The Death Penalty

Excerpted from: Capital Punishment, 40 Georgetown Law Journal Annual Review of Criminal Procedure 817(2011) (114 footnotes Omitted)

Proportionality. Under the Eighth Amendment, which prohibits cruel and unusual punishment, defendants sentenced to death must be convicted of a crime for which the death penalty is a proportionate punishment. Courts employ a two-pronged approach to determine whether the death penalty is a proportionate punishment for a particular crime. First, courts examine society's views of the challenged punishment as expressed by objective evidence of community values, including legislative judgments, sentences imposed by juries, professional and public opinion, and international practices. In examining societal views, courts seek to give effect to “the evolving standards of decency that mark the progress of a maturing society.” Second, courts considering capital sentences engage in independent proportionality review to determine whether a sentence of death “is nothing more than the purposeless and needless imposition of pain and suffering [or] is grossly out of proportion to the severity of the crime.” As part of the independent review, courts should evaluate the individual circumstances of each case, while keeping in mind the goal of consistency in application of the death penalty.

The Supreme Court has concluded that the death penalty is a disproportionate punishment for certain offenses, such as rape of an adult woman, rape of a child, or robbery. In addition, a plurality of the Court has declared that death is an excessive punishment when the victim is not killed.

The death penalty is also a disproportionate punishment in felony-murder cases where the defendant lacked intent to kill. In Tison v. Arizona, however, the Court modified this rule by declaring that the death penalty was not a disproportionate punishment for someone who did not intend to kill but exhibited a “reckless disregard for human life” and played a major role in the crime. The Tison Court found that society has approved the death penalty for defendants with such a culpable mental state and that the goals of criminal sentencing--retribution and deterrence--are served by executing this subset of felony-murderers.

The death penalty may also constitute a disproportionate punishment when imposed on certain individuals. In Roper v. Simmons, the Supreme Court held that the imposition of the death penalty on persons under age eighteen at the time of their crimes violates the Eighth Amendment because such a sentence would offend contemporary standards of decency. The Court has also held that the Eighth Amendment prohibits execution of mentally retarded persons and persons who become insane while awaiting execution.

Statutory Capital Punishment Schemes. The Supreme Court has required heightened reliability in the adjudicative process leading to a death sentence but has not mandated that states adopt any particular statutory approach. To minimize the risk of arbitrary action, the Court imposed two general requirements on the capital sentencing process. First, courts must channel or limit the sentencer's discretion in order to “genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Second, courts must allow sentencers to consider any relevant mitigating evidence that might prevent the sentencer from imposing the death penalty.

Narrowing Eligibility for Death Penalty. Whether a statutory scheme effectively channels a sentencer's discretion depends on whether the scheme provides: (1) “clear and objective standards”; (2) “specific and detailed guidance”; and (3) an opportunity for rational review of the “process for imposing a sentence of death.”

A statute may channel the sentencer's discretion at either the guilt or sentencing phase of a capital trial. Narrowing occurs at the guilt phase when the legislature narrows the definition of capital offenses “so that the jury finding of guilt” necessarily includes certain aggravating circumstances. Narrowing occurs at the sentencing phase when the sentencer is required to determine whether aggravating circumstances justify imposing the death penalty.

A defendant in a homicide case cannot be sentenced to death unless the trier of fact convicts the defendant of murder and finds at least one “aggravating circumstance” at either the guilt or penalty phase. The aggravating circumstance must meet two requirements. First, it must not apply to every defendant convicted of murder. Second, the aggravating circumstance must not be unconstitutionally vague. For example, the Court invalidated an aggravating circumstance of “especially heinous, atrocious, or cruel” conduct because it was unconstitutionally vague, no guiding instruction had been given to the jury, and the appellate court did not adopt a narrowing construction. Unconstitutional vagueness may be cured by either an appropriate narrowing instruction to the jury or a narrowing construction applied on appellate review. In states where both the judge and jury play a role in sentencing, unconstitutional vagueness is cured when the judge weighs the properly narrowed aggravating circumstance independent of the jury.

The sentencer may consider both statutory and nonstatutory aggravating circumstances, but the death penalty may not be imposed without one or more statutorily defined aggravating factors. Some courts have held that aggravating circumstances may not be duplicative but that the unconstitutional use of duplicative aggravating circumstances is subject to harmless error analysis. A defendant's prior criminal history may be presented to the jury as an aggravating circumstance in and of itself. An invalid conviction, however, is not an aggravating circumstance.

States differ in their consideration of aggravating circumstances in capital sentencing. “Weighing” states require the sentencer to weigh the aggravating circumstances against the mitigating circumstances. In “nonweighing” states, once an aggravating circumstance is found, sentencers may consider all circumstances of the case in determining whether a death sentence is warranted.

