AN OVERVIEW OF CONSTITUTIONAL PRINCIPLES

RELEVANT TO CAPITAL CASES

 

 

                                                            I.  INTRODUCTION.

 

This memorandum is intended to serve as a brief introduction to several of the basic constitutional principles relevant to  capital cases.  The Eighth Amendment to the United States Constitution is the key constitutional provision; thus, in the main, we will discuss the Eighth Amendment principles developed by the Supreme Court in the modern era of capital punishment (post-1972).  However, because the Due Process Clause, the Sixth Amendment and several other constitutional provisions are also relevant to capital cases,  certain aspects of the Court's jurisprudence in these areas will also be discussed.  

In Furman v. Georgia, 408 U.S. 238 (1972), the Court found that all existing capital punishment schemes violated the Eighth Amendment.^[1]  While the Furman Court "did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments," Gregg v. Georgia, 428 U.S. 153, 188 (1976), it did recognize that "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice." Id.  Because of its uniqueness, the death penalty can not be imposed under sentencing procedures that "create a substantial risk that it [will]. . .be inflicted in an arbitrary and capricious manner."  Id.  Because the Court found that the capital sentencing procedures then being utilized did create such a risk, the Furman Court invalidated those procedures as incompatible with contemporary standards of decency.^[2]

To avoid creating a substantial risk of arbitrary and capricious infliction of the death penalty, capital sentencing schemes since Furman have been required to meet "twin objectives:"  to be "at once consistent and principled but also humane and sensible to the uniqueness of the individual."  Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).   In Gregg v. Georgia, supra, and its companion cases,^[3] the Court determined that these twin objectives are "best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." 428 U.S. at 195.^[4]  The guidance is sufficient only if it "channel[s] the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.'"  Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (quoting Gregg v. Georgia, 428 U.S. at 198.  Moreover, the process must accord proper significance to the "relevant facts of the character and record of the individual offender," especially the "compassionate or mitigating factors stemming from the divers-frailties of human kind."  Woodson, 428 U.S. at 304.  While some have noted the tension between the central principles of guided discretion and individualized consideration, see Walton v. Arizona, 497 U.S. 639, 669-73 (1990) (Scalia, J., dissenting), the tension is justified on the ground that both principles are necessary elements in "a moral inquiry into the culpability of the defendant."  California v. Brown, 479 U.S. 538, 544 (1987).

With this overview as our guide, we will discuss several of these key constitutional principles in more detail.

                  II.  GUIDED DISCRETION.

One of the most basic principles of modern death penalty jurisprudence is that "[sentencing] juries be carefully and adequately guided in their deliberations."  Gregg v. Georgia, 428 U.S. at 193.  This is, in essence, the core holding of Furman:  "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action."  Gregg, 428 U.S. at 189.

A. Vague and Overbroad Aggravating Circumstances -  For the most  part, the principle of guided discretion is relevant to assessing the validity of statutory aggravating circumstances.   Aggravating factors, which are essential to the constitutionality of any death penalty scheme,^[5]  must "genuinely narrow the class of death-eligible persons" in a way that reasonably "justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder."  Zant v. Stephens, 462 U.S. at 877.  In other words--and on a more practical level--the death penalty is not permitted for any and all murders; thus, the most common aggravating circumstances involve murders committed during the commission of another felony, i.e., burglary, armed robbery, rape, etc.  See Gregg, 428 U.S. at 101-02.   Furthermore, both on their face, and as applied,  aggravat­ing circumstances must permit the sentencer to make a "principled distinction between those who deserve the death penalty and those who do not."  Lewis v. Jeffers, 497 U.S. 764, 774 (1990); see also  Richmond v. Lewis, ___U.S.___, 113 S.Ct. 528, 534 (1992) ("a statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty");  Clemons v. Mississippi, 494 U.S. 738, 758 (1990) ("invalid aggravating circumstance provided "no principled way to distinguish the case in which the death penalty is imposed, from the many cases in which it was not "); Maynard v. Cartwright, 486 U.S. 356 (1988) ("[t]he construction or application of an aggravating circumstance is unconstitutionally broad or vague if it does not channel or limit the sentencer's discretion in imposing the death penalty").^[6]

In Maynard v. Cartwright, supra,   a unanimous United States Supreme Court set out the legal principles which control claims of this nature.   In addressing the validity of a death sentence based solely on the statutory aggravating circumstance that the murder was "especial­ly heinous, atrocious and cruel,"^[7] the Court  reasoned that an Eighth Amendment vagueness challenge to an aggravating factor in a capital case may not be analyzed under the familiar "as-applied" approach generally employed in due process vagueness challenges to criminal statutes.  486 U.S. at 361.

