce these flaws but to no avail. The bottom line is that the real world death penalty system, in the light of day, discriminates grossly based on the race, class, and sex of the offender and victim. It always has been so, in the United States and every other country in which it has been used.
- This leads us to the obvious questions about whether the death penalty “works” or not. It clearly doesn’t work if this means reducing our homicide rate. Research findings over generations of studies have made it clear that the death penalty is not a greater general deterrent to homicide than is its alternative, long-term imprisonment. Particularly troubling findings of this research indicate that the death penalty may result in a higher homicide rate than imprisonment would, that capital punishment apparently stimulates more homicides. This is true at least in part because government-approved killing of undesirables encourages homicidal individuals to kill people they find undesirable.
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Chapter 4 Gregg v. Georgia and the Modern System of Death Penalty Regulation 35 results (showing 5 best matches)
- Recently, the Supreme Court has found that the 8th and 14th Amendments preclude the death penalty’s application to a number of categories of crimes and offenders. The most significant holding as to eligible crimes is . The defendant in escaped from prison and committed crimes of burglary, car theft, kidnaping, and rape to further his escape. He was sentenced to death for the rape, as authorized under the Georgia death penalty statute. In this post- era, only Georgia imposed the death penalty for rape of an adult woman, although Florida authorized death for rape of a child, and juries were very reluctant to sentence rapists to death. Despite the long history of the death penalty for rape among the Southeastern states, the Supreme Court held that our “standards of decency” had evolved and held the death penalty to be unconstitutionally excessive for a rapist who does not take a life. On June 25, 2008, the Supreme Court held that the death penalty for rape of a child is also...
- decision, state legislatures began to amend or replace their death penalty laws rather than abandon them as many had predicted. A total of 35 of the pre- death penalty states passed new death penalty statutes, attempting to both cure the deficiencies of the voided statutes and remove any doubt as to state legislative support for the death penalty generally. These statutes went into effect as early as 1973, just months after the decision, and that year marks the beginning of the current era of the American death penalty. Trial judges and juries began sentencing offenders to death for capital crimes once again, and the nation’s empty death rows began to fill up. Within three years, 460 new death sentences had been imposed, and the American death penalty had returned with a fury.
- Media reports often refer to 1976 as the year that the death penalty was “reinstated” in the United States. However, by 1976 the American death penalty had been back up and running at full speed for several years, with hundreds of capital offenders already on death row and awaiting execution. Nonetheless, the year 1976 is significant in that a few of the earliest death sentences in this new era had made their way through trial and state appeals and now were before the Supreme Court. Therefore, 1976 is the year that the Supreme Court reaffirmed the constitutionality of the death penalty and allowed jurisdictions to proceed to actual execution of offenders already sentenced to death. On January 17, 1977 the execution of Gary Gilmore in Utah marked the resumption of capital punishment in the United States.
- , it also decided two cases invalidating mandatory death sentencing statutes. reviewed two of the first death sentences imposed under North Carolina’s 1974 statute which made the death penalty mandatory if defendants were convicted of capital crimes. Returning again to the evolving standards of decency analysis, the Supreme Court noted that the death penalty was mandatory for several offenses when the 8th Amendment was adopted in 1791. However, juries continually sought ways to avoid the harshness of this approach, often opting to refuse to convict an offender rather than see the death sentence imposed against their wishes. Instead of removing discretion from juries in death penalty cases, the mandatory death penalty had simply shifted that jury discretion from the sentencing stage to the guilt stage. By the mid-20th century, all American death penalty jurisdictions had granted sentencing discretion to juries and had abolished mandatory death penalties.
- A third death penalty decision issued by the Supreme Court on that same day upheld the Texas death penalty statute. is of particular note because it validated a statutory scheme quite different from those considered in also gave approval for executions to begin in Texas, which was to become the most aggressive American death penalty state in the current era.
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Preface to the Fifth Edition 7 results (showing 5 best matches)
- It is important to us that this is not another book about why the death penalty is or is not moral, or wise, or effective. The effort here is to provide a more objective description of what death penalty law is and how it works, leaving to others the gnarly questions of whether we should have it at all. However, every story gets a spin from the storyteller, so you should know about our backgrounds and perspectives. Victor Streib has taught criminal law topics since 1971 and capital punishment courses since 1987. He researches and writes about death penalty issues, particularly the death penalty for juveniles and for women. In addition to this work as a law professor, he serves as defense counsel for death row prisoners before courts all over the country. Sam Kamin teaches criminal law and procedure as well as classes having to do with the death penalty and drug policy. He has taught at the University of Denver, Sturm College of law since 1999 and is the author of multiple articles...
- This text can be read straight through, from chapter to chapter, exploring all of death penalty law in a logical order or as a reference tool for specific information about a succinct issue within death penalty law. The first four chapters sketch the background and context of the death penalty, including the history, the basic constitutional issues, and the arguments for and against this ultimate punishment. The second major part of the book covers substantive criminal law topics. In addition to the specific crimes that carry with them the possibility of the death penalty, these chapters describe the additional factors that pull the jury toward a death sentence or push them toward a life sentence.
- One convention that should be pointed out is the fairly consistent use of the male pronoun when referring to a defendant in a death penalty case or a death row prisoner. It seemed to the author that this convention was most appropriate, given that around 99% of those persons are male. When other individuals within the death penalty system are referred to, we have tried to use gender pronouns interchangeably.
- We also mean for this book to serve as a point of entry for practicing lawyers and other criminal justice professionals who find themselves involved in a death penalty case. Almost every unique death penalty issue they will confront is covered at least briefly in this text, with citations to the primary authorities they should consult for further detail. Although our book is written by law professors/death penalty lawyers primarily for law students and other lawyers, we have endeavored to adopt a tone that should be accessible to lay people as well. Thus, this text should also be useful for graduate students and upper-level undergraduate students studying the death penalty in criminology, criminal justice, or a related department.
- Parts Three and Four cover the complex, sometimes Byzantine procedures followed in death cases, running logically from arrest to execution. We describe the unique way that death penalty cases are handled highlighting the differences from the procedures used in run of the mill criminal cases. Finally, Part Five collects several special death penalty issues for consideration. These include the pivotal role of the capital defense attorney, the integral problems of bias in the system, and the specter of mistakenly executing the innocent. The final chapter explores foreign and international law in an effort to place the American death penalty system into a global context.
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Chapter 11 Sentencing Stage of Trial Process 32 results (showing 5 best matches)
- For many years in death penalty law, sentencing juries were told simply that their choice was between life in prison and the death penalty. The “death penalty” option was fairly unambiguous, but not so with “life in prison.” One recurring issue is whether “life means life,” or whether a prisoner sentenced to life in prison might someday earn parole and leave prison. Many states continue to maintain both possibilities: (1) life in prison without parole (LWOP) and (2) life in prison with parole eligibility after a term of years. However, for capital cases, most states limit the sentencing options to the death penalty and LWOP.
- Jurors may not always realize, however, that an LWOP term is truly a term of life imprisonment. Their uncertainty on this point is a particular problem in death penalty cases in which the prosecuting attorney’s closing argument at the sentencing stage dwells on the fear that the defendant would be released to the community and repeat his horrible crimes unless the jury returns a death sentence. This future dangerousness argument is often effective in convincing juries of their responsibility to protect their community against future violent crimes; juries in death penalty cases appear to be concerned mostly about the defendant’s future dangerousness to the public rather than whether he might pose a danger to other prisoners. Therefore, they will often want to know whether the defendant would ever be eligible for parole if he is sentenced to life in prison.
- Extensive empirical research has been conducted on how death penalty jurors actually make this life or death decision. The results indicate that the law’s determined efforts since to “guide jury discretion” have had at best mixed results. Death penalty juries in fact tend to confuse aggravating circumstances with mitigating circumstances and commonly stray from their jury instructions. Juries also confuse the level of certainty they must have in concluding the various aggravating and mitigating circumstances have been proven. Finally, many former members of death penalty juries report that their decision to vote for the death penalty was determined more by their revulsion at viewing the photographs of the victim than by anything the judge or lawyers said in the courtroom. Judges’ instructions to death penalty juries are often confusing and difficult for lay persons to understand, so in practice the jurors are left largely to their own devices.
- Beyond that overall goal, the defense will usually provide whatever evidence can be mustered to establish specific mitigating circumstances. The defense might focus, for example, on evidence that the defendant’s mental abilities generally are less than those of a normally functioning adult. The evidence might establish that the defendant is particularly immature, borderline intellectually disabled, or even mentally ill. Although these incapacities were not sufficient to render the defendant ineligible for the death penalty, they can still be important mitigating circumstances in the eyes of a death penalty jury.
- In most death penalty jurisdictions, including the federal system, the jury verdict is final and the trial judge may not change it. However, some jurisdictions continued to consider the jury verdict to be only advisory, and permitted the trial judge to decide upon the final sentence. Obviously, it violates no rights of the defendant if the judge rejects the jury’s death verdict and instead sentences the defendant to LWOP. Although, the Supreme Court’s ruling in made clear that any facts that make the defendant eligible for death must be found by a jury and not a judge, a number of states continued to allow a judge to overturn a jury’s LWOP verdict and substitute a death sentence. This practice was declared unconstitutional in , the Delaware Supreme Court recently held that its death penalty system is unconstitutional holding that both the finding of aggravating factors and the weighing of aggravating and mitigating factors must be conducted by a jury. , 145 A.3d 430 (Del. 2016).