In Brown v. Sanders, the Court announced that “[a] n invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.”

Prior to Brown, the Court vieed the distinction between weighing and nonweighing schemes as one of “critical importance.” Because weighing states require sentencers to balance aggravating circumstances against mitigating circumstances, one invalid aggravating circumstance required the reviewing court to remand the case for a new sentencing determination, reweigh the evidence itself, or conduct harmless error analysis to decide whether, beyond a reasonable doubt, the sentence would have been the same despite the invalid aggravating circumstance. In nonweighing states, by contrast, if the reviewing court concluded that the sentencer found at least one valid aggravating circumstance and that the invalid factor did not affect the sentencer's determination in imposing the death penalty, the sentence could stand despite an invalid aggravating circumstance. Even in a nonweighing state, however, a death sentence would not always be upheld on the basis of the sentencer finding a valid aggravating circumstance.

Consideration of Relevant Mitigating Evidence. States must allow sentencers in capital cases to hear, consider, and give full effect to all relevant mitigating evidence. Sentencing judges and juries in capital cases must give independent weight to evidence of the defendant's character, record, and background, as well as any circumstances of the offense that might justify a penalty less severe than death. Courts will reverse a death sentence for violation of the Eighth or Fourteenth Amendment if the sentencing judge refused to review or admit relevant mitigating evidence. Mitigating evidence is admissible and must be considered by the sentencing jury if it meets a low threshold test for relevance.

To establish that a sentencing jury has been constrained impermissibly, the defendant must show a “reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” In Penry v. Lynaugh (Penry I), the Supreme Court vacated a death sentence because the jury was instructed that it could give effect only to statutory mitigating circumstances. The Court held that the trial court's improper instructions deprived the jury of a “vehicle for expressing its ‘reasoned moral response”’ to mitigating evidence of the defendant's mental retardation and childhood abuse. In Graham v. Collins and Johnson v. Texas, the Court limited the reach of Penry I by concluding that the lack of an explicit instruction to consider age as a mitigating factor did not prevent the jury from doing so. In addition, the absence of a jury instruction on the specific concept of mitigation or particular mitigating factors does not violate the Constitution. In 2001, the Supreme Court clarified Penry I in Penry v. Johnson (Penry II), holding that special jury instructions concerning mitigating evidence must allow the jury to “consider and give effect” to the evidence, not merely mention the mitigating evidence.

When considering mitigating circumstances, the sentencer may legitimately be constrained from exercising unfettered discretion. In California v. Brown, the Supreme Court upheld a trial court's instruction that warned the jury to remain unswayed by “mere sympathy” in determining whether to impose a death sentence, concluding that a reasonable juror would interpret the instruction to mean that he or she should “ignore emotional responses that are not rooted in the aggravating and mitigating evidence” and that states may “prohibit [] juries from basing their sentencing decisions on factors not presented at the trial.”

States may also establish standards for proving mitigating evidence as long as the burden of proof allows consideration of relevant evidence. For example, the Court upheld a statute requiring defendants to prove mitigating circumstances by a preponderance of the evidence. In addition, the Court has not required state courts to give mitigating circumstance instructions when the defendant has offered no evidence at trial to support such instructions. However, the Court invalidated a statute that required a jury to unanimously find that a mitigating factor exists before weighing it, reasoning that allowing one “holdout juror” to prevent the other eleven from considering mitigating evidence would violate the constitutional requirement to consider all such evidence in capital cases.

A statute may authorize mandatory death sentences when the sentencer finds at least one statutory aggravating circumstance and determines that no mitigating evidence exists because such statutes fully protect a defendant's right to individualized sentences. Statutes may also mandate the death penalty when aggravating circumstances equal or outweigh mitigating circumstances.

Improper Influences in Capital Cases. A death sentence may be reversed if the sentencing jury was influenced or misled by improper evidence, arguments, or instructions. The Court has refused, however, to create a per se barrier against the introduction of evidence concerning membership in an association. Sentencers may properly consider a defendant's race, religion, sexual orientation, or membership in an association only if it is relevant to show motive; to rebut a charge that such evidence was used impermissibly, the state may present evidence that such factors demonstrate motive.

The Eighth Amendment does not prohibit admission of “victim impact” evidence and related prosecutorial argument at the sentencing phase of a capital trial. Evidence and argument relating to the victim's personal characteristics and the impact of the victim's death on his or her family are legitimate means of informing the sentencer about the specific harm caused by the defendant's acts. The Court has, however, suggested that when admission of such evidence is unfairly prejudicial, the defendant may obtain relief under the Fourteenth Amendment's Due Process Clause. Furthermore, the victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence are inadmissible.