The Maynard Court emphasized that an Eighth Amendment challenge to a statutory aggravating circumstance requires a wholly different type of analysis.  As a practical matter, such a challenge requires that reviewing courts evaluate the challenged aggravating circumstance on its face, entirely apart from the facts of the particular case in which it was applied.  The reason for this is that an overbroad statutory aggravating circumstance vests in sentencing courts the sort of "open-ended discretion" to impose the death penalty which the Supreme Court condemned in Furman, and where a death sentence is imposed under such a regime of unbridled discretion, the state may not save the sentence by demonstrating that the result would have been the same even if the sentencer's discretion had been properly narrowed and guided.  Maynard, 486 U.S. at 361-363. 

However, even if a statutory aggravating circumstance does not, on its face, provide meaningful guidance to a capital sentencing authori­ty, such an aggravating circumstance can nevertheless support a death sentence if the state courts have narrowed its scope to a constitutionally sufficient degree and if such a narrowing construction actually guided the sentencer in the case under review.  Godfrey v. Georgia, 446 U.S. 420 (1980); see also Walton v. Arizona, 497 U.S. 639 (1990) (recognizing authority of state supreme court to supply limiting definition of facially overbroad or vague aggravating circumstance).  In its most recent application of this principle, the Court held that the Idaho Supreme Court's limiting instruction of it's "utter disregard for human life" aggravating circumstance --i.e., that  "the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded pitiless slayer" -- passed Eighth Amendment muster.  Arave v. Creech, ___U.S.___, 113 S.Ct. 1534 (1993).  The limiting instruction was satisfactory because it defined a "state of mind that it is ascertainable from surrounding facts". Id. at 1541-42.  Because some murderers do exhibit feeling, the Court also determined that the aggravating circumstance genuinely narrowed the class of persons eligible for the death penalty as required by Zant v. Stephens, 462 U.S. 862 (1983).  Id.^[8]

B.  Other challenges to aggravating circumstances -  A number of other challenges to statutory and non-statutory aggravating circumstances have met with mixed success.  A quick review of some which  have been successful, as well as those that have failed, provides some insight into the limits of guided discretion. 

The Court has held that aggravating circumstances may not encompass rights guaranteed to those facing criminal prosecutions.  For example, the defendant's "lack of remorse" may not be treated as an aggravating factor because such a circumstance infringes upon a defendant's right not to testify.  See Zant, 462 U.S. at 885.  He may have remained silent, as the Fifth and Fourteenth Amendments allow him to do without adverse consequences, and his silence converted by a prosecutor into an expression of lack of remorse.^[9]  Similarly, the Court held in Dawson v. Delaware, ___ U.S. ___, 112 S.Ct. 1093 (1992),  that a defendant's abstract religious beliefs--in Dawson's case his membership in a prison gang similar to the Arayan Nation--may not be used in aggravation of punishment.

The Court has also recognized that aggravating circumstances cannot encompass factors "that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness."  Zant v. Stephens, 462 U.S. at 885.  Consider, for example, the case in which the defendant's capital crime is, in part, a function of severe mental illness.  This was in part the driving force behind the Court's decision in Penry v. Lynaugh, 492 U.S. 302 (1989).  The former Texas special issues required a trial judge to sentence a defendant to death if the jury answered the following two "special issues" affirmatively:  did the defendant commit the act "deliberately?"; and, is the defendant likely to be dangerous in the future?   A sharply divided Court held that this limited framework  created the risk that some types of evidence which should be mitigating, e.g.,  a defendant's paranoid schizophrenia,  could actually result in a death sentence because, in the Texas system, the evidence supported an affirmative answer to the future dangerousness special issue. 