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Chapter 12 Appeals Process 26 results (showing 5 best matches)
- The third kind of specific issues involves an assortment of systemic challenges to the imposition of the death penalty. These issues may have nothing to do with the appellant-defendant’s specific conviction and death sentence, impacting him only as a member of a class. For example, a defendant might challenge the imposition of the death penalty on the intellectually disabled or on juvenile offenders, or challenge the death penalty for the non-homicidal rape of a child. . Assuming the defendant is a member of the class so identified, a ruling excluding an entire class from the death penalty would incidentally exclude him as well. These systemic challenges are almost never considered on first impression by an intermediate appellate court, but the court of last resort (typically the state supreme court) might consider such challenges, particularly when made under that state’s constitution. Defendants may also bring facial challenges to the state’s death penalty system, arguing that it...a
- All state judicial systems provide at least some opportunity for appellate review of convictions. Some states provide a single appellate level, and, in a few states, specialized courts of criminal appeals handle all such cases. Two leading death penalty states, Oklahoma and Texas, are prominent examples. In other death penalty states ( , Ohio and California), all death penalty appeals go directly to the state’s general jurisdiction supreme court.
- Appellate review of the sentencing stage of a death penalty trial is unique, unlike anything else the appellate court does. It is difficult enough for an appellate court, far removed from the trial in both time and space, to get an accurate sense of the defendant, lawyers, judge, and witnesses as it reviews a jury’s conclusions. The sentencing decision combines factual determinations with the emotional and moral conclusions bound up in the trial environment. For an appellate court to determine whether a death sentencing decision was accurate and appropriate is a daunting undertaking indeed.
- Within a few years, two death penalty cases came out of Mississippi which clarified this issue. In the first case, the trial jury had not been instructed properly on the required level of criminal intent for the death penalty under before returning a death verdict. . The state appellate courts in had not addressed this criminal intent issue, so the Supreme Court vacated the death sentence and remanded the case for a factual finding as to criminal intent, followed by a sentencing decision. However, the Supreme Court in noted that this new finding and resulting sentencing can be conducted by any “appropriate tribunal—be it an appellate court, a trial judge, or a jury.” This reasoning would obviously not survive analysis under
- Within the broad appellate categories of guilt-phase challenges and sentencing-phase challenges, death penalty appeals raise three specific kinds of issues. The first issue raises claims of substantive criminal law. Such claims by the appellant-defendant might go to the adequacy of proof of each element of the crime for which he was convicted. Because capital crimes in the current era are all murder cases, this means that the defendant is generally challenging jury instructions about mens rea, or whether the government sufficiently proved the mens rea and/or actus reus of murder. Other substantive law issues can include special defenses such as insanity. In addition, challenges particular to the death penalty may also be brought, such as whether an aggravating circumstance was proven beyond a reasonable doubt or whether the jury was properly instructed regarding how to weigh aggravating and mitigating circumstances. In this context, the appellate court does not review the jury’s...
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Chapter 8 Overview of Arrest Through Execution 32 results (showing 5 best matches)
- An interesting exception to the typical state process is the federal death penalty charging procedure. A fairly elaborate process is followed in each local United States Attorney’s office to determine if they will pursue the death penalty. If the answer is yes, then that local United States Attorney must take the request to the office of the United States Attorney General in Washington, D.C., where it is considered and debated even more. In the end, the Attorney General of the United States must personally authorize any death penalty prosecutions under the federal statute. It is important to remember, however, that federal prosecutions account for only about 1% of all death penalty cases nationwide.
- Before immersing ourselves in a blow-by-blow description of trial procedures in death penalty cases, we provide an overview of the entire process, from beginning to end. A significant characteristic of this process is that it bounces back and forth between a series of only slightly-connected actors and agencies, resulting in a process with striking inconsistencies and problems. One would be tempted to refer to our death penalty system as a real-world comedy of errors, were it not for the fact that this process literally determines whether the subject lives or dies
- A study of the death penalty from 1973–1995 showed that relief was granted in nearly 70% of all cases at some point in the process of appeal or post-conviction litigation. If John Doe’s death sentence is among that minority of death cases not ultimately reversed by the courts, then his final effort to avoid the execution of that death sentence will be to plead his case before the state governor or, if it is a federal death sentence, before the President of the United States. The truly “legal” challenges to a death sentence occur only in the courts, both trial and appellate; the clemency petition to the governor is essentially a plea for mercy after all legal challenges have failed.
- In the current death penalty era (1973–present), only about 15% of all persons sentenced to death have eventually been executed. Some of the others have “cheated the executioner” by dying of suicide, murder, or natural causes, but many have simply had their death sentences reversed and were removed from death row. Over one-third of all persons sentenced to death in the 40 years of the current era are still on death row, continuing to challenge their death sentence but realizing that some day their time may come as well.
- recognizes that the “voluntariness” of such pleas is always tainted somewhat by promises of a more lenient sentence, but that is to be unavoidable and does not render them unconstitutional. However, this “taint” is especially strong in death penalty cases. In some jurisdictions, it appears that prosecutors regularly use their discretion to charge fairly routine murder cases as death penalty cases, primarily as a tactic to induce guilty pleas in return for life sentences. Regardless of the statistical unlikelihood of a death sentence actually being imposed, capital defendants and their attorneys are often reluctant to take that chance. The Supreme Court declined a case exploring the constitutionality of this practice, leaving it in place.
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Chapter 9 Jury Selection and Role of Jurors 27 results (showing 5 best matches)
- , prospective jurors cannot be excluded “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” What is more, prospective jurors cannot be expected to predict in advance whether they would impose the death penalty in the case about to be tried. thus held that prospective jurors could be excluded only if (1) they would automatically vote against a death sentence regardless of the evidence in the case or (2) they could not make an impartial decision as to guilt because of their attitudes toward the death penalty. This principle was reaffirmed in
- The Supreme Court’s discussion of death-qualifying a capital jury, along with the broad issue of selecting a fair and impartial jury in criminal cases, provides a context for exploring other inherent biases held by prospective jurors in death penalty cases.
- Thus far, the task of a capital jury is the same as it is for any criminal trial jury. However, if the defendant is convicted of a capital offense, then the death penalty jury must move on to a second, quite different stage, unlike that faced by other criminal trial juries. At the sentencing stage, the jury once again sifts through evidence and arguments and weighs the credibility of witnesses but toward a quite different end. After sitting through this sentencing stage and concluding which if any aggravating and mitigating circumstances have been proven, the death penalty jury must decide whether this defendant should live or die. It is up to the jury whether the defendant is sentenced to death or to another alternative, likely life in prison. This sentencing decision goes beyond finding facts and coming to conclusions from those facts. Death sentencing asks juries to make a moral assessment of whether the defendant deserves to live.
- Unlike almost all other criminal cases, death penalty cases give the jury an important role in determining sentence. Following the guilt stage, the same jury sits through a second evidentiary hearing focused solely on whether the now-convicted offender should be sentenced to death or to life imprisonment. What greater responsibility can a public citizen be asked to shoulder than whether a fellow human being is to be put to death by government authorities?
- A particularly troublesome issue with death-qualification is the specter of “conviction-prone” juries. Considerable empirical research indicates that juries with a willingness to impose a death penalty if appropriate are also inherently more likely to convict the defendant at the guilt stage. That is, that fraction of society that favors the death penalty is also more likely than others to believe the police and prosecutor side of the case, to discount the defense side, and to convict defendants at trial. If this research is correct, such “conviction-prone” juries would violate the defendant’s right to an impartial jury representative of a cross-section of the community. However, the Supreme Court in several of these cases, most particularly in , did not find this research sufficiently convincing in these cases to alter their holdings. Several states attempted to solve this problem by putting the entire sentencing process and decision in the hands of the trial judge. In addition to...
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Chapter 16 Race, Gender, and Other Biases 19 results (showing 5 best matches)
- Early research on the impact of race in the criminal justice system in general and the death penalty system in particular focused on the variable of race of the offender, specifically comparing the conviction and death-sentencing rates of white and black offenders involved in similar crimes. The now-familiar findings were that black offenders were more likely to be sentenced to death than were white offenders. Subsequent, more sophisticated research included a variable for the race of victim, and even more striking differences were found in the administration of capital punishment. The murder of white victims is treated much more aggressively and harshly by the death penalty system than the murder of victims of color, regardless of the race of the offender. Leading studies have found that those who kill white victims are over four times as likely to be sentenced to death as those who kill black victims, controlling for other variables. The strongest race bias, therefore, comes into...a
- Our death penalty system is authorized to impose the most severe sanction permitted by American law only on the “worst of the worst” offenders who have committed the most horrible crimes. The Supreme Court has labored mightily to steer this lethal system away from considerations of race, sex, socioeconomic class, and other irrelevant characteristics of the victims and offenders. However, the system functions within American society and is operated by police officers, investigators, lawyers, judges, and jurors who live in this society. To the degree that bias permeates all of us in nearly everything we say and do, the death penalty system cannot be expected to escape bias completely. In light of the fact that this is one of the few governmental processes that literally decides who lives and who dies, we may be justified in holding it to higher standards than, say, a public process deciding who gets into law school, who gets a job at the local factory, or who moves into the house next...
- But do these data necessarily indicate sex bias in the death penalty system? A major part of the explanation for this disparity is that the under-representation of women on death row is actually a discounting of the seriousness of the sort of homicides women typically commit. That is, women’s murders are more likely than men’s to be of intimates in domestic violence cases. The criminal justice system tends to treat domestic violence cases less harshly, resulting in fewer death penalties for the offender, no matter whether male or female. Since women are more commonly the victims of domestic violence than the perpetrators, the discounting of the seriousness of such cases actually works against women as a group more than it works to their advantage.
- Following the holding in , concern about race bias in the death penalty process largely turned from the courts to the promotion of new legislative initiatives which were to become known as Racial Justice Acts. These amendments to state death penalty statutes would allow capital defendants to challenge their death sentences on appeal or in collateral review by marshaling statistical evidence of race bias. If the defendant could establish a presumption of race bias, it then fell to the state to prove that such bias had not infected this specific case. This latter provision is essentially the same burden of proof as that required by the Supreme Court in , but it is given to the prosecution instead of to the defense. Kentucky enacted a Racial Justice Act in 1998, and North Carolina followed suit in 2009. However, North Carolina watered down their Racial Justice Act in mid-2012 and after relief was granted to four inmates based on statistical data of racial disparity, the state repealed...
- Moving beyond the specific issues of race and sex, it seems clear that some human lives are simply valued less than others, at least when a sentencing judge or jury is deciding whether or not to terminate a defendant’s life. Often closely associated with race, the factor of socioeconomic status appears to play a part. In many states a poor capital defendant confronts huge government officials pushing for death and the contest can look very much like a sandlot baseball team taking on the New York Yankees. Therefore, the apparent over-representation of the poor on death row may represent nothing more than their inability to pay the fees and expenses of those who could have kept them off death row. Other important factors correlate with economic class: educational level, career success, and, often, contributions to the community. These latter characteristics can be mitigating circumstances in the sentencing stage of a death penalty trial, and they are far more likely to be associated...in
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Chapter 6 Aggravating and Mitigating Circumstances 42 results (showing 5 best matches)
- Thankfully, it has gone without saying that death penalty jurisdictions cannot use express aggravating circumstances that violate the 14th Amendment’s Due Process and Equal Protection provisions. That is, death penalty statutes cannot require a jury to distinguish cases based upon the race or sex of the offender or the victim, singling out, for example, upon black males who kill white females. While research indicates that this latter combination of race and sex is much more likely than any other to result in a death sentence, such characteristics of crime and offender are no longer permitted to play an official role in our death penalty system as express aggravating circumstances.
- In a generic sense, most every capital sentencing decision involves a two-step inquiry. First, the state is required to prove the existence of at least one aggravating circumstance concerning the specific murder committed. If the prosecution is successful in establishing the existence of one or more aggravating factors, then the defendant is “eligible” for the death penalty. Second, a defendant deemed eligible for the ultimate penalty must still be permitted to attempt to convince the sentencing agent (either the jury or the judge) that the death sentence should not be imposed because of circumstances that mitigate his guilt. More specifically, the sentencer in each case is generally asked whether it finds that the aggravating circumstances are equal to or outweigh the mitigating circumstances; if so a death sentence is to be imposed. In , the Supreme Court held that a system that required the jury to impose a sentence of death after finding that the aggravating and mitigating...
- This list of qualifying felonies provides an extraordinarily broad net for bringing offenders into the federal death penalty system. In one sense, including the felony-murder rule as an aggravating circumstance makes the statement that the combination of a dangerous felony and a resulting death is particularly threatening to society and should be eligible for our most severe sanctions. In another sense, it may include a hope that the robber, rapist, or kidnaper will decide not to kill his or her victim, knowing that this added crime would increase the possible punishment from imprisonment to execution. Practically, however, this aggravating factor is so popular with death penalty prosecutors because the elements of felony-murder are so much easier to prove than the elements of a premeditated murder not occurring in the course of a dangerous felony.
- declared unconstitutional the death penalty for offenders under age 18, the relative youthfulness of those offenders age 18 and older who are eligible for the death penalty can still be a mitigating circumstance. . This is most commonly phrased in death penalty statutes in the following manner: “The youth of the defendant at the time of the crime.” CAL. PENAL CODE § 190.3(i). In any event, these mitigating circumstances require that the sentencing jury consider the youth of a capital defendant, typically without drawing any firm age range for that consideration. Given that the peak ages for commission of homicide crimes is roughly 18 to 22, it would appear that the convicted murderer’s “youth” could be raised in mitigation in most cases. There also may be some death penalty cases in which the defense has raised the particularly advanced age of a capital defendant under a vague “age of the defendant” mitigating circumstance, but such use is far rarer.
- Finally, crimes involving particularly “valuable victims” are more likely to receive the death penalty. Some of these “valuable victim” cases may be beyond debate, perhaps where the murder victim is a police officer or prosecutor trying to bring the offender to justice. However, other “valuable victim” cases may be less justifiable. For example, we know that murder cases with white victims are several times more likely to result in the death penalty than essentially identical cases with black victims. Although these results are well established, the causes are not fully explained. The most likely reasons reside in unconscious bias among prosecutors, judges, and jurors, when faced with the horrible death of a victim who looks like them, their family, or their neighbors. In this way, the deaths of “our people” are more “important,” the victims are more “valuable,” and their murderers are more deserving of the maximum punishment. Relatedly, research consistently indicates that male...
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Chapter 17 Executing the Innocent 17 results (showing 5 best matches)
- To put the matter more clearly, innocence of the death penalty is a term of art that refers to a particular defendant who may be guilty of murder, but is ineligible for the death penalty. . A defendant who argues that he did not commit the murder, then, is litigating a claim of actual innocence. By contrast, a defendant who is claiming innocence of the death penalty is typically asserting that the aggravating factor that renders him eligible for the death penalty was improperly applied to him. A defendant who is asserting, on the other hand, that the sentencer erred by failing to find that the aggravating factors were outweighed by the mitigating factors is not presenting a true claim of innocence of the death penalty. This is so because eligibility turns on the presence of aggravating or eligibility factors, whereas the actual selection of those who receive the death penalty turns on the weighing of mitigators and aggravators. The latter assessment is a normative, moral judgment....
- In rare instances, concerns over error and executing the innocent have completely stalled state death penalty systems. One example was the March 2000 decision by Governor George Ryan of Illinois to declare a moratorium on executions. The Illinois governor’s major stated reason was execution of the innocent: “Until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.” A blue ribbon commission was appointed to investigate the Illinois death penalty system and to recommend changes to avoid executing the innocent. The commission’s report was released in 2002 and was considered as the basis for new death penalty legislation in the Illinois legislature. Other death penalty states also are either considering or have put in place moratoria on executions until some major problems can be fixed, including the innocence issue.
- A third approach is to identify the most common factors that result in wrongful conviction and death sentencing and then attempt to eliminate or minimize these factors. The primary source of mistaken convictions, in death cases as well as other criminal trials, is eyewitness testimony. Even though careful research over several decades has proven the extreme unreliability of eyewitness identification, death penalty cases continue to rely upon it whenever it is available and juries tend to treat it as gospel. Proposals have been made to ban eyewitness testimony from death cases, but none have been accepted. A related problem is the reliance upon confessions, particularly where the defendant is young, immature, borderline mentally retarded, or mentally ill. As unlikely as it seems to the rest of us, for some a confession to an infamous crime is an exciting game, a means to gaining the media spotlight, or perhaps just a way to say what the authorities seem to want to hear. Reliance upon...
- The second category of solutions might be to slow down the rush to judgment in death penalty cases. From the moment the crime is discovered, every actor in the process works in a pressure cooker to gather and analyze evidence, to build a case, and to move the case forward to trial. Even in the last stages of appeal and collateral review, the emphasis often seems to be more on getting it over with than on getting it right. To be sure, many death penalty defense lawyers have made delay-for-the-sake-of-delay into a fine art, even on behalf of death row prisoners for whom innocence is not even an arguable issue. Understandable though the urge to slow the machinery of death might be, it makes reform of the process to increase accuracy more difficult.
- Instances in which completely innocent persons are convicted of capital crimes, sentenced to death, and actually executed are the most egregious errors within the criminal justice system. Even within this most extreme category, however, we may find gradations. At one end of the spectrum would be those who had absolutely nothing to do with this murder. They simply had the enormous bad luck of being caught up in a death penalty investigation, trial, and execution. Obviously, imposing the death penalty upon members of this group is the most shocking and unforgivable.
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Chapter 13 Post-Conviction Challenges 17 results (showing 5 best matches)
- Various forms of state collateral proceedings can be found among the death penalty states, allowing the death row prisoner a new opportunity to challenge his conviction and death sentence in the state courts. Although the Supreme Court has held that these state collateral proceedings are not constitutionally required. , they are nonetheless a central part of the overall post-trial review process for death row prisoners. Moreover, if a state post-conviction process does not provide a This creates an incentive for states to provide meaningful post-conviction review in order to insulate convictions from probing federal court scrutiny. Commonly, the first step is for the petitioner-defendant to file a state-level post-conviction challenge in that state’s trial-level court, located typically in the county in which the death row inmate is now imprisoned. This is called the “initial-review” state post-conviction proceeding. Although this is a trial-level proceeding, these collateral... ...a...
- . First, a habeas petitioner can benefit from a new constitutional rule if that new rule would make his conduct no longer criminal or would prohibit the death penalty in cases such as this. An example might be a juvenile or mentally retarded offender seeking federal habeas relief under the Court’s holdings the decisions in might have come down after the petitioner’s case became final on appeal, the Supreme Court has stated that it would be manifestly unjust to execute a defendant for conduct that could not receive the death penalty today.
- What issues and claims can be considered in federal habeas petitions? First of all, since its creation, federal habeas corpus has required the petitioner to prove that he is being detained “in violation of the Constitution or laws or treaties of the United States.” These are federal cases in federal courts claiming violations of the federal constitution. Violations of state law, therefore, no matter how egregious, are simply irrelevant in federal habeas proceedings. Of course, state death row prisoners will already have taken their cases through state trials, state appellate reviews, and state collateral proceedings, so claims of state law violations should have generally been aired at least three times. In death penalty cases, almost all claims in federal habeas proceedings are based on constitutional provisions rather than upon other federal law.
- In addition to , there are a number of statutory limits on the provision of habeas relief, many of them set out in a statute signed into law in 1996, commonly known as the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The AEDPA reforms have greatly reduced the availability of federal habeas relief by, perhaps most notably, barring a federal court from overturning a conviction or sentence unless the state court made a constitutional error that was clearly “unreasonable.” § 2254(d). A full description of AEDPA’s limits is beyond the scope of this book, but suffice to say federal habeas relief has become an extremely rare event. Among other barriers to federal relief, there is a one-year statute of limitations on filing a federal habeas petition, a requirement that all federal claims have been previously exhausted in state court, and a strict set of rules requiring compliance with all state procedures.
- If the state death row inmate has lost at trial, lost through the state direct appeals process, and lost through state collateral attack, then that death row prisoner can be expected to turn to the federal habeas corpus process. The habeas process usually does not and cannot start until all of the state processes have been completed. He can then file a new, federal lawsuit raising the federal law issues raised in the state collateral attack proceeding. This suit is originally filed in a federal district (trial level) court located in the same geographical area as the state’s death row prison and alleges that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. This is likely to be the first time that a federal court has evaluated a state prisoner’s federal challenge to his conviction and sentence and the district court will review the state trial proceedings and conduct a fact-finding hearing if necessary. The standards for
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Chapter 14 Clemency and Execution Proceedings 29 results (showing 5 best matches)
- The history of execution techniques through the ages includes a wide array of bizarre and ghastly means of dispatching the condemned (see Chapter 1). The first execution during the current era was that of Gary Gilmore in Utah on January 17, 1977, who died at the hands of a firing squad. Since that time, death row prisoners have been executed by hanging, electrocution, lethal gas, and lethal injection. However, by far the most common means of execution in the modern era is lethal injection, with the first such execution occurring in 1982 in Texas. Most death penalty jurisdictions authorize lethal injection either as the sole means of execution or as one of the means from which a prisoner may choose. An interesting exception is Utah, which, as of 2015, provides that a firing squad is an authorized method of execution, but only if the drugs required for lethal injection are unavailable. In the early 21st century, the hypodermic needle and the hospital gurney are the principal icons of...
- Assume now that the condemned murderer has reached the very end of legal challenges to his death sentence: he has been denied relief on appeal, in state collateral proceedings, in federal habeas corpus, and in his request for clemency. The governor has signed a death warrant ordering his execution no later than a date certain, and the prison officials are working to conduct that execution. Only a few final glitches might delay or derail that final stage of the death penalty process. Generally a defendant can be expected to continue to fight execution if even the odds are now very slim. However it is important to remember that roughly 10% of death row prisoners “volunteer” for execution, in that they refuse either to present a defense during the trial process or to pursue appeals and collateral attacks after the trial.
- In the current death penalty era (1973–mid-2016), only about 16% of all persons sentenced to death have actually been executed. While some of the others have “cheated the executioner” by dying of suicide, murder, or natural causes, the most common result of being sentenced to death has been to have their death sentences reversed and ultimately converted to prison sentences. Nonetheless, about 37% of all persons sentenced to death in the current era are still there, continuing to challenge their death sentence but realizing that someday their time may come.
- As of the end of 2015, about 8,500 persons had received death sentences in the current death penalty era (since 1973). From these 8,500 death sentences had come about 1,400 executions (16% of all sentences) and about 280 grants of clemency (3% of all sentences). The most common official reasons given for these grants of clemency have been (1) lingering doubt about the condemned person’s guilt, (2) reduced blameworthiness attributable to mental problems, and (3) disproportionate punishments relative to other offenders. A few of the clemency grants have been by governors who held serious concerns about capital punishment generally. Occasionally an outgoing governor will grant clemency to many death row inmates at once: New Mexico’s Governor Toney Anaya in 1986, Illinois’ Governor George Ryan in 2003, New Jersey Governor Jon Corzine in 2007, and Illinois Governor Pat Quinn in 2011 all emptied their states’ death rows while in office.
- Another obvious requirement for executing a death row prisoner is that the prisoner must still be alive at the time set for the execution. A surprising number of prisoners die on death row from natural causes while their cases slog through the death penalty system. Other death row prisoners attempt, sometimes successfully, to commit suicide before their date with the executioner. Given the state’s desire to conduct a dignified execution of the condemned prisoner, prison authorities work hard to prevent suicide attempts and often try to save the life of any prisoner who does try to commit suicide, even if it occurs just hours before the scheduled execution.
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Chapter 10 Guilt Stage of Trial Process 28 results (showing 5 best matches)
- Whether or not the prosecuting attorney is required to present evidence of the defendant’s death eligibility during the guilt stage, she will likely make use of this phase to demonstrate the horrific nature of the defendant’s crime. For example, the prosecuting attorney will not just try to convince the jury that the defendant committed a murder, but will present additional evidence to demonstrate how shocking and outrageous this particular murder actually was. Such additional evidence rarely helps the prosecution prove any element of the offense, but it may provide a significance boost to the state in getting a death penalty verdict later on in the trial process (see Chapter 11). Because the same jury will be imposing a sentence upon the defendant immediately following a conviction, the prosecuting attorney will endeavor throughout the guilt phase to prepare the jury to return a sentence of death.
- Sitting with the defendant will be his defense team which may consist of his lead defense attorney, along with co-counsel, a defense investigator, and a mitigation specialist. In other cases, the entire defense team will consist of just one overwhelmed criminal attorney. Regardless, it is the lead defense attorney who plays the most prominent role in the guilt stage. Since very few capital defendants have sufficient funds to hire a private attorney to represent them, the vast majority of defense lawyers in death penalty cases are local public defenders. Death cases are the most important and the most complex handled by these offices, so typically they are assigned to the most experienced trial litigators. If no public defender office exists, or if the public defender is precluded from taking the case due to conflicts with other public defender clients, it is common for the trial judge to appoint a private ...that will characterize “the defense” in the minds of the jurors, the judge,...
- Assume now that the defendant has been arrested for a capital crime, the prosecutor has filed death penalty charges, and the case is ready to go to trial. Chapter 9 described the complex procedure of selecting a jury to sit for this trial; this chapter describes the guilt phase of the trial and the next describes the penalty phase. We set the stage here by introducing the key players at this trial and describing their roles. Then we move to the two major stages or functions of the guilt stage: the evidence presented by the state and the evidence (if any) presented by the defense. The final scene is that portrayed in countless books and films. The jury returns to the courtroom and announces its verdict: guilty or not guilty.
- In death penalty cases, the crime(s) tend to be particularly horrible and sensational. The jury will hear about the gruesome crime scene, learn the medical details of how the victim(s) died, and, most significantly, see detailed photographs of the crime scene, the victim(s), and the general mayhem resulting from this crime. Even putting aside any evidence connecting this particular defendant to the crime, the jury will be shocked and angered by the facts of the crime and will want retribution against those responsible.
- If the jury finds the defendant guilty of one or more capital crimes, however, then their work has not ended. Instead of being sent back to their families, their friends, their homes, and their jobs, these same 12 jurors must remain for the most challenging part of any death penalty case—the sentencing stage of the trial process.
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- Nutshell Series, In a Nutshell
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- Publication Date: February 17th, 2017
- ISBN: 9781634603027
- Subject: Corrections and Sentencing
- Series: Nutshells
- Type: Overviews
- Description: This death penalty Nutshell covers both the substantive and procedural law of capital cases, along with relevant history, jurisprudence and constitutional law. It addresses international issues, the complex role of defense counsel, systemic bias, and execution of the innocent. Statutory and case law, as well as all relevant data, are current as of mid-2016 providing a basis for broad exploration of academic and pragmatic issues for lawyers, law students and others interested in the law’s most serious punishment.