If jurors are potentially misled concerning their roles in sentencing, the Eighth Amendment's heightened “need for reliability” may require reversal because the jury does not “have before it all possible relevant information about the individual defendant whose fate it must determine.” For the jury to possess all relevant information, it must receive an accurate description of its role in the sentencing process and receive accurate instruction regarding its sentencing choices.

In Caldwell v. Mississippi, the jury did not receive an accurate description of its role in the sentencing process due to the prosecutor's suggestion that the jury's decision to impose the death penalty would not be final because the appellate court would review the sentence for correctness. The Court concluded that the comment unconstitutionally “led [the jury] to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” When a defendant claims a Caldwell violation occurred, he or she “must show that the remarks to the jury improperly described the role assigned to the jury by [state] law.”

Juries must also receive an instruction that accurately characterizes sentencing choices. California v. Ramos involved a jury instruction informing the jury of the governor's ability to commute a life sentence without parole but not a death sentence. The Court found no due process violation because the instruction accurately characterized the sentencing choices: it supplied information correcting any possible juror misimpression that a defendant sentenced to life without parole could not have his or her sentence commuted by the governor to include the possibility of parole.

If circumstances make a defendant ineligible for parole, however, accurate characterization of the sentencing choices requires juror awareness of those circumstances. In Simmons v. South Carolina, the defendant's future dangerousness made him ineligible for parole. The trial judge's refusal to instruct the jury about the defendant's parole ineligibility “had the effect of creating a false choice between sentencing [the defendant] to death and sentencing him to a limited period of incarceration.” Because this inaccurate information about sentencing options may have induced the jury to impose a sentence of death rather than risk the defendant's eventual release from prison, the jury instruction violated due process.

Courts must instruct juries that the defendant may be convicted of a lesser-included offense instead of the capital offense only “if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the [capital offense] .” A defendant is not entitled to an instruction on every lesser-included offense supported by the evidence; courts need only provide juries with a “third option” in addition to acquittal or capital conviction. States may not, however, prohibit judges from instructing juries on lesser-included offenses.

Although the Court has sought to direct and limit the discretion of capital sentencing bodies, it has stated that “the requirement of heightened rationality in the imposition of capital punishment does not ‘plac[e] totally unrealistic conditions on its use.”’ For example, statistical evidence of racial discrepancies in capital sentencing does not demonstrate arbitrary, capricious, or discriminatory application of the death penalty without a showing that purposeful discrimination produced an unfair sentence in a particular case. Once the method for imposing the death penalty possesses sufficient procedural safeguards, any discretion exercised by the jury is constitutionally permissible.

Jury Qualifications in Death Penalty Cases. As with any criminal penalty, a death sentence may be reversed if the jury fails to meet the due process requirements of fairness and impartiality. Potential jurors who are opposed to the death penalty may be excluded for cause from jury service in a capital case because they might otherwise frustrate a state's legitimate interest in administering its capital sentencing statute. Such views “would prevent or substantially impair the performance of [a juror's] duties ... in accordance with his instructions and his oath.” Similarly, potential jurors who would automatically vote for the death penalty for every eligible defendant must be excluded for cause.

A jury is considered “death qualified” upon exclusion of jurors opposed to the death penalty. The Court has rejected claims that “death qualified” juries violate the defendant's right to have his guilt or innocence determined by an impartial jury selected from a cross-section of the community, finding that “an impartial jury consists of nothing more than ‘jurors who will conscientiously apply the law and find the facts.”’

Supreme Court Stays and Holds. An individual Supreme Court Justice may grant a stay of execution while a prisoner seeks Supreme Court review of a denial of habeas corpus relief but should issue such stays only in extraordinary circumstances. An individual Justice should not grant a stay unless he or she finds “a reasonable probability that four Members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; ... a significant possibility of reversal of the lower court's decision; and ... a likelihood that irreparable harm will result if that decision is not stayed.” A majority of the Court may set aside a stay granted by a lower court or an individual Justice.

The Federal Death Penalty Act of 1994. The Federal Death Penalty Act of 1994 provides a statutory mechanism for imposing and reviewing death sentences for certain federal crimes. Specifically, the Act establishes statutory aggravating and mitigating circumstances for the jury to consider, a special hearing to determine whether a death sentence is justified, and a system of appeal and review to examine the appropriateness of the death sentence in individual cases.

In addition, the Act requires courts to instruct juries not to consider “the race, color, religious beliefs, national origin, or sex of the defendant or any victim.” Finally, the Act mandates the assignment of two counsel to defendants in capital cases and exempts from death eligibility pregnant women, persons with mental retardation, and persons incapable of comprehending the meaning of the death penalty.