Nor can aggravating circumstances be based upon evidence that is inadmissible under state law or the federal constitution, or that is "materially inaccurate or misleading."  Zant v. Stephens, 462 U.S. at 887 & nn.23, 24.  The clearest application of this principle was Johnson v. Mississippi, 486 U.S. 578 (1988).  In Johnson, the  Court held that Johnson's death sentence, which was based in part on a prior conviction vacated after his Mississippi capital trial, violated the Eighth Amendment.  Mr. Johnson was sentenced to death after a jury found three aggravating circumstances outweighed the mitigating factors.  One of the aggravators (that Johnson had been previously convicted of a felony involving the use or threat of violence to another person) was supported solely by a 1963 New York conviction of second degree assault with intent to commit first degree rape.

After his Mississippi conviction, Johnson successfully challenged the 1963 assault conviction in the New York courts on the basis that he was not informed of his right to appeal.  See  People v. Johnson, 506 N.E.2d 1177 (N.Y. 1987).  Johnson then sought post conviction relief from the Mississippi Supreme Court, which was denied.  Subsequently, the United States Supreme Court granted certiorari to determine whether the reversal of the 1963 conviction affected the validity of the death sentence.  The Supreme Court concluded that since the 1963 conviction was ultimately reversed, evidence regarding it was entirely irrelevant to the Mississippi jury's sentencing decision.  Therefore, because the jury "was allowed to consider evidence that ha[d] been revealed to be materially inaccurate," 486 U.S. at 590, Johnson's death sentence violated the Eighth Amendment.^[10]

                        III.  DUE PROCESS.

A.   The Right to Fair Rebuttal - The Court has consistently maintained that a capital defendant must be given a fair opportunity to meet, rebut or explain any evidence which the state offers as a reason the defendant should be sentenced to death.  In the lead case establishing the "fair rebuttal" principle, Gardner v. Florida, 430 U.S. 349 (1977), the Court invalidated the death sentence because the judge who imposed the death sentence relied upon a confidential pre-sentence report not disclosed to defense counsel.  The Court reasoned:

Our belief that that debate between adversaries is often essential to the truth seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases.

430 U.S. at 360.

 

Over the years, the Court has reaffirmed this "basic due process right" in a variety of contexts.^[11]  Its most recent affirmation of this principle was in Simmons v. South Carolina, 114 S.Ct. 2187 (1994).  In a plurality opinion, the Court reversed the defendant's death sentence on due process grounds holding that the trial court's failure to tell the jury the truth regarding a capital defendant's parole ineligibility if sentenced to life imprisonment, transgressed Simmons'  right of fair rebuttal, especially in light of fact that prosecutor stressed the defendant's future dangerousness in his sentencing phase argument. 114 S.Ct. at 2198.

B.        Lesser Included Offenses - The Supreme Court has made clear that, in capital cases, the Due Process Clause of the Fourteenth Amendment is violated when a refused jury instruction, amply supported by the evidence presented at trial, results in a substantially increased risk of error in the fact-finding process.  Beck v. Alabama, 447 U.S. 625, 637 (1980).^[12]  When a jury is faced with the choice of either convicting or acquitting a defendant of capital murder and when the evidence tends to show the defendant committed some violent crime, irrelevant considerations are interjected into the fact-finding process.  Id.  The possibility arises that the jury may convict the defendant due to its  belief that the defendant committed some crime, and should not, therefore, be allowed to go unpunished.  Id. at 642.  The Beck Court found this possibility constitutionally unpalatable, and mandated that the jury be given a "non-capital, third option," rather than simply guilt or acquittal of a capital crime, when the evidence supported it.  Id. at 637, 641.^[13]

C.        Expert Assistance - In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court held that "the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition."  Id. at 70. The Court, after discussing the potential help that might be provided by a psychiatrist, stated:

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the states the decision on how to implement this right.

 

Id. to 83.

 

Ake was based upon the due process requirement that the fact‑finding process must be reliable in criminal proceedings. Id. at 77‑83. Due process requires the state to make available mental health experts for indigent defendants, because "the potential accuracy of the jury's determination is...dramatically enhanced" by providing indigent defendants with competent psychiatric assistance. Id. at 81‑83.  Because Ake's constitutional entitlement obviously extended beyond mental health professionals, the decade since Ake was decided has witnessed a tremendous expansion of expert funding for indigent defendants.  Significantly, both state and federal courts have recognized that Ake requires that indigent defendants be provided with funds to retain psychiatric, psychological, medical, forensic, investigative, mitigation and other types of assistance.

Before moving on, however, another set of issues relating to psychiatric examinations conducted by the State should be briefly discussed.  In Estelle v. Smith, 451 U.S. 454 (1981), the Court held that the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel applicable to penalty phase of capital trial.  Smith was evaluated by a state retained psychiatrist--Dr. James Grigson--to determine his competency to stand trial.  Grigson failed to provide Smith with Miranda warnings prior to the interview.  At the sentencing phase of the proceedings, the prosecution called Dr. Grigson, who testified that Smith was a "severe sociopath," had demonstrated no remorse and who would continue to commit violent acts in the future.  The Court concluded that a "criminal defendant, who neither initiates a psychiatric evaluation not attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding."  451 U.S. at 468.  Thus, because Smith did not receive Miranda warnings, Grigson's testimony violated Smith's Fifth Amendment rights.  Id. at 469. 

The Court also held that Grigson's testimony violated the Sixth Amendment, because defense counsel were only notified that Grigson was evaluating Smith for the purpose of determining his competency to stand trial.  Because Smith's Sixth Amendment right to counsel had clearly attached, and because the decision to submit to a psychiatric examination is "literally a life or death matter,"  451 U.S. at 471, a defendant should not be forced to resolve such an important issue without the "guiding hand of counsel."  Id. The Court has reaffirmed, and in fact expanded upon, the protections afforded by Estelle on several occasions.  See Satterwhite v. Texas, 486 U.S. 249 (1988) (Court held first that petitioner's Sixth Amendment right to counsel was violated by the admission of testimony of a psychiatrist on the issue of future dangerousness who examined petitioner without his counsel being given notice as to the scope of the examination; constructive notice to counsel by placement of the state's motions and the court's ex parte orders regarding the examination in the court file did not satisfy the Sixth Amendment); Powell v. Texas, 492 U.S. 680  (1989) (per curiam) (State's use of future dangerousness violated the Sixth Amendment where no notice was given to defense counsel that examination by psychiatrist would be for that purpose; defendant did not waive his Sixth Amendment  right to notice of the purpose of the examination by introducing psychiatric testimony in support of insanity defense).   

            IV.  HEIGHTENED RELIABILITY.

Due to the uniqueness of the death penalty, the Supreme Court requires heightened reliability in the decisions made by the jury and judge during the course of a capital trial.  See, e.g., Zant v. Stephens, 462 U.S. at 884.  In Woodson v. North Carolina, 428 U.S. 280 (1976), the Court explained why the Constitution requires an individualized sentencing determination in a capital case even though there is no parallel requirement in non-capital cases.

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.  Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.  Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

 

28 U.S. at 305.  In short, death is different.  Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) ("Under the Eighth Amendment, the death penalty has been treated differently from all other punishments").

The heightened need for reliability in capital cases has been relied upon by the Court in a variety of   contexts as an important rationale for its decisions.

ËWoodson v. North Carolina, 428 U.S. at 304-05 (invalidating mandatory capital sentencing statute); 

 

ËGardner v. Florida, 430 U.S. 349 (1977) (requiring disclosure to defendant of all information contained in confidential presentence investigation report in sufficient time to allow defendant a meaningful opportunity for response);

 

ËLockett v. Ohio, 438 U.S. at 603-05 (requiring consideration of all relevant mitigating evidence to avoid "the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty");

 

ËGreen v. Georgia, 442 U.S. 95 (1979) (forbidding the exclusion of relevant mitigating evidence due to the state's hearsay rule);

 

ËBeck v. Alabama, 447 U.S. 625 (1980) (requiring instruction on lesser included offenses supported by the evidence in the guilt phase of a capital trial);

 

ËBullington v. Missouri, 451 U.S. 430  (1981) (holding that double jeopardy bars death sentence on retrial after defendant sentenced to life at first trial);

 

ËEstelle v. Smith, 451 U.S. 454  (1981) (recognizing that Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel are  applicable to penalty phase of capital trial);

 

ËCaldwell v. Mississippi, 472 U.S. 320 (1985) (forbidding prosecutorial argument which, by assuring the jury that any error it made could be corrected on appeal, had the effect of diminishing the jury's sense of responsibility for its sentencing decision);

 

ËTurner v. Murray, 476 U.S. 28 (1986)  (requiring the states to permit voir dire about racial prejudice in interracial crimes);

 

Ë Lankford v. Idaho, 500 U.S. 110 (1991) (recognizing that capital defendant is entitled to fair notice of issue to be resolved at trial.

 

ËRiggins v. Nevada, ___U.S.___, 112 S.Ct. 1810 (1992) (Finding error in  involuntarily administering antipsychotic medication to capital defendant).^[14]

 

              V.  THE LOCKETT DOCTRINE.

Anyone involved in a capital litigation must have a firm grasp of the Lockett doctrine.  In Lockett v. Ohio, 438 U.S. 586 (1978), the Court established the bedrock Eighth Amendment principle emanates from the "the fundamental respect for humanity underlying the Eighth Amendment, [which mandates the ]. . consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."  Id. at 304; see also Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976).^[15]  Only through a process  which requires the sentencer to "consider[] in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind," Woodson v. North Carolina, 428 U.S. at 304, can capital defendants be treated "as uniquely individual human beings."  Id.  The Lockett principle "is the product of a considerable history reflecting, the law's effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.:  California v. Brown, 479 U.S. at 562 (Blackman, v. dissenting).  Or, in Justice O'Connor's terms, "Consider lying Lockett and Eddings is the principle that punishment should be directly related to the personal capability of the criminal defendant."  Penry v. Lynaugh, 492 U.S. 302 (1989).

Because of the need for individualized treatment, the states have been required to permit the sentencer to consider, and in appropriate cases base a decision to impose a life sentence upon any relevant mitigating factor, not simply the mitigating factors specified in a statute.  Hitchcock v. Dugger, 481 U.S. 393 (1987).  As explained in Eddings v. Oklahoma,

Lockett followed from the earlier decisions of the Court and from the Court's insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all. . . . By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false  consistency.

 

455 U.S. at 112.

It is important to note that the definition of "mitigating" is extremely broad.  In Lockett, the Court defined a mitigating circumstance as "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."  438 U.S. at 604.  While this explanation seems to allow the defendant the freedom to define what is "mitigating," the Court has since given a more objective cast to this explanation.  In Skipper v. South Carolina, 476 U.S. 1 (1986), the Court held that evidence of the defendant's good behavior during his pretrial incarceration was "'mitigating' in the sense that [it] might serve 'as a basis for a sentence less than death.'"  476 U.S. at 7 (quoting Lockett v. Ohio, 438 U.S. at 604).^[16]  Thus, any evidence which "might" serve to reduce the urge to punish harshly must be deemed mitigating.

A corollary Lockett principle is that sentencer must be permitted to give "independent mitigating weight," Lockett v. Ohio, 438 U.S. at 605, to all evidence proffered in mitigation.  Thus there cannot be any distinction between statutory and nonstatutory mitigating circumstances.   See Hitchcock v. Dugger, 481 U.S. 393 (1987).^[17]  Additionally, the jury instructions must be sufficient to provide the jury "with a vehicle for expressing its reasoned moral response to that evidence in rendering its sentencing decision."  Penry v. Lynaugh, 492 U.S. 302, 318 (1989).  Furthermore, an individual juror must be free to consider a mitigating factor, regardless of whether other members of the jury agree as to its existence.  Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S. 433 (1990) ("each juror [must] be permitted to consider and give effect to mitigating evidence").

In other words, it is not enough "simply to allow the defendant to present mitigating evidence to the sentencer," rather there must not be any impediment -- through evidentiary rules,^[18] jury instructions^[19] or prosecutorial argument^[20] -- to the sentencer's full consideration and ability to give effect to mitigating evidence.  Penry,  492 U.S. at  327-28.^[21]

                     VI.  JURY SELECTION.

 

The Court has considered a series of cases addressing the question of juror bias in capital cases and the defendant's right to a fair trial guaranteed by the Sixth and Fourteenth Amendments.  These cases have focused either on jurors' attitudes toward the death penalty--i.e., whether they are strongly opposed or in favor of the death penalty--or racial bias.  In deciding these cases, the Court has tried to give guidance with regard to the appropriate scope of voir dire.

A.        Death-Qualified Jurors -  In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Court held "that a sentence of death cannot be imposed or recommended if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction."  Id. at 522.  The Court observed that even someone opposed to the death penalty "can make the discretionary judgment entrusted to him by the State and can thus obey the oath."  Id. at 519.  A state, however, may exclude those jurors who would automatically vote against the death penalty or those jurors whose attitudes about the death penalty would affect their decision regarding the defendant's guilt.  Id. at 522, n.21.

Later, the Court made clear that Witherspoon did not hold that the state could exclude only those jurors who would automatically vote against capital punishment.  In Wainwright v. Witt, 469 U.S. 412 (1985), the Court held that the standard for excluding a juror because of his views in opposition to the death penalty is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"  Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).  The Court treated the question of jurors beliefs with regard to the death penalty as simply a routine inquiry into juror bias governed by Sixth Amendment standards applicable to all cases rather than the Eighth Amendment's prohibition against cruel and unusual punishment.  Id. at 423.

The Court also noted that trial judges have historically been charged with determining whether a prospective juror harbors any bias.  Id. at 428.  If the trial judge, who is best placed to evaluate a juror's credibility, receives the impression that the juror would be unable to follow the law, the judge can remove the juror for cause.  Id. at 425-26.^[22]

B.        Reverse-Witherspoon -  Just as the state may excuse for cause those jurors whose beliefs against the death penalty would substantially impair their performance of their duties as jurors, a defendant may excuse for cause those jurors whose beliefs in favor of capital punishment would lead them to ignore the court's instructions, not consider mitigating circumstances, and vote for the death penalty in every case.  Morgan v. Illinois, 112 S.Ct. 2222, 2229 (1992).  This violates "the requirement of impartiality embodied in the Due Process Clause."  Id.

If the defendant has the right to excuse for cause jurors who hold such views, and because the defendant must demonstrate that the juror lacks impartiality, voir dire must be adequate to uncover such bias.  Id. at 2230.^[23]  It is not enough simply to ask the jurors if they could be fair and follow the law.  Id. at 2232-33.  The defendant must be able to ascertain whether the prospective jurors find mitigating evidence irrelevant or even not worth their consideration.  Id. at 2233.

C.        Racial Bias -  In Turner v. Murray, 476 U.S. 28 (1986), the Court held that a capital defendant is entitled to voir dire on the question of racial bias.  "Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected."  Id. at 35.  Thus, unless adequate voir dire is conducted, beliefs that blacks are more violence prone or morally inferior.  Id.  Racist beliefs could also cloud a juror's view of evidence in mitigation.  Id.   Without adequate voir dire, there is an unacceptable risk "of improper sentencing in a capital case."  Id. at 37.  The Court, however, stressed that its holding was limited to cases in which the state was seeking the death penalty.  In addition, the Court held only that Turner was entitled to a new sentencing phase, not a new trial on guilt-or-innocence.  Id.

VII.  VICTIM IMPACT.

The Court held that the Eighth Amendment does not preclude a state from allowing victim impact evidence and statements.  Payne v. Tennessee, 111 S.Ct. 2597 (1991).^[24]  According to the Court, "victim impact evidence serves entirely legitimate purposes," for it enables the jury to have before it all information necessary to a determination of punishment.  Id. at 2608.  Payne, however, recognized the right of the defendant to rebut victim impact evidence.  Id.

The state, however, does not have free rein to introduce anything or everything about the victim.  For example, Payne suggests that the state can only present "a glimpse of the life" of the victim.  Id. at 2607 (cite omitted); see also id. at 2611 (O'Connor, J. concurring).  In addition, the Court indicated that victim impact evidence "is not offered to encourage comparative judgments."  Id. at 2609.  In addition, Payne left undisturbed Booth's prohibition against the victim's family offering its opinion about the crime, the defendant, and the appropriate punishment.  Id. at 2611 n.2.  Furthermore, the Court recognized the victim impact statements or evidence may potentially render the sentencing proceeding fundamentally unfair.  Id. at 2608; id. at 2612 (O'Connor, J., concurring); id. at 2614 (Souter, J., concurring).

VIII.  APPELLATE REVIEW.

Gregg and its companion cases stressed the fact that all of the approved statues required meaningful appellate review.  428 U.S. at 153.  The purpose of appellate review is to provide "a means to promote the evenhanded, rational, and consistent imposition of death sentences..."  Jurek v. Texas, 428 U.S. at 276.  Recently, the Court again reiterated "the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally."  Parker v. Dugger, 498 U.S. 308 (1991).  It is a "crucial protection."  Id.  While the Court has held that comparative proportionality review is not required by the Eighth Amendment, see Pulley v. Harris, 465 U.S. 37 (1984), some form of meaningful appellate review is required.  See also Sochor v. Florida, ___U.S.___, 112 S.Ct. 2114 (1992).

Specifically, the Court has required "close Appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases.  Stringer v. Black, ___U.S.___, 112 S.Ct. 1130, 1136 (1992).  In order for a state appellate court to affirm a death sentence after the sentencer was instructed to consider an invalid factor, the court must "determine what the sentencer would have done absent the factor."  Id. at 1137.  The analysis may vary depending upon whether the error occurred in a "weighing" or "nonweighing" state.^[25]  In a weighing jurisdiction, in order to affirm a death sentence in a case where the sentencer relied upon an invalid aggravating circumstance, the state court must either independently reweigh aggravating circumstances or conduct harmless error analysis.  Clemons, 494 U.S. at 750-51; see also  Parker v. Dugger, 498 U.S. 308  (1991) (The state supreme court's affirmance of the death sentence without affording the petitioner appropriate appellate review, either by reweighing all the evidence, or including the evidence of non-statutory mitigating factors, deprived the petitioner of his Eighth Amendment right to individualized sentencing); Sochor v. Florida, 504 U.S. 527 (1992) (Florida Supreme Court, having found insufficient evidence to support the separate aggravating factor found by the sentencing judge that the murder was "committed in a cold, calculated and premeditated manner," failed to cure the error when it affirmed the death sentence without either independently reweighing aggravating against mitigating factors or engaging in harmless error analysis)..  In a non-weighing state, the appellate court is not obligated to reweigh, but it still must determine the effect of the error.  In Tuggle v. Netherland, ___U.S.___, 116 S.Ct. 283 (1995) (per curiam), the Court of Appeals concluded, as had the state courts, that the jury's consideration of an invalid aggravating circumstance was not error because the death sentence was still supported by an unchallenged aggravating circumstance.  The Court held that "[a]lthough our holding in Zant [v. Stephens, 462 U.S. 862 (1983)] supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of evidence."  116 S.Ct. at 285.  Because neither the state courts or the Court of Appeals considered whether harmless error analysis was applicable to Tuggle's case, the Court vacated the judgment and remanded the case to the Fourth Circuit.

In addition, the Court has acknowledged that it functions, in some ways,  as a court of last resort in capital cases.  Just last term, in Kyles v. Whitley, ___U.S.___, 115 S.Ct. 1555 (1995), the Court reaffirmed that its "duty to search for constitutional error with painstaking care is never more exacting that it is in a capital case."  115 S.Ct. at 1560 (quoting Burger v. Kemp, 483 U.S. 776 (1987)).  In his concurring opinion, Justice Stevens, joined by Justices Ginsburg and Breyer, noted that due to the "current popularity of capital punishment,"  the Supreme Court's  "duty to administer justice occasionally requires busy judges to engage in a detailed review of the particular facts of a case, even though our labors may not provide posterity with newly minted rule of law."  Id. at 1576.  In other words, even if a capital case does not present a "certworthy" issue, the Court may grant review to correct an incorrect lower court decision.  See, e.g., Kyles, supra (finding that Court of Appeals erroneously determined that state's failure to disclose exculpatory information did not violate Brady); Yates v. Evatt, 500 U.S. 391 (1991) (Court granted certiorari to review state supreme court's determination that unconstitutional, burden-shifting presumption of malice was harmless).

IX.  CATEGORICAL BANS.  

While much of the above discussion has focused on procedural matters, the Eighth Amendment also places some substantive limitations on the state's use of the death penalty.  There are some persons, or classes of persons, whom the state cannot execute. 

In determining whether a particular punishment falls within the Eighth Amendment's prohibition against "cruel and unusual punishments," the Supreme Court has employed two methods of analysis.  The first is to determine whether the Framers of the Constitution intended to prohibit a particular form of punishment when they adopted the cruel and unusual punishments clause.  Under this analysis, the purpose of the clause is to protect American citizens from punishments which were considered unnecessarily cruel, torturous, or barbarous by English law at the time the Eighth Amendment was adopted.  Solem v. Helm, 463 U.S. 277, 285-86 (1983); id. at 312-13 (Burger C.J., joined by White, Rehnquist, and O'Connor, J.J., dissenting ).  Accordingly, whether the Framers intended the Eighth Amendment to preclude a particular punishment depends in turn upon the view taken by the common law toward the punishment.  See generally Ford v. Wainwright, 477 U.S. 399 (1986).            The second method of analysis rests on the premise that the Framers "intended the Eighth Amendment to go beyond the scope of its English counterpart . . .," Solem v. Helm, 463 U.S. at 286, and to "'draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'" Gregg v. Georgia, 428 U.S. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).  The analysis of a particular punishment in light of "the evolving standards of decency "involves two inquiries.  First, the Court assesses contemporary standards of decency by focusing upon "objective indicia that reflect the public attitude toward a given sanction," Gregg v. Georgia, 428 U.S. at 173, including "the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made."  Enmund v. Florida, 458 U.S. 782, 788 (1982).  Second, "informed by [these] objective factors to the maximum possible extent," Coker v. Georgia, 433 U.S. 584, 592 (1977), the Court "bring[s] its own judgment to bear on the matter," Enmund v. Florida, 458 U.S. at 788-89, in order to determine whether the sanction "comports with the basic concept of human dignity at the core of the Amendment."  Gregg v. Georgia, 428 U.S. at 182.

While the "basic concept of human dignity" is an expansive and somewhat subjective concept,^[26] the Court has consistently identified two principles for its application.  While these principles are certainly not the only tools that can be used to show that a punishment violates human dignity, they are instructive.  The first is that to ""accord with 'the dignity of man,'" a punishment "[can]not be 'excessive.'"  Gregg v. Georgia, 428 U.S. at 173.  This means that the state must have "penological justification" for inflicting a punishment.  Id. at 183.  With respect to the death penalty, the execution of an individual offender must, therefore, serve at least one of "two principal social purposes:  retribution and deterrence of capital crimes by prospective offenders."  Id.

Unless the death penalty when applied to one in [petitioner's] position measurably contributes to one or both of these goals, it is 'nothing more than the purposeless and needless infliction of suffering'. . . .

 

Enmund v. Florida, 458 U.S. at 798 (quoting Coker v. Georgia, 433 U.S. at 592) (emphasis supplied).  The second principle grows out of the first.  The concept of human dignity cannot allow "the infliction of unnecessary pain in the execution of the death sentence."  Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (emphasis supplied).  While infliction of "the necessary suffering involved in any method employed to extinguish life humanely" is permissible, id., the infliction of "unnecessary" suffering is intolerable.

The Court has applied these principles, with increasing reluctance, to several categories of offenders.

A.  In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that the death penalty cannot be imposed for the crime of rape.

B.  In Enmund v. Florida, 458 U.S. 782 (1982), the Court held that Earl Enmund's death sentence--Enmund was the "wheel man" in a robbery felony/murder--was disproportionate because he did not kill, intend to kill, or know that a killing would take place.  458 U.S. at 801.   In  Tison v. Arizona, 481 U.S. 137 (1987), Enmund was modified to say that the death penalty is permissible if the defendant was a major participant in a felony resulting in death and demonstrated a reckless disregard for human life. 

C.  In Ford v. Wainwright, 477 U.S. 399 (1986), the court held that a person who is incompetent or insane at the time of his or execution cannot be put to death.

D.  In Thompson v. Oklahoma, 487 U.S. 815 (1988), the Court held that the death penalty cannot be imposed on fifteen year old.  However, in Stanford v. Kentucky, 492 U.S. 361 (1989), the Court ruled that there was no per se ban against the execution of sixteen and seventeen year olds convicted of murder.

E.  In Penry v. Lynaugh, 492 U.S. 302 (1989), the Court held that there was no per se bar to the execution of mildly mentally retarded defendants.^[27]

F.  In Herrera v. Collins, ___U.S.___,  113 S.Ct. 853 (1993), although rejecting Herrera's claim, the Court recognized that a "truly persuasive demonstration"  of actual innocence based on newly discovered evidence raised for the first time in collateral proceedings would preclude the state from carrying out an inmate's death sentence.