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History

* The death penalty is the court-ordered execution of a convicted criminal.[1] [2]

* The early American colonies had varying death penalty laws, which were largely influenced by English law. Treason, murder, rape, grand robbery, and some property crimes were generally punishable by death.[3] [4]

* The first recorded legal execution under a death penalty in the American colonies took place in Jamestown in 1608 when a colonist was executed for spying for the Spanish.[5] [6]

* When the U.S. government enacted the Bill of Rights in 1791, the death penalty was a “common sanction” in the country. The Fifth Amendment placed the following limits on such cases:[7]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law….[8]

* Since 1868, the 14th Amendment of the U.S. Constitution has required state governments to respect the rights above (and all other constitutional rights).[9] [10] [11] In practice, the U.S. Supreme Court has required states to respect only certain constitutional rights that it deems to be “fundamental” to the American “scheme of ordered liberty.”[12]

* As states became wealthy enough to build prisons and house inmates in the late 1700s, they reduced the number of crimes eligible for the death penalty. Some states began to define different degrees of murder in 1794 and only punished first-degree murder, a “deliberate and premeditated killing,” with death.[13] [14] [15]

* In 1847, Michigan became the first English-speaking government to abolish the death penalty for all crimes besides treason. By the end of the 1800s, Wisconsin and Maine abolished it entirely.[16] [17] During this time, many states ended public hangings. The last public execution in the U.S. was in Kentucky in 1936.[18]

* From 1897 to 1917, 10 states abolished the death penalty, and by the end of the 1930s, eight of them had reinstated it.[19] The number of executions sharply increased in the 1930s to an average of 167 per year, as compared to 65 executions in 1919.[20] [21]

* In a 1958 case unrelated to the death penalty, the Supreme Court ruled (in a plurality decision) that “cruel and unusual punishment,” as banned by the Constitution’s Eighth Amendment,[22] has a changing definition based on “evolving standards of decency that mark the progress of a maturing society.”[23]

* During the 1960s, the National Association for the Advancement of Colored People and the American Civil Liberties Union began campaigns to abolish the death penalty.[24] [25] [26]

* In February 1972, the California Supreme Court ruled (6–1) that the death penalty violated the state constitution’s ban on cruel or unusual punishment. The ruling stated that, although the constitution “expressly or impliedly recognized” the death penalty, “evolving standards of decency” make it “impermissibly cruel.”[27]

* In June 1972, the U.S. Supreme Court ruled that the “imposition and carrying out of the death penalty” in various states violated the U.S. Constitution. Regarding this group of cases:

  • The ruling did not:
    • establish that the death penalty itself is unconstitutional.
    • provide guidelines to make existing systems constitutional.[28] [29] [30]
  • In the five separate opinions supporting this decision:
    • none of the justices formally and fully agreed with any other justice’s opinion.[31]
    • three justices found that the death penalty was applied inconsistently or unfairly, thus violating the Eighth Amendment’s ban on “cruel and unusual punishments” and the 14th Amendment’s promise of “equal protection” of the laws.[32] [33] [34]
    • two justices found that the death penalty is always “cruel and unusual” based on “evolving standards of decency.”[35] [36]
  • In the four separate opinions dissenting from this decision:
    • all four justices stated that the “explicit language” of the Fifth Amendment “of the Constitution affirmatively acknowledges the legal power to impose capital punishment” by using the phrases “capital … crime” and “deprived of life….”[37] [38]
    • all four justices stated that banning the death penalty is an issue for lawmakers, not the courts.[39]

* As a result of these rulings, the states reduced every death sentence to life in prison with the possibility of parole.[40] [41] By 1989, prisons had released 43% of the former death row inmates.[42]

* From 1972 to 1976, 35 states and the U.S. Congress passed new death penalty laws.[43] [44] In 1976, the U.S. Supreme Court ruled:

  • 7–2 that the Constitution’s ban on “cruel and unusual punishment” does not prohibit the death penalty.[45]
  • 7–2 that “the infliction of death as a punishment for murder” can be constitutional depending upon “the circumstances of the offense,” “the character of the offender,” and “the procedure followed in reaching the decision to impose it.”[46]
  • in a plurality decision that laws requiring the death penalty for everyone convicted of first-degree murder are unconstitutional, because they do not take the unique factors of each case into account.[47] [48]

* In 1977, Utah performed the first execution in the U.S. since the Supreme Court’s 1972 ruling.[49] [50]

* In all jurisdictions with the death penalty, lethal injection is the primary method of execution. Certain states authorize alternative methods in the event lethal injection is unavailable—electrocution, lethal gas, hanging, or firing squad.[51] [52]

Application

* Laws that impose the death penalty vary by state and federal jurisdiction.[53] As of 2020:

  • 22 states plus the District of Columbia do not allow the death penalty.
  • 28 states plus the federal government and military retain the death penalty.
  • 3 states with the death penalty—Pennsylvania, Oregon, and California—do not carry out executions, by order of each governor.[54] [55] [56]

* The U.S. Supreme Court ruled (7–2) in 1976 that the death penalty is constitutional as long as it is proportional to the crime and is not applied arbitrarily.[57] The two dissenting justices found that the death penalty violates the Constitution’s prohibition of cruel and unusual punishment.[58] [59]

* According to various U.S. Supreme Court rulings of differing majorities, the death sentence can be imposed:

  • in certain cases of murder.[60]
  • if a jury finds an aggravating factor that legally increases the crime’s severity or defendant’s accountability.[61] [62] [63] Such factors can include but are not limited to:
  • in certain cases of:

* According to various U.S. Supreme Court rulings of differing majorities, the death sentence cannot be imposed:

  • in cases of rape or other crimes where the victim did not die.[79] [80]

* Since 1976, no prisoners have been executed for a crime other than murder.[85] [86]

* Death penalty trials have two separate phases. During the:

  1. guilt phase, the jury decides whether the defendant is guilty of a crime that meets the requirements for a death penalty sentence.
  2. penalty phase, the jury decides if the guilty defendant should be sentenced to death based on legal guidelines. States vary on whether:
    • the jury or judge makes the final decision between the death penalty or another sentence.
    • the judge can overrule the jury’s recommendation for the death penalty and give a lesser sentence.[87] [88]

* County prosecutors, who are usually elected officials, decide whether to seek the death penalty in eligible cases and whether to offer a lighter sentence in exchange for a guilty plea. Their decisions can be influenced by factors such as personal ideology, public opinion, and resource limitations.[89] [90] [91] [92]

Frequency

* From 1977 to 2017, 8,440 people were sentenced to death in the United States. After peaking in 1994 at 330, the number of new death penalty sentences decreased to 34 in 2017:

Death Penalty Sentences in the United States

[93]

* From 1977 to 2017, a total of 1,465 prisoners were executed in the United States.[94] After peaking in 1999 at 98, the annual number of executions decreased to 23 in 2017:

Death Penalty Executions in the United States

[95]

* In 2017, the portion of the population that was on death row ranged from zero in Wyoming and New York to 38 per one million people in Alabama:

Death Row to Population Ratio by State

[96]

Racial Disparities

* In the U.S. over the past two decades, black people comprised:

  • 13% of the total population.
  • 52% of murder perpetrators in cases where law enforcement identified the race of the culprit.
  • 42% of the death row population.
  • 32% of death penalty executions:
Murder Perpetrators and Death Penalty by Race

[97]

* The portion of murders committed by minorities is understated when accounting only for cases in which law enforcement have identified the perpetrators. This is because roughly 90% of murder perpetrators are the same race as their victims,[98] and murders of black and Hispanic victims are less likely to be solved.[99] [100]

Culpability

General

* According to various U.S. Supreme Court rulings of differing majorities, the death penalty cannot be imposed if the perpetrator:


Minors

* In the 2005 case of Roper v. Simmons, the U.S. Supreme Court ruled (5–4) that minors cannot be subject to the death penalty because this would violate the U.S. Constitution’s Eighth Amendment ban on “cruel and unusual punishment.”[104] [105] This case involved a person who committed a capital murder in Missouri at the age of 17.[106]

* In a brief submitted to the U.S. Supreme Court in Roper v. Simmons, the American Psychological Association asserted that crimes committed by minors should never be subject to the death penalty on the grounds that:

Adolescent decision-makers on average are less future-oriented and less likely to consider properly the consequences of their actions.
 
In comparison with adults, studies show that adolescents are less likely to consider alternative courses of action, understand the perspective of others, or restrain impulses. In a study of more than 1,000 adolescents and adults … it was not until age 19 that this development of responsible decisionmaking plateaued.
In another analysis of decision-making competence … the researchers concluded “it is clear that important progress in the development of decision-making competence occurs sometime during late adolescence” [and] “these changes have a profound effect on their ability to make consistently mature decisions.”[107]

* In briefs submitted to the U.S. Supreme Court for a 1990 case involving a Minnesota law requiring parental notification for an abortion,[108] the American Psychological Association asserted that the law should be struck down on the grounds that:

Psychological theory and research about cognitive, social and moral development strongly supports the conclusion that most adolescents are competent to make informed decisions about important life situations.[109]
In fact, by middle adolescence (age 14–15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, reasoning about interpersonal relationships and interpersonal problems, and reasoning about custody preference during divorce.[110]
In sum, the unvarying and highly significant findings of numerous scientific studies indicate that with respect to the capacity to understand and reason logically, there is no qualitative or quantitative difference between minors in mid-adolescence, i.e., about 14–15 years of age, and adults.[111]

Insanity

* In the 1986 case of Ford v. Wainwright, the U.S. Supreme Court ruled (5–4) that:

  • prisoners who are insane cannot be subject to the death penalty because this would violate the U.S. Constitution’s Eighth Amendment ban on “cruel and unusual punishment.”[112] [113]
  • each state should continue to determine its own process for deciding whether a person is insane.[114]
  • determining insanity must include a “full and fair hearing.”[115] [116]

* In various cases with differing majorities, the U.S. Supreme Court has since ruled that a person who:

  • does not have “rational understanding” of the reason for his execution cannot be executed, regardless of the underlying disease or cause.[117] [118] [119]
  • has a mental illness may still be executed if he has this “rational understanding.”[120] [121]
  • was competent during trial can later prove he is no longer fit for execution.[122]

Intellectual Disability

* In the 2002 case of Atkins v. Virginia, the U.S. Supreme Court ruled (6–3) that:

  • people with intellectual disabilities cannot be subject to the death penalty because this would violate the U.S. Constitution’s Eighth Amendment ban on “cruel and unusual punishment.”[123] [124]
  • each state should determine its own process for deciding whether a person is intellectually disabled.[125] [126]

* At the time of Atkins v. Virginia, some states had already banned the death penalty for people with intellectual disabilities. In other states, juries decided if a defendant’s intellectual disability made him less responsible for his crime and hence ineligible for the death penalty.[127]

* In various cases with differing majorities, the U.S. Supreme Court has since ruled that a state’s process for determining whether a person is intellectually disabled:

  • should follow the “medical community’s current standards.”
  • cannot use a strict IQ cutoff.
  • must consider whether the person has:
    • a sub-average intellect.
    • limited social and practical skills.
    • had these limitations since childhood.[128] [129] [130]

Due Process

* From 1977 to 2017, the average time from death penalty sentencing to execution increased from 3 months to 20 years:

Average Time From Death Penalty Sentencing to Execution

[131]

* Long time periods on death row can:

  • give time for death row inmates to challenge their convictions or sentences, including:
    • going through the full appeals process.
    • uncovering new evidence.
    • applying new technologies to existing evidence.[132] [133] [134]
  • erode “public confidence in the criminal justice system.”[135]
  • weaken any “deterrent effect” of the death penalty.[136]
  • create claims that such delays violate the Eighth Amendment’s ban on cruel and unusual punishment.[137] [138]

* The appeals process significantly contributes to the length of time between sentencing and execution.[139] A convict sentenced to death has three routes to appeal the conviction, sentence, or both:

  1. All state death penalty sentences are automatically appealed. This appeal:
    • covers issues from the trial record such as overruled objections and the appropriateness of the sentence.
    • is mandatory in some states regardless of the defendant’s wishes.
    • usually goes directly to the state’s highest court.[140] [141] [142] [143] [144] [145]
  2. A separate appeal can begin in the state court system. This appeal:
    • covers legal issues such as the defense attorney’s effectiveness or withheld evidence.
    • usually begins in the original trial court and can proceed through the state court system to the U.S. Supreme Court.[146] [147] [148] [149]
  3. A third type of appeal can begin in the federal court system. This appeal:
    • covers federal legal issues such as alleged violations of the U.S. Constitution.
    • must be filed within one year of finishing the automatic appeal, unless a separate state appeal is in process.
    • can proceed through the federal court system to the U.S. Supreme Court.[150] [151] [152] [153] [154]

* From 1973 to 2013, about 32% of people sentenced to death left death row because their conviction or sentence was overturned during the appeals process.[155]

* After all court appeals are exhausted, a death row inmate can apply for clemency—a reduced sentence or pardon—from the state’s governor or executive board.[156] [157] [158] For federal death row inmates, the U.S. president alone has the power to pardon or commute sentences.[159] [160]

* Governors and presidents do not have to provide their reasons for granting or rejecting clemency petitions.[161] [162]

* From 1973 to 2013, about 5% of inmates sentenced to death ended up receiving a lighter sentence through the clemency process.[163] About 43% of these clemencies occurred in 2003 when Republican Governor George Ryan commuted all 167 Illinois death row inmates to lesser sentences.[164] [165]

* The U.S. Supreme Court has refused to hear cases in which death row inmates asserted that their length of time on death row violated the Eighth Amendment’s ban on “cruel and unusual punishment.”[166] [167] In one such refusal, Justice Clarence Thomas wrote:

It is incongruous to arm capital defendants with an arsenal of “constitutional” claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed.[168]

* Supreme Court Justice Stephen Breyer—who objects to the death penalty in all cases—asserted in 2019 that:

It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.[169] [170]

Innocence and Exonerations

Background & Definitions

* Per the Administrative Office of the United States Courts, the Illinois Supreme Court, the U.S. Supreme Court, and other legal authorities:

  • “Everyone accused of a crime is legally presumed to be innocent until they are convicted….”[171] [172]
  • “In a criminal trial, the … defendant must be found guilty ‘beyond a reasonable doubt,’ which means the evidence must be so strong that there is no reasonable doubt that the defendant committed the crime.”[173] [174]
  • “A not guilty verdict expresses no view as to a defendant’s innocence. Rather, it indicates simply that the prosecution has failed to meet its burden of proof.”[175] [176]
  • “Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.”[177]
  • “When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.”[178] [179] [180]

* In discussions about innocence and the death penalty, certain terms are sometimes used interchangeably.[181] [182] [183] In keeping with Just Facts’ Standard of Credibility to use “language that is precise and unambiguous,” this research uses the following terms as defined below:

  • Innocence means there is compelling evidence that a person did not commit a crime.[184] [185] [186] [187] Various U.S. Supreme Court rulings with differing majorities have stated that “actual innocence”:
    • “means factual innocence, not mere legal insufficiency.”[188]
    • means that “no juror, acting reasonably, would have voted” for guilt “beyond a reasonable doubt” after considering new evidence.[189] [190] [191] [192]
    • has an “extraordinarily high” threshold, and thus, valid claims of actual innocence after conviction “are rare.”[193] [194]
  • An exoneration is an official act by the government declaring that a previously convicted person is innocent.[195] [196] [197] [198] [199]
  • A pardon is an act by a governor or government board voiding a guilty verdict and its punishment. Governors may grant pardons for any reason, and only a pardon that is based on evidence of innocence is an exoneration.[200] [201]
  • An overturned conviction is a guilty verdict that a court invalidates. Unlike an exoneration, an overturned conviction is not always based on evidence of innocence. In addition to cases where innocence is established, it also includes cases where a legal error prevented a fair trial.[202] [203] [204] [205] [206]

Exoneration Frequency

* The U.S. criminal justice system is comprised of thousands of courts and does not keep an official list of exonerations.[207] [208] [209] Organizations that compile exoneration lists learn about cases from media outlets and people directly involved, then use official records to determine whether each case is an exoneration.[210] [211] [212]

* Two widely cited exoneration lists are:

  1. the National Registry of Exonerations, a project of the University of California Irvine, University of Michigan Law School, and Michigan State University College of Law.[213] [214] [215] This project:
    • includes cases in which a person was convicted of a crime and later cleared of legal guilt based on “new evidence of innocence.”[216] [217]
    • states that it is probably missing some exonerations because of the strict criteria it uses.[218]
    • states that it does not seek out innocent defendants who have not been exonerated” or “investigate cases of possible innocence” without “official actions by courts or other government agencies.”[219] [220]
  2. the “Innocence Database” compiled by the Death Penalty Information Center (DPIC).[221] This organization:
    • includes some people released due to a legal error without evidence of innocence who are not included on the National Registry of Exonerations.[222] [223] [224] [225]
    • includes cases in which a person was sentenced to death and later “all guilt was lifted.”[226]

* Anti-death penalty publications and broadcasts, such as the 2019 movie Just Mercy, sometimes claim that since the Supreme Court enacted guidelines for the death penalty in 1972,[227] [228] [229] “for every nine people executed in this country, one person on death row has been exonerated.”[230] [231] [232]

* Arnold Barnett, professor of statistics at Massachusetts Institute of Technology,[233] asserts that the above ratio is “highly misleading” and “does not demonstrate that executions are fraught with errors.” This is because most death row inmates are never put to death, and thus, “the error rate for capital-sentencing … is the number of innocents sentenced to death divided by the total number of people thus sentenced.”[234] [235] [236]

* As of February 2020, data from the National Registry of Exonerations and DPIC show that for every 50 people sentenced to death from 1973 to 2017, one has been exonerated. Among these cases:

  • about 64% had the charges dismissed by a court based on evidence of innocence.
  • about 27% had a new trial and were acquitted of all charges.
  • about 14–15% were primarily based on DNA evidence.
  • an average of 12–13 years passed from conviction to exoneration.[237]

* All 50 states have laws allowing convicts to appeal a conviction based on a claim of innocence,[238] and various local governments have created panels to investigate these claims.[239] [240] [241] North Carolina began the first such group in 2007, which as of April 2020 has closed 2,746 cases and helped exonerate 12 people. One exoneration was a death row inmate.[242] [243]

* The federal government and all 50 states have laws allowing convicts to apply for DNA testing after conviction.[244] [245] [246]

* From 2008 to 2019, the U.S. Department of Justice spent over $59 million on post-conviction DNA testing involving violent offenses. From 2005 to 2018, its funding helped exonerate 51 people. One exoneration—North Carolina Innocence Commission’s—was a death row inmate.[247] [248]


Post-Execution

* As of April 2020, the last person in the U.S. who was executed under the death penalty and later exonerated was put to death in 1939.[249] [250] [251] [252] [253] [254]

* Some death penalty opponents assert that innocent people have been executed in recent times but that “there is no way to tell how many” because courts and defense attorneys do not pursue exonerations after the defendant dies.[255] [256] [257] Regarding this claim, advocacy groups and media outlets investigate post-execution innocence cases, and in some cases, governments participate.[258] [259] Some examples include:

  • From 2000 to 2015, four people executed during 1915–1939 under a death penalty received full pardons from state governments based on evidence of their innocence.[260] [261] [262] [263] [264] [265]
  • In 2000, a Georgia court ordered the first post-execution DNA test in the U.S., four years after Ellis Wayne Felker’s execution. The test results were inconclusive.[266] [267]
  • An advocacy organization persuaded Virginia’s governor to order a post-execution DNA test in 2006, 14 years after Roger Coleman’s execution. The test confirmed Coleman’s guilt.[268] [269]
  • The NAACP’s Legal Defense and Educational Fund investigated Larry Griffin’s case in 2005, about 10 years after his execution. Their work led to an investigation by the prosecutor’s office, which concluded in 2007 that Griffin was guilty.[270]
  • An advocacy organization and the Texas Observer filed a lawsuit in 2007 to obtain DNA evidence for testing seven years after Claude Jones’s execution. The results did not conclusively confirm his guilt or innocence.[271]

* A post-execution exoneration can sometimes be more difficult to pursue than an exoneration while a defendant is still alive, because:

  • governments do not pay to provide lawyers on cases after execution.[272]
  • qualified lawyers prioritize their time by working on cases with living defendants whose lives can still be saved.[273] [274]
  • as time passes, evidence becomes more difficult to find.[275] [276]
  • laws allowing post-conviction DNA testing may not always apply after a defendant’s death.[277] [278]

* A post-execution exoneration can sometimes be easier to pursue than an exoneration while a defendant is still alive, because:

  • scientific advancements, such as DNA testing, can apply to cases that occurred before the technology was available.[279] [280] [281] [282]
  • proving a modern wrongful execution would politically advance the anti-death penalty cause and provide fame to the person who proves it.[283] [284] [285] [286] [287]
  • prosecutors are more willing to review the older cases of their predecessors than their own more recent cases.[288] [289] [290] [291]

Anthony Porter

* In 1982, a jury convicted Anthony Porter, a gang member with a violent criminal history, of a double murder and armed robbery. The judge sentenced him to death.[292] [293]

* To argue against the death penalty, people have cited Anthony Porter’s case in venues such as:

  • Illinois Governor George Ryan’s speech explaining why he commuted the sentences of every death row inmate in the state.[294]
  • U.S. Senator Patrick Leahy’s statements during a Supreme Court confirmation hearing.[295]
  • the Chicago Tribune.[296] [297]
  • the American Civil Liberties Union’s website.[298]
  • Newsweek.[299]
  • the Washington Post.[300]
  • a movie featured on NBC named Deadline.[301] [302]

* In 1998, Northwestern University Professor David Protess—an anti-death penalty activist—assigned his journalism class to reinvestigate Porter’s case.[303] [304] [305] [306]

* As a result of the investigation, a court overturned Porter’s murder convictions in 1999, and Illinois Governor George Ryan granted him a full pardon based on innocence.[307] [308] The exoneration occurred because:

  • one of the trial eyewitnesses recanted in a signed statement saying he “did not see Porter with a gun or shoot anyone.”[309] [310] [311]
  • another man, Alstory Simon, pled guilty to the murders and received a 37-year prison sentence for them.[312] [313] [314]

* In 2014, a court overturned Simon’s convictions, and prosecutors withdrew the charges. The prosecutor stated that the work to exonerate Anthony Porter and blame Alstory Simon was “corrupted” and:

involved a series of alarming tactics that were not only coercive and absolutely unacceptable by law enforcement standards, they were potentially in violation of Mr. Simon’s constitutionally protected rights.[315] [316]

* After Porter’s release and Simon’s sentencing, various sworn testimonies and legal documents revealed that:

  • three eyewitnesses who did not testify in the original trial placed Porter at the scene of the murders, and one of them said he saw Porter shoot the victims.[317]
  • the trial witness who reportedly “recanted” his testimony reiterated that although he did not see the shooting, he saw Porter run by him immediately afterwards at the scene of the crime.[318]
  • in order to encourage Simon to confess, a private investigator:
    • played him a video of a hired actor posing as an eyewitness to Simon committing the murders.[319] [320] [321] [322]
    • showed him a false statement from Simon’s ex-wife implicating him in the murders.[323] [324] [325]
  • Simon’s lawyer:
    • shared office space with the private investigator who pressured Simon to confess.
    • presented an award to the team that gathered the evidence against Simon.[326] [327]
    • allegedly told Simon that he would receive the death penalty if he did not plead guilty for a lighter sentence.[328] [329] [330]

* In 2011, Northwestern University suspended Professor Protess over ethical questions about his work on wrongful conviction cases. Protess left Northwestern to run the Chicago Innocence Project.[331] [332] [333]

Costs

* Any person accused of a crime who cannot afford a lawyer has the right to have one provided at the government’s expense.[334] [335] [336] [337] In all cases, this includes the trial and first appeal.[338] In death penalty cases, some states also provide a lawyer for the entire appeals process and request for a reduced sentence or pardon.[339] [340] [341]

* Generally, murder trials with the death penalty as a sentencing option cost more than murder trials without the death penalty.[342] This is because, in death penalty trials, the government pays:

  • lawyers a higher rate and often requires two defense lawyers.[343] [344] [345] [346]
  • for a longer trial because:[347]
    • jurors go through a more rigorous selection process.[348]
    • there are two separate trials: the guilt phase and the penalty phase.[349]
    • there are more experts involved during both trial phases.[350] [351]

* In 2007, county-level public defender offices in 25 states spent a total of about $30 million providing defense representation in over 900 death penalty cases.[352] This amounts to about $31,900 per defendant ($39,090 in 2019 dollars).[353] [354]

* The average cost to provide defense counsel in North Carolina’s death penalty cases rose from $58,592 during 2002–2006 to $93,231 during 2007–2015. This cost increase was largely offset by a decrease in the portion of cases in which prosecutors sought the death penalty. The per case cost increase was due to increases in the:

  • hourly pay rate for attorneys.
  • number of hours attorneys spent on each case. This increase was due to:
    • advances in science (such as DNA testing) leading to higher demand for expert testimony.
    • the increased volume of digital evidence (such as video and audio recordings) that attorneys must review to prepare for trial.[355]

* Rural Texas counties can pay an annual fee to a regional organization that provides a qualified legal team for poor death penalty defendants—an insurance policy against a large portion of death penalty trial costs.[356]

Deterrence

NOTE: When interpreting the facts in this section, it is important to realize that association does not prove causation, and it is often difficult to determine causation in social sciences. This is because numerous variables might affect a certain outcome, and there is frequently no objective way to identify all of these factors and determine which is causing the others and to what degree.

* Deterrence is crime prevention through fear of punishment.[357] [358] [359]

* In a 7–2 decision holding that the death penalty is constitutional, the U.S. Supreme Court asserted that deterrence and retribution are the “two principal social purposes” of the death penalty, and that:

We may … assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent.[360]

* Through the 1960s, criminology and psychology studies of the death penalty’s possible deterrent effect generally:

  • did not find a correlation between homicide rates and whether a state allowed the death penalty.[361] [362]
  • compared homicide rates:
    • between states with and without the death penalty sentence.
    • over time when a state added or removed the death penalty sentence.[363] [364]
  • did not control for other factors that may impact homicide rates, such as poverty and population density.[365] [366] [367] [368]

* Across U.S. states, there is no clear association between death penalty executions and murder rates:

Executions vs. Murder Rates for All 50 States

[369]

* In the 1970s, economists began studying the death penalty’s possible deterrent effect.[370] [371] These economic studies differ from criminologists’ and psychologists’ previous studies because:

  • instead of measuring whether having death penalty laws on the books are a deterrent, they measure whether actually carrying out the death penalty deters murders.[372] [373] [374] [375]
  • they control for other homicide rate factors, such as poverty, unemployment, race, and age.[376] [377]

* Using larger datasets over longer time periods,[378] economic studies in publications such as American Law and Economics Review, Journal of Law and Economics, and Journal of Applied Economics during 2003–2006 concluded that:

  • each death penalty execution deters multiple murders.[379] [380] [381]
  • shorter time periods from death penalty sentencing to execution deter more murders.[382]
  • the death penalty’s deterrent effect is stronger where it is imposed more frequently.[383] [384]
  • in order for the death penalty to deter murders, a state must carry out a minimum number of executions (at least nine during the 19-year period in the study).[385]

* In 2012, the National Academy of Sciences reviewed existing research on the death penalty’s effect on homicide rates.[386] It concluded that previous studies are “not informative” about whether or not the death penalty deters homicides because they generally:[387]

  • use observational data—which can only reveal associations—and a randomized experiment studying the death penalty is not possible.[388] [389] [390] [391] [392]
  • may be “contaminated” by others factors that can impact homicide rates, such as the severity of alternate punishments and arrest rates.[393] [394] [395] [396] [397]
  • do not measure criminals’ perceived risk of execution as opposed to the objective risk, and the “general public is very poorly informed” on the subject.[398] [399] [400]

* Other factors that stand in the way of determining whether or not the death penalty deters murder include the following:

  • Death penalty sentences and executions are not frequent enough to provide sufficient data.[401] [402] [403] [404]
  • Studies with statistically significant results require the assumption that potential criminals make rational decisions about whether to commit murder.[405] [406] [407] [408]
  • States that most frequently impose the death penalty, such as Texas, can skew the overall results in favor of deterrence.[409] [410]

Incapacitation

* Incapacitation means preventing criminals from committing future crimes by removing them from society, usually through incarceration.[411]

* Incarceration may not incapacitate certain criminals if they are likely to commit more crimes while in prison or after release.[412] [413] In some states, jurors consider the risk of future violence when deciding whether to sentence a convicted murderer to the death penalty instead of life imprisonment.[414] [415]

* A convicted person’s past criminal record is a factor in determining the risk of future violence.[416] Among inmates on death row in 2013, 67% had a prior felony conviction, and 9% had a prior homicide conviction.[417]

* As a result of rulings by the U.S. Supreme Court and California Supreme Court in 1972, every death sentence in the U.S. was lowered to life imprisonment.[418] [419] [420] By 1989:

  • six former death row inmates committed another murder in prison.[421]
  • 43% were released from prison.[422]
  • 14% of the released inmates committed new felonies.[423]

* Across the United States, at least five inmates commuted from death row in 1972 have received new death penalty sentences for subsequent crimes:

  1. Kenneth McDuff was executed in 1998 for two murders he committed after his release in 1989. He was suspected in about 10 additional murders at the time of his execution.[424] [425]
  2. Darryl Kemp was released in 1978 and later sentenced to life imprisonment for multiple rapes in Texas and the death penalty for murder in California. As of May 2020, he is on California’s death row.[426] [427]
  3. Bennie Demps, previously on death row with two death penalty sentences, was executed in 2000 for a fellow prison inmate’s 1976 murder.[428] [429]
  4. Robert Lee Massie was executed in 2001 for committing murder during an armed robbery within a year of his 1978 release.[430] [431]
  5. William Bradley received a death penalty sentence for killing a prison employee in 1984. He died on death row in 2005.[432] [433] [434]

Public Opinion

Polls

* According to Gallup polls conducted in 2019:

  • 56% of American adults are in favor of the death penalty, and 42% are not.[435] [436]
  • 60% of American adults think life imprisonment without parole is a better punishment for people convicted of murder than the death penalty, and 36% think the death penalty is better.[437]

* Regarding specific cases, American adults’ opinion of the death penalty varied as follows:

  • In 2001, 81% supported the execution of Oklahoma City bomber Timothy McVeigh, and 16% did not. Among people who generally opposed the death penalty:
    • 58% supported McVeigh’s execution.
    • 42% did not support McVeigh’s execution.[438]
  • In 2005, 72% supported the execution of former Iraqi President Saddam Hussein for crimes against humanity, and 25% did not.[439]
  • In 2015, 60% supported the death penalty for the 2013 Boston Marathon bomber, Dzhokhar Tsarnaev, and 30% did not.[440]

* A 2019 Gallup poll found that 60% of American adults believe that the death penalty is morally acceptable, as compared to:

  • 65% who believe smoking marijuana is morally acceptable.
  • 53% who believe buying and wearing clothing made of animal fur is morally acceptable.
  • 42% who believe abortion is morally acceptable.
  • 17% who believe suicide is morally acceptable.[441]

* The same poll found that:

  • 46% of self-reported liberals believe the death penalty is morally wrong, and 73% believe abortion is morally acceptable.
  • 66% of self-reported conservatives believe the death penalty is morally acceptable, and 71% believe abortion is morally wrong.[442]

* A 2014 Gallup poll found that:

  • 40% of American adults who oppose the death penalty oppose it because they feel it is wrong to take a life.[443] [444]
  • 57% of American adults who favor the death penalty favor it because it “fits the crime,” “they deserve it,” it is “fair punishment,” or to “serve justice.”[445] [446]

* Polls conducted by Gallup in 2011 and 2014 and by Pew Research Center in 2015 found that:

  • 32–35% of American adults believe the death penalty deters murder, and 61–64% believe it does not.
  • 6% of American adults who favor the death penalty for murderers support it in order to deter potential crimes.[447] [448] [449] [450]

Voting

* In 2015, Nebraska’s state legislature abolished the death penalty over the veto of the governor.[451] In the 2016 election, voters repealed the bill and reinstated the death penalty.[452]

* In California:

  • during 2016, voters:
    • rejected a proposal to abolish the death penalty.
    • approved a proposal to shorten the appeals process in death penalty cases by setting a five-year time limit.[453] [454] [455] [456]
  • during 2019, Democratic Governor Gavin Newsom issued an executive order that indefinitely suspends executions and repeals the state’s lethal injection protocol.[457] [458]

* In 2016, Oklahoma voters approved a state constitutional amendment:

  • asserting that the death penalty is not cruel and unusual punishment.
  • acknowledging that the method of execution may change if the U.S. Constitution’s Eighth Amendment ban on “cruel and unusual” punishment invalidates a current method.[459] [460] [461]

Footnotes

[1] Article: “Capital Punishment.” By Roger Hood. Encyclopedia Britannica. Last updated December 26, 2019. <www.britannica.com>

“Capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law.”

[2] Entry: “the death penalty.” Merriam-Webster Dictionary. Accessed February 10, 2020 at <www.merriam-webster.com>

“death as a punishment given by a court of law for very serious crimes”

[3] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” Congressional Research Service, February 25, 2016. <www.everycrsreport.com>

Page 1:

The death penalty has long been a sentencing option in this country.1 Capital punishment was a feature of English law that the early colonists brought with them.2 Once here, they often supplemented English law with provisions of their own. Although law among the colonies was hardly uniform beyond its English foundations, murder, rape, grand larceny, and various other property crimes appear to have been among the crimes punishable by death in each of the colonies.3 In fact, “[a]t the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State.”4

3 E.g., 1 Laws of the Commonwealth of Pennsylvania 1700–1781, 135–37 (1782) (murder, rape, highway robbery, arson, burglary); Charters and General Laws of the Colony and Province of Massachusetts Bay, 56–61 (1814) (murder, arson, treason, rape, robbery, burglary, witchcraft); see also, Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia, 129, 149, 159, 167, 204–204, 204, 219 (1965) (noting that capital offenses in colonial Virginia included arson, burglary, robbery, horse stealing, murder, treason and rape); Goebel, Law Enforcement in Colonial New York, 95 (1970) (“In the main, the common law rules regarding what were capital offenses were observed”).

4 Gregg v. Georgia, 428 U.S. 153, 177 (1976).

[4] Textbook: Capital Punishment in America: A Balanced Examination (2nd edition). By Evan Mandary. Jones & Bartlett Learning, 2012.

Page xxii: “As the colonies grew, they increasingly relied upon the death penalty as a means of maintaining order. … By the time of the Revolutionary War, many colonies had expanded the reach of their statutes to make treason, piracy, rape, sodomy, and even some property crimes punishable by death.”

[5] Report: “Executions in the United States, 1608–2002: The Espy File.” By M. Watt Espy and John Ortiz Smykla. Inter-University Consortium for Political and Social Research, March 2004. <web.stanford.edu>

Page 2: “In the winter of 1607–1608, Captain George Kendall, previously appointed one of the original councilors of the Jamestown colony, was accused of mutiny, tried in front of a jury of his peers, and shot to death. His execution, the first in the American colonies, represents the starting point of this study….”

[6] Book: Encyclopedia of Prisons and Correctional Facilities. Edited by Mary Bosworth. Sage Publications, 2004. Article: “Capital Punishment.” By Susan F. Sharp. <www.google.com>

“The first recorded legal execution in the American colonies occurred in 1608 in Virginia, when Captain George Kendall was executed for the crime of spying for Spain.”

[7] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. C. 9, 1 Stat. 112 (1790). The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases….

[8] Fifth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[9] Fourteenth Amendment to the Constitution of the United States. Ratified July 9, 1868. <justfacts.com>

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[10] Book: Processes of Constitutional Decisionmaking: Cases and Materials (5th edition). By Paul Brest and others. Aspen Publishers, 2006.

Senator Jacob Howard, Speech Introducing the Fourteenth Amendment

Speech delivered in the U.S. Senate, May 23, 1866

[Senator Jacob Howard of Michigan was a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment. He was the floor manager for the Amendment in the Senate. In this speech, he introduces the Amendment on the floor of the Senate and explains its purposes.]

I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced th[e] committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish. …

The first section [of the 14th Amendment] … relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. …

To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees….

[11] Book: The American Constitution: Its Origins and Development (3rd edition). By Alfred H. Kelly and Winfred A. Harbison. W. W. Norton & Company, 1963.

Page 461:

These provisions [Sections 1 and 2 of the 14th Amendment], largely the work of Representative John A. Bingham of Ohio, were intended to remove all doubt as to the constitutionality of the Civil Rights Act, as Stevens presently made clear in debate. The “privileges or immunities” clause, Bingham explained several times, was borrowed directly from the similar guarantee of interstate comedy in Article IV, Section 2 of the Constitution. Bingham and Senator Jacob Howard of Michigan, who presented the amendment to the upper house, agreed that the clause incorporated the entire federal Bill of Rights as a limitation upon the states.1 The “due process” clause was lifted from the Fifth Amendment; it now also became a guarantee against state action. The “equal protection” clause was specifically intended to reinforce the civil rights act; in everyday language, it warned the states not to discriminate against Negroes.

1 The Supreme Court destroyed this contention in the Slaughterhouse Cases. See pp. 503–504.

[12] Ruling: McDonald v. Chicago. U.S. Supreme Court, June 28, 2010. Decided 5–4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Stevens, Ginsburg, Breyer, Sotomayor. <www.law.cornell.edu>

Majority:

[Part] II

The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. …

The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system. The provision at issue in this case, §1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law.” …

In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. …

An alternative theory regarding the relationship between the Bill of Rights and §1 of the Fourteenth Amendment was championed by Justice Black. This theory held that §1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. … As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States…. Nonetheless, the Court never has embraced Justice Black’s “total incorporation” theory.

While Justice Black’s theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of “selective incorporation,” i.e., the Court began to hold that the Due Process Clause

fully incorporates particular rights contained in the first eight Amendments. …

The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights.12 Only a handful of the Bill of Rights protections remain unincorporated.13

[Part] III

With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty….

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

13 In addition to the right to keep and bear arms (and the Sixth Amendment right to a unanimous jury verdict …), the only rights not fully incorporated are (1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines.

We never have decided whether the Third Amendment or the Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause. …

Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment’s civil jury requirement long predate the era of selective incorporation.

Concurrence (Thomas):

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty….”

I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

Dissent (Stevens):

As the second Justice Harlan has shown, ever since the Court began considering the applicability of the Bill of Rights to the States, “the Court’s usual approach has been to ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.”

In his own classic opinion in Griswold … Justice Harlan memorably distilled these precedents’ lesson: “While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. …” …

The third precept to emerge from our case law flows from the second: The rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights. …

It is true, as the Court emphasizes … that we have made numerous provisions of the Bill of Rights fully applicable to the States. It is settled, for instance, that the Governor of Alabama has no more power than the President of the United States to authorize unreasonable searches and seizures. …

So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States. …

So far, I have explained that substantive due process analysis generally requires us to consider the term “liberty” in the Fourteenth Amendment, and that this inquiry may be informed by but does not depend upon the content of the Bill of Rights.

Dissent (Breyer, joined by Ginsburg and Sotomayor):

In my view, taking Heller as a given, the Fourteenth Amendment does not incorporate the Second Amendment right to keep and bear arms for purposes of private self-defense. Under this Court’s precedents, to incorporate the private self-defense right the majority must show that the right is, e.g. , “fundamental to the American scheme of justice,” Duncan v. Louisiana…. And this it fails to do. …

I thus think it proper, above all where history provides no clear answer, to look to other factors in considering whether a right is sufficiently “fundamental” to remove it from the political process in every State. I would include among those factors the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution’s structural aims, including its division of powers among different governmental institutions (and the people as well). Is incorporation needed, for example, to further the Constitution’s effort to ensure that the government treats each individual with equal respect? Will it help maintain the democratic form of government that the Constitution foresees? In a word, will incorporation prove consistent, or inconsistent, with the Constitution’s efforts to create governmental institutions well suited to the carrying out of its constitutional promises? …

Moreover, nothing in 18th-, 19th-, 20th-, or 21st-century history shows a consensus that the right to private armed self-defense, as described in Heller, is “deeply rooted in this Nation’s history or tradition” or is otherwise “fundamental.” Indeed, incorporating the right recognized in Heller may change the law in many of the 50 States. Read in the majority’s favor, the historical evidence is at most ambiguous. And, in the absence of any other support for its conclusion, ambiguous history cannot show that the Fourteenth Amendment incorporates a private right of self-defense against the States.

[13] Book: The Death Penalty: An American History. By Stuart Banner. Harvard University Press, 2009.

Page 98:

Between 1794 and 1798 five states abolished the death penalty for all crimes other than murder, and three of the five even abolished it for certain kinds of murder. The first was Pennsylvania, which in 1794 provided prison sentences in place of death for treason, manslaughter, rape, arson, and counterfeiting. Murder remained the sole capital crime, and even murder, for the first time in any jurisdiction with a legal system based on that of England, was divided into degrees.

Page 99:

Several states, including Massachusetts, New York, and Pennsylvania, established their first prisons in the 1780s. When New Jersey, Virginia, and Kentucky partially abolished capital punishment in the 1790s, each state simultaneously appropriated funds for its first prison. … Increasing material wealth allowed governments to feed, clothe, and house prisoners for extended periods, a project that in an earlier era would have been prohibitively expensive. … But much of the motivation for the invention of the prison arose from the growing distaste for executing burglars, robbers, rapists, and the like.22

[14] Article: “Abolition and Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century.” By John F. Galliher, Gregory Ray, and Brent Cook. Journal of Criminal Law and Criminology, Fall 1992. Pages 538–576. <scholarlycommons.law.northwestern.edu>

Page 543: “[T]hat there were any such [death penalty] offenses at all was due to the scarcity of prison space.35 More recently, Adamson36 has noted the importance of economics in changes in United States’ penal policy from the 1790s through the early twentieth century.”

[15] Article: “History of the Pennsylvania Murder Statute Creating Degrees of Murder.” By Edwin R. Keedy. University of Pennsylvania Law Review, May 1949. Pages 759–777. <scholarship.law.upenn.edu>

Pages 772–773:

On April 22, 1794 the Assembly approved the amended act, the preamble and first two sections of which were as follows:

Whereas the design of punishment is to prevent the commission of crimes, and to repair the injury that hath been done thereby to society or the individual, and it hath been found by experience, that these objects are better obtained by moderate but certain penalties, than by severe and excessive punishments: And whereas it is the duty of every government to endeavour to reform, rather than exterminate offenders, and the punishment of death ought never to be inflicted, where it is not absolutely necessary to the public safety: Therefore,

Sect. I. Be it enacted by the Senate and House of Representatives of the commonwealth of Pennsylvania, in General Assembly met, and it is hereby enacted by the authority of the same, That no crime whatsoever, hereafter committed (except murder of the first degree) shall be punished with death in the state of Pennsylvania.

Sect. II. And whereas the several offences, which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness that it is unjust to involve them in the same punishment: Be it further enacted by the Authority aforesaid, That all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree; and the jury, before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but if such person shall be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.99

[16] Webpage: “Michigan Legal Milestones: 41. First to Abolish the Death Penalty.” State Bar of Michigan, November 6, 2018. <www.michbar.org>

“On March 1, 1847, after a decade of statehood, Michigan became the first government in the English-speaking world to outlaw capital punishment for murder and lesser crimes. In 1962 … a bipartisan majority of delegates to the state’s constitutional convention voted to add a new constitutional ban stating, ‘No law shall be enacted providing for the penalty of death.’

[17] Report: “Capital Punishment 1983.” By Mimi Cantwell. U.S. Department of Justice, Bureau of Justice Statistics, April 1986. <www.bjs.gov>

Page 7: “Maine: Death penalty abolished 1876, restored 1883, and abolished again 1887. … Michigan: Death penalty abolished in part 18474 and fully abolished 1963. Death penalty prohibited by State constitution. … Wisconsin: Death penalty abolished 1853.”

[18] Book: The Death Penalty: An American History. By Stuart Banner. Harvard University Press, 2009.

Page 154:

[I]t became far more common for state legislatures to require all hangings to be conducted out of the public eye, either inside the jail itself or within the jail’s high walls. The first state to abolish public executions was Connecticut, in 1830. By 1836 six other northeastern states had done the same—Rhode Island, Pennsylvania, New Jersey, New York, Massachusetts, and New Hampshire. … Soon after, Mississippi and Alabama became the first southern states to move hangings into the jail yard. By 1860 public hanging had been abolished throughout the North and in Delaware and Georgia. … In later years, as the West gained population, the western states did the same.

Page 155: “By the end of the nineteenth century public hangings had been abolished in Virginia, Kentucky, Maryland, Louisiana, Missouri, South Carolina, and Tennessee.”

Page 156: “The execution that drew the greatest attention, and the one that ended the practice of public hanging in the United States, was that of Rainey Bethea, hanged for rape in Owensboro, Kentucky, in the summer of 1936. … There have been no public executions in the United States since then.”

[19] Article: “Abolition and Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century.” By John F. Galliher, Gregory Ray, and Brent Cook. Journal of Criminal Law and Criminology, Fall 1992. Pages 538–576. <scholarlycommons.law.northwestern.edu>

Page 538: “Ten American states abolished the death penalty between 1897 and 1917, but by the end of the 1930s, eight of these states had reinstated capital punishment.”

Pages 559–560: “[L]ike other Progressive Era reforms, enactment of death penalty abolition laws was concentrated during the economic boom years of 1914–1917; however, this progression abruptly stopped upon U.S. entry into World War I.”

Pages 574–575:

[S]ome significant patterns and several common themes and motivations for reinstating the death penalty did emerge. Statements made by non-repentant convicted murderers helped fuel death penalty reinstatement movements in Oregon, Washington, Missouri, Arizona and South Dakota. In each of these states, a convicted murderer publicly acknowledged that he might not have committed his crime had the threat of the death penalty existed. … In some states, initial reluctance to abolish the death penalty foreshadowed reinstatement. This was clearly the case in Oregon, where abolition was approved by a margin of only 157 votes, and in Arizona, where the measure passed by a margin of only 152 votes. …

… Significantly, lynchings occurred in each of the four states with the shortest periods of death penalty abolition. Lynchings were usually committed by otherwise law-abiding citizens taking justice into their own hands. According to these individuals, if a legal death penalty did not exist as a deterrent, lynching was the only method of deterring criminals from committing heinous crimes. …

Economics also played an important role in reinstatement. The end of the death abolition movement coincided with the end of World War I and the start of the post-war economic depression.258 With the exception of Colorado, reinstatement bills were passed during either the recession immediately following World War I or during the Great Depression of the 1930s.

[20] Calculated with data from the report: “Capital Punishment, 2010 – Statistical Tables.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, December 20, 2011. <www.bjs.gov>

Page 1: “Figure 1. Number of Persons Executed in the United States, 1930–2010 … 1930 [=] 155 … 1931 [=] 153 … 1932 [=] 140 … 1933 [=] 160 … 1934 [=] 168 … 1935 [=] 199 … 1936 [=] 195 … 1937 [=] 147 … 1938 [=] 190 … 1939 [=] 160”

CALCULATION: (155 + 153 + 140 + 160 + 168 + 199 + 195 + 147 + 190 + 160) / 10 = 167

[21] Textbook: Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States (5th edition). By Robert M. Bohm. Routledge, 2017.

Page 16: “Despite the efforts of determined abolitionists, more capital offenders were executed during the 1930s than in any other decade in American history; the average was 167 executions per year.198 … This was a dramatic reversal from earlier in the century when the number of executions fell from 161 in 1912 to 65 in 1919. The 65 executions in 1919 were the fewest in 50 years.200

[22] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[23] Ruling: Trop v. Dulles. U.S. Supreme Court, March 31, 1958. Plurality: Warren, Black, Douglas, Whittaker. Concurring: Brennan, Black, Douglas. Dissenting: Frankfurter, Burton, Clark, Harlan. <www.law.cornell.edu>

Syllabus:

The Chief Justice, in an Opinion joined by Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Whittaker, concluded that: …

2. Even if citizenship could be divested in the exercise of some governmental power, § 401(g) violates the Eighth Amendment, because it is penal in nature and prescribes a “cruel and unusual” punishment. …

Mr. Justice Black, in an opinion joined by Mr. Justice Douglas, concurred in the opinion of The Chief Justice and expressed the view that, even if citizenship could be involuntarily divested, the power to denationalize may not be placed in the hands of military authorities. …

Mr. Justice Brennan … concluded in this case that § 401(g) lies beyond the power of Congress to enact. …

For dissenting opinion of Mr. Justice Frankfurter, joined by Mr. Justice Burton, Mr. Justice Clark and Mr. Justice Harlan….

Plurality:

The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. … The Court recognized in that case that the words of the Amendment are not precise,32 and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

We believe, as did Chief Judge Clark in the court below,33 that use of denationalization as a punishment is barred by the Eighth Amendment.

Concurrence (Black): “If desertion or other misconduct is to be a basis for forfeiting citizenship, guilt should be determined in a civilian court of justice, where all the protections of the Bill of Rights guard the fairness of the outcome. … Military courts may try soldiers and punish them for military offenses, but they should not have the last word on the soldier's right to citizenship.”

Concurrence (Brennan):

Here, as in Perez v. Brownell, we must inquire whether there exists a relevant connection between the particular legislative enactment and the power granted to Congress by the Constitution. …

[T]he section with which we are now concerned, § 401(g), draws upon the power of Congress to raise and maintain military forces to wage war. No pretense can here be made that expatriation of the deserter in any way relates to the conduct of foreign affairs, for this statute is not limited in its effects to those who desert in a foreign country or who flee to another land.

… Congress’ asserted power to expatriate the deserter bears to the war powers precisely the same relation as its power to expatriate the tax evader would bear to the taxing power. I therefore must conclude that § 401(g) is beyond the power of Congress to enact.

Dissent:

Even assuming, arguendo, that § 401(g) can be said to impose “punishment,” to insist that denationalization is “cruel and unusual” punishment is to stretch that concept beyond the breaking point. It seems scarcely arguable that loss of citizenship is within the Eighth Amendment’s prohibition because disproportionate to an offense that is capital and has been so from the first year of Independence. … Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death? The seriousness of abandoning one’s country when it is in the grip of mortal conflict precludes denial to Congress of the power to terminate citizenship here, unless that power is to be denied to Congress under any circumstance.

… If loss of citizenship may constitutionally be made the consequence of such conduct as marrying a foreigner, and thus certainly not “cruel and unusual,” it seems more than incongruous that such loss should be thought “cruel and unusual” when it is the consequence of conduct that is also a crime. In short, denationalization, when attached to the offense of wartime desertion, cannot justifiably be deemed so at variance with enlightened concepts of “humane justice” … as to be beyond the power of Congress, because constituting a “cruel and unusual” punishment within the meaning of the Eighth Amendment.

[24] Textbook: Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States (5th edition). By Robert M. Bohm. Routledge, 2017.

Page 17:

The drive to abolish the death penalty in the 1960s was spearheaded by the American Civil Liberties Union and, especially, the NAACP [National Association for the Advancement of Colored People] Legal Defense and Educational Fund (LDF), neither of which was a death penalty abolitionist organization. Thus, Haines attributes death penalty abolitionism during this period more to the civil rights movement (because of the lead of LDF attorneys) than to prior death penalty abolitionist efforts.211

[25] Article: “The Legal Defense Fund’s Capital Punishment Campaign: The Distorting Influence of Death.” By Eric L. Muller. Yale Law & Policy Review, 1985. Pages 158–157. <pdfs.semanticscholar.org>

Page 158: “During the 1960s and early 1970s the LDF [National Association for the Advancement of Colored People’s Legal Defense and Educational Fund] undertook yet another campaign. The Fund mounted a two-stage attack on the death penalty: first on its imposition for the crime of rape, then on its imposition for any crime at all.”

[26] Book: Debating the Death Penalty: Should America Have Capital Punishment? Edited by Hugo Bedau and Paul Cassell. Oxford University Press, 2004.

Chapter 2: “An Abolitionist’s Survey of the Death Penalty in America Today.” By Hugo Adam Bedau. Pages 15–50.

Page 23: “In the mid-1960s, the abolition movement underwent a major transformation. … Beginning in 1967, lawyers attacked the death penalty on constitutional grounds, arguing that it violated ‘due process of law,’ ‘equal protection of the law,’ and especially the prohibition against ‘cruel and unusual punishment.’

[27] Ruling: People v. Anderson. California Supreme Court, February 18, 1972. Decided 6–1. Majority: Wright, Peters, Tobriner, Mosk, Burke, Sullivan. Dissenting: McComb. <law.justia.com>

Majority:

We have concluded that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state. Because we have determined that the California Constitution does not permit the continued application of capital punishment, we need not consider whether capital punishment may also be proscribed by the Eighth Amendment to the United States Constitution.1

It has been suggested that we are … restrained from considering whether capital punishment is proscribed by article I, section 6, since the death penalty is expressly or impliedly recognized in several other provisions of the California Constitution.19 We perceive no possible conflict or repugnance between those provisions and the cruel or unusual punishment clause of article I, section 6, however, for none of the incidental references to the death penalty purport to give its existence constitutional stature. They do no more than recognize its existence at the time of their adoption. Thus, the bail clause of article I, section 6, restricts the right to bail in capital cases; the due process clause of article I, section 13, ensures that life will not be taken without due process; and section 8 of article I allows felony defendants represented by counsel to plead guilty at an arraignment before a magistrate only in noncapital cases. Similarly, section 8 of article V gives the Governor power to reprieve and section 11 of article VI vests this court with appellate jurisdiction in cases in which the death penalty has been imposed. None of these provisions can be construed as an affirmative exemption of capital punishment from the compass of the cruel or unusual punishment clause of article I, section 6. …

We are mindful, too, that article I, section 6, like the Eighth Amendment, is not a static document. Judgments of the nineteenth century as to what constitutes cruelty cannot bind us in considering this question any more than eighteenth century concepts limit application of the Eighth Amendment. …

… Judged by contemporary standards of decency, capital punishment is impermissibly cruel. It is being increasingly rejected by society and is now almost wholly repudiated by those most familiar with its processes. Measured by the “evolving standards of decency that mark the progress of a maturing society,” capital punishment is, therefore, cruel within the meaning of article I, section 6, of the California Constitution. …

We have concluded that capital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process. Our conclusion that the death penalty may no longer be exacted in California consistently with article I, section 6, of our Constitution is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members. …

1 We note that this issue is presently before the United States Supreme Court. (Aikens v. CaliforniaFurman v. GeorgiaJackson v. Georgia….) …

19 Article I, section 6: “All persons shall be bailable by sufficient sureties, unless for capital offenses….”; article I, section 8: “… If the felony charged is not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him whether he pleads guilty or not guilty to the offense charged therein [and] the defendant may … plead guilty to the offense….”; article I, section 13: “… No person shall … be deprived of life … without due process of law….”; article V, section 8: “… the Governor, on conditions he deems proper, may grant a reprieve….”; article VI, section 11: “The Supreme Court has appellate jurisdiction when judgment of death has been pronounced.”

Dissent:

In my opinion, the death penalty is constitutional, as held by this court in a long line of cases….1

… Therefore, since it is the duty of the Legislature or the electorate, and not the judiciary, to decide whether it is sound public policy to empower the imposing of the death penalty, it is my opinion that if a change is to be made, it should be effected through the legislative process or by the people through the initiative process.

1 In my opinion, the fact that for thousands of years death has been accepted as a proper punishment for the most serious criminal offenses indicates that it is neither a cruel punishment (when effected by means such as those used in this state) nor an unusual punishment.

[28] Ruling: Furman v. Georgia. U.S. Supreme Court, June 29, 1972. <caselaw.findlaw.com>

Per Curiam:†

Certiorari was granted limited to the following question: “Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?”

The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgement in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.

So ordered.

Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Marshall have filed separate opinions in support of the judgments. The Chief Justice, Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Rehnquist have filed separate dissenting opinions.

NOTE: † A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[29] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

The Court on a number of occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment.12 But until Furman v. Georgia … the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15

[30] Article: “Florida’s Legislative and Judicial Responses to Furman v. Georgia: An Analysis and Criticism.” By Tim Thornton. Florida State University Law Review, 1974. Pages 108–152. <ir.law.fsu.edu>

Page 110: “[A]ny statute, state20 or federal, purporting to reinstate the death penalty must comport with constitutional guidelines set out in Furman. Such guidelines, however, do not appear in the majority’s per curiam opinion; any guidelines that may exist must be gleaned from the five separate concurring opinions.”

Page 111: “In order to determine the constitutional guidelines embodied in the decision, it is helpful to draw the common threads from the separate opinions because the impact of the decision is obviously greatest in those areas in which the most Justices agreed.”

[31] Ruling: Furman v. Georgia. U.S. Supreme Court, June 29, 1972. <caselaw.findlaw.com>

Per Curiam:†

Petitioner in No. 69-5003 was convicted of murder in Georgia, and was sentenced to death pursuant to Ga. Code Ann. § 26-1005…. Petitioner in No. 69-5030 was convicted of rape in Georgia, and was sentenced to death pursuant to Ga. Code Ann. § 26-1302…. Petitioner in No. 69-5031 was convicted of rape in Texas, and was sentenced to death pursuant to Tex. Penal Code, Art. 1189 (1961). …

Certiorari was granted limited to the following question: “Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?”

The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgement in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.

So ordered.

Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Marshall have filed separate opinions in support of the judgments. The Chief Justice, Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Rehnquist have filed separate dissenting opinions.

NOTE: † A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[32] Ruling: Furman v. Georgia. U.S. Supreme Court, June 29, 1972. <caselaw.findlaw.com>

Concurrence (Douglas):

I vote to vacate each judgment, believing that the exaction of the death penalty does violate the Eighth and Fourteenth Amendments. … [T]hese discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination, and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on “cruel and unusual” punishments.

Concurrence (Stewart):

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. … I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Concurrence (White): “[T]he death penalty is exacted with greater infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”

[33] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[34] Fourteenth Amendment to the Constitution of the United States. Ratified July 9, 1868. <justfacts.com>

“Section 1. … No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[35] Ruling: Furman v. Georgia. U.S. Supreme Court, June 29, 1972. <caselaw.findlaw.com>

Concurrence (Brennan):

Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the Clause, however, was left behind with the 19th century. Our task today is more complex. We know “that the words of the [Clause] are not precise, and that their scope is not static.” We know, therefore, that the Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” …

In sum, the punishment of death is inconsistent with all four principles: death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.

… Today death is a uniquely and unusually severe punishment. When examined by the principles applicable under the Cruel and Unusual Punishment Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore “cruel and unusual,” and the States may no longer inflict it as a punishment for crimes.

Concurrence (Marshall):

Perhaps the most important principle in analyzing “cruel and unusual” punishment questions is one that is reiterated again and again in the prior opinions of the Court: i.e., the cruel and unusual language “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today.

The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us. …

It is immediately obvious, then, that since capital punishment is not a recent phenomenon, if it violates the Constitution, it does so because it is excessive or unnecessary, or because it is abhorrent to currently existing moral values. …

[E]ven if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history.

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.

[36] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[37] Ruling: Furman v. Georgia. U.S. Supreme Court, June 29, 1972. <caselaw.findlaw.com>

Dissent (Burger, Blackmun, Powell, Rehnquist):

Counsel for petitioners properly concede that capital punishment was not impermissibly cruel at the time of the adoption of the Eighth Amendment. Not only do the records of the debates indicate that the Founding Fathers were limited in their concern to the prevention of torture, but it is also clear from the language of the Constitution itself that there was no thought whatever of the elimination of capital punishment. The opening sentence of the Fifth Amendment is a guarantee that the death penalty not be imposed “unless on a presentment or indictment of a Grand Jury.” The Double Jeopardy Clause of the Fifth Amendment is a prohibition against being “twice put in jeopardy of life” for the same offense. Similarly, the Due Process Clause [of the Fifth Amendment] commands “due process of law” before an accused can be “deprived of life, liberty, or property.” Thus, the explicit language of the Constitution affirmatively acknowledges the legal power to impose capital punishment; it does not expressly or by implication acknowledge the legal power to impose any of the various punishments that have been banned as cruel since 1791. Since the Eighth Amendment was adopted on the same day in 1791 as the Fifth Amendment, it hardly needs more to establish that the death penalty was not “cruel” in the constitutional sense at that time.

Dissent (Powell, Burger, Blackmun, Rehnquist):

The Constitution itself poses the first obstacle to petitioners’ argument that capital punishment is per se unconstitutional. The relevant provisions are the Fifth … Eighth, and Fourteenth Amendments. …

… Both the language of the Fifth and Fourteenth Amendments and the history of the Eighth Amendment confirm beyond doubt that the death penalty was considered to be a constitutionally permissible punishment. It is, however, within the historic process of constitutional adjudication to challenge the imposition of the death penalty in some barbaric manner or as a penalty wholly disproportionate to a particular criminal act. And in making such a judgment in a case before it, a court may consider contemporary standards to the extent they are relevant. While this weighing of a punishment against the Eighth Amendment standard on a case-by-case basis is consonant with history and precedent, it is not what [408 U.S. 238, 421] petitioners demand in these cases. They seek nothing less than the total abolition of capital punishment by judicial fiat.

[38] Fifth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb … nor be deprived of life, liberty, or property, without due process of law….”

[39] Ruling: Furman v. Georgia. U.S. Supreme Court, June 29, 1972. <caselaw.findlaw.com>

Dissent (Burger, Blackmun, Powell, Rehnquist):

The world-wide trend toward limiting the use of capital punishment, a phenomenon to which we have been urged to give great weight, hardly points the way to a judicial solution in this country under a written Constitution. Rather, the change has generally come about through legislative action, often on a trial basis and with the retention of the penalty for certain limited classes of crimes.31 Virtually nowhere has change been wrought by so crude a tool as the Eighth Amendment. The complete and unconditional abolition of capital punishment in this country by judicial fiat would have undermined the careful progress of the legislative trend and foreclosed further inquiry on many as yet unanswered questions in this area.

Dissent (Blackmun):

I join the respective opinions of The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist, and add only the following, somewhat person comments. …

As I have said above, were I a legislator, I would do all I could to sponsor and to vote for legislation abolishing the death penalty. And were I the chief executive of a sovereign State, I would be sorely tempted to exercise executive clemency as Governor Rockefeller of Arkansas did recently just before he departed from office. There—on the Legislative Branch of the State or Federal Government, and secondarily, on the Executive Branch—is where the authority and responsibility for this kind of action lies. The authority should not be taken over by the judiciary in the modern guise of an Eighth Amendment issue.

… Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these.

Dissent (Powell, Burger, Blackmun, Rehnquist):

The designation of punishments for crimes is a matter peculiarly within the sphere of the state and federal legislative bodies. …

How much graver is that duty when we are not asked to pass on the constitutionality of a single penalty under the facts of a single case, but instead are urged to overturn the legislative judgments of 40 state legislatures as well as those of Congress. …

One must conclude, contrary to petitioners’ submission, that the indicators most likely to reflect the public’s view—legislative bodies, state referenda and the juries which have the actual responsibility—do not support the contention that evolving standards of decency require total abolition of capital punishment. …

As I noted at the outset of this section, legislative judgments as to the efficacy of particular punishments are presumptively rational, and may not be struck down under the Eighth Amendment because this Court may think that some alternative sanction would be more appropriate. Even if such judgments were within the judicial prerogative, petitioners have failed to show that there exist no justifications for the legislative enactments challenged in these cases.

Dissent (Rehnquist, Burger, Blackmun, Powell):

Rigorous attention to the limits of this Court’s authority is likewise enjoined because of the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others. Judges differ only in that they have the power, if not the authority, to enforce their desires. This is doubtless why nearly two centuries of judicial precedent from this Court counsel the sparing use of that power. The most expansive reading of the leading constitutional cases does not remotely suggest that this Court has been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court.

[40] Textbook: Capital Punishment in America: A Balanced Examination (2nd edition). By Evan J. Mandery. Jones & Bartlett Learning, 2012.

Page 67: “As a result of the Supreme Court’s decision in Furman v. Georgia, the sentences of all death row inmates in the United States were commuted to life imprisonment with the possibility of parole.”

[41] Webpage: “History of Capital Punishment in California.” California Department of Corrections and Rehabilitation. Accessed January 2, 2020 at <www.cdcr.ca.gov>

“In February 1972, the California Supreme Court found that the death penalty constituted cruel and unusual punishment under the California state constitution and 107 condemned inmates were resentenced to life with the possibility of parole and removed from California’s death row.”

[42] Calculated with data from:

a) Paper: “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders.” By James W. Marquart and Jonathan R. Sorensen. Loyola of Los Angeles Law Review, November 1, 1989. Pages 5–28. <pdfs.semanticscholar.org>

Page 22: “Of the 558 Furman-commuted inmates … two hundred forty-three (44%) of the capital offenders have been released to society.”

b) Article: “Two Decades After People v. Anderson.” By Jonathan R. Sorenson, James W. Marquart, and Madhava R. Bodapati. Loyola of Los Angeles Law Review, November 1, 1990. Pages 45–56. <digitalcommons.lmu.edu>

Page 51: “In February 1972, there were 107 murderers on California’s death row. … Since commutation … over the eighteen-year period from 1972 to 1989 … forty-one inmates who have been released from prison, through parole or straight discharge….”

CALCULATION: (243 Furman parolees + 41 Anderson parolees) / (558 Furman commutees + 107 Anderson commutees) = 43%

[43] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

[U]ntil Furman v. Georgia … the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution. …

The most marked indication of society’s endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States23 have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death.24

23 Ala. H. B. 212, 2–4, 6–7 (1975); Ariz. Rev. Stat. Ann. 13-452 to 13-454 (Supp. 1973); Ark. Stat. Ann. 41-4706 (Supp. 1975); Cal. Penal Code 190.1, 209, 219 (Supp. 1976); Colo. [428 U.S. 153, 180] Laws 1974, c. 52, 4; Conn. Gen. Stat. Rev. 53a-25, 53a-35 (b), 53a-46a, 53a-54b (1975); Del. Code Ann. tit. 11, 4209 (Supp. 1975); Fla. Stat. Ann. 782.04, 921.141 (Supp. 1975–1976); Ga. Code Ann. 26-3102, 27-2528, 27-2534.1, 27-2537 (Supp. 1975); Idaho Code 18-4004 (Supp. 1975); Ill. Ann. Stat. c. 38, 9-1, 1005-5-3, 1005-8-1A (Supp. 1976-1977); Ind. Stat. Ann. 35-13-4-1 (1975); Ky. Rev. Stat. Ann. 507.020 (1975); La. Rev. Stat. Ann. 14:30 (Supp. 1976); Md. Ann. Code, art. 27, 413 (Supp. 1975); Miss. Code Ann. 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo. Ann. Stat. 559.009, 559.005 (Supp. 1976); Mont. Rev. Codes Ann. 94-5-105 (Spec. Crim. Code Supp. 1976); Neb. Rev. Stat. 28-401, 29-2521 to 29-2523 (1975); Nev. Rev. Stat. 200.030 (1973); N. H. Rev. Stat. Ann. 630:1 (1974); N. M. Stat. Ann. 40A-29-2 (Supp. 1975); N. Y. Penal Law 60.06 (1975); N.C. Gen. Stat. 14-17 (Supp. 1975); Ohio Rev. Code Ann. 2929.02–2929.04 (1975); Okla. Stat. Ann. tit. 21, 701.1-701.3 (Supp. 1975–1976); Pa. Laws 1974, Act. No. 46; R. I. Gen. Laws Ann. 11-23-2 (Supp. 1975); S. C. Code Ann. 16-52 (Supp. 1975); Tenn. Code Ann. 39-2402, 39-2406 (1975); Tex. Penal Code Ann. 19.03 (a) (1974); Utah Code Ann. 76-3-206, 76-3-207, 76-5-202 (Supp. 1975); Va. Code Ann. 18.2–10, 18.2–31 (1976); Wash. Rev. Code 9A.32.045, 9A.32.046 (Supp. 1975); Wyo. Stat. Ann. 6-54 (Supp. 1975).

24 Antihijacking Act of 1974, 49 U.S.C. 1472 (i), (n) (1970 ed., Supp. IV).

[44] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” Congressional Research Service, February 25, 2016. <www.everycrsreport.com>

Page 3: “Furman drew two responses. Some states sought to remedy arbitrary imposition of the death penalty by making capital punishment mandatory. Some states and Congress narrowed the category of cases in which the death penalty might be a sentencing option and crafted procedures designed to guide jury discretion in capital cases in order to equitably reduce the risk of random imposition.”

[45] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

[U]ntil Furman v. Georgia … the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution. …

The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. …

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe. …

We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.

[Part] IV

Furman mandates that 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. …

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns 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.

We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,46 for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns.47

[Part] V

The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.

Concurrence (White, Burger, Rehnquist):

[Part] III

The threshold question in this case is whether the death penalty may be carried out for murder under the Georgia legislative scheme consistent with the decision in Furman v. Georgia, supra. In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily,6 wantonly and freakishly,7 and so infrequently8 that any given death sentence was cruel and unusual. Petitioner argues that, as in Furman, the jury is still the sentencer; that the statutory criteria to be considered by the jury on the issue of sentence under Georgia’s new statutory scheme are vague and do not purport to be all-inclusive; and that, in any event, there are no circumstances under which the jury is required to impose the death penalty.9 Consequently, the petitioner argues that the death penalty will inexorably be imposed in as discriminatory, standardless, and rare a manner as it was imposed under the scheme declared invalid in Furman.

The argument is considerably overstated. The Georgia Legislature has made an effort to identify those aggravating factors which it considers necessary and relevant to the question whether a defendant convicted of capital murder should be sentenced to death.10 The jury which imposes sentence is instructed on all statutory aggravating factors which are supported by the evidence, and is told that it may not impose the death penalty unless it unanimously finds at least one of those factors to have been established beyond a reasonable doubt. The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. … However, the Georgia Legislature was not satisfied with a system which might, but also might not, turn out in practice to result in death sentences being imposed with reasonable consistency for certain serious murders. Instead, it gave the Georgia Supreme Court the power and the obligation to perform precisely the task which three Justices of this Court, whose opinions were necessary to the result, performed in Furman: namely, the task of deciding whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. …

Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. …

Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law.

[46] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

[U]ntil Furman v. Georgia … the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution. …

The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. …

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe. …

We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.

[Part] IV

Furman mandates that 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. …

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns 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.

We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,46 for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns.47

[Part] V

The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.

Concurrence (White, Burger, Rehnquist):

[Part] III

The threshold question in this case is whether the death penalty may be carried out for murder under the Georgia legislative scheme consistent with the decision in Furman v. Georgia, supra. In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily,6 wantonly and freakishly,7 and so infrequently8 that any given death sentence was cruel and unusual. Petitioner argues that, as in Furman, the jury is still the sentencer; that the statutory criteria to be considered by the jury on the issue of sentence under Georgia’s new statutory scheme are vague and do not purport to be all-inclusive; and that, in any event, there are no circumstances under which the jury is required to impose the death penalty.9 Consequently, the petitioner argues that the death penalty will inexorably be imposed in as discriminatory, standardless, and rare a manner as it was imposed under the scheme declared invalid in Furman.

The argument is considerably overstated. The Georgia Legislature has made an effort to identify those aggravating factors which it considers necessary and relevant to the question whether a defendant convicted of capital murder should be sentenced to death.10 The jury which imposes sentence is instructed on all statutory aggravating factors which are supported by the evidence, and is told that it may not impose the death penalty unless it unanimously finds at least one of those factors to have been established beyond a reasonable doubt. The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. … However, the Georgia Legislature was not satisfied with a system which might, but also might not, turn out in practice to result in death sentences being imposed with reasonable consistency for certain serious murders. Instead, it gave the Georgia Supreme Court the power and the obligation to perform precisely the task which three Justices of this Court, whose opinions were necessary to the result, performed in Furman: namely, the task of deciding whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. …

Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. …

Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law.

[47] Ruling: Woodson v. North Carolina. U.S. Supreme Court, July 2, 1976. Plurality: Stewart, Powell, Stevens. Concurring: Brennan, Marshall. Dissenting: White, Burger, Blackmun, Rehnquist. <caselaw.findlaw.com>

Syllabus:

Judgment of the Court, and opinion of Stewart, Powell, and Stevens, JJ., announced by Stewart, J. Brennan, J. … and Marshall, J. … filed statements concurring in the judgment. White, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined…. Blackmun, J., filed a dissenting statement…. Rehnquist, J., filed a dissenting opinion….

Plurality:

Judgment of the Court, and opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stewart. …

[Part] II

The petitioners argue that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia….

[Part] III

North Carolina … responded to the Furman decision by making death the mandatory sentence for all persons convicted of first-degree murder.6 In ruling on the constitutionality of the sentences imposed on the petitioners under this North Carolina statute, the Court now addresses for the first time the question whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses7 constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments.8 The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death.9

The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society—jury determinations and legislative enactments—both point conclusively to the repudiation of automatic death sentences. …

… North Carolina’s mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State’s power to punish “be exercised within the limits of civilized standards.” …

A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. … A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.

Concurrence (Brennan): “For the reasons stated in my dissenting opinion in Gregg v. Georgia … I concur in the judgment that sets aside the death sentence imposed under the North Carolina death sentence statute as violative of the Eighth and Fourteenth Amendments.”

Concurrence (Marshall): “For the reasons stated in my dissenting opinion in Gregg v. Georgia … I am of the view that the death penalty is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore concur in the Court’s judgment.”

Dissent (White, Burger, Rehnquist):

The issues in the case are very similar, if not identical, to those in Roberts v. Louisiana…. For the reasons stated in my dissenting opinion in that case, I reject petitioners’ arguments that the death penalty in any circumstances is a violation of the Eighth Amendment and that the North Carolina statute, although making the imposition of the death penalty mandatory upon proof of guilt and a verdict of first-degree murder, will nevertheless result in the death penalty being imposed so seldom and arbitrarily that it is void under Furman v. Georgia. As is also apparent from my dissenting opinion in Roberts v. Louisiana, I also disagree with the two additional grounds which the plurality sua sponte offers for invalidating the North Carolina statute. I would affirm the judgment of the North Carolina Supreme Court.

Dissent (Rehnquist):

[Part] I

… Contrary to the plurality’s assertions, they would import into the Cruel and Unusual Punishments Clause procedural requirements which find no support in our cases. Their application will result in the invalidation of a death sentence imposed upon a defendant convicted of first-degree murder under the North Carolina system, and the upholding of the same sentence imposed on an identical defendant convicted on identical evidence of first-degree murder under the Florida, Georgia, or Texas systems—a result surely as “freakish” as that condemned in the separate opinions in Furman.

[Part] II

… [P]etitioners were convicted of first-degree murder, and there is not the slightest suggestion in the material relied upon by the plurality that there had been any turning away at all, much less any such unanimous turning away, from the death penalty as a punishment for those guilty of first-degree murder. …

Nor do the opinions in Furman which indicate a preference for discretionary sentencing in capital cases suggest in the slightest that a mandatory sentencing procedure would be cruel and unusual. The plurality concedes, as it must, that following Furman 10 States enacted laws providing for mandatory capital punishment. … While those States may be presumed to have preferred their prior systems reposing sentencing discretion in juries or judges, they indisputably preferred mandatory capital punishment to no capital punishment at all. Their willingness to enact statutes providing that penalty is utterly inconsistent with the notion that they regarded mandatory capital sentencing as beyond “evolving standards of decency.” …

[Part] IV

… What the plurality opinion has actually done is to import into the Due Process Clause of the Fourteenth Amendment what it conceives to be desirable procedural guarantees where the punishment of death, concededly not cruel and unusual for the crime of which the defendant was convicted, is to be imposed. This is squarely contrary to McGautha, and unsupported by any other decision of this Court.

I agree with the conclusion of the plurality, and with that of Mr. Justice White, that death is not a cruel and unusual punishment for the offense of which these petitioners were convicted. Since no member of the Court suggests that the trial which led to those convictions in any way fell short of the standards mandated by the Constitution, the judgments of conviction should be affirmed.

[48] Report: “Capital Punishment 1983.” By Mimi Cantwell. U.S. Department of Justice, Bureau of Justice Statistics, April 1986. <www.bjs.gov>

Page 1:

In the 1972 decision in Furman v. Georgia, the Supreme Court for the first time struck down a State capital punishment law as unconstitutional under the Eighth Amendment. Five justices, in as many opinions, found the Georgia capital punishment law objectionable for a number of reasons, most of which were related to the arbitrary application of the death sentence. Many States responded by adopting new laws designed to answer the Court’s objection.

In 1976, in five cases considered together, the Court addressed these new laws and attempted to clarify its decision in Furman. In Woodson v. North Carolina and Roberts v. Louisiana, the Court struck down as unconstitutional State laws that eliminated all discretion from the sentencing process by imposing a mandatory death penalty for specific crimes. However, in Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida, the Court upheld laws that provided guidelines to assist the sentencing authority in exercising the required discretion as it considers aggravating and mitigating circumstances surrounding the crime.

[49] Report: “Capital Punishment, 2009—Statistical Tables.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, December 2010. <www.bjs.gov>

Page 14: “Executions resumed in 1977 when the Supreme Court found that revisions to several state statutes had effectively addressed the issues previously held unconstitutional (Gregg v. Georgia, 428 U.S. 153 (1976) and its companion cases).”

[50] Article: “Gary Gilmore.” By Robert Lewis. Encyclopedia Britannica. Last updated January 13, 2020. <www.britannica.com>

“Gary Gilmore … American murderer whose execution by the state of Utah in 1977 ended a de facto nationwide moratorium on capital punishment that had lasted nearly 10 years. … Gilmore chose death by firing squad, an uncommon method of execution not available in most states. His last words to the executioners, ‘Let’s do it,’ were widely quoted thereafter.”

[51] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” By Charles Doyle. Congressional Research Service, February 25, 2016. <www.everycrsreport.com>

Page 5: “The federal and state capital punishment statutes all require, or at least permit, execution by lethal injunction.40 In Baze, the Court rejected an Eighth Amendment challenge which failed to show that the lethal injunction procedure at issue was sure or very likely to cause needless suffering.41

[52] Webpage: “States and Capital Punishment.” National Conference of State Legislators, June 12, 2019. <www.ncsl.org>

Lethal injection is currently the primary method of execution in all 29 states that have capital punishment. Texas was the first state to use the method, in 1982.

Sixteen states also have a secondary method of execution authorized by statute. Laws in Alabama, Arkansas, Mississippi, New Hampshire, Oklahoma, South Carolina, Tennessee, Utah and Wyoming provide a secondary option if lethal injection is found to be unconstitutional and/or unavailable. Arizona*, Kentucky, Tennessee and Utah all have a choice of secondary methods for offenders who were sentenced before the introduction of lethal injection. And Alabama, California*, Florida, Missouri, South Carolina, Virginia and Washington have other methods that are available if the offender requests an alternative. Secondary methods of execution include electrocution, lethal gas, hanging, nitrogen hypoxia, and firing squad.

* See case law in each state to determine the constitutionality of secondary methods. For example, see La Grand v. Stewart….

[53] Article: “Death Penalty.” Wex Legal Encyclopedia. Accessed December 2, 2019 at <www.law.cornell.edu>

Congress, as well as any state legislature, may prescribe the death penalty, also known as capital punishment, for capital offenses. The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment’s ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment’s Due Process Clause, the Eighth Amendment applies against the states, as well as the federal government.

[54] Webpage: “States and Capital Punishment.” National Conference of State Legislatures, June 12, 2019. <www.ncsl.org>

Capital punishment is currently authorized in 29 states, by the federal government and the U.S. military. In recent years, New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013) and New Hampshire (2019) have legislatively abolished the death penalty, replacing it with a sentence of life imprisonment with no possibility for parole. The Nebraska Legislature also abolished capital punishment in 2015, but it was reinstated by a statewide vote in 2016.

[55] Article: “Colorado Abolishes Death Penalty and Commutes Sentences of Death Row Inmates.” By Neil Vigdor. New York Times, March 23, 2020. <www.nytimes.com>

“Gov. Jared S. Polis, a Democrat, signed the repeal into law after it had reached his desk from the state legislature. It had passed the Senate in January and the House in February after several failed attempts to end capital punishment in the state.”

[56] Article: “California Gov. Gavin Newsom Plans to Halt the Death Penalty.” By Doha Madani and others. NBC News, March 12, 2019. <www.nbcnews.com>

“Other states have previously declared moratoriums on the death penalty. Gov. Tom Wolf has done so in Pennsylvania, as did former governors John Hickenlooper in Colorado and John Kitzhaber in Oregon. All three are Democrats.”

[57] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

[U]ntil Furman v. Georgia … the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution. …

… A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” Trop v. Dulles…. This means, at least, that the punishment not be “excessive.” When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. … Second, the punishment must not be grossly out of proportion to the severity of the crime. …

The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule … imposed a mandatory death sentence on all convicted murderers. … And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. …

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. …

And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of “life, liberty, or property” without due process of law. …

The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. …

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature … to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe. …

[Part] IV

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns 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.

[58] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

[U]ntil Furman v. Georgia … the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution. …

Dissent (Brennan):

This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, “moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.4 My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and that therefore the punishment of death, for whatever crime and under all circumstances, is “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. …

… Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.

Dissent (Marshall): “In Furman v. Georgia … I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.”

[59] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[60] Ruling: Kennedy v. Louisiana. U.S. Supreme Court, June 25, 2008. Decided 5–4. Majority: Kennedy, Stevens, Ginsburg, Souter, Breyer. Dissenting: Roberts, Alito, Scalia, Thomas. <caselaw.findlaw.com>

Majority:

[T]he Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society….” Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life.

[61] Ruling: Ring v. Arizona. U.S. Supreme Court, June 24, 2002. Decided 7–2. Majority: Ginsburg, Stevens, Scalia, Kennedy, Souter, Thomas. Concurring: Scalia, Kennedy, Breyer. Dissenting: O’Connor, Rehnquist. <caselaw.findlaw.com>

Majority:

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty. …

… Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. …

Based solely on the jury’s verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. … This was so because, in Arizona, a “death sentence may not legally be imposed … unless at least one aggravating factor is found to exist beyond a reasonable doubt.” … The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial guarantee,3 made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.4

The dispositive question, we said, “is one not of form, but of effect.” … If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.

[62] Article: “Aggravating Circumstances.” Wex Legal Encyclopedia. Accessed December 2, 2019 at <www.law.cornell.edu>

Aggravating circumstances refers to factors that increases the severity or culpability of a criminal act. Typically, the presence of an aggravating circumstance will lead to a harsher penalty for a convicted criminal.

Some generally recognized aggravating circumstances include heinousness of the crime, lack of remorse, and prior conviction of another crime. Recognition of particular aggravating circumstances varies by jurisdiction. …

Using Aggravating Circumstances

In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court held that a jury may only use aggravating circumstances to impose a harsher sentence than usual when the jury had found those factors to be true beyond a reasonable doubt. The Cunningham court, however, also stated that prior convictions do not to be proven beyond a reasonable doubt.

Capital Punishment

In Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court wrote that murdering a sheriff while on duty is an aggravating circumstance “sufficient for a death sentence.”

18 U.S.C. § 3592(b)–(d) contains aggravating factors to be considered in death-penalty cases.

[63] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” By Charles Doyle. Congressional Research Service. Updated February 25, 2016. <crsreports.congress.gov>

Page 2 (of PDF):

Defendants convicted of murder are death-eligible only if they are found at a separate sentencing hearing to have acted with life-threatening intent. Among those who have, capital punishment may be imposed only if the sentencing jury unanimously concludes that the aggravating circumstances that surround the murder and the defendant outweigh the mitigating circumstances to an extent that justifies execution.

The Federal Death Penalty Act provides several specific aggravating factors, such as murder of a law enforcement officer or multiple murders committed at the same time. It also permits consideration of any relevant “non-statutory aggravating factors.” Impact on the victim’s family and future dangerousness of the defendant are perhaps the most commonly invoked non-statutory aggravating factors. The jury must agree on the existence of at least one of the statutory aggravating factors if the defendant is to be sentenced to death.

Pages 35–37:

The Federal Death Penalty Act establishes the same capital sentencing hearing procedures for all capital offenses—murder, treason, espionage, or murder-less drug kingpin offenses. The hearing is conducted only after the defendant has been found guilty of a death-eligible offense.259 It is held before a jury, unless the parties agree otherwise.260

… The finding on aggravating circumstances must be unanimous; the finding on mitigating circumstances need only be espoused by a single juror.267 Capital punishment may only be recommended and imposed, if the jurors all agree that the aggravating factors sufficiently outweigh the mitigating factors to an extent that justifies imposition of the death penalty.268 If they find the death penalty justified, they must recommend it.269 If they recommend the death penalty, the court must impose it.270 If they cannot agree, the defendant must be sentenced to a term of imprisonment, most often to life imprisonment.271

[64] Alabama Code Title 13A, Chapter 5, Article 2: “Criminal Code, Punishments and Sentences, Death Penalty and Life Imprisonment Without Parole.” Accessed December 2, 2019 at <law.justia.com>

Section 13A-5-40

The following are capital offenses: …

(5) Murder of any police officer, sheriff, deputy, state trooper, federal law enforcement officer, or any other state or federal peace officer of any kind, or prison or jail guard, while such officer or guard is on duty, regardless of whether the defendant knew or should have known the victim was an officer or guard on duty, or because of some official or job-related act or performance of such officer or guard.

[65] Texas Penal Code Title 5, Chapter 19: “Criminal Homicide.” Accessed December 2, 2019 at <law.justia.com>

Section 19.02. Murder. …

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual.…

Section 19.03. Capital Murder.

(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and:

(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman….

[66] Florida Statute Title XLVII, Chapter 921, Section 921.141: “Criminal Procedure and Corrections, Sentence.” Accessed December 2, 2019 at <law.justia.com>

Section 921.141:

Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.— …

(2) Findings and Recommended Sentence by the Jury.—This subsection applies only if the defendant has not waived his or her right to a sentencing proceeding by a jury.

(a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least one aggravating factor set forth in subsection (6).

(b) The jury shall return findings identifying each aggravating factor found to exist. A finding that an aggravating factor exists must be unanimous. If the jury:

1. Does not unanimously find at least one aggravating factor, the defendant is ineligible for a sentence of death.

2. Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without the possibility of parole or to death. The recommendation shall be based on a weighing of all of the following:

a. Whether sufficient aggravating factors exist.

b. Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.

c. Based on the considerations in sub-subparagraphs a. and b., whether the defendant should be sentenced to life imprisonment without the possibility of parole or to death.

(6) Aggravating Factors.—Aggravating factors shall be limited to the following: …

(j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.

[67] Alabama Code Title 13A, Chapter 5, Article 2: “Criminal Code, Punishments and Sentences, Death Penalty and Life Imprisonment Without Parole.” Accessed December 2, 2019 at <law.justia.com>

Section 13A-5-40:

The following are capital offenses: …

(10) Murder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct.

[68] Texas Penal Code Title 5, Chapter 19: “Criminal Homicide.” Accessed December 2, 2019 at <law.justia.com>

Section 19.02:

Murder. …

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual.…

Section 19.03:

Capital Murder.

(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and: …

(7) the person murders more than one person:

(A) during the same criminal transaction; or

(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct….

[69] Alabama Code Title 13A, Chapter 5, Article 2: “Criminal Code, Punishments and Sentences, Death Penalty and Life Imprisonment Without Parole.” Accessed December 2, 2019 at <law.justia.com>

Section 13A-5-40:

The following are capital offenses: …

(13) Murder by a defendant who has been convicted of any other murder in the 20 years preceding the crime; provided that the murder which constitutes the capital crime shall be murder as defined in subsection (b) of this section; and provided further that the prior murder conviction referred to shall include murder in any degree as defined at the time and place of the prior conviction.

[70] Florida Statute Title XLVII, Chapter 921, Section 921.141: “Criminal Procedure and Corrections, Sentence.” Accessed December 2, 2019 at <law.justia.com>

Section 921.141:

Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.— …

(2) Findings and Recommended Sentence by the Jury.—This subsection applies only if the defendant has not waived his or her right to a sentencing proceeding by a jury.

(a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least one aggravating factor set forth in subsection (6).

(b) The jury shall return findings identifying each aggravating factor found to exist. A finding that an aggravating factor exists must be unanimous. If the jury:

1. Does not unanimously find at least one aggravating factor, the defendant is ineligible for a sentence of death.

2. Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without the possibility of parole or to death. The recommendation shall be based on a weighing of all of the following:

a. Whether sufficient aggravating factors exist.

b. Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.

c. Based on the considerations in sub-subparagraphs a. and b., whether the defendant should be sentenced to life imprisonment without the possibility of parole or to death.

(6) Aggravating Factors.—Aggravating factors shall be limited to the following:

(a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

[71] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] II

… The Georgia statute, as amended after our decision in Furman v. Georgia, 408 U.S. 238 (1972), retains the death penalty for six categories of crime: murder,4 kidnaping for ransom or where the victim is harmed, armed robbery,5 rape, treason, and aircraft hijacking.6

… Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute. …

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong.

[Part] III

[U]ntil Furman v. Georgia … the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution.

[72] U.S. Code Title 18, Part I, Chapter 115, Section 2381: “Crimes, Treason, Sedition, and Subversive Activities.” Accessed November 15, 2019 at <www.law.cornell.edu>

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

[73] Ruling: Rosenburg v. United States. U.S. Supreme Court, June 19, 1953. Decided 5–4. Majority: Frankfurter, Clark, Harlan, Whittaker, Stewart. Dissenting: Warren, Black, Douglas, Brennan. <caselaw.findlaw.com>

Per Curiam:†

The question which has been and now is urged as being substantial is whether the provisions of the Atomic Energy Act of 1946, 42 U.S.C. 1810 (b) (2), (3), rendered the District Court powerless to impose the death sentence under the Espionage Act of 1917, 50 U.S.C. 32 (a), 34, under which statute the indictment was laid. …

We think the question is not substantial. We think further proceedings to litigate it are unwarranted. A conspiracy was charged and proved to violate the Espionage Act in wartime. The Atomic Energy Act did not repeal or limit the provisions of the Espionage Act. Accordingly, we vacate the stay entered by Mr. Justice Douglas on June 17, 1953.

NOTE: † A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[74] U.S. Code Title 18, Part I, Chapter 37, Section 794: “Crimes, Espionage and Censorship.” Accessed November 15, 2019 at <www.law.cornell.edu>

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.

[75] Ruling: Kennedy v. Louisiana. U.S. Supreme Court, June 25, 2008. Decided 5–4. Majority: Kennedy, Stevens, Ginsburg, Souter, Breyer. Dissenting: Roberts, Alito, Scalia, Thomas. <caselaw.findlaw.com>

Majority: “Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.”

[76] U.S. Code Title 18, Part II, Chapter 228, Section 3591: “Crimes and Criminal Procedure, Sentence of Death.” Accessed November 15, 2019 at <www.law.cornell.edu>

(b) A defendant who has been found guilty of—

(1) an offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under the conditions described in subsection (b) of that section which involved not less than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B) …

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.

[77] U.S. Code Title 21, Chapter 13, Subchapter I, Part D, Section 848: “Drug Abuse Prevention and Control, Offenses and Penalties, Continuing Criminal Enterprise.” Accessed November 15, 2019 at <www.law.cornell.edu>

(b) Life Imprisonment for Engaging in Continuing Criminal Enterprise Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a), if—

(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and

(2)

(A) the violation referred to in subsection (c)(1) involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title, or

(B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during any twelve-month period of its existence for the manufacture, importation, or distribution of a substance described in section 841(b)(1)(B) of this title.

(c) “Continuing Criminal Enterprise” Defined For purposes of subsection (a), a person is engaged in a continuing criminal enterprise if—

(1) he violates any provision of this subchapter or subchapter II the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II—

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources. …

(e) Death penalty

(1) In addition to the other penalties set forth in this section—

(A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A)1 of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and

(B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the performance of such officer’s official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.

[78] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” By Charles Doyle. Congressional Research Service. Updated February 25, 2016. <crsreports.congress.gov>

Page 2: “Now federal capital offenses are confined to espionage,15 treason,16 certain drug kingpin offenses (that do not involve murder),17 and murder under various jurisdictional circumstances.18

Page 13: “Federal law divides death-eligible offenses into three categories.99 The one group consists of homicide offenses,100 another of espionage and treason,101 and a third of drug offenses that do not involve a killing.102

[79] Ruling: Coker v. Georgia. U.S. Supreme Court, June 29, 1977. Decided 7–2. Majority: White, Stewart, Blackmun, Powell, and Stevens. Concurring: Brennan, Marshall, Powell. Dissenting: Burger, Rehnquist. <caselaw.findlaw.com>

Majority:

We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.4

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.13 The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” Gregg v. Georgia, 428 U.S., at 187, is an excessive penalty for the rapist who, as such, does not take human life.

[80] Ruling: Kennedy v. Louisiana. U.S. Supreme Court, June 25, 2008. Decided 5–4. Majority: Kennedy, Stevens, Ginsburg, Souter, Breyer. Dissenting: Roberts, Alito, Scalia, Thomas. <caselaw.findlaw.com>

Majority:

[T]he Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society,” Trop, 356 U. S., at 101. Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life. …

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken.

[81] Ruling: Roper v. Simmons. U.S. Supreme Court, March 1, 2005. Decided 5–4. Majority: Kennedy, Ginsburg, Souter, Breyer, Stevens. Concurring: Stevens, Ginsburg. Dissenting: Scalia, Rehnquist, Thomas, O’Connor. <caselaw.findlaw.com>

Majority:

A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. …

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” …

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. …

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. …

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” … Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.

Dissent (O’Connor):

Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth.

Dissent (Scalia):

Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes. …

Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are—at least sometimes—just as culpable as adults. … Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way—by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death.

[82] Ruling: Ford v. Wainwright. U.S. Supreme Court, June 26, 1986. Decided 5–4. Majority: Marshall, Brennan, Blackmun, Stevens, Powell. Concurring: Powell. Dissenting: O’Connor, White, Rehnquist, Burger. <caselaw.findlaw.com>

Majority:

[Part] II

There is now little room for doubt that the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. … “Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection….”

… For today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. … Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment … prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.

Concurrence (Powell):

As Justice Marshall ably demonstrates, execution of the insane was barred at common law precisely because it was considered cruel and unusual. … It follows that the practice of executing the insane is barred by our own Constitution. …

… A number of States have more rigorous standards,3 but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.

Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

Dissent (O’Connor, White):

I am in full agreement with Justice Rehnquist’s conclusion that the Eighth Amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal … courts should have any role whatever in the substantive determination of a defendant’s competency to be executed.

Dissent (Rehnquist, Burger):

The Court today holds that the Eighth Amendment prohibits a State from carrying out a lawfully imposed sentence of death upon a person who is currently insane. … It manages this feat by carefully ignoring the fact that the Florida scheme it finds unconstitutional, in which the Governor is assigned the ultimate responsibility of deciding whether a condemned prisoner is currently insane, is fully consistent with the “common-law heritage” and current practice on which the Court purports to rely. …

… It is Florida’s scheme—which combines a prohibition against execution of the insane with executive-branch procedures for evaluating claims of insanity—that is more faithful to both traditional and modern practice. …

Since no State sanctions execution of the insane, the real battle being fought in this case is over what procedures must accompany the inquiry into sanity. The Court reaches the result it does by examining the common law, creating a constitutional right that no State seeks to violate, and then concluding that the common-law procedures are inadequate to protect the newly created but common-law based right. I find it unnecessary to “constitutionalize” the already uniform view that the insane should not be executed, and inappropriate to “selectively incorporate” the common-law practice. I therefore dissent.

[83] Ruling: Atkins v. Virginia. U.S. Supreme Court, June 20, 2002. Decided 6–3. Majority: Stevens, Ginsburg, Souter, Breyer, O’Connor, Kennedy. Dissenting: Scalia, Rehnquist, Thomas. <caselaw.findlaw.com>

Majority:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. …

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia … identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

[84] Ruling: Woodson v. North Carolina. U.S. Supreme Court, July 2, 1976. Decided 5–4. Plurality: Stewart, Powell, Stevens. Concurring: Brennan, Marshall. Dissenting: White, Burger, Rehnquist, Blackmun. <caselaw.findlaw.com>

Syllabus:

Judgment of the Court, and opinion of Stewart, Powell, and Stevens, JJ., announced by Stewart, J. Brennan, J. … and Marshall, J. … filed statements concurring in the judgment. White, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined …. Blackmun, … J., filed a dissenting statement …. Rehnquist, J., filed a dissenting opinion ….

Plurality:

Judgment of the Court, and opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stewart. …

It is now well established that the Eighth Amendment draws much of its meaning from “the evolving standards of decency that mark the progress of a maturing society.” … As the above discussion makes clear, one of the most significant developments in our society’s treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina’s mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State's power to punish “be exercised within the limits of civilized standards.” …

A separate deficiency of North Carolina’s mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman’s rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. …

A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied—that death is a punishment different from all other … sanctions in kind rather than degree. … A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense … treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Concurrence (Brennan): “For the reasons stated in my dissenting opinion in Gregg v. Georgia … I concur in the judgment … that sets aside the death sentence imposed under the North Carolina death sentence statute as violative of the Eighth and Fourteenth Amendments.”

Concurrence (Marshall): “For the reasons stated in my dissenting opinion in Gregg v. Georgia … I am of the view that the death penalty is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore concur in the Court's judgment.”

[85] Book: Homicide: A Sourcebook of Social Research. Edited by M. Dwayne Smith and Margaret A. Zahn. Sage Publications, 1998.

Chapter 17: “Capital Punishment, Homicide, and Deterrence.” By William C. Bailey and Ruth D. Peterson. Pages 257–296.

Page 258: “Indeed, since the mid-1960s, no one in the United States has been executed for a crime other than murder.”

[86] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” By Charles Doyle. Congressional Research Service. Updated February 25, 2016. <crsreports.congress.gov>

Page 32: “[T]he last espionage execution apparently took place in 1953.243

Page 35: “There have apparently not been any cases in which the death penalty has been imposed under either the state or federal trafficking statute….”

[87] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010.

Chapter 8: “Penalty Phase.” By O.H. Eaton. Pages 161–251. <www.judges.org>

Pages 161–162:

Capital punishment is a possible penalty for the most serious homicides in 35 states. All 35 states have some sort of post-verdict hearing to determine whether the death penalty should be imposed. These hearings are sometimes referred to as the “penalty phase” or “presentence hearing.” There must be a finding (verdict) of guilt by the court or jury before the death penalty is considered in a capital case. …

The Florida scheme requires that the jury unanimously find a defendant guilty of first degree murder. The same jury (unless the defendant waives a jury) then hears evidence to establish statutory aggravating factors and statutory or non-statutory mitigating circumstances. The aggravating factors must be established beyond a reasonable doubt. The fact finder must be only “reasonably convinced” as to the existence of mitigating factors. If the jury finds one or more aggravating circumstances, and determines these circumstances sufficient to recommend the death penalty, it must determine whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances and, based upon these considerations, recommend whether the defendant should be sentenced to life imprisonment or death. Most states require unanimity. With rare exceptions, the judge must give the jury recommendation “great weight,” but the final decision as to the penalty is made by the judge. …

Georgia Scheme

… After one statutory aggravating factor has been established, the prosecutor may present all relevant evidence of aggravation. The jury must state in its verdict the aggravating factors found beyond a reasonable doubt, and if the death penalty is unanimously recommended, the court must impose the death penalty.

Page 186: “After Ring v. Arizona,927 it is clear there is a constitutional right to a jury for the sentencing phase. Cases that state otherwise are no longer valid.928 The right to jury trial can be waived.”

[88] Ruling: Ring v. Arizona. U.S. Supreme Court, June 24, 2002. Decided 7–2. Majority: Ginsburg, Stevens, Scalia, Kennedy, Souter, Thomas. Concurring: Scalia, Kennedy, Breyer. Dissenting: O’Connor, Rehnquist. <caselaw.findlaw.com>

Majority:

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty. …

… Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. …

Based solely on the jury’s verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. … This was so because, in Arizona, a “death sentence may not legally be imposed … unless at least one aggravating factor is found to exist beyond a reasonable doubt.” … The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial guarantee,3 made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.4

The dispositive question, we said, “is one not of form, but of effect.” … If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.

[89] Article: “Prosecutor.” Encyclopedia Britannica. Last updated October 16, 2019. <www.britannica.com>

Prosecutor, government official charged with bringing defendants in criminal cases to justice in the name of the state. Although responsibilities vary from one jurisdiction to another, many prosecutors are in charge of all phases of a criminal proceeding, from investigation by the police through trial and beyond to all levels of appeal. …

In most U.S. state and local jurisdictions, prosecutors are elected to office. On the federal level, district attorneys are, in effect, members of the executive branch of the government; they are usually replaced when a new administration comes into office. Prosecutors, whether elected or appointed, are often subject to political pressures.

[90] Article: “A District Attorney’s Decision Whether to Seek the Death Penalty: Toward an Improved Process.” By Jonathan DeMay. Fordham Urban Law Journal, 1999. Pages 767–820. <ir.lawnet.fordham.edu>

Pages 767–768: “In New York State, for example, Bronx County District Attorney Robert Johnson (the “Bronx DA”) steadfastly opposes the utilization of the death penalty. After the enactment of the death penalty in New York,5 the Bronx DA publicly announced that it was not his ‘present intention’ to utilize the death penalty despite its widespread public and political support.”

Page 772: “Prosecutorial discretion encompasses the power to charge or to refrain from charging an individual with a crime; to reduce charges to a lesser offense prior to trial; to not charge prior offenses; to dismiss or request court dismissal after a trial commences; or to recommend a lesser sentence.29

Page 777: “District attorneys are generally elected on a county-wide basis.68 This election structure allows for a wide disparity in utilization of the death penalty from county to county, as district attorneys each determine the criminal justice policies of their respective counties.69

[91] Book: Debating the Death Penalty. Edited by Hugo Bedau and Paul Cassell. Oxford University Press, 2004.

Chapter 5: “Truth and Consequences: The Penalty of Death.” By Joshua K. Marquis. Pages 117–151.

Pages 118–119:

[I]t falls to the district attorney to decide which cases fit the special criteria for capital murder. …

… [I]t’s often easier for a prosecutor to plea bargain a capital case—because juries are most likely not to impose the death penalty, because the costs of the cases are astronomical, and because the odds are so high of a conviction or sentence being reversed. But some prosecutors believe it unethical even to consider offering or taking a plea when the death penalty is sought, reasoning that it is the jury and not the prosecutor who should decide the defendant’s sentence. I’ve never asked for the death penalty except when I was prepared sincerely to urge 12 individuals to vote for death. By the same token, I’ve agreed to seek a life sentence without parole because of the sheer costs—emotional for the victims and financial for the system—of a capital case.

Page 139: “A more recent study commissioned by the Virginia General Assembly concluded that suburban Virginia prosecutors were more likely to seek a death sentence than their urban counterparts—in part, no doubt, because (as the Baltimore example showed) prosecutors reflect the values of their constituency.”

[92] Webpage: “Death Penalty Facts.” Indiana Public Defender Council. Last updated June 3, 2019. <www.in.gov>

Page 4:

The prosecution is not required to seek the death penalty in every case in which an aggravating circumstance might exist and the defendant is eligible for death. The determination whether to seek the death penalty against a particular defendant on a particular murder charge is left to the discretion of the prosecuting attorney for each Indiana county.

Similarly, not every case in which the death penalty is sought proceeds to trial. As with other cases, prosecuting attorneys are given discretion to enter into plea negotiations, offering the defendant a sentence less than death in exchange for a guilty plea. Of 72 completed capital cases filed since 2000, only 15, or 20%, went to trial. Of those, only 14, resulted in a death sentence. The majority of capital cases are resolved by plea agreement to a sentence of Life Without Parole or less.

[93] Calculated with data from:

a) Report: “Capital Punishment, 2016 – Statistical Brief.” By Elizabeth Davis and Tracy L. Snell. Department of Justice, Bureau of Justice Statistics, April 30, 2018. <www.bjs.gov>

Page 14: “Appendix Table 5: Numbers for Figure 2: Admissions to and Removals From Sentence of Death, 1973–2016.”

b) Report: “Capital Punishment, 2017: Selected Findings.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

Page 3: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race, 2016 and 2017.”

NOTE: An Excel file containing the data and calculations is available upon request.

[94] Calculated with the dataset: “Prisoners Executed Under Civil Authority in the United States, By Year, Region, and Jurisdiction, 1977–2017.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

NOTE: An Excel file containing the data and calculations is available upon request.

[95] Dataset: “Prisoners Executed Under Civil Authority in the United States, By Year, Region, and Jurisdiction, 1977–2017.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

NOTE: An Excel file containing the data is available upon request.

[96] Calculated with data from:

a) Report: “Capital Punishment, 2017: Selected Findings.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

Page 1 (of PDF): “Thirty-four states and the federal government authorized the death penalty at year-end 2017; two of these states (New York and Wyoming) had no prisoners under sentence of death during the year.”

Page 3: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race, 2016 and 2017.”

b) Dataset: “Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for the United States, States, and Counties: April 1, 2010 to July 1, 2017: 2017 Population Estimates.” U.S. Census Bureau, June 2018. <factfinder.census.gov>

NOTE: An Excel file containing the data is available upon request.

[97] Calculated with data from:

a) Dataset: “Resident Population Estimates of the United States by Sex, Race, and Hispanic Origin: April 1, 1990 to July 1, 1999, with Short-Term Projection to November 1, 2000.” U.S. Census Bureau, January 2, 2001. <www.census.gov>

b) Dataset: “Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for the United States, States, and Counties: April 1, 2010 to July 1, 2017: 2017 Population Estimates.” U.S. Census Bureau, June 2018. <factfinder.census.gov>

c) Report: “Crime in the United States.” Federal Bureau of Investigation.

1998: Page 16: “Table 2.6: Murder Offenders by Age, Sex, and Race, 1998.”

1999: “Table 2.6: Offenders by Age, Sex, and Race, 1999.”

2000: Page 17: “Table 2.6: Murder Offenders by Age, Sex, and Race, 2000.”

2001, 2002: “Table 2.6: Murder Offenders by Age, Sex, and Race.”

2003, 2004: “Table 2.5: Murder Offenders by Age, Sex, and Race.”

2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012: “Expanded Homicide Data Table 3: Murder Offenders by Age, Sex, and Race.”

2013, 2014, 2015: “Expanded Homicide Data Table 3: Murder Offenders by Age, Sex, Race, and Ethnicity.”

2016: “Expanded Homicide Data Table 2: Murder Offenders by Age, Sex, Race, and Ethnicity, 2016.”

2017: “Expanded Homicide Data Table 3: Murder Offenders by Age, Sex, Race, and Ethnicity, 2017.”

d) Report: “Capital Punishment, 2016.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics. <www.bjs.gov>

Page 16: “Numbers for Figure 4: Number of Prisoners Under Sentence of Death, by Race, 1968–2016”

e) Report: “Capital Punishment.” U.S. Department of Justice, Bureau of Justice Statistics.

1998, 1999, 2000, 2001: Page 6: “Table 5. Prisoners Under Sentence of Death, By Region, State, and Race.”

2002, 2003, 2004, 2005: Page 5: “Table 4. Prisoners Under Sentence of Death, By Region, State, and Race.”

2006, 2007: “Table 4. Prisoners Under Sentence of Death, By Region, State, and Race.”

2008, 2009, 2010, 2011, 2012: Page 8: “Table 4. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

2013: Page 9: “Table 4. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

2016: Page 4: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

2017: Page 3: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

NOTES:

  • Data for executions by race that follow the methodology for other years were not available for 2014 and 2015.
  • An Excel file containing the data and calculations is available upon request.

[98] Calculated with data from:

a) Report: “Homicide Trends in the United States, 1980–2008.” By Alexia Cooper and Erica L. Smith. U.S. Department of Justice, Bureau of Justice Statistics, November 2011. <www.bjs.gov>

Page 13: “Figure 19. Homicides, by race of offender and victim, 1980–2008.”

b) Report: “Crime in the United States.” Federal Bureau of Investigation.

2005–2007: Expanded Homicide Data Table 5: “Race and Sex of Victim by Race and Sex of Offender [Single victim/single offender].”

2005, 2006, 2007

2008–2015: Expanded Homicide Data Table 6: “Murder: Race, Ethnicity, and Sex of Victim by Race, Ethnicity, and Sex of Offender [Single victim/single offender].”

2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015

2016: Expanded Homicide Data Table 3: “Murder: Race, Ethnicity, and Sex of Victim by Race, Ethnicity, and Sex of Offender [Single victim/single offender].” 2016

NOTE: An Excel file containing the data and calculations is available upon request.

[99] Article: “Victim’s Sex, Race Affect Homicide Clearance Rates.” By Thomas Hargrove (University of Maryland criminologist). Scripps Howard News Service, 2010.

The deliberate killings of men, members of racial and ethnic minorities and young adults are much less likely to be solved than other kinds of homicides, according to a Scripps Howard News Service analysis of detailed FBI computer files of more than half a million homicides committed from 1980 to 2008. …

The killer is identified by police about 67 percent of the time when the victim is black or Hispanic, and only 64 percent for black victims between 20 and 24 years old. But when the victim is a non-Hispanic white person of any age, a suspect is identified 78 percent of the time.

[100] Report: “Uniform Crime Report, Crime in the United States, 2016, Offenses Cleared.” Federal Bureau of Investigation, Criminal Justice Information Services Division, Fall 2017. <ucr.fbi.gov>

Pages 1–3:

In the FBI’s Uniform Crime Reporting (UCR) Program, law enforcement agencies can clear, or “close,” offenses in one of two ways: by arrest or by exceptional means. Although an agency may administratively close a case, that does not necessarily mean that the agency can clear the offense for UCR purposes. To clear an offense within the UCR Program’s guidelines, the reporting agency must adhere to certain criteria, which are outlined in the following text. (Note: The UCR Program does not distinguish between offenses cleared by arrest and those cleared by exceptional means in collecting or publishing data via the traditional Summary Reporting System.)

Cleared by Arrest

In the UCR Program, a law enforcement agency reports that an offense is cleared by arrest, or solved for crime reporting purposes, when three specific conditions have been met. The three conditions are that at least one person has been:

• Arrested.

• Charged with the commission of the offense.

• Turned over to the court for prosecution (whether following arrest, court summons, or police notice).

In its clearance calculations, the UCR Program counts the number of offenses that are cleared, not the number of persons arrested. The arrest of one person may clear several crimes, and the arrest of many persons may clear only one offense. In addition, some clearances that an agency records in a particular calendar year, such as 2016, may pertain to offenses that occurred in previous years.

Cleared by exceptional means

In certain situations, elements beyond law enforcement’s control prevent the agency from arresting and formally charging the offender. When this occurs, the agency can clear the offense exceptionally. Law enforcement agencies must meet the following four conditions in order to clear an offense by exceptional means. The agency must have:

• Identified the offender.

• Gathered enough evidence to support an arrest, make a charge, and turn over the offender to the court for prosecution.

• Identified the offender’s exact location so that the suspect could be taken into custody immediately.

• Encountered a circumstance outside the control of law enforcement that prohibits the agency from arresting, charging, and prosecuting the offender.

Examples of exceptional clearances include, but are not limited to, the death of the offender (e.g., suicide or justifiably killed by police or citizen); the victim’s refusal to cooperate with the prosecution after the offender has been identified; or the denial of extradition because the offender committed a crime in another jurisdiction and is being prosecuted for that offense. In the UCR Program, the recovery of property alone does not clear an offense.

[101] Ruling: Roper v. Simmons. U.S. Supreme Court, March 1, 2005. Decided 5–4. Majority: Kennedy, Ginsburg, Souter, Breyer, Stevens. Concurring: Stevens, Ginsburg. Dissenting: Scalia, Rehnquist, Thomas, O’Connor. <caselaw.findlaw.com>

Majority:

A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. …

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” …

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. …

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. …

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.

Dissent (O’Connor):

Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth.

Dissent (Scalia, Rehnquist, Thomas):

Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes.

Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are—at least sometimes—just as culpable as adults. … Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way—by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death.

[102] Ruling: Ford v. Wainwright. U.S. Supreme Court, June 26, 1986. Plurality: Marshall, Brennan, Blackmun, Stevens. Concurring: Powell. Dissenting: O’Connor, White, Rehnquist, Burger. <caselaw.findlaw.com>

Syllabus:

Justice Marshall delivered the opinion of the Court with respect to Parts I and II, concluding that the Eighth Amendment prohibits the State from inflicting the death penalty upon a prisoner who is insane. … Justice Marshall, joined by Justice Brennan, Justice Blackmun, and Justice Stevens, concluded in Parts III, IV, and V, that Florida’s statutory procedures for determining a condemned prisoner’s sanity provide inadequate assurance of accuracy to satisfy the requirement of Townsend v. Sain, 372 U.S. 293, and that, having been denied a factfinding procedure “adequate to afford a full and fair hearing” on the critical issue as required by 28 U.S.C. 2254(d) (2), petitioner is entitled to a de novo evidentiary hearing in the District Court on the question of his competence to be executed. …

Justice Powell concluded that the test for whether a prisoner is insane for Eighth Amendment purposes is whether the prisoner is aware of his impending execution and of the reason for it. He further concluded that petitioner‘s claim falls within this definition, and that because petitioner’s claim was not adjudicated fairly within the meaning of due process or of 28 U.S.C. 2254(d), petitioner is entitled to have his claim adjudicated on remand by the District Court. Finally, he concluded that the States could satisfy due process by providing an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert psychiatric evidence. Beyond [477 U.S. 399, 401] these requirements, the States retain substantial discretion to create appropriate procedures.

Marshall, J., announced the judgment of the Court and delivered an opinion of the Court with respect to Parts I and II, in which Brennan, Blackmun, Powell, and Stevens, JJ., joined, and an opinion with respect to Parts III, IV, and V, in which Brennan, Blackmun, and Stevens, JJ., joined. Powell, J., filed an opinion concurring in part and concurring in the judgment, post, p. 418. O’Connor, J., filed an opinion concurring in the result in part and dissenting in part, in which White, J., joined, post, p. 427. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 431.

Plurality:

There is now little room for doubt that the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. … “Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection….” …

… For today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. … Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment … prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.

Concurrence (Powell):

I join Parts I and II of the Court’s opinion. As Justice Marshall ably demonstrates, execution of the insane was barred at common law precisely because it was considered cruel and unusual. … It follows that the practice of executing the insane is barred by our own Constitution. …

… A number of … States have more rigorous standards,3 but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.

Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it. …

Because petitioner has raised a viable claim under the Eighth Amendment, and because that claim was not adjudicated fairly within the meaning of due process or of 2254(d), petitioner is entitled to have his claim adjudicated by the District Court on federal habeas corpus. I therefore join the Court’s judgment.

Dissent (O’Connor, White):

I am in full agreement with Justice Rehnquist’s conclusion that the Eighth Amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal courts should have any role whatever in the substantive determination of a defendant’s competency to be executed.

Dissent (Rehnquist, Burger):

The Court today holds that the Eighth Amendment prohibits a State from carrying out a lawfully imposed sentence of death upon a person who is currently insane. … It manages this feat by carefully ignoring the fact that the Florida scheme it finds unconstitutional, in which the Governor is assigned the ultimate responsibility of deciding whether a condemned prisoner is currently insane, is fully consistent with the “common-law heritage” and current practice on which the Court purports to rely. …

… It is Florida’s scheme—which combines a prohibition against execution of the insane with executive-branch procedures for evaluating claims of insanity—that is more faithful to both traditional and modern practice. …

Since no State sanctions execution of the insane, the real battle being fought in this case is over what procedures must accompany the inquiry into sanity. The Court reaches the result it does by examining the common law, creating a constitutional right that no State seeks to violate, and then concluding that the common-law procedures are inadequate to protect the newly created but common-law based right. I find it unnecessary to “constitutionalize” the already uniform view that the insane should not be executed, and inappropriate to “selectively incorporate” the common-law practice. I therefore dissent.

[103] Ruling: Atkins v. Virginia. U.S. Supreme Court, June 20, 2002. Decided 6–3. Majority: Stevens, Ginsburg, Souter, Breyer, O’Connor, Kennedy. Dissenting: Scalia, Rehnquist, Thomas. <caselaw.findlaw.com>

Majority:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. …

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia … identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

[104] Ruling: Roper v. Simmons. U.S. Supreme Court, March 1, 2005. Decided 5–4. Majority: Kennedy, Ginsburg, Souter, Breyer, Stevens. Concurring: Stevens, Ginsburg. Dissenting: Scalia, Rehnquist, Thomas, O’Connor. <caselaw.findlaw.com>

Majority:

A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. …

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” …

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. …

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. …

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” … Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.

Dissent (O’Connor):

Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant’s maturity or of giving due weight to the mitigating characteristics associated with youth.

Dissent (Scalia, Rehnquist, Thomas):

Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes.

Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are—at least sometimes—just as culpable as adults. … Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way—by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death.

[105] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[106] Ruling: Roper v. Simmons. U.S. Supreme Court, March 1, 2005. <caselaw.findlaw.com>

At age 17, respondent Simmons planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. … This Court then held, in Atkins v. Virginia … that the Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the execution of a mentally retarded person. Simmons filed a new petition for state postconviction relief, arguing that Atkins’ reasoning established that the Constitution prohibits the execution of a juvenile who was under 18 when he committed his crime.

[107] Brief submitted to the U.S. Supreme Court: Roper v. Simmons. American Psychological Association, July 19, 2004. <www.apa.org>

Pages 7–8:

Adolescent Decision-Makers on Average Are Less Future-Oriented and Less Likely to Consider Properly the Consequences of Their Actions.

In comparison with adults, studies show that adolescents are less likely to consider alternative courses of action, understand the perspective of others, or restrain impulses. In a study of more than 1,000 adolescents and adults, researchers investigated the relationships among the factors of age, maturity, and antisocial decisionmaking. Elizabeth Cauffman & Laurence Steinberg, “(Im)maturity and Judgment in Adolescence: Why Adolescents May be Less Culpable Than Adults,” 18 Behav. Sci. & L. 741 (2000). Adolescents, on average, were “less responsible, more myopic, and less temperate than the average adult.” Id. at 757. In this study, the most dramatic change in behavior occurred sometime between 16 and 19 years of age, especially with respect to “perspective” (i.e., the consideration of different viewpoints and broader contexts of decisions), and “temperance” (i.e., the ability to limit impulsivity and evaluate situations before acting). Id. at 756. And it was not until age 19 that this development of responsible decisionmaking plateaued. Ibid. These findings indicate “that once the developmental changes of adolescence are complete, maturity of judgment may stabilize.” Ibid.

In another analysis of decision-making competence, adolescents performed more poorly than adults. Bonnie L. Halpern-Felsher & Elizabeth Cauffman, “Costs and Benefits of a Decision: Decision-Making Competence in Adolescents and Adults,” 22 J. Applied Developmental Psychology. 257, 268 (2001). Although even greater differences prevailed between younger adolescents and adults, the researchers concluded “it is clear that important progress in the development of decision-making competence occurs sometime during late adolescence.” Id. at 271. The researchers explained that “these changes have a profound effect on their ability to make consistently mature decisions.” Ibid. Adults, for example, were better able to weigh the options available to resolve an issue. Id. at 268; see also Lita Furby & Ruth Beyth-Marom, “Risk Taking in Adolescence: A Decision-Making Perspective,” 12 Developmental Rev. 1, 1 (1992) (highlighting how adolescents seek different outcomes than adults from decision-making).

[108] Ruling: Hodgson v. Minnesota. U.S. Supreme Court, June 25, 1990. <caselaw.findlaw.com>

Subdivision 2 of Minn. Stat. 144.343 provides that no abortion shall be performed on a woman under 18 years of age until at least 48 hours after both of her parents have been notified. The two-parent notice requirement is mandatory unless, inter alia, the woman declares that she is a victim of parental abuse or neglect, in which event notice of her declaration must be given to the proper authorities.

[109] Brief submitted to the U.S. Supreme Court: Hodgson v. Minnesota. American Psychological Association, September 1, 1989. <www.apa.org>

Page 18: “Psychological theory and research about cognitive, social and moral development strongly supports the conclusion that most adolescents are competent to make informed decisions about important life situations.”

[110] Brief submitted to the U.S. Supreme Court: Hodgson v. Minnesota. American Psychological Association, September 1, 1989. <www.apa.org>

Pages 19–20:

In fact, by middle adolescence (age 14–15) young people develop abilities similar to adults in reasoning about moral dilemmas,46 understanding social rules and laws,47 reasoning about interpersonal relationships48 and interpersonal problems,40 and reasoning about custody preference during divorce.50 … Thus, by age 14 most adolescents have developed adult-like intellectual and social capacities including specific abilities outlined in the law as necessary for understanding treatment alternatives, considering risks and benefits, and giving legally competent consent.

[111] Brief submitted to the U.S. Supreme Court: Hodgson v. Minnesota. American Psychological Association, March 16, 1987. <www.apa.org>

Page 10: “In sum, the unvarying and highly significant findings of numerous scientific studies indicate that with respect to the capacity to understand and reason logically, there is no qualitative or quantitative difference between minors in mid-adolescence, i.e., about 14–15 years of age, and adults.”

[112] Ruling: Ford v. Wainwright. U.S. Supreme Court, June 26, 1986. Decided 5–4. Majority: Marshall, Brennan, Blackmun, Stevens, Powell. Concurring: Powell. Dissenting: O’Connor, White, Rehnquist, Burger. <caselaw.findlaw.com>

Majority:

[Part] II

… For today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. … Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.

Concurrence (Powell):

As Justice Marshall ably demonstrates, execution of the insane was barred at common law precisely because it was considered cruel and unusual. … It follows that the practice of executing the insane is barred by our own Constitution. …

… A number of States have more rigorous standards,3 but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.

Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

Dissent (O’Connor, White):

I am in full agreement with Justice Rehnquist’s conclusion that the Eighth Amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal courts should have any role whatever in the substantive determination of a defendant’s competency to be executed.

Dissent (Rehnquist, Burger):

The Court today holds that the Eighth Amendment prohibits a State from carrying out a lawfully imposed sentence of death upon a person who is currently insane. … It manages this feat by carefully ignoring the fact that the Florida scheme it finds unconstitutional, in which the Governor is assigned the ultimate responsibility of deciding whether a condemned prisoner is currently insane, is fully consistent with the “common-law heritage” and current practice on which the Court purports to rely. …

… It is Florida’s scheme—which combines a prohibition against execution of the insane with executive-branch procedures for evaluating claims of insanity—that is more faithful to both traditional and modern practice. …

Since no State sanctions execution of the insane, the real battle being fought in this case is over what procedures must accompany the inquiry into sanity. The Court reaches the result it does by examining the common law, creating a constitutional right that no State seeks to violate, and then concluding that the common-law procedures are inadequate to protect the newly created but common-law based right. I find it unnecessary to “constitutionalize” the already uniform view that the insane should not be executed, and inappropriate to “selectively incorporate” the common-law practice. I therefore dissent.

[113] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[114] Ruling: Ford v. Wainwright. U.S. Supreme Court, June 26, 1986. Decided 5–4. Majority: Marshall, Brennan, Blackmun, Stevens, Powell. Concurring: Powell. Dissenting: O’Connor, White, Rehnquist, Burger. <caselaw.findlaw.com>

Majority:

[Part] II

The adequacy of the procedures chosen by a State to determine sanity … will depend upon an issue that this Court has never addressed: whether the Constitution places a substantive restriction on the State’s power to take the life of an insane prisoner. …

… Today, no State in the Union permits the execution of the insane.2 … Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. …

[Part] IV

The first deficiency in Florida’s procedure lies in its failure to include the prisoner in the truth-seeking process. … In all other proceedings leading to the execution of an accused, we have said that the factfinder must “have before it all possible relevant information about the individual defendant whose fate it must determine.” …

[W]e believe that any procedure that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars consideration of that material by the factfinder is necessarily inadequate. …

Perhaps the most striking defect in the procedures of [Florida’s law] … is the State’s placement of the decision wholly within the executive branch. … The commander of the State’s corps of prosecutors cannot be said to have the neutrality that is necessary for reliability in the factfinding proceeding. …

[Part] V

… We do not here suggest that only a full trial on the issue of sanity will suffice to protect the federal interests; we leave to the State the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences. …

Today we have explicitly recognized in our law a principle that has long resided there. … In light of the clear need for trustworthiness in any factual finding that will prevent or permit the carrying out of an execution, we hold that [Florida’s law] … provides inadequate assurances of accuracy…. Having been denied a factfinding procedure “adequate to afford a full and fair hearing” on the critical issue … petitioner is entitled to an evidentiary hearing in the District Court, de novo, on the question of his competence to be executed.

Concurrence (Powell):

[Part] I

… A number of States have more rigorous standards,3 but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.

[Part] II

[T]he presumption of correctness does not attach to the Governor’s implicit finding of sanity because the State did not give petitioner’s claim “a full and fair hearing” ….

… It is clear that an insane defendant’s Eighth Amendment interest in forestalling his execution unless or until he recovers his sanity cannot be deprived without a “fair hearing.” …

… The State should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination. Beyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake.

Dissent (O’Connor, White):

I am in full agreement with Justice Rehnquist’s conclusion that the Eighth Amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal courts should have any role whatever in the substantive determination of a defendant’s competency to be executed.

Dissent (Rehnquist, Burger):

I see no reason to reject the … conclusion that wholly executive procedures can satisfy due process in the context of a post-trial, postappeal, post-collateral-attack challenge to a State’s effort to carry out a lawfully imposed sentence. Creating a constitutional right to a judicial determination of sanity … needlessly complicates and postpones still further any finality in this area of the law. …

Since no State sanctions execution of the insane, the real battle being fought in this case is over what procedures must accompany the inquiry into sanity. The Court reaches the result it does by examining the common law, creating a constitutional right that no State seeks to violate, and then concluding that the common-law procedures are inadequate to protect the newly created but common-law based right. I find it unnecessary to “constitutionalize” the already uniform view that the insane should not be executed, and inappropriate to “selectively incorporate” the common-law practice.

[115] Ruling: Ford v. Wainwright. U.S. Supreme Court, June 26, 1986. Decided 5–4. Majority: Marshall, Brennan, Blackmun, Stevens, Powell. Concurring: Powell. Dissenting: O’Connor, White, Rehnquist, Burger. <caselaw.findlaw.com>

Majority:

[Part] II

The adequacy of the procedures chosen by a State to determine sanity … will depend upon an issue that this Court has never addressed: whether the Constitution places a substantive restriction on the State’s power to take the life of an insane prisoner. …

… Today, no State in the Union permits the execution of the insane.2 … Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. …

[Part] IV

The first deficiency in Florida’s procedure lies in its failure to include the prisoner in the truth-seeking process. … In all other proceedings leading to the execution of an accused, we have said that the factfinder must “have before it all possible relevant information about the individual defendant whose fate it must determine.” …

[W]e believe that any procedure that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars consideration of that material by the factfinder is necessarily inadequate. …

Perhaps the most striking defect in the procedures of [Florida’s law] … is the State’s placement of the decision wholly within the executive branch. … The commander of the State’s corps of prosecutors cannot be said to have the neutrality that is necessary for reliability in the factfinding proceeding. …

[Part] V

… We do not here suggest that only a full trial on the issue of sanity will suffice to protect the federal interests; we leave to the State the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences. …

Today we have explicitly recognized in our law a principle that has long resided there. … In light of the clear need for trustworthiness in any factual finding that will prevent or permit the carrying out of an execution, we hold that [Florida’s law] … provides inadequate assurances of accuracy…. Having been denied a factfinding procedure “adequate to afford a full and fair hearing” on the critical issue … petitioner is entitled to an evidentiary hearing in the District Court, de novo, on the question of his competence to be executed.

Concurrence (Powell):

[Part] I

… A number of States have more rigorous standards,3 but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.

[Part] II

[T]he presumption of correctness does not attach to the Governor’s implicit finding of sanity because the State did not give petitioner’s claim “a full and fair hearing” ….

… It is clear that an insane defendant’s Eighth Amendment interest in forestalling his execution unless or until he recovers his sanity cannot be deprived without a “fair hearing.” …

… The State should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination. Beyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake.

Dissent (O’Connor, White):

I am in full agreement with Justice Rehnquist’s conclusion that the Eighth Amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal courts should have any role whatever in the substantive determination of a defendant’s competency to be executed.

Dissent (Rehnquist, Burger):

I see no reason to reject the … conclusion that wholly executive procedures can satisfy due process in the context of a post-trial, postappeal, post-collateral-attack challenge to a State’s effort to carry out a lawfully imposed sentence. Creating a constitutional right to a judicial determination of sanity … needlessly complicates and postpones still further any finality in this area of the law. …

Since no State sanctions execution of the insane, the real battle being fought in this case is over what procedures must accompany the inquiry into sanity. The Court reaches the result it does by examining the common law, creating a constitutional right that no State seeks to violate, and then concluding that the common-law procedures are inadequate to protect the newly created but common-law based right. I find it unnecessary to “constitutionalize” the already uniform view that the insane should not be executed, and inappropriate to “selectively incorporate” the common-law practice.

[116] Webpage: “U.S. Constitution Annotated, Eighth Amendment, Limitations on Imposition of the Death Penalty: Cognitively Disabled.” Congressional Research Service. Accessed February 3, 2020 at <constitution.congress.gov>

The Court noted that execution of the insane had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and continued to be so viewed. And, although no states purported to permit the execution of the insane, Florida and some others left the determination to the governor. Florida’s procedures, the Court held, violated due process because the decision was vested in the governor without the defendant’s having the opportunity to be heard, the governor’s decision being based on reports of three state-appointed psychiatrists.170

[117] Ruling: Panetti v. Quarterman. U.S. Supreme Court, June 28, 2007. Decided 5–4. Majority: Kennedy, Stevens, Souter, Ginsburg, Breyer. Dissenting: Thomas, Roberts, Scalia, Alito. <www.law.cornell.edu>

Majority:

This brings us to the question petitioner asks the Court to resolve: whether the Eighth Amendment permits the execution of a prisoner whose mental illness deprives him of “the mental capacity to understand that [he] is being executed as a punishment for a crime.” …

In our view the Court of Appeals’ standard is too restrictive to afford a prisoner the protections granted by the Eighth Amendment. The opinions in Ford, it must be acknowledged, did not set forth a precise standard for competency. …

The principles set forth in Ford are put at risk by a rule that deems delusions relevant only with respect to the State’s announced reason for a punishment or the fact of an imminent execution … as opposed to the real interests the State seeks to vindicate. We likewise find no support elsewhere in Ford … for the proposition that a prisoner is automatically foreclosed from demonstrating incompetency once a court has found he can identify the stated reason for his execution. A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter.

Although we reject the standard followed by the Court of Appeals, we do not attempt to set down a rule governing all competency determinations.

Dissent:

The Court parses the opinions in Ford to impose an additional constitutional requirement without undertaking any Eighth Amendment analysis of its own. Because the Court quibbles over the precise meaning of Ford’s opinions with respect to an issue that was not presented in that case, what emerges is a half-baked holding that leaves the details of the insanity standard for the District Court to work out. …

Because the issue before the Court in Ford was actual knowledge, not rational understanding … nothing in any of the Ford opinions addresses what to do when a prisoner knows the reason for his execution but does not “rationally understand” it.

… Because that result does not follow naturally from Ford, today’s opinion can be understood only as holding for the first time that the Eighth Amendment requires “rational understanding.”

[118] Ruling: Madison v. Alabama. Decided February 27, 2019. Decided 5–3. Majority: Kagan, Roberts, Ginsburg, Breyer, Sotomayor. Dissenting: Thomas, Alito, Gorsuch. <www.supremecourt.gov>

Majority:

First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condition may—or, then again, may not—impede the requisite comprehension of his punishment. …

First, a person lacking memory of his crime may yet rationally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational understanding” Panetti requires—not whether he has any particular memory or any particular mental illness. …

[S]uch memory loss still may factor into the “rational understanding” analysis that Panetti demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment, then the Panetti standard will be satisfied.

Dissent:

Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.

After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim. …

The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under Ala. Code §15–16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted.

[119] Webpage: “U.S. Constitution Annotated, Eighth Amendment, Limitations on Imposition of the Death Penalty: Cognitively Disabled.” Congressional Research Service. Accessed February 3, 2020 at <constitution.congress.gov>

The Court in Panetti v. Quarterman clarified when a prisoner’s current mental state can bar his execution under the rule of Ford.4 Relying on the understanding that the execution of a prisoner who cannot comprehend the reasons for his punishment offends both moral values and serves “no retributive purpose,” the Court concluded that the operative test was whether a prisoner can “reach a rational understanding for the reason for his execution.”5 Under Panetti, if a prisoner’s mental state is so distorted by mental illness that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment,” he cannot be executed.6

… For the Court, the Ford–Panetti inquiry is not so much concerned with the precise cause for whether a prisoner can rationally understand why the state is seeking an execution and is instead focused on whether the prisoner’s mental condition has the effect of preventing such an understanding.12

[120] Ruling: Madison v. Alabama. Decided February 27, 2019. Decided 5–3. Majority: Kagan, Roberts, Ginsburg, Breyer, Sotomayor. Dissenting: Thomas, Alito, Gorsuch. <www.supremecourt.gov>

Majority:

First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. …

First, a person lacking memory of his crime may yet rationally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational understanding” Panetti requires—not whether he has any particular memory or any particular mental illness.

Dissent:

Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.

After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim. …

The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under Ala. Code §15–16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted.

[121] Webpage: “U.S. Constitution Annotated, Eighth Amendment, Limitations on Imposition of the Death Penalty: Cognitively Disabled.” Congressional Research Service. Accessed February 3, 2020 at <constitution.congress.gov>

“First, on behalf of the Court, Justice Kagan concluded that a prisoner challenging his execution on the ground of a mental disorder cannot prevail ‘merely because he cannot remember committing his crime.’88 See 139 S. Ct. 726–27 (2019)”

[122] Ruling: Panetti v. Quarterman. U.S. Supreme Court, June 28, 2007. Decided 5–4. Majority: Kennedy, Stevens, Souter, Ginsburg, Breyer. Dissenting: Thomas, Roberts, Scalia, Alito. <www.law.cornell.edu>

Majority:

The prohibition applies despite a prisoner’s earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition.

Dissent:

Panetti brings a claim under Ford v. Wainwright … that he is incompetent to be executed. Presented for the first time in Panetti’s second federal habeas application, this claim undisputedly does not meet the statutory requirements for filing a “second or successive” habeas application. As such, Panetti’s habeas application must be dismissed. Ignoring this clear statutory mandate, the Court bends over backwards to allow Panetti to bring his Ford claim despite no evidence that his condition has worsened—or even changed—since 1995. …

Panetti’s Renewed Motion attached no medical reports or records, no sworn testimony from any medical professional, and no diagnosis of any medical condition. … This evidence—previously rejected by the state and federal courts that adjudicated Panetti’s other incompetency claims—had no relevance to Panetti’s competency to be executed in 2004 when he filed his Renewed Motion. … In short, Panetti supported his alleged incompetency with only the preliminary observations of a psychologist and a lawyer, whose only contact with Panetti was a single 85-minute meeting. It is absurd to suggest that this quantum of evidence clears the “high threshold,” entitling claimants to the procedural protections described by the plurality and Justice Powell in Ford.

[123] Ruling: Atkins v. Virginia. U.S. Supreme Court, June 20, 2002. Decided 6–3. Majority: Stevens, Ginsburg, Souter, Breyer, O’Connor, Kennedy. Dissenting: Scalia, Rehnquist, Thomas. <caselaw.findlaw.com>

Majority:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. …

[Part] IV

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia … identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. … If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

… The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable … that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.

Dissent (Rehnquist, Scalia, Thomas):

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. …

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values.

Dissent (Scalia, Rehnquist, Thomas):

As the foregoing history demonstrates, petitioner’s mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence. …

… As long as a mentally retarded offender knows “the difference between right and wrong” … only the sentencer can assess whether his retardation reduces his culpability enough to exempt him from the death penalty for the particular murder in question. …

Perhaps these practical difficulties will not be experienced by the minority of capital-punishment States that have very recently changed mental retardation from a mitigating factor (to be accepted or rejected by the sentencer) to an absolute immunity. Time will tell—and the brief time those States have had the new disposition in place (an average of 6.8 years) is surely not enough. But if the practical difficulties do not appear, and if the other States share the Court’s perceived moral consensus that all mental retardation renders the death penalty inappropriate for all crimes, then that majority will presumably follow suit. But there is no justification for this Court’s pushing them into the experiment—and turning the experiment into a permanent practice—on constitutional pretext.

[124] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[125] Ruling: Atkins v. Virginia. U.S. Supreme Court, June 20, 2002. Decided 6–3. Majority: Stevens, Ginsburg, Souter, Breyer, O’Connor, Kennedy. Dissenting: Scalia, Rehnquist, Thomas. <caselaw.findlaw.com>

Majority:

[Part] III

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”

[126] Ruling: Schriro v. Smith. U.S. Supreme Court, October 17, 2005. Decided 9–0. Majority: Roberts, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer. <www.law.cornell.edu>

Per Curiam:†

The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith’s mental retardation claim. Atkins stated in clear terms that “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” … States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition.

Because the Court of Appeals exceeded its limited authority on habeas review, the judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion.

NOTE: † A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[127] Ruling: Atkins v. Virginia. U.S. Supreme Court, June 20, 2002. Decided 6–3. Majority: Stevens, Ginsburg, Souter, Breyer, O’Connor, Kennedy. Dissenting: Scalia, Rehnquist, Thomas. <caselaw.findlaw.com>

Majority:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons … the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution. …

[Part] III

It is not so much the number of these States that is significant, but the consistency of the direction of change.18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition.19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. … The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.21

Dissent (Rehnquist, Scalia, Thomas):

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. …

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values.

Dissent (Scalia, Rehnquist, Thomas):

As the foregoing history demonstrates, petitioner’s mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence. …

… As long as a mentally retarded offender knows “the difference between right and wrong” … only the sentencer can assess whether his retardation reduces his culpability enough to exempt him from the death penalty for the particular murder in question. …

Perhaps these practical difficulties will not be experienced by the minority of capital-punishment States that have very recently changed mental retardation from a mitigating factor (to be accepted or rejected by the sentencer) to an absolute immunity. Time will tell—and the brief time those States have had the new disposition in place (an average of 6.8 years) is surely not enough. But if the practical difficulties do not appear, and if the other States share the Court’s perceived moral consensus that all mental retardation renders the death penalty inappropriate for all crimes, then that majority will presumably follow suit. But there is no justification for this Court’s pushing them into the experiment—and turning the experiment into a permanent practice—on constitutional pretext.

[128] Ruling: Hall v. Florida. U.S. Supreme Court, May 27, 2014. Decided 5–4. Majority: Kennedy, Ginsburg, Breyer, Sotomayor, Kagan. Dissenting: Alito, Roberts, Scalia, Thomas. <www.law.cornell.edu>

Majority:

Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional. …

[Part] III

Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise. …

Atkins itself acknowledges the inherent error in IQ testing. It is true that Atkins “did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation” falls within the protection of the Eighth Amendment. …

… The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic frame work. Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession. …

This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. …

[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.23 … Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

Dissent:

In Atkins v. Virginia … the Court held that the Eighth Amendment prohibits a death sentence for defendants who are intellectually disabled but does not mandate the use of a single method for identifying such defendants. Today, the Court overrules the latter holding based largely on the positions adopted by private professional associations. In taking this step, the Court sharply departs from the framework prescribed in prior Eighth Amendment cases and adopts a uniform national rule that is both conceptually unsound and likely to result in confusion. I therefore respectfully dissent. …

[Part] I

In these prior cases, when the Court referred to the evolving standards of a maturing “society,” the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA). …

While Atkins identified a consensus against the execution of the intellectually disabled, the Court observed that there was “serious disagreement” among the States with respect to the best method for “determining which offenders are in fact retarded.” … The Court therefore “le[ft] to the States the task of developing appropriate ways” to identify these defendants. … As we noted just five years ago, Atkins “did not provide definitive procedural or substantive guides for determining when a person” is intellectually disabled.

[129] Ruling: Moore v. Texas. U.S. Supreme Court, March 28, 2017. Decided 5–3. Majority: Ginsburg, Kennedy, Breyer, Sotomayor, Kagan. Dissenting: Roberts, Thomas, Alito. <www.supremecourt.gov>

Majority:

The Texas Court of Criminal Appeals (CCA)1 declined to adopt the judgment recommended by the state habeas court.2 In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno….

We vacate the CCA’s judgment. As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” … That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed….” Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled. …

[Part] I

The habeas judge erred, the CCA held, by “us[ing] the most current position, as espoused by AAIDD [American Association on Intellectual and Developmental Disabilities], regarding the diagnosis of intellectual disability rather than the test … in Briseno.” … This Court’s decision in Atkins v. Virginia … the CCA emphasized, “left it to the States to develop appropriate ways to enforce the constitutional restriction” on the execution of the intellectually disabled. … Thus, even though “it may be true that the AAIDD’s and APA’s [American Psychiatric Association’s] positions regarding the diagnosis of intellectual disability have changed since Atkins and Briseno,” the CCA retained Briseno’s instructions, both because of “the subjectivity surrounding the medical diagnosis of intellectual disability” and because the Texas Legislature had not displaced Briseno with any other guideposts. …

Judge Alcala dissented. Atkins and Hall, she would have held, require courts to consult current medical standards to determine intellectual disability. … She criticized the majority for relying on manuals superseded in the medical community … and for disregarding the habeas court’s credibility determinations…. Most emphatically, she urged, the CCA “must consult the medical community’s current views and standards in determining whether a defendant is intellectually disabled….”

[Part] V

As noted … States have some flexibility, but not “unfettered discretions,” in enforcing Atkins’ holding. …

The medical community’s current standards supply one constraint on States’ leeway in this area. Reflecting improved understanding over time … current manuals offer “the best available description of how mental disorders are expressed and can be recognized by trained clinicians….”

… By rejecting the habeas court’s application of medical guidance and clinging to the standard it laid out in Briseno, including the wholly nonclinical Briseno factors, the CCA failed adequately to inform itself of the “medical community’s diagnostic framework….”

Dissent:

The Court … crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles, and I respectfully dissent.

[130] Webpage: “Definition of Intellectual Disability.” American Association on Intellectual and Developmental Disabilities. Accessed February 28, 2020 at <www.aaidd.org>

Intellectual disability is a disability characterized by significant limitations in both intellectual functioning and in adaptive behavior, which covers many everyday social and practical skills. This disability originates before the age of 18. …

One way to measure intellectual functioning is an IQ test. Generally, an IQ test score of around 70 or as high as 75 indicates a limitation in intellectual functioning.

[131] Calculated with data from the report: “Capital Punishment, 2017: Selected Findings.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

Page 4: “Table 3. Average Time Between Sentencing and Execution, 1977–2017.”

NOTE: An Excel file containing the data and calculations is available upon request.

[132] Ruling: Kansas v. Marsh. U.S. Supreme Court, June 26, 2006. Decided 5–4. Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenting: Souter, Stevens, Ginsburg, Breyer. <www.law.cornell.edu>

Concurrence (Scalia): “Capital cases are given especially close scrutiny at every level, which is why in most cases many years elapse before the sentence is executed.”

[133] Webpage: “The National Registry of Exonerations: Alfred Brown.” University of California Irvine, University of Michigan Law School, and Michigan State University College of Law, June 10, 2015. Last updated 6/26/19. <www.law.umich.edu>

On October 8, 2005, the jury convicted Brown of capital murder. Days later, the jury voted to sentence Brown to death. …

In 2013, Lynn Hardaway, the head of the Harris County District Attorney’s post-conviction writs unit, informed Brown’s lawyers that homicide detective Breck McDaniel was cleaning out his garage when he found records from the case. In the records was a telephone log showing that a call was made from Dockery’s home telephone to her workplace at 10:08 a.m.—just as Brown had said from the beginning. The documents in the garage also included a subpoena from Rizzo, the trial prosecutor, to the phone company, demonstrating that the District Attorney’s Office had the critical phone record at the time of trial but did not turn it to the defense.

Harris County District Attorney Mike Anderson joined the defense in the filing of a state petition for a writ of habeas corpus. The trial court recommended the writ be granted. In November 2014, the Texas Court of Criminal Appeals granted the writ, vacated Brown’s conviction and ordered a new trial. …

“We re-interviewed all the witnesses. We looked at all the evidence and we’re coming up short,” [then-District Attorney Devon] Anderson said. “We cannot prove this case beyond a reasonable doubt, therefore the law demands that I dismiss this case and release Mr. Brown.”

Hours later, Brown was released.

[134] Webpage: “The National Registry of Exonerations: Kirk Bloodsworth.” University of California Irvine, University of Michigan Law School, and Michigan State University College of Law. Last updated April 18, 2014. <www.law.umich.edu>

Kirk Noble Bloodsworth, a former Marine discus champion, was proven innocent by DNA in 1993 of the rape and murder of nine-year-old Dawn Hamilton—a crime for which he was sentenced to death in Baltimore County, Maryland, in 1985. …

The Maryland Court of Appeals overturned Bloodsworth’s conviction in 1986 after finding that the prosecution had illegally withheld potentially exculpatory evidence from the defense….

In 1992, however, the prosecution agreed to testing of biological material preserved from the crime with a then-emerging DNA technology known as PCR (polymerase chain reaction). The tests, performed by Edward T. Blake, of Forensic Science Associates, in Richmond, California, incontrovertibly established Bloodsworth’s innocence. After the FBI confirmed the results, Bloodsworth was released June 28, 1993. He was the first U.S. death row prisoner to be cleared by DNA. In December 1994, Maryland Governor William Donald Schaefer granted Bloodsworth a full pardon based on innocence.

[135] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. John Jay College of Criminal Justice, City University of New York, March 2007. <www.ncjrs.gov>

Pages 14–15:

Decreases Public Confidence in the Criminal Justice System.

Multiple posttrial reviews of death sentences over a period of many years create a sense of lack of finality in death penalty cases. They contribute to an impression among the general public that justice is not being served. This is especially likely with highly publicized crimes and trials that have captured popular attention. (Of course, media reports of miscarriages of justice also erode public confidence in the criminal justice system.)

Where it takes many years to carry out a death sentence, there is a risk that the public will come to believe that the sentence will never be applied. As noted above, forty-three percent of those sentenced to death are still in prison. In some states, death sentences are imposed but rarely or never effectuated. In 1994, the Ohio Supreme Court observed that it had affirmed eighty-seven death penalties and not one had been carried out.18 “That fact,” the justices warned, “creates doubt about the ability of the justice system to carry out the death penalty and, perhaps even more importantly, a perception that the entire criminal justice system is not working.”19

[136] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. John Jay College of Criminal Justice, City University of New York, March 2007. <www.ncjrs.gov>

Page 15:

Weakens the Deterrent Benefits of Capital Punishment.

The extent to which the death penalty deters crime is a matter of great controversy and is not addressed by this study (Bailey and Peterson 1994; Donohue and Wolfers 2005). We simply assert here that if capital punishment has a deterrent effect over and above life imprisonment, a lengthy implementation process weakens that effect. Deterrence is based on an association of the crime with its attendant punishment, and the passage of time has long been thought to diminish that association.24 Delays in carrying out death sentences would undermine the deterrent effect of the death penalty by creating in the minds of potential offenders uncertainty about its imposition.

[137] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. John Jay College of Criminal Justice, City University of New York, March 2007. <www.ncjrs.gov>

Page 17:

The length of the capital appeals process itself has become a ground for litigation, potentially adding more time to postconviction review. In four different, though unsuccessful, certiorari petitions to the United States Supreme Court, one or two of the justices suggested that prolonged imprisonment under sentence of death could constitute “cruel and unusual punishment” in violation of the Eighth Amendment.28

[138] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[139] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. John Jay College of Criminal Justice, City University of New York, March 2007. <www.ncjrs.gov>

Page 10: “Most of this lengthy post-conviction time allocation is, of course, devoted to the capital appeals process. That process has three stages: 1. Direct Appeal, which is the

focus of this study, 2. State Postconviction Review, and 3. Federal Habeas Corpus.”

[140] Webpage: “The Justice System.” U.S. Department of Justice, Bureau of Justice Statistics. Accessed December 9, 2019 at <www.bjs.gov>

“After the trial a defendant may request appellate review of the conviction or sentence. In some cases, appeals of convictions are a matter of right; all States with the death penalty provide for automatic appeal of cases involving a death sentence.”

[141] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

The direct appeal is an automatic appeal given to everyone sentenced to death. The appeal is made to the state’s highest court in which someone can seek an appeal from a conviction and death sentence. In some states, this appeal is mandatory but in others, it is optional for the defendant.

The direct appeal is limited to issues from the trial. Typically, the prosecutor and the defense file briefs and oral arguments are held before a panel of judges. After reviewing the case, the judges can affirm the conviction and sentence, reverse the conviction, or reverse the death sentence.

[142] Ruling: Robertson v. Florida. Supreme Court of Florida, July 10, 2014. Decided 4–3. Majority: LaBarga, Pariente, Lewis, Perry. Concurring: Pariente, LaBarga, Perry. Dissenting: Quince, Canady, Polston. <caselaw.findlaw.com>

Per Curiam†:

First, article V, section 3(b)(1), of the Florida Constitution states that this Court “[s]hall hear appeals from final judgments of trial courts imposing the death penalty.” The Legislature has mandated in section 921.141(4), Florida Statutes (2013), in pertinent part, that “[t]he judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida.” Thus, our mandatory review of both the validity of the judgment and the propriety of the death sentence is “automatic” and does not depend upon the acquiescence of the death-sentenced defendant. …

… The only way for this Court to ensure that a death sentence is not arbitrarily or capriciously imposed is to provide meaningful appellate review of each death sentence. …

Our long-established precedent has given life to these constitutional and statutory safeguards against an unconstitutional capital sentencing scheme, even in cases where the defendant expresses a desire to be executed. In Klokoc v. State, 589 So. 2d 219, 221–22 (Fla. 1991), we denied the defendant’s request to dismiss the direct appeal, stating that this Court required the benefit of an adversary proceeding to provide a meaningful review of both the judgment and the sentence.

NOTE: † A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[143] Report: “Capital Punishment, 2004.” By Thomas P. Bonczar and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, November 2005. Revised 2/1/06. <www.bjs.gov>

Page 3:

Of the 38 States with capital statutes at yearend, 37 provided for review of all death sentences regardless of the defendant’s wishes. In South Carolina the defendant had the right to waive sentence review if he or she was deemed competent by the court (State v. Torrence, 473 S.E. 3d 703 (S.C. 1996)). Federal death penalty procedures did not provide for automatic review after a sentence of death had been imposed.

The State’s highest appellate court usually conducted the review. If either the conviction or sentence was vacated, the case could be remanded to the trial court for additional proceedings or retrial. …

While most of the 37 States authorized automatic review of both the conviction and sentence, Idaho, Montana, Oklahoma, South Dakota, and Tennessee required review of the sentence only. In Idaho review of the conviction had to be filed through appeal or forfeited. In Indiana and Kentucky a defendant could waive review of the conviction.

In Virginia a defendant could waive an appeal of trial court error but could not waive review of the death sentence for arbitrariness and proportionality.

[144] “A Guide to Victim’s Rights and Services in the Capital Appeals Process.” Office of Attorney General Ashley Moody, Division of Victim Services and Criminal Justice Programs. Accessed December 13, 2019 at <myfloridalegal.com>

Page 2 (of PDF):

The primary distinction is that capital cases are automatically appealed directly to the Florida Supreme Court. The first step in the process is called the direct appeal. A defendant must file a notice of appeal within 30 days of the conviction and sentence. This notice is followed by a written document that explains the reasons why the conviction or sentence is improper. The defendant or the defendant’s attorney must cite some legal error or similar basis for the appeal and may not simply re-argue the evidence in hopes of getting a different verdict. Only the transcript of the trial court proceedings and other official court records of the case can be used by the defendant as the basis for an appeal.

[145] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. John Jay College of Criminal Justice, City University of New York, March 2007. <www.ncjrs.gov>

Page 10: “Thirty-five of the death penalty states provide for direct appeal of a capital conviction to the state court of last resort (‘COLR’).”

[146] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

State Post-Conviction

This is the second stage of the appellate process. Petitions are first filed with the original trial judge, then appealed to any intermediate courts (when applicable), and then finally to the state’s highest court. At this stage, the defendant may raise issues surrounding the conviction and sentence that are outside of the record. The defendant can raise issues such as ineffective assistance of counsel, juror misconduct, newly-discovered evidence and Brady violations (A Brady violation occurs when the state withholds evidence that could help the defense’s case).

[147] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010.

Chapter 9: “Post-Conviction Proceedings in Capital Cases.” By Kevin M. Emas. Pages 253–295. <www.judges.org>

Pages 254–255:

A post-conviction motion may only be used to raise a collateral challenge to the validity of the judgment or sentence. For this reason, it is improper to include in a post-conviction motion a claim that was or could have been raised on direct appeal. The courts have consistently held that postconviction relief is not a substitute for an appeal.1225 The right to file a postconviction motion was not intended as a second opportunity to argue alleged trial errors. Nor was it intended to provide a forum for reargument of the issue of guilt or innocence. These issues will have already been settled by the time the motion is filed. Rather, a post-conviction motion serves the limited purpose of providing the defendant with a remedy in the event there has been a substantive deprivation of federal or state constitutional rights in the proceeding that produced the judgement or sentence under attack.1226

[148] Webpage: “Tennessee Appeals Process.” Tennessee Attorney General. Accessed December 9, 2019 at <www.tn.gov>

If a defendant pursued a direct appeal, the defendant has one year from the date of the final decision of the highest state appellate court that the defendant sought appellate review from to file a post-conviction petition.  A post-conviction petition is a request to overturn a conviction or sentence based on constitutional violations. …

If post-conviction relief is denied, a defendant may appeal to the Court of Criminal Appeals. [I]f the defendant loses in the Court of Criminal Appeals, he or she may seek permission to appeal to the Tennessee Supreme Court. Review is granted or denied at the discretion of the Supreme Court in both capital and non-capital cases.

[149] “A Guide to Victim’s Rights and Services in the Capital Appeals Process.” Office of Attorney General Ashley Moody, Division of Victim Services and Criminal Justice Programs. Accessed December 13, 2019 at <myfloridalegal.com>

Page 4 (of PDF):

In collateral attacks, the defendants argue that their rights, as guaranteed by the United States and Florida Constitutions, were violated. These arguments often are directed at the competence of their attorneys or at the State for allegedly withholding favorable evidence from the defense at trial. Although the pattern may vary, these attacks customarily begin at the trial court level and work their way to the Florida Supreme Court, the local Federal trial courts, the U.S. Eleventh Circuit Court of Appeal (based in Atlanta), or even to the United States Supreme Court.

These collateral attacks are known as either motions for post-conviction relief or petitions for writ of habeas corpus. The state and federal collateral review process can be extremely time-consuming, as each court seeks to determine whether the defendant has presented any constitutional basis for relief either from the conviction or sentence.
 

[150] Webpage: “Appellate Courts and Cases – Journalist’s Guide.” Administrative Office of the United States Courts. Accessed December 13, 2019 at <www.uscourts.gov>

Federal appellate courts also hear habeas corpus appeals involving death penalties issued by state courts, as well as by federal courts.

The substantive and procedural requirements for seeking federal habeas relief are largely governed by the Antiterrorism and Effective Death Penalty Act (AEDPA) and federal court decisions interpreting the AEDPA. Despite significant legal barriers to obtaining federal habeas review under the AEDPA, prisoners sentenced to death at the state and federal levels almost always seek federal habeas corpus relief.

In these proceedings, a state prisoner (under 28 U.S.C. § 2254) or a federal prisoner (under 28 U.S.C. § 2255) asks a federal court to vacate or set aside his or her death sentence, alleging errors under the law.

[151] Webpage: “Tennessee Appeals Process.” Tennessee Attorney General. Accessed December 9, 2019 at <www.tn.gov>

Upon completion of all available state appeals, a defendant may file a petition for writ of habeas corpus in the federal district court. The primary function of the writ of habeas corpus is not to determine guilt or innocence but to petition for release from unlawful imprisonment. A defendant is entitled to federal habeas corpus relief only by showing a violation of a federal constitutional right.

If federal habeas corpus relief is denied in the district court, a defendant may ask the United States Court of Appeals for the Sixth Circuit to grant an appeal. If the district court decision is affirmed in the Court of Appeals, the defendant may petition the United States Supreme Court to review the case. However, review by the United States Supreme Court is rarely granted. In capital cases, once the habeas action is closed, the Attorney General’s Office will file a motion asking the Tennessee Supreme Court to set an execution date.

[152] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

Federal habeas corpus is the final stage of the appeals process, and is limited to federal issues raised on appeal in the State courts. …

A petition to the U.S. District Court is the first step in federal post-conviction review. The decision is made by a judge reviewing briefs filed by the prosecution and the defense. The judge may also grant a hearing on new evidence. The judge can dismiss the petition, overturn the conviction, or overturn the sentence.

Permission to appeal to the U.S. Court of Appeals is not automatic and must be granted by the U.S. District Court or the Court of Appeals. The appeal is limited to issues raised in the U.S. District Court. …

The U.S. Supreme Court is the last resort for defendants appealing their death sentence. The Court, however, only reviews a handful of death penalty cases a year. When a writ of certiorari is denied by the U.S. Supreme Court, the defendant has exhausted his appeals.

[153] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010.

Chapter 10: “Federal Habeas Corpus.” By Penny J. White. Pages 297–316. <www.judges.org>

Page 298: “A prisoner in state custody1447 is authorized by federal statute, 28 U.S.C. § 2254, to file an ‘application’ for a writ of habeas corpus on the ground that the custody is ‘in violation of the Constitution or laws or treaties of the United States.’1448

[154] Report: “Federal Habeas Corpus: A Brief Legal Overview.” By Charles Doyle. Congressional Research Service, April 26, 2006. Updated 1/8/10. <www.everycrsreport.com>

Pages 12–13:

The AEDPA [Antiterrorism and Effective Death Penalty Act] establishes a one-year deadline within which state and federal prisoners must file their habeas petitions, 20 U.S.C. 2244(d), 2255. The period of limitations begins with the latest of:

• the date of final completion of direct state review procedures;58

• the date of removal of a government impediment preventing the prisoner from filing for habeas relief;

• the date of Supreme Court recognition of the underlying federal right and of the right’s retroactive application;59 or

• the date of uncovering previously undiscoverable evidence upon which the habeas claim is predicated.

The period is tolled during the pendency of state collateral review,60 that is, “during the interval between (1) the time a lower state court reaches an adverse decision, and (2) the day the prisoner timely files an appeal.”61

[155] Calculated with data from the report: “Capital Punishment, 2013 – Statistical Tables.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, December 2014. <www.bjs.gov>

Page 19: “Table 16: Prisoners sentenced to death and the outcome of the sentence, by year of sentencing, 1973–2013 … Total, 1973–2013 [=] 8,466 … Number of prisoners removed from under sentence of death … Appeal or higher courts overturned … Conviction [=] 890 … Sentence [=] 1,781”

CALCULATION: (890 convictions overturned + 1,781 sentences overturned) / 8,466 death sentences = 31.5%

[156] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010.

Chapter 9: “Post-Conviction Proceedings in Capital Cases.” By Kevin M. Emas. Pages 253–295. <www.judges.org>

Page 255:

Clemency is an exclusive function of the executive branch of government. Therefore, the courts lack jurisdiction to interfere with the proper exercise of discretion to grant a petition for executive clemency. Judicial power over executive clemency is limited to claims that the clemency statute is unconstitutional on its face or that the executive officers failed to apply the statute according to state and federal constitutional requirements.

[157] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

When a writ of certiorari is denied by the U.S. Supreme Court, the defendant has exhausted his appeals. The only relief available to the defendant is executive clemency. …

Executive clemency is the power held by a governor or other body to grant relief to a person facing execution. The governor may postpone an execution in order to allow time for further review or may commute a defendant’s death sentence to a lesser sentence, such as of life without parole.

[158] Webpage: “Tennessee Appeals Process.” Tennessee Attorney General. Accessed December 9, 2019 at <www.tn.gov>

In capital cases, an inmate will likely file an application seeking executive clemency. Clemency is an act of the governor reducing a death sentence to life imprisonment or granting a full or conditional pardon. The authority to grant or deny clemency rests solely with the governor. Under the Tennessee Constitution, the governor may grant full or conditional pardons, reprieves of execution, and commutation of sentences.

[159] Webpage: “Frequently Asked Questions.” U.S. Department of Justice, Office of the Pardon Attorney. Updated December 14, 2019. <www.justice.gov>

In the federal system, commutation of sentence and pardon are different forms of executive clemency, which is a broad term that applies to the President’s constitutional power to exercise leniency toward persons who have committed federal crimes.

A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction. … To be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts. …

Is the decision on every clemency application made by the President?

Yes. Except for situations in which an application must be closed administratively because an applicant withdraws the application from consideration, repeatedly fails to respond to a request by the Pardon Attorney for required information, dies during processing of the application, or is released from prison during the processing of a commutation application that seeks only the reduction of his prison sentence, every clemency application submitted to the Pardon Attorney follows the process described above and is decided by the President. …

The President’s clemency power under the Constitution is limited to federal offenses. As a matter of policy, the President does not make recommendations or otherwise seek to intervene in state clemency matters. Whether to grant clemency to a state offender is a matter within the sole authority of state officials to decide. Accordingly, the Office of the Pardon attorney is unable to process a clemency petition for a state offense.

[160] Constitution of the United States. Signed September 17, 1787. Enacted June 21, 1788. <justfacts.com>

Article II, Section 2, Clause 1 (<www.justfacts.com>):

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

[161] Article: “Executive Clemency: The Lethal Absence of Hope.” By Jonathan Harris and Lothlorien Redmond. American University Criminal Law Brief, 2007. Pages 2–15. <digitalcommons.wcl.american.edu>

Page 8:

As a general matter, the clemency processes adopted by the fifty states are consistent … with the traditional meaning of clemency as described by the Supreme Court: a discretionary process, where the governor may review the broadest spectrum of information and circumstances, is not required to expound upon his or her reason for granting or withholding clemency, and where a grant of clemency may take different forms including the grant of a reprieve, stay, commutation of a sentence of death, or full pardon.

This general statement holds essentially true even though we must, of course, recognize that each state has its own system of clemency, and that any general discussion about clemency necessarily oversimplifies the fact that there are really fifty-two different state clemency schemes and that these schemes are applied differently in different cases.

Page 10: “The exercise of the clemency power is, and has always been, a discretionary act of the executive founded in notions of grace, mercy and humanity. While some may believe this to be at odds with our highly procedural judicial system, clemency is—by its inherent nature—a uniquely unbound act residing both alongside and apart from the criminal justice process.”

[162] Webpage: “Frequently Asked Questions.” U.S. Department of Justice, Office of the Pardon Attorney. Updated December 14, 2019. <www.justice.gov>

As a general matter, Presidents in recent times have rarely announced their reasons for granting or denying clemency, although the President may choose to do so in a given case. Consistent with long-standing policy, if the President does not issue a public statement concerning his action in a clemency matter, no explanation is provided by the Department of Justice. Moreover, deliberative communications pertaining to agency and presidential decision-making are confidential and not available under existing case law interpreting the Freedom of Information Act and Privacy Act.

[163] Calculated with data from the report: “Capital Punishment, 2013 – Statistical Tables.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, December 2014. <www.bjs.gov>

Page 20: “Table 17: Prisoners sentenced to death and the outcome of the sentence, by jurisdiction, 1973–2013 … U.S. total … Total, sentenced to death, 1973–2013 [=] 8,466 … Sentence commuted [=] 392”

CALCULATION: 392 sentences commuted / 8,466 death sentences = 4.6%

[164] Calculated with data from:

a) Report: “Capital Punishment, 2013 – Statistical Tables.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, December 2014. <www.bjs.gov>

Page 20: “Table 17: Prisoners sentenced to death and the outcome of the sentence, by jurisdiction, 1973–2013 … U.S. total … Sentence commuted [=] 392”

b) Article: “Citing Issues of Fairness, Governor Clears out Death Row in Illinois.” By Jodi Wilgoren. New York Times, January 12, 2003. <www.nytimes.com>

“In one sweep, Governor Ryan, a Republican, spared the lives of 163 men and 4 women….”

CALCULATION: (163 men + 4 women) / 392 total = 42.6%

[165] Article: “How the Death Penalty Was Abolished in Illinois.” Chicago Tribune, May 15, 2018. <www.chicagotribune.com>

Jan. 31, 2000

Gov. George Ryan announces a moratorium on the death penalty, making Illinois the first state to take such action. Ryan’s actions came while he was under federal investigation for unrelated corruption. He later went to federal prison for a corruption scandal that included at least 13 people dying from accidents caused by people who illegally obtained commercial drivers licenses through bribes.

Jan. 11, 2003

Two days prior to leaving office, Ryan commutes the sentences of 164 death row inmates to life in prison without parole, citing a system that is “haunted by the demon of error.” Ryan pardoned four Death Row inmates, resulting in the release of three. Another three Death Row inmates had their sentences shortened to 40-year terms. The actions take 167 people off of Death Row.

[166] Book: Official Reports of the Supreme Court (Volume 528, U.S. Part I). U.S. Supreme Court, 2000.

Page 990: “No. 98-9741. Knight, aka Muhammad v. Florida. Sup. Ct. Fla.; and No. 99-5291. Moore v. Nebraska. Sup. Ct. Neb. Certiorari denied.”

[167] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[168] Opinion: Knight v. Florida and Moore v. Nebraska. Justice Clarence Thomas. U.S. Supreme Court, November 8, 1999. <www.law.cornell.edu>

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.1

Consistency would seem to demand that those who accept our death penalty jurisprudence as a given also accept the lengthy delay between sentencing and execution as a necessary consequence. See Coleman v. Balkcom, 451 U. S. 949, 952 (1981) (Stevens, J., concurring in denial of certiorari) (“However critical one may be of … protracted post-trial procedures, it seems inevitable that there must be a significant period of incarceration on death row during the interval between sentencing and execution”). It is incongruous to arm capital defendants with an arsenal of “constitutional” claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed. …

Ironically, the neoteric Eighth Amendment claim proposed by Justice Breyer would further prolong collateral review by giving virtually every capital prisoner yet another ground on which to challenge and delay his execution. … The claim might, in addition, provide reviewing courts a perverse incentive to give short shrift to a capital defendant’s legitimate claims so as to avoid violating the Eighth Amendment right suggested by Justice Breyer.

[169] Ruling: Bucklew v. Precythe. U.S. Supreme Court, April 1, 2019. Decided 5–4. Majority: Gorsuch, Robert, Thomas, Alito, Kavanaugh. Concurring: Thomas, Kavanaugh. Dissenting: Breyer, Ginsburg, Sotomayor, Kagan. <caselaw.findlaw.com>

Dissent (Breyer):

Today’s majority appears to believe that because “[t]he Constitution allows capital punishment,” … the Constitution must allow capital punishment to occur quickly. In reaching that conclusion the majority echoes an argument expressed by the Court in Glossip, namely, that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” …

These conclusions do not follow. It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.

… And I simply conclude here that the law entitles Bucklew to an opportunity to prove his claim at trial. I note, however, that this case adds to the mounting evidence that we can either have a death penalty that avoids excessive delays and “arguably serves legitimate penological purposes,” or we can have a death penalty that “seeks reliability and fairness in the death penalty’s application” and avoids the infliction of cruel and unusual punishments. … It may well be that we “cannot have both.”

[170] Ruling: Glossip v. Gross. U.S. Supreme Court, June 29, 2015. Decided 5–4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Concurring: Scalia, Thomas. Dissenting: Breyer, Ginsburg, Sotomayor, Kagan. <www.supremecourt.gov>

Dissent: (Breyer):

[R]ather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution. …

… Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. …

In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death penalty violates the Eighth Amendment.

[171] Webpage: “How Criminal Cases Work.” Judicial Branch of California. Accessed January 22, 2020 at <www.courts.ca.gov>

“Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial.”

[172] Ruling: Herrera v. Collins. U.S. Supreme Court, January 25, 1993. Decided 6–3. Majority: Rehnquist, O’Connor, Scalia, Kennedy, Thomas. Concurring: O’Connor, Kennedy, Scalia, Thomas, White. Dissenting: Blackmun, Stevens, Souter. <supreme.justia.com>

Majority:

A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. …

Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. … (“The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is “innocent,” but, on the contrary, as one who has been convicted by due process of law of two brutal murders.

Dissent:

[C]onviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the defendant’s guilt beyond a reasonable doubt … but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is innocent but whether the government has met its constitutional burden of proving the defendant’s guilt beyond a reasonable doubt. When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.

[173] Webpage: “Criminal Cases.” Administrative Office of the United States Courts. Accessed January 22, 2020 at <www.uscourts.gov>

In a criminal trial, the burden of proof is on the government. Defendants do not have to prove their innocence. Instead, the government must provide evidence to convince the jury of the defendant’s guilt. The standard of proof in a criminal trial gives the prosecutor a much greater burden than the plaintiff in a civil trial. The defendant must be found guilty “beyond a reasonable doubt,” which means the evidence must be so strong that there is no reasonable doubt that the defendant committed the crime.

[174] Webpage: “How Criminal Cases Work.” Judicial Branch of California. Accessed January 22, 2020 at <www.courts.ca.gov>

Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. This means that it is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. …

If the jury finds the defendant not guilty, it is called an “acquittal” and the defendant will be released. The defendant can never be tried again for the same crime. This is called “double jeopardy.” A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal. If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant must be held in front of a judge. It is often much harder to prove factual innocence, than to raise a reasonable doubt about guilt.

If the defendant is found guilty, the defendant will be sentenced.

[175] Ruling: People v. Smith. Supreme Court of Illinois, February 19, 1999. Decided 5–0. Majority: Heiple, Freeman, McMorrow, Harrison, Miller. <caselaw.findlaw.com>

Majority:

No defendant is required to prove his innocence.

While a not guilty finding is sometimes equated with a finding of innocence, that conclusion is erroneous. Courts do not find people guilty or innocent. They find them guilty or not guilty. A not guilty verdict expresses no view as to a defendant’s innocence. Rather, it indicates simply that the prosecution has failed to meet its burden of proof. While there are those who may criticize courts for turning criminals loose, courts have a duty to ensure that all citizens receive those rights which are applicable equally to every citizen who may find himself charged with a crime, whatever the crime and whatever the circumstances. When the State cannot meet its burden of proof, the defendant must go free. This case happens to be a murder case carrying a sentence of death against a defendant where the State has failed to meet its burden.

[176] Webpage: “How Criminal Cases Work.” Judicial Branch of California. Accessed January 22, 2020 at <www.courts.ca.gov>

“A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal.”

[177] Ruling: Herrera v. Collins. U.S. Supreme Court, January 25, 1993. Decided 6–3. Majority: Rehnquist, O’Connor, Scalia, Kennedy, Thomas. Concurring: O’Connor, Kennedy, Scalia, Thomas, White. Dissenting: Blackmun, Stevens, Souter. <supreme.justia.com>

Majority:

A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. …

Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. … (“The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is “innocent,” but, on the contrary, as one who has been convicted by due process of law of two brutal murders.

Dissent:

[C]onviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the defendant’s guilt beyond a reasonable doubt … but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is innocent but whether the government has met its constitutional burden of proving the defendant’s guilt beyond a reasonable doubt. When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.

[178] Ruling: Herrera v. Collins. U.S. Supreme Court, January 25, 1993. Decided 6–3. Majority: Rehnquist, O’Connor, Scalia, Kennedy, Thomas. Concurring: O’Connor, Kennedy, Scalia, Thomas, White. Dissenting: Blackmun, Stevens, Souter. <supreme.justia.com>

Majority:

A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. …

Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. … (“The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt.”) Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is “innocent,” but, on the contrary, as one who has been convicted by due process of law of two brutal murders.

Dissent:

[C]onviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the defendant’s guilt beyond a reasonable doubt … but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is innocent but whether the government has met its constitutional burden of proving the defendant’s guilt beyond a reasonable doubt. When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.

[179] Webpage: “How Criminal Cases Work.” Judicial Branch of California. Accessed January 22, 2020 at <www.courts.ca.gov>

Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. …

… If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant must be held in front of a judge. It is often much harder to prove factual innocence, than to raise a reasonable doubt about guilt.

[180] Entry: “Actual Innocence.” Wex Legal Encyclopedia. Accessed February 18, 2020 at <www.law.cornell.edu>

An absence of facts required for conviction under a criminal statute. For example, a defendant accused of robbery who never illegally took anyone’s property is actually innocent of the charge.

Overview

Defendants often claim actual innocence when appealing criminal convictions. To prove actual innocence, the defendant must submit additional evidence that undermines the court’s confidence in the verdict reached by the trier of fact. Appellate rules normally require that this evidence must not have been available to the defendant at the time of the trial.

[181] Paper: “The Execution of the Innocent.” By Michael L. Radelet and Hugo Adam Bedau. Law and Contemporary Problems, 1998. Pages 105–124. <scholarship.law.duke.edu>

Page 107: “[T]he authors of a 1993 House Subcommittee Staff Report on innocence and the death penalty … collapse the distinction between being acquitted of charges and being innocent….”

[182] Book: Lethal Injection: Capital Punishment in Texas During the Modern Era. By Jon Sorensen and Rocky Leann Pilgrim. University of Texas Press, 2006.

Page 130:

The problem that arises in describing these persons as “exonerated” is that the word implies factual innocence, admitted or proved. A factually innocent person evokes much greater sympathy and outrage than someone who may be guilty, but just got off on a technicality. … In reality, however, even the court opinions that overrule these cases often recognize that there is convincing evidence of the defendant’s guilt.

[183] Webpage: “Criteria for Inclusion on DPIC’s [Death Penalty Information Center’s] Innocence List.” Death Penalty Information Center. Accessed January 17, 2020 at <deathpenaltyinfo.org>

We believe the term “exonerated” is entirely appropriate to refer to the individuals on this list…. Exonerate means to clear, as of an accusation, and seems to come from the Latin “ex” and “onus” meaning to unburden. That is precisely what has occurred in these cases. The defendants were convicted, given a burden of guilt, and then that burden was lifted when they were acquitted at a re-trial or the prosecution dropped all charges after the conviction was reversed. These are not individuals who received a lesser sentence or who remained guilty of a lesser charge related to the same set of circumstances. All guilt was lifted by the same system that had imposed it in the first place. Our justice system is the only objective source for making such a determination.

This notion of innocence, that an individual is innocent unless proven guilty, is a bedrock principle of our constitution and our societal protection against abusive state power. One does not lose the status of innocence merely because a prosecutor or other individuals retain a suspicion of guilt.

[184] Ruling: Bousley v. United States. U.S. Supreme Court, May 18, 1998. Decided 7–2. Majority: Rehnquist, O’Connor, Kennedy, Souter, Ginsburg, Breyer. Concurring: Stevens. Dissenting: Scalia, Thomas. <supreme.justia.com>

Majority:

Petitioner’s claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy “has probably resulted in the conviction of one who is actually innocent.” … To establish actual innocence, petitioner must demonstrate that, “in light of all the evidence,” “it is more likely than not that no reasonable juror would have convicted him.” … The District Court failed to address petitioner’s actual innocence, perhaps because petitioner failed to raise it initially in his § 2255 motion. However, the Government does not contend that petitioner waived this claim by failing to raise it below. Accordingly, we believe it appropriate to remand this case to permit petitioner to attempt to make a showing of actual innocence.

It is important to note in this regard that “actual innocence” means factual innocence, not mere legal insufficiency.

Dissent:

I agree with the Court that petitioner has not demonstrated “cause” for failing to challenge the validity of his guilty plea on direct review. I disagree, however, that a defendant who has pleaded guilty can be given the opportunity to avoid the consequences of his inexcusable procedural default by having the courts inquire into whether “ ‘it is more likely than not that no reasonable juror would have convicted him’ ” of the offense to which he pleaded guilty. …

… In every one of our cases that has considered the possibility of applying this so-called actual-innocence exception, a defendant had asked a habeas court to adjudicate a successive or procedurally defaulted constitutional claim after his conviction by a jury. …

There are good reasons for this limitation: First and foremost, it is feasible to make an accurate assessment of “actual innocence” when a trial has been had. In Schlup, for example, we said that to sustain an “actual innocence” claim the petitioner must “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” … That “new evidence” was to be evaluated, of course, along with the “old evidence,” consisting of the transcript of the trial.

[185] Webpage: “How Criminal Cases Work.” Judicial Branch of California. Accessed January 22, 2020 at <www.courts.ca.gov>

Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. …

… If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant must be held in front of a judge. It is often much harder to prove factual innocence, than to raise a reasonable doubt about guilt.

[186] Colorado Revised Statute Title 13, Section 13-65-101: “Courts and Court Procedures, Definitions.” <codes.findlaw.com>

(1)

(a) “Actual innocence” means a finding by clear and convincing evidence by a district court … that a person is actually innocent of a crime such that:

(I) His or her conviction was the result of a miscarriage of justice;

(II) He or she presented reliable evidence that he or she was factually innocent of any participation in the crime at issue;

(III) He or she did not solicit … the commission of the crime at issue or any crime factually related to the crime at issue;

(IV) He or she did not conspire … to commit the crime at issue or any crime factually related to the crime at issue;

(V) He or she did not act as a complicitor … in the commission of the crime at issue or any crime factually related to the crime at issue;

(VI) He or she did not act as an accessory … in the commission of the crime at issue or any crime factually related to the crime at issue;  and

(VII) He or she did not attempt to commit … the crime at issue or any crime factually related to the crime at issue.

(b) A court may not reach a finding of actual innocence pursuant to this section merely:

(I) Because the court finds the evidence legally insufficient to support the petitioner’s conviction;

(II) Because the court reversed or vacated the petitioner’s conviction because of a legal error unrelated to the petitioner’s actual innocence or because of uncorroborated witness recantation alone;  or

(III) On the basis of uncorroborated witness recantation alone.

(c) As used in this subsection (1), “reliable evidence” may include but is not limited to exculpatory scientific evidence, trustworthy eyewitness accounts, and critical physical evidence. …

(3) “Exonerated person” means a person who has been determined by a district court … to be actually innocent.

[187] Ruling: Shlup v. Delo. U.S. Supreme Court, January 23, 1995. Decided 5–4. Majority: Stevens, O’Connor, Souter, Ginsburg, Breyer. Concurring: O’Connor. Dissenting: Rehnquist, Kennedy, Thomas, Scalia. <supreme.justia.com>

Majority:

Claims of actual innocence pose less of a threat to scarce judicial resources and to principles of finality and comity than do claims that focus solely on the erroneous imposition of the death penalty. … To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful. …

The meaning of actual innocence as formulated by Sawyer and Carrier does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. … Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.

Dissent (Rehnquist, Kennedy, Thomas):

The situation presented by a claim of actual innocence in a federal habeas petition is obviously different from that presented in Jackson because the habeas court analyzing an “actual innocence” claim is faced with a body of evidence that has been supplemented since the original trial. The reviewing court must somehow predict the effect that this new evidence would have had on the deliberations of reasonable jurors. It must necessarily weigh this new evidence in some manner, and may need to make credibility determinations as to witnesses who did not appear before the original jury. This new evidence, however, is not a license for the reviewing court to disregard the presumptively proper determination by the original trier of fact.

Dissent (Scalia, Thomas): “I would say, as the statute does, that habeas courts need not entertain successive or abusive petitions. The courts whose decisions we review declined to entertain the petition, and I find no abuse of discretion in the record.”

[188] Ruling: Bousley v. United States. U.S. Supreme Court, May 18, 1998. Decided 7–2. Majority: Rehnquist, O’Connor, Kennedy, Souter, Ginsburg, Breyer. Concurring: Stevens. Dissenting: Scalia, Thomas. <supreme.justia.com>

Majority:

Petitioner’s claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy “has probably resulted in the conviction of one who is actually innocent.” … To establish actual innocence, petitioner must demonstrate that, “in light of all the evidence,” “it is more likely than not that no reasonable juror would have convicted him.” … The District Court failed to address petitioner’s actual innocence, perhaps because petitioner failed to raise it initially in his § 2255 motion. However, the Government does not contend that petitioner waived this claim by failing to raise it below. Accordingly, we believe it appropriate to remand this case to permit petitioner to attempt to make a showing of actual innocence.

It is important to note in this regard that “actual innocence” means factual innocence, not mere legal insufficiency.

Dissent:

I agree with the Court that petitioner has not demonstrated “cause” for failing to challenge the validity of his guilty plea on direct review. I disagree, however, that a defendant who has pleaded guilty can be given the opportunity to avoid the consequences of his inexcusable procedural default by having the courts inquire into whether “ ‘it is more likely than not that no reasonable juror would have convicted him’ ” of the offense to which he pleaded guilty. …

… In every one of our cases that has considered the possibility of applying this so-called actual-innocence exception, a defendant had asked a habeas court to adjudicate a successive or procedurally defaulted constitutional claim after his conviction by a jury. …

There are good reasons for this limitation: First and foremost, it is feasible to make an accurate assessment of “actual innocence” when a trial has been had. In Schlup, for example, we said that to sustain an “actual innocence” claim the petitioner must “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” … That “new evidence” was to be evaluated, of course, along with the “old evidence,” consisting of the transcript of the trial.

[189] Ruling: Shlup v. Delo. U.S. Supreme Court, January 23, 1995. Decided 5–4. Majority: Stevens, O’Connor, Souter, Ginsburg, Breyer. Concurring: O’Connor. Dissenting: Rehnquist, Kennedy, Thomas, Scalia. <supreme.justia.com>

Majority:

[I]f a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims. …

The general rule announced in Kuhlmann, Carrier, and Smith, and confirmed in this Court’s more recent decisions, rests in part on the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.36

Claims of actual innocence pose less of a threat to scarce judicial resources and to principles of finality and comity than do claims that focus solely on the erroneous imposition of the death penalty. Though challenges to the propriety of imposing a sentence of death are routinely asserted in capital cases, experience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. … To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful. …

The meaning of actual innocence as formulated by Sawyer and Carrier does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. … Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.

36 Indeed, neither party called our attention to any decision from a Court of Appeals in which a petitioner had satisfied any definition of actual innocence.

Dissent (Rehnquist, Kennedy, Thomas):

The situation presented by a claim of actual innocence in a federal habeas petition is obviously different from that presented in Jackson because the habeas court analyzing an “actual innocence” claim is faced with a body of evidence that has been supplemented since the original trial. The reviewing court must somehow predict the effect that this new evidence would have had on the deliberations of reasonable jurors. It must necessarily weigh this new evidence in some manner, and may need to make credibility determinations as to witnesses who did not appear before the original jury. This new evidence, however, is not a license for the reviewing court to disregard the presumptively proper determination by the original trier of fact. …

The present state of our habeas jurisprudence is less than ideal in its complexity, but today’s decision needlessly adds to that complexity. … But if we are to adopt the Carrier standard, it should not be the confusing exegesis of that standard contained in the Court’s opinion. It should be based on a modified version of Jackson v. Virginia, with a clearly defined area in which the district court may exercise its discretion to hold an evidentiary hearing.

Dissent (Scalia, Thomas): “I would say, as the statute does, that habeas courts need not entertain successive or abusive petitions. The courts whose decisions we review declined to entertain the petition, and I find no abuse of discretion in the record.”

[190] Ruling: McQuiggin v. Perkins. U.S. Supreme Court, May 28, 2013. Decided 5–4. Majority: Ginsburg, Kennedy, Breyer, Sotomayor, Kagan. Dissenting: Scalia, Roberts, Thomas, Alito. <www.supremecourt.gov>

Majority:

We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” …

… Focusing on the merits of a petitioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception—i.e., ensuring “that federal constitutional errors do not result in the incarceration of innocent persons.” …

… We note one caveat: A showing that delay was part of a deliberate attempt to manipulate the case, say by waiting until a key prosecution witness died or was deported, might raise a different ground for withholding equitable relief. No such contention was presented here, however, so we do not discuss the point.

Dissent:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. … The gaping hole in today’s opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court’s power to fashion what it concedes is an “exception” to this clear statutory command?

That question is unanswered because there is no answer. This Court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitution vests legislative power only in Congress, which never enacted the exception the Court creates today. That inconvenient truth resolves this case.

“Actual innocence” has, until today, been an exception only to judge-made, prudential barriers to habeas relief, or as a means of channeling judges’ statutorily conferred discretion not to apply a procedural bar. Never before have we applied the exception to circumvent a categorical statutory bar to relief. We have not done so because we have no power to do so. Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect.

[191] Ruling: Bousley v. United States. U.S. Supreme Court, May 18, 1998. Decided 7–2. Majority: Rehnquist, O’Connor, Kennedy, Souter, Ginsburg, Breyer. Concurring: Stevens. Dissenting: Scalia, Thomas. <supreme.justia.com>

Majority:

Petitioner’s claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy “has probably resulted in the conviction of one who is actually innocent.” … To establish actual innocence, petitioner must demonstrate that, “in light of all the evidence,” “it is more likely than not that no reasonable juror would have convicted him.” … The District Court failed to address petitioner’s actual innocence, perhaps because petitioner failed to raise it initially in his § 2255 motion. However, the Government does not contend that petitioner waived this claim by failing to raise it below. Accordingly, we believe it appropriate to remand this case to permit petitioner to attempt to make a showing of actual innocence.

It is important to note in this regard that “actual innocence” means factual innocence, not mere legal insufficiency.

Dissent:

I agree with the Court that petitioner has not demonstrated “cause” for failing to challenge the validity of his guilty plea on direct review. I disagree, however, that a defendant who has pleaded guilty can be given the opportunity to avoid the consequences of his inexcusable procedural default by having the courts inquire into whether “ ‘it is more likely than not that no reasonable juror would have convicted him’ ” of the offense to which he pleaded guilty. …

… In every one of our cases that has considered the possibility of applying this so-called actual-innocence exception, a defendant had asked a habeas court to adjudicate a successive or procedurally defaulted constitutional claim after his conviction by a jury. …

There are good reasons for this limitation: First and foremost, it is feasible to make an accurate assessment of “actual innocence” when a trial has been had. In Schlup, for example, we said that to sustain an “actual innocence” claim the petitioner must “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” … That “new evidence” was to be evaluated, of course, along with the “old evidence,” consisting of the transcript of the trial.

[192] Ruling: Herrera v. Collins. U.S. Supreme Court, January 25, 1993. Decided 6–3. Majority: Rehnquist, O’Connor, Scalia, Kennedy, Thomas. Concurring: O’Connor, Kennedy, Scalia, Thomas, White. Dissenting: Blackmun, Stevens, Souter. <supreme.justia.com>

Majority:

Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. …

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.

Concurrence (O’Connor):

Petitioner contends not only that the Constitution’s protections “sometimes fail,” … but that their failure in his case will result in his execution—even though he is factually innocent and has evidence to prove it. …

No matter what the Court might say about claims of actual innocence today, petitioner could not obtain relief. The record overwhelmingly demonstrates that petitioner deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner’s new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court’s decision, not even the dissent expresses a belief that petitioner might possibly be actually innocent.

Concurrence (White):

In voting to affirm, I assume that a persuasive showing of “actual innocence” made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” … For the reasons stated in the Court’s opinion, petitioner’s showing falls far short of satisfying even that standard, and I therefore concur in the judgment.

Dissent:

We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. Despite the State of Texas’ astonishing protestation to the contrary … I do not see how the answer can be anything but “yes.” …

… The question is not whether a second trial would be more reliable than the first but whether, in light of new evidence, the result of the first trial is sufficiently reliable for the State to carry out a death sentence. Furthermore, it is far from clear that a State will seek to retry the rare prisoner who prevails on a claim of actual innocence. …

I think the standard for relief on the merits of an actual innocence claim must be higher than the threshold standard for merely reaching that claim or any other claim that has been procedurally defaulted or is successive or abusive. I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent.

[193] Ruling: Herrera v. Collins. U.S. Supreme Court, January 25, 1993. Decided 6–3. Majority: Rehnquist, O’Connor, Scalia, Kennedy, Thomas. Concurring: O’Connor, Kennedy, Scalia, Thomas, White. Dissenting: Blackmun, Stevens, Souter. <supreme.justia.com>

Majority:

Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. …

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.

Concurrence (O’Connor):

Petitioner contends not only that the Constitution’s protections “sometimes fail,” … but that their failure in his case will result in his execution—even though he is factually innocent and has evidence to prove it. …

No matter what the Court might say about claims of actual innocence today, petitioner could not obtain relief. The record overwhelmingly demonstrates that petitioner deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner’s new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court’s decision, not even the dissent expresses a belief that petitioner might possibly be actually innocent.

Concurrence (White):

In voting to affirm, I assume that a persuasive showing of “actual innocence” made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” … For the reasons stated in the Court’s opinion, petitioner’s showing falls far short of satisfying even that standard, and I therefore concur in the judgment.

Dissent:

We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. Despite the State of Texas’ astonishing protestation to the contrary … I do not see how the answer can be anything but “yes.” …

… The question is not whether a second trial would be more reliable than the first but whether, in light of new evidence, the result of the first trial is sufficiently reliable for the State to carry out a death sentence. Furthermore, it is far from clear that a State will seek to retry the rare prisoner who prevails on a claim of actual innocence. …

I think the standard for relief on the merits of an actual innocence claim must be higher than the threshold standard for merely reaching that claim or any other claim that has been procedurally defaulted or is successive or abusive. I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent.

[194] Ruling: McQuiggin v. Perkins. U.S. Supreme Court, May 28, 2013. Decided 5–4. Majority: Ginsburg, Kennedy, Breyer, Sotomayor, Kagan. Dissenting: Scalia, Roberts, Thomas, Alito. <www.supremecourt.gov>

Majority:

We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” …

… Focusing on the merits of a petitioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception—i.e., ensuring “that federal constitutional errors do not result in the incarceration of innocent persons.” …

… We note one caveat: A showing that delay was part of a deliberate attempt to manipulate the case, say by waiting until a key prosecution witness died or was deported, might raise a different ground for withholding equitable relief. No such contention was presented here, however, so we do not discuss the point.

Dissent:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. … The gaping hole in today’s opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court’s power to fashion what it concedes is an “exception” to this clear statutory command?

That question is unanswered because there is no answer. This Court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitution vests legislative power only in Congress, which never enacted the exception the Court creates today. That inconvenient truth resolves this case.

“Actual innocence” has, until today, been an exception only to judge-made, prudential barriers to habeas relief, or as a means of channeling judges’ statutorily conferred discretion not to apply a procedural bar. Never before have we applied the exception to circumvent a categorical statutory bar to relief. We have not done so because we have no power to do so. Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect.

[195] Article: “Innocence After Death.” By Samuel Wiseman. Case Western Reserve Law Review, 2010. Pages 687–750. <scholarlycommons.law.case.edu>

Page 693:

[T]he term “exoneration” can be applied to a number of different proceedings and outcomes. Exoneration—whether it occurs as part of an executive order, a one-line statement by a judge, or an unusually detailed posthumous proceeding—generally indicates a full erasure of a previous conviction, which is retroactively deemed erroneous. The subject of an exoneration is an innocent person convicted of a crime.

Page 694:

This Article will … count as exonerations only those cases that officially relieve a factually innocent, convicted individual of any guilt associated with the crime charged, whether through dropped charges, a dismissed indictment and vacated conviction, a reversal or acquittal that specifically declares the individual innocent or otherwise free of guilt and vacates the conviction,43 or an official pardon or similar executive exoneration granted on actual innocence grounds.

43 Major studies of exonerations of innocent defendants exclude defendants acquitted due to the “exclusion of crucial evidence … or other violations of suspects’ rights,” Huff and others, “Convicted But Innocent: Wrongful Conviction and Public Policy (1996), at 11, or “insufficient evidence of identity or … improper use of suggestive identification procedures,” Gross, “Loss of Innocence: Eyewitness Identification and Proof of Guilt,” Journal of Legal Studies, at 412 (1987). For purposes of this Article, I also follow this method.

[196] Paper: “Exonerations in the United States 1989 Through 2003.” By Samuel R. Gross and others. Journal of Criminal Law and Criminology, 2005. Pages 523–560. <repository.law.umich.edu>

Page 524:

As we use the term, “exoneration” is an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted. The exonerations we have studied occurred in four ways: (1) In forty-two cases governors (or other appropriate executive officers) issued pardons based on evidence of the defendants’ innocence. (2) In 263 cases criminal charges were dismissed by courts after new evidence of innocence emerged, such as DNA. (3) In thirty-one cases the defendants were acquitted at a retrial on the basis of evidence that they had no role in the crimes for which they were originally convicted.4 (4) In four cases, states posthumously acknowledged the innocence of defendants who had already died in prison….

4 We have excluded any case in which a dismissal or an acquittal appears to have been based on a decision that while the defendant was not guilty of the charges in the original conviction, he did play a role in the crime and may be guilty of some lesser crime that is based on the same conduct. For our purposes, a defendant who is acquitted of murder on retrial, but convicted of involuntary manslaughter, has not been exonerated. We have also excluded any case in which a dismissal was entered in the absence of strong evidence of factual innocence, or in which—despite such evidence—there was unexplained physical evidence of the defendant’s guilt.

[197] Paper: “The Execution of the Innocent.” By Michael L. Radelet and Hugo Adam Bedau. Law and Contemporary Problems, 1998. Pages 105–124. <scholarship.law.duke.edu>

Page 106:

If we are to study how often innocent people are convicted of murder, sentenced to death, and/or executed, special care must be taken in determining when a given convicted defendant can and cannot be judged to be innocent. …

[W]e included in our inventory of exonerated defendants only those who were totally uninvolved in the capital offense of which they were convicted, or who were convicted of a capital crime that never occurred (for example, consensual sexual relations tried in court as capital rape),6 or a criminal homicide in which the victim was later discovered alive….

6 For example, see the case of William Henry Anderson, in Radelet and others, In Spite of Innocence, at 282.

[198] Minnesota Statute Chapter 590, Section 590.11: “Order Determining Eligibility for Compensation Based on Exoneration.” <www.revisor.mn.gov>

Subdivision 1. Definitions. …

(b) “Exonerated” means that:

(1) a court:

(i) vacated, reversed, or set aside a judgment of conviction on grounds consistent with innocence and there are no remaining felony charges in effect against the petitioner from the same behavioral incident, or if there are remaining felony charges against the petitioner from the same behavioral incident, the prosecutor dismisses those remaining felony charges; or

(ii) ordered a new trial on grounds consistent with innocence and the prosecutor dismissed all felony charges against the petitioner arising from the same behavioral incident or the petitioner was found not guilty of all felony charges arising from the same behavioral incident at the new trial;

(2) the time for appeal of the order resulting in exoneration has expired or the order has been affirmed and is final; and

(3) 60 days have passed since the judgment of conviction was reversed or vacated, and the prosecutor has not filed any felony charges against the petitioner from the same behavioral incident, or if the prosecutor did file felony charges against the petitioner from the same behavioral incident, those felony charges were dismissed or the defendant was found not guilty of those charges at the new trial.

(c) “On grounds consistent with innocence” means either:

(1) exonerated, through a pardon or sentence commutation, based on factual innocence; or

(2) exonerated because the judgment of conviction was vacated or reversed, or a new trial was ordered, and there is any evidence of factual innocence whether it was available at the time of investigation or trial or is newly discovered evidence.

[199] Article: “Executive Clemency in Post-Furman Capital Cases.” By Michael L. Radelet and Barbara A. Zsembik. University of Richmond Law Review, 1993. Pages 289–314. <scholarship.richmond.edu>

Pages 290–291:

Clemency is a broad power resting in the executive branch of the government. It includes pardons (which invalidate both the guilt and the punishment of the defendant), reprieves (which temporarily postpone the execution), and commutations (which reduce the severity of punishment).3

Three separate rationales underlying the use of executive clemency can be identified.6 The first is unrestrained mercy. Clemency is a free gift of the executive, needing no justification or pretense of fairness. The second is a quasi-judicial rationale suggesting that governors and clemency officials may consider factors that were not presented or considered by trial judges, juries, or appellate courts. The third rationale is a retributive notion of clemency, which is intended to ensure that only the most deserving among the convicted murderers are executed.7

6 Hugo A. Bedau, “The Decline of Executive Clemency in Capital Cases,” 18 N.Y.U. Rev. L. & Soc. Change 257–58 (1990–91)

7 Kathleen D. Moore, Pardons: Justice, Mercy, and the Public Interest 92–95 (1989).

[200] Article: “Executive Clemency in Post-Furman Capital Cases.” By Michael L. Radelet and Barbara A. Zsembik. University of Richmond Law Review, 1993. Pages 289–314. <scholarship.richmond.edu>

Pages 290–291:

Clemency is a broad power resting in the executive branch of the government. It includes pardons (which invalidate both the guilt and the punishment of the defendant), reprieves (which temporarily postpone the execution), and commutations (which reduce the severity of punishment).3

Three separate rationales underlying the use of executive clemency can be identified.6 The first is unrestrained mercy. Clemency is a free gift of the executive, needing no justification or pretense of fairness. The second is a quasi-judicial rationale suggesting that governors and clemency officials may consider factors that were not presented or considered by trial judges, juries, or appellate courts. The third rationale is a retributive notion of clemency, which is intended to ensure that only the most deserving among the convicted murderers are executed.7

6 Hugo A. Bedau, “The Decline of Executive Clemency in Capital Cases,” 18 N.Y.U. Rev. L. & Soc. Change 257–58 (1990–91)

7 Kathleen D. Moore, Pardons: Justice, Mercy, and the Public Interest 92–95 (1989).

[201] Article: “Executive Clemency: The Lethal Absence of Hope.” By Jonathan Harris and Lothlorien Redmond. American University Criminal Law Brief, 2007. Pages 2–15. <digitalcommons.wcl.american.edu>

Page 8:

As a general matter, the clemency processes adopted by the fifty states are consistent … with the traditional meaning of clemency as described by the Supreme Court: a discretionary process, where the governor may review the broadest spectrum of information and circumstances, is not required to expound upon his or her reason for granting or withholding clemency, and where a grant of clemency may take different forms including the grant of a reprieve, stay, commutation of a sentence of death, or full pardon.

This general statement holds essentially true even though we must, of course, recognize that each state has its own system of clemency, and that any general discussion about clemency necessarily oversimplifies the fact that there are really fifty-two different state clemency schemes and that these schemes are applied differently in different cases.

Page 10: “The exercise of the clemency power is, and has always been, a discretionary act of the executive founded in notions of grace, mercy and humanity. While some may believe this to be at odds with our highly procedural judicial system, clemency is—by its inherent nature—a uniquely unbound act residing both alongside and apart from the criminal justice process.”

[202] Webpage: “How Criminal Cases Work.” Judicial Branch of California. Accessed January 22, 2020 at <www.courts.ca.gov>

Keep in mind that the appeal is not a new trial. The appellate court can review the evidence (testimony and exhibits) presented at your trial to see if the trial court made a legal error in how the testimony or exhibits were received. The appellate court does NOT decide the facts of the case as the judge or jury in the trial court does. You can only appeal if:

1. You say there was not enough evidence in your trial to justify the verdict or judgment; and/or

2. You say there were mistakes of law during or before the trial that hurt your case.

If you say there was not enough evidence in your trial to justify the judgment, the appellate court will review the record and decide if there was substantial evidence to support the judgment. If you say mistakes of law were made, the appellate court will hold a hearing to listen to both parties. Then they will decide if there was any irregularity or mistake that prejudiced (hurt) your case.

[203] Webpage: “Appeals Process.” Judicial Council of California. Accessed February 10, 2020 at <www.courts.ca.gov>

If you appeal, the appellate court will review the trial court record to decide if a legal mistake was made in the trial court that changed the outcome of the case.

The side that appeals (the appellant) can ask the appellate court to decide if certain kinds of legal errors (mistakes) were made:

Prejudicial error: This kind of error is a mistake about the law or court procedures that causes substantial harm to the appellant. Prejudicial error can include things like mistakes made by the judge about the law, incorrect instructions given to the jury, and errors or misconduct by the lawyers or by the jury. The mistakes must have harmed the appellant.

No substantial evidence: The appellant can ask the appellate court to determine if there was no substantial evidence that reasonably supported the trial court’s decision.

Remember, the appellate court will not consider new evidence. An appeal is not a new trial. …

Winning an appeal is very hard. You must prove that the trial court made a legal mistake that caused you harm.

[204] “A Guide to Victim’s Rights and Services in the Capital Appeals Process.” Office of Attorney General Ashley Moody, Division of Victim Services and Criminal Justice Programs. Accessed December 13, 2019 at <myfloridalegal.com>

Page 4 (of PDF):

In collateral attacks, the defendants argue that their rights, as guaranteed by the United States and Florida Constitutions, were violated. These arguments often are directed at the competence of their attorneys or at the State for allegedly withholding favorable evidence from the defense at trial. …

These collateral attacks are known as either motions for post-conviction relief or petitions for writ of habeas corpus. The state and federal collateral review process can be extremely time-consuming, as each court seeks to determine whether the defendant has presented any constitutional basis for relief either from the conviction or sentence.
 

[205] Article: “Innocence Presumed: A New Analysis of Innocence as a Constitutional Claim.” By Paige Kaneb. California Western Law Review, Spring 2014. Pages 171–231. <digitalcommons.law.scu.edu>

Page 203: “[F]orty-nine states and the District of Columbia now allow post-conviction claims of innocence without time limits related to the conviction date….140 Only Delaware continues to limit the time for developing and presenting innocence claims based on DNA evidence to the conviction date.141

[206] Entry: “Actual Innocence.” Wex Legal Encyclopedia. Accessed February 18, 2020 at <www.law.cornell.edu>

“Defendants often claim actual innocence when appealing criminal convictions. To prove actual innocence, the defendant must submit additional evidence that undermines the court’s confidence in the verdict reached by the trier of fact. Appellate rules normally require that this evidence must not have been available to the defendant at the time of the trial.”

[207] Article: “Overstating America’s Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions.” By Paul G. Cassell. Arizona Law Review, 2018. Pages 815–863. <arizonalawreview.org>

Page 817: “No government agency maintains an official ledger of every innocent person who was mistakenly convicted.88 An important private (but incomplete) effort in this direction is the National Registry of Exonerations.

[208] Book: Encyclopedia of Criminology and Criminal Justice. Edited by Gerben Bruinsma and David Weisburd. Springer, 2014. Article: “Measuring Wrongful Convictions.” By Marvin Zalman. <doi.org>

“Lists of exonerations are not kept by governments agencies but by private organizations like the Innocence Project and the National Registry of Exonerations.”

[209] Paper: “Exonerations in the United States 1989 Through 2003.” By Samuel R. Gross and others. Journal of Criminal Law and Criminology, 2005. Pages 523–560. <repository.law.umich.edu>

Page 525:

The criminal justice system in the United States is notoriously fragmented—it is administered by fifty separate states (plus the federal government and the District of Columbia) and by more than 3,000 separate counties, with thousands of administratively separate trial courts and prosecuting authorities. There is no national registry of exonerations, or any simple way to tell from official records which dismissals, pardons, etc., are based on innocence.

[210] Report: “Conviction Integrity Units, Innocence Organizations and the Time It Takes the Registry to List Exonerations.” By Samuel Gross. National Registry of Exonerations, September 11, 2017. <www.law.umich.edu>

Page 1: “The Registry posts exonerations as we learn about them, whether they took place the day before, or decades earlier. We learn about exonerations by various means: directly from people involved, from others who know about them (including exonerees themselves), from current media reports, and from various avenues of research that uncover past cases.”

Page 2:

One reason for the increase in the number of exonerations that we learn about contemporaneously is the growing role of “professional exonerators”—Innocence Organizations (IOs) that represent exonerated defendants, and the Conviction Integrity Units (CIUs) that have sprung up in dozens of local prosecutorial offices and work to correct wrongful convictions in the counties they serve.

[211] Report: “Exonerations in the United States, 1989–2012.” By Samuel R. Gross and Michael Shaffer. National Registry of Exonerations, June 2012. <www.law.umich.edu>

Pages 9–10: “We have located quite a few cases that were missed in the 2003 Report because they did not make a splash in the media and were not the product of work by innocence projects or other organizations with law reform agendas, but we know of no systematic method to identify low visibility exonerations.”

Page 12: “Because of the great difficulty in making judgments about innocence, we rely on official decisions, with all their imperfections. We do not attempt to reach an independent judgment on the factual innocence of each defendant in our data.”

[212] Webpage: “Innocence Database.” Death Penalty Information Center. Accessed February 26, 2020 at <deathpenaltyinfo.org>

DPIC [Death Penalty Information Center] uses a number of resources when adding cases to the above list, including court opinions, media coverage, and conversations with those directly involved in the cases. The earlier cases in the list are based heavily on the research of Hugo Adam Bedau and Michael L. Radelet. (See, for example, Hugo Bedau and Michael Radelet, “Miscarriages of Justice in Potentially Capital Cases,” 40 Stanford Law Review 21 (1987); M. Radelet, H. Bedau, and C. Putnam, In Spite of Innocence, Northeastern University Press (1992); see also M. Radelet and others, “Prisoners Released From Death Rows Since 1970 Because of Doubts About Their Guilt,” 13 Thomas M. Cooley Law Review 907 (1996)).

[213] Webpage: “The National Registry of Exonerations.” University of California Irvine, University of Michigan Law School, and Michigan State University College of Law, National Registry of Exonerations. Accessed January 17, 2020 at <www.law.umich.edu>

“The National Registry of Exonerations is a project of the Newkirk Center for Science & Society at University of California Irvine, the University of Michigan Law School and Michigan State University College of Law. It was founded in 2012 in conjunction with the Center on Wrongful Convictions at Northwestern University School of Law.”

[214] Some examples of government entities, death penalty advocates, and death penalty opponents who have cited this list include:

a) Article: “Wrongful Convictions and DNA Exonerations: Understanding the Role of Forensic Science.” By Gerald LaPorte. U.S. Department of Justice, National Institute of Justice Journal, April 2018. <www.ncjrs.gov>

Pages 4–5: “Although neither the Innocence Project nor NRE [National Registry of Exonerations] use the 10 factors identified by Gould and his colleagues, NRE’s categorical descriptions are more aligned with the academic literature and were therefore used for this article.”

b) Article: “Overstating America’s Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions.” By Paul G. Cassell. Arizona Law Review, 2018. Pages 815–863. <arizonalawreview.org>

Page 817: “No government agency maintains an official ledger of every innocent person who was mistakenly convicted.88 An important private (but incomplete) effort in this direction is the National Registry of Exonerations.”

Page 829: “[T]he National Registry of Exonerations … tries to track cases of wrongful convictions…. This helpful website lists close to 2,000 cases, which are searchable in various ways.”

c) Webpage: “How Bad is the U.S. Wrongful Conviction Problem?” Amnesty International. Accessed February 19, 2020 at <www.amnestyusa.org>

“Our criminal justice system is less than perfect, a non-controversial fact which is one of the reasons we oppose the use of an absolute and irreversible punishment like execution. The new National Registry of Exonerations … provides a glimpse of just how imperfect. It lists almost 900 known exonerations since 1989. Around 100 of those listed had been sent to death row….”

[215] Book: The Cambridge Handbook of Social Problems (Volume 2). Edited by A. Javier Treviño. Cambridge University Press, March 22, 2018.

Chapter 26: “Wrongful Convictions: Comparative Perspectives.” By Marvin Zalman. <www.google.com>

“In the United States the most rigorous list of exonerations, based on a conservative definition of exoneration, is maintained by the National Registry of Exonerations (NRE).”

[216] Webpage: “The National Registry of Exonerations.” University of California Irvine, University of Michigan Law School, and Michigan State University College of Law, National Registry of Exonerations. Accessed January 17, 2020 at <www.law.umich.edu>

“The Registry provides detailed information about every known exoneration in the United States since 1989—cases in which a person was wrongly convicted of a crime and later cleared of all the charges based on new evidence of innocence. The Registry also maintains a more limited database of known exonerations prior to 1989.”

[217] Webpage: “Glossary.” National Registry of Exonerations. Accessed January 17, 2020 at <www.law.umich.edu>

Exoneration—A person has been exonerated if he or she was convicted of a crime and, following a post-conviction re-examination of the evidence in the case, was either: (1) declared to be factually innocent by a government official or agency with the authority to make that declaration; or (2) relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action. The official action may be: (i) a complete pardon by a governor or other competent authority, whether or not the pardon is designated as based on innocence; (ii) an acquittal of all charges factually related to the crime for which the person was originally convicted; or (iii) a dismissal of all charges related to the crime for which the person was originally convicted, by a court or by a prosecutor with the authority to enter that dismissal. The pardon, acquittal, or dismissal must have been the result, at least in part, of evidence of innocence that either (i) was not presented at the trial at which the person was convicted; or (ii) if the person pled guilty, was not known to the defendant and the defense attorney, and to the court, at the time the plea was entered. The evidence of innocence need not be an explicit basis for the official action that exonerated the person. A person who otherwise qualifies has not been exonerated if there is unexplained physical evidence of that person’s guilt.

[218] Report: “Exonerations in the United States, 1989–2012.” By Samuel R. Gross and Michael Shaffer. National Registry of Exonerations, June 2012. <www.law.umich.edu>

Page 11:

Our criteria for exoneration are designed to identify cases of convicted defendants who are factually innocent of the crimes for which they were convicted. [F]or a case to count as an exoneration there must have been evidence of innocence that was not presented at trial. After direct appeal, courts and prosecutors are exceedingly reluctant even to reconsider cases, let alone reverse convictions. When they do—and it’s rare—it’s usually because of a compelling showing of error. As a result, in the great majority of these exonerations there is, at the end of the day, no dispute about the innocence of the exonerated defendants.

Page 12: “Because of the great difficulty in making judgments about innocence, we rely on official decisions, with all their imperfections. We do not attempt to reach an independent judgment on the factual innocence of each defendant in our data”

Page 14: “We have … considered and rejected dozens of convicted defendants who are clearly or likely innocent but who do not meet our criteria for exoneration. That’s an inevitable consequence of setting a standard for inclusion that is strict enough to exclude almost all guilty defendants.”

[219] Report: “Exonerations in the United States, 1989–2012.” By Samuel R. Gross and Michael Shaffer. National Registry of Exonerations, June 2012. <www.law.umich.edu>

Page 12: “Because of the great difficulty in making judgments about innocence, we rely on official decisions, with all their imperfections. We do not attempt to reach an independent judgment on the factual innocence of each defendant in our data”

Page 14: “We have made no attempt to systematically search for innocent defendants who have not been exonerated. We have, however, considered and rejected dozens of convicted defendants who are clearly or likely innocent but who do not meet our criteria for exoneration. That’s an inevitable consequence of setting a standard for inclusion that is strict enough to exclude almost all guilty defendants.”

[220] Webpage: “Our Mission.” National Registry of Exonerations. Accessed February 27, 2020 at <www.law.umich.edu>

We rely entirely on publicly available information. We do not practice law or investigate cases of possible innocence. We do not collect, maintain or use confidential information of any sort, or work on behalf of any individuals. We do not make our own judgments about the guilt or innocence of convicted defendants. Our criteria for classifying cases as exonerations are based on official actions by courts and other government agencies.

[221] Some examples of scholars, journalists, and death penalty opponents who have cited this list include:

a) Article: “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution.” By Jeffrey L. Kirchmeier. Tulsa Law Review, 2006. Pages 403–436. <digitalcommons.law.utulsa.edu>

Pages 403–404: “However, since 1976,4 there have been more than one hundred people released from death row who were innocent of murder.55 As of July 2006, the Death Penalty Information Center concluded that ‘123 death row inmates nationwide have been exonerated by juries or prosecutors since 1973.’

b) Article: “The Death Penalty Could Become a 2020 Issue, but Many Conservatives Disagree with Trump.” By Abigail Abrams. Time. Updated March 16, 2019. <time.com>

“Since the 1970s, 164 people† on death row have now been exonerated.”

NOTE: † This statistic has a hyperlink to the Death Penalty Information Center’s “Description of Innocence Cases” webpage.

c) Webpage: “Innocence.” National Coalition to Abolish the Death Penalty. Accessed January 28, 2020 at <www.ncadp.org>

“156 individuals have been exonerated from death row—that is, found to be innocent and released—since 1973.33 <www.deathpenaltyinfo.org>”

d) Webpage: “NAACP Death Penalty Fact Sheet.” National Association for the Advancement of Colored People, January 17, 2017. <www.naacp.org>

“Between 1973 and 2016, 156 people who had been sentenced to death were subsequently determined to be innocent.vivi Death Penalty Information Center, Innocence: List of Those Freed From Death Row, <www.deathpenaltyinfo.org> (last visited January 8, 2017).”

[222] Below are a few examples of cases on the DPIC Innocence Database that are not on the National Registry of Exonerations:

  • John Skelton.† The Texas Court of Appeals changed his guilty verdict to not guilty because the evidence provided “a strong suspicion or probability” of guilt but did not exclude “to a moral certainty every other reasonable hypothesis.”‡
  • Vernon McManus.§ The Court of Appeals found that there was “sufficient” evidence that he committed murder for money.# Another court ordered a re-trial due to a legal error, but there was no re-trial because a key witness refused to testify again.£

NOTES:

  • † Webpage: “Description of Innocence Cases.” Death Penalty Information Center. Accessed January 20, 2020 at <deathpenaltyinfo.org> “41. John C. Skelton … Texas Conviction: 1983, Acquitted: 1990 … The Court reversed the conviction and entered a directed verdict of acquittal.”
  • ‡ Ruling: Skelton v. State. Court of Criminal Appeals of Texas, December 13, 1989. Decided 5–2. Majority: McCormick, Campbell, Teague, Clinton, Davis. Dissenting: Miller, Berchelmann. <law.justia.com> “Although the evidence against appellant leads to a strong suspicion or probability that appellant committed this capital offense, we cannot say that it excludes to a moral certainty every other reasonable hypothesis except appellant’s guilt. … Although this Court does not relish the thought of reversing the conviction in this heinous case and ordering an acquittal … we are compelled to do so.”
  • § Webpage: “Description of Innocence Cases.” Death Penalty Information Center. Accessed January 20, 2020 at <deathpenaltyinfo.org> “30. Vernon McManus … Texas Conviction: 1977, Charges Dismissed: 1987 … After a new trial was ordered, the prosecution dropped the charges when a key prosecution witness refused to testify.”
  • # Ruling: McManus v. State. Court of Criminal Appeals of Texas, December 5, 1979. Decided 6–3. Majority: W.C. Davis, Onion, T. Davis, Odom, Dally, Douglas. Dissenting: Phillips, Clinton, Roberts. <law.justia.com> “We hold that the evidence is sufficient to show that appellant committed murder ‘for remuneration or the promise of remuneration’ as alleged in the indictment.”
  • £ Book: Lethal Injection: Capital Punishment in Texas During the Modern Era. By Jon Sorensen and Rocky Leann Pilgrim. University of Texas Press, 2006. Page 131: “Initially the case was overturned and remanded for a new trial by a U.S. District Court judge because a juror had been improperly excluded…. Paula Derese, star witness for the prosecution, refused to testify at the retrial…. Without the testimony of its key witness, the prosecution felt unable to proceed with the case.”

[223] Webpage: “Appeals Process.” Judicial Council of California. Accessed February 10, 2020 at <www.courts.ca.gov>

The side that appeals (the appellant) can ask the appellate court to decide if certain kinds of legal errors (mistakes) were made:

Prejudicial error: This kind of error is a mistake about the law or court procedures that causes substantial harm to the appellant. Prejudicial error can include things like mistakes made by the judge about the law, incorrect instructions given to the jury, and errors or misconduct by the lawyers or by the jury. The mistakes must have harmed the appellant.

No substantial evidence: The appellant can ask the appellate court to determine if there was no substantial evidence that reasonably supported the trial court’s decision.

[224] Webpage: “Criteria for Inclusion on DPIC’s [Death Penalty Information Center’s] Innocence List.” Death Penalty Information Center. Accessed January 17, 2020 at <deathpenaltyinfo.org>

For Inclusion on DPIC’s Innocence List:

Defendants must have been convicted, sentenced to death and subsequently either—

1. Been acquitted of all charges related to the crime that placed them on death row, or

2. Had all charges related to the crime that placed them on death row dismissed by the prosecution or the courts, or

3. Been granted a complete pardon based on evidence of innocence.

The list includes cases in which the release occurred 1973 or later. …

We believe the term “exonerated” is entirely appropriate to refer to the individuals on this list…. Exonerate means to clear, as of an accusation, and seems to come from the Latin “ex” and “onus” meaning to unburden. That is precisely what has occurred in these cases. The defendants were convicted, given a burden of guilt, and then that burden was lifted when they were acquitted at a re-trial or the prosecution dropped all charges after the conviction was reversed. These are not individuals who received a lesser sentence or who remained guilty of a lesser charge related to the same set of circumstances. All guilt was lifted by the same system that had imposed it in the first place. Our justice system is the only objective source for making such a determination.

This notion of innocence, that an individual is innocent unless proven guilty, is a bedrock principle of our constitution and our societal protection against abusive state power. One does not lose the status of innocence merely because a prosecutor or other individuals retain a suspicion of guilt.

[225] Webpage: “Glossary.” University of California Irvine, University of Michigan Law School, and Michigan State University College of Law, National Registry of Exonerations. Accessed January 17, 2020 at <www.law.umich.edu>

Exoneration … The pardon, acquittal, or dismissal must have been the result, at least in part, of evidence of innocence that either (i) was not presented at the trial at which the person was convicted; or (ii) if the person pled guilty, was not known to the defendant and the defense attorney, and to the court, at the time the plea was entered. The evidence of innocence need not be an explicit basis for the official action that exonerated the person. A person who otherwise qualifies has not been exonerated if there is unexplained physical evidence of that person’s guilt.

[226] Webpage: “Criteria for Inclusion on DPIC’s [Death Penalty Information Center’s] Innocence List.” Death Penalty Information Center. Accessed January 17, 2020 at <deathpenaltyinfo.org>

For Inclusion on DPIC’s Innocence List:

Defendants must have been convicted, sentenced to death and subsequently either—

1. Been acquitted of all charges related to the crime that placed them on death row, or

2. Had all charges related to the crime that placed them on death row dismissed by the prosecution or the courts, or

3. Been granted a complete pardon based on evidence of innocence.

The list includes cases in which the release occurred 1973 or later. …

We believe the term “exonerated” is entirely appropriate to refer to the individuals on this list…. Exonerate means to clear, as of an accusation, and seems to come from the Latin “ex” and “onus” meaning to unburden. That is precisely what has occurred in these cases. The defendants were convicted, given a burden of guilt, and then that burden was lifted when they were acquitted at a re-trial or the prosecution dropped all charges after the conviction was reversed. These are not individuals who received a lesser sentence or who remained guilty of a lesser charge related to the same set of circumstances. All guilt was lifted by the same system that had imposed it in the first place. Our justice system is the only objective source for making such a determination.

This notion of innocence, that an individual is innocent unless proven guilty, is a bedrock principle of our constitution and our societal protection against abusive state power. One does not lose the status of innocence merely because a prosecutor or other individuals retain a suspicion of guilt.

[227] Ruling: Furman v. Georgia. U.S. Supreme Court, June 29, 1972. <caselaw.findlaw.com>

Per Curiam:†

Petitioner in No. 69-5003 was convicted of murder in Georgia, and was sentenced to death pursuant to Ga. Code Ann. § 26-1005…. Petitioner in No. 69-5030 was convicted of rape in Georgia, and was sentenced to death pursuant to Ga. Code Ann. § 26-1302…. Petitioner in No. 69-5031 was convicted of rape in Texas, and was sentenced to death pursuant to Tex. Penal Code, Art. 1189 (1961). … Certiorari was granted limited to the following question: “Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?”

The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgement in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.

So ordered.

Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Marshall have filed separate opinions in support of the judgments. The Chief Justice, Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Rehnquist have filed separate dissenting opinions.

NOTE: † A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[228] Article: “Florida’s Legislative and Judicial Responses to Furman v. Georgia: An Analysis and Criticism.” By Tim Thornton. Florida State University Law Review, 1974. Pages 108–152. <ir.law.fsu.edu>

Page 110: “[A]ny statute, state20 or federal, purporting to reinstate the death penalty must comport with constitutional guidelines set out in Furman. Such guidelines, however, do not appear in the majority’s per curiam opinion; any guidelines that may exist must be gleaned from the five separate concurring opinions.”

Page 111: “In order to determine the constitutional guidelines embodied in the decision, it is helpful to draw the common threads from the separate opinions because the impact of the decision is obviously greatest in those areas in which the most Justices agreed.”

[229] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” Congressional Research Service, February 25, 2016. <www.everycrsreport.com>

Page 3: “Furman drew two responses. Some states sought to remedy arbitrary imposition of the death penalty by making capital punishment mandatory. Some states and Congress narrowed the category of cases in which the death penalty might be a sentencing option and crafted procedures designed to guide jury discretion in capital cases in order to equitably reduce the risk of random imposition.”

[230] Webpage: “Death Penalty.” Equal Justice Initiative. Accessed March 9, 2020 at <eji.org>

167

167 people have been exonerated and released from death row since 1973.1

1,517

1,517 people have been executed in the U.S. since 1973.2

1 in 9

For every nine people executed, one person on death row has been exonerated. …

We advocate across the globe and build support for abolition with projects like Just Mercy.

1 Death Penalty Information Center, “Innocence Database.”

2 Death Penalty Information Center, “Execution Database.”

[231] Article: “ ‘Just Mercy’ In the Criminal Justice System.” By Colleen Walsh. Harvard Gazette, February 18, 2020. <news.harvard.edu>

‘Just Mercy,’ the film based on the memoir of the same name by Harvard Law graduate Bryan Stevenson, ends with a sobering statistic: For every nine people executed in this country, one person on death row has been exonerated.”

[232] Webpage: “Death Penalty Information Center.” Death Penalty Information Center. Accessed March 8, 2020 at <deathpenaltyinfo.org>

“For every nine people executed in the United States in the modern era of the death penalty, one person on death row has been exonerated.”

[233] Webpage: “Faculty: Arnold I. Barnett.” Massachusetts Institute of Technology Sloan School of Management. Accessed May 12, 2020 at <mitsloan.mit.edu>

“Arnold Barnett is the George Eastman Professor of Management Science and a Professor of Statistics at the MIT Sloan School of Management. … Barnett holds a BA in mathematics from Columbia College and a PhD in mathematics from MIT.”

[234] Commentary: “It’s a Crime What Some People Do with Statistics.” By Arnold Barnett. Wall Street Journal, August 30, 2000. <www.wsj.com>

[C]ertain statistics that are indeed highly misleading have made their way into debates about crime, punishment and race. …

For example, in the controversy over whether innocent people are being executed, a 1-in-7 ratio has attained prominence. …

… A bit of probing makes clear, however, that the ratio makes no sense.

There is an obvious interest in the error rate for capital-sentencing, which is the number of innocents sentenced to death divided by the total number of people thus sentenced. Also of importance is the error rate for actual executions: the number of innocents executed divided by the total number executed. In an ideal world, both these rates would be zero.

The 1-to-7 ratio, however, represents neither of these rates but rather a confused amalgam of their components. … In other words, it divides the numerator of the error rate for capital-sentencing by the denominator of the rate for executions. Such a calculation is of no value….

Suppose that there are 2,000 people on death row and that, over a given period, one of them is found innocent and freed while one is executed. … To divide one by the other while ignoring the 2,000 altogether does not demonstrate that executions are fraught with errors; it is a meaningless act that yields no insight.

[235] Paper: “The Death Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny.” By Robert Weisberg. Annual Review of Law and Social Science, 2005. Pages 151–171. <www.iapsych.com>

Page 153: “[T]he percentage of people sentenced to death in the United States who actually are executed is minute, so if research is concerned with the actual or perceived likelihood of a death-sentenced murderer suffering the ultimate penalty, the data will always seem insufficient.”

[236] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 17: “[O]nly 15 percent of people sentenced to death between 1973 and 2009 had been executed by the end of 2009.”

[237] Calculated with data from:

a) Dataset: “Exonerations Before 1989.” National Registry of Exonerations. Accessed March 9, 2020 at <www.law.umich.edu>

b) Dataset: “National Registry of Exonerations.” National Registry of Exonerations. Accessed March 9, 2020 at <www.law.umich.edu>

c) Dataset: “Innocence Database.” Death Penalty Information Center. Accessed March 9, 2020 at <deathpenaltyinfo.org>

d) Report: “Capital Punishment, 2016.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, April 2018. <www.bjs.gov>

Page 14: “Appendix Table 5: Numbers for figure 2: Admissions to and removals from sentence of death, 1973–2016”

e) Report: “Capital Punishment, 2017: Selected Findings.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 2019. <www.bjs.gov>

Page 3: “Table 2: Prisoners under sentence of death, by region, jurisdiction, and race, 2016 and 2017”

NOTE: An Excel file containing the data and calculations is available upon request.

[238] Article: “Innocence Presumed: A New Analysis of Innocence as a Constitutional Claim.” By Paige Kaneb. California Western Law Review, Spring 2014. Pages 171–231. <digitalcommons.law.scu.edu>

Page 171: “In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing petitioners with mechanisms to develop and present compelling innocence claims.”

Pages 203–209:

[F]orty-nine states and the District of Columbia now allow post-conviction claims of innocence without time limits related to the conviction date; not a single one requires an independent constitutional violation, or a showing that the inmate was deprived of a fair trial, in order to obtain relief.140 Only Delaware continues to limit the time for developing and presenting innocence claims based on DNA evidence to the conviction date.141 … This evolution of state law evidences the emerging modem consensus that the Eighth Amendment† prohibits the continued punishment of the innocent and the Due Process Clause of the Fourteenth Amendment‡ requires judicial review of compelling claims of innocence, irrespective of how long after conviction new evidence is discovered.

140 See Ala. R. Crim. P.32.1(e)(5); Ala. R. Crim. P. 32.2(c) … Alaska Stat. § 12.72.020(b) (2008) … Ariz. Rev. Stat . Ann . § 13-4240(K) (2014) … Ark. Code Ann. § 16-112-201 (a)( 1 )-(2) (2005) … In re Clark, 855 P.2d 729, 760-61 (Cal. 1993) … Colo. R. Crim. P. 35(c)(3)(IV), (VII)(b) … Boles v. Comm’r of Corr., 874 A.2d 820, 823 (Conn. App. Ct. 2005) … Del. Code Ann. tit. 11, § 4504(b) (2014) … Fla. R. Crim. P. 3.853 … Ga. Code Ann. § 9-14-48(d)) … Haw. Rev. Stat. § 844D-121 (2006) … Idaho Code Ann. § 19-4902(b), (f) (2012) … Ind. R. P. Post-Conviction Remedies 1(1)(a) … Iowa Code § 822.2(1 )(d) (2006) … Kan. Stat. Ann. § 21-2512(a), (f)(2) (2013) … KY. Rev. Stat. Ann. § 422.285 (West 2014) … La. Code Crim. Proc. Ann. art. 851 (2014) … Me. Rev. Stat. tit. 15, § 2138(10)(A) (2013) … Md. R. 4-331(c)(2-3) … Mass. R. Crim. P. 30(a)-(b) … Mich. Comp. Laws Ann. § 770.16(2), (8) (West 2014) … Minn. Stat. § 590.01(4)(b)(2) (2005) … Miss. Code Ann. § 99-39-5(2)(a)(ii) (2009) … Amrine v. Roper, 102 S.W.3d 541, 546-47 (Mo. 2003) … Mont. Code Ann. § 46-21-110(1), (10) (2003) … Neb. Rev. Stat. § 29-2101 (2013) … Neb. Rev. Stat. § 29-4120 (2001) … N.H. Rev. Stat. Ann. § 651-D:2(I), (VI)(b) (2010) … N.J. Stat. Ann. § 2A:84A-32a(a), (d)(5) (West 2002) … N.M. Stat. Ann. § 31-1A-2(A), (H) (West 2005) … N.Y. Crim. Proc. Law § 440.10(g)-(g-l) (McKinney 2014) … N.C. Gen. Stat. § 15A-1415(c) (2013) … N.D. Cent. Code § 29-32.1-15 (2005)… Ohio Rev. Code Ann. § 2953.21(A)(1)(a) … Ohio Rev. Code Ann. § 2953.23(A)(2) … Okla. Stat. tit. 22, § 1080(d) (2013) … Or. Rev. Stat. § 138.690 (2007) … OR. Rev. Stat. § 138.510(3) (2007) … 42 PA. Cons. Stat. § 9543(a), (b) (1997) … DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011) quoting Page v. State, 995 A.2d 934, 942 (R.I. 2010); S.C. R. Crim. Proc. 29(b) … S.D. Codified Laws § 23-5B-l(5)-(6) (2009) … Tenn. Code Ann. § 40-30-303 (2001) … Tex. Code Crim. Proc. Ann. art. 64.01(b) (West 2014) … Utah Code Ann. § 78B-9-402 (West 2014) … VT. Stat. Ann. tit. 13, §§ 5561, 5569 (2007) … Va. Code Ann. § 19.2-327.1 l(A)(iv), (vi) (2013) … In re Weber, 284 P.3d 734, 740 (Wash. 2012) … State ex rel. Smith v. McBride, 681 S.E.2d 81, 91(W. Va. 2009) … Gen. Star Indem. Co. v. Bankr. Estate of Lake Geneva Sugar Shack, Inc., by Waldschmidt, 572 N.W.2d 881, 894 (Wis. Ct. App. 1997) … WYO. Stat. Ann. § 7-12-303(b) (2008) … Finally, even AEDPA [Anti-Terrorism Effective Death Penalty Act] … includes a provision allowing state prisoners to raise claims based on newly discovered evidence within one year of when that evidence “could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D) (1996).

141 Del. Code Ann. tit. 11, § 4504(a) (2014) … Many states have due diligence requirements for discovering and presenting post-conviction evidence of innocence, while other states have no time limits or other procedural bars to actual innocence claims, but time limits are not based on conviction date except in Delaware.

NOTES:

  • † “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>]
  • ‡ “No State shall … deprive any person of life, liberty, or property, without due process of law….” [Fourteenth Amendment to the Constitution of the United States. Ratified July 9, 1868. <justfacts.com>]

[239] Webpage: “Conviction Integrity Unit.” Fulton County District Attorney. Accessed February 5, 2020 at <fultoncountyga.gov>

Across the country, District Attorney’s Offices are increasingly creating Conviction Integrity Units (CIUs) to re-examine questionable convictions and to guard against future conviction error. … As such, the Fulton County Conviction Integrity Unit will investigate claims of actual innocence to determine whether new evidence or facts give rise to a substantial probability that the convicted defendant was not the person who committed the offense for which they were convicted. The CIU will investigate claims of actual innocence or wrongful convictions by convicted defendants who have already been through their trial and appellate processes. The CIU will review cases in which there is new factual, physical, or forensic evidence. The unit will also review cases in which there is relevant evidence that went untested at the time of trial or some other new evidence that a person was convicted wrongfully.

[240] Webpage: “Conviction Integrity Unit.” Travis County, District Attorney. Accessed February 5, 2020 at <www.traviscountytx.gov>

A prosecutor’s duty is not to convict, but to see that justice is done. This obligation does not end with a conviction. The Conviction Integrity Unit (CIU) is committed to working diligently to ensure that, in each case, the correct person was convicted. …

We can review any felony convictions arising out of a District Court in Travis County. We are limited to claims of actual innocence arising out of newly discovered evidence or advancements in scientific evidence that affect confidence in the evidence at the time of conviction. We cannot review cases from outside of Travis County. We also cannot review claims based on procedural errors. …

While we can re-examine evidence and review cases, we do not have any authority to change a conviction ourselves. When the evidence warrants, we will present our findings to the appropriate court so that the court can make a determination.

[241] Webpage: “Conviction Integrity Unit (CIU).” City of Philadelphia, Office of the District Attorney. Accessed February 5, 2020 at <www.phila.gov>

Staffed with dedicated Assistant District Attorneys, support staff and investigators, the Philadelphia District Attorney's Office’s Conviction Integrity Unit (CIU) investigates and reviews convicted offenders’ legitimate claims of innocence and wrongful conviction. …

Submissions will first be reviewed by the following criteria before the unit conducts an in-depth review:

1. The conviction must have been in the Philadelphia County Court of Common Pleas (First Judicial District),

2. There must be a claim of actual innocence or wrongful conviction, and,

3. The claim must not be frivolous.

[242] Webpage: “About.” North Carolina Innocence Inquiry Commission, April 6, 2020. <innocencecommission-nc.gov>

The North Carolina Innocence Inquiry Commission is the first of its kind in the nation. The Commission was created by the North Carolina General Assembly in 2006 and began operating in 2007. …

The Commission is charged with providing an independent and balanced truth-seeking forum for credible post-conviction claims of innocence in North Carolina. The Commission is separate from the appeals process. A person exonerated through the Commission process is declared innocent and cannot be retried for the same crime.

2,746 Total Number of Cases Closed Since Commission’s Creation … 12 Exonerations** … ** Twelve individuals have been exonerated as a result of the commission’s investigations.

[243] Order: North Carolina v. McCollum and Brown. By Judge Douglas B. Sasser. Robeson County Superior Court, September 2, 2014. <innocencecommission-nc.gov>

In 2010, at the request of Mr. Brown, the North Carolina Innocence Inquiry Commission (“Commission”) staff began investigating his claim of actual innocence. The Commission undertook to test and re-test the physical evidence collected by law enforcement in Mr. Brown’s case. …

The results of the court-ordered DNA testing … especially when considered together with the rest of the results of the Commission’s investigation, are favorable to Mr. McCollum and Mr. Brown. …

Under these circumstances, the interests of justice in this case compel that the Court vacate the convictions and death sentence of Mr. McCollum and the conviction and life sentence of Mr. Brown, and discharge both men from confinement based on significant new evidence that they are in fact innocent.

[244] U.S. Code Title 18, Part II, Chapter 228A, Section 3600: “Criminal Procedure, Post-Conviction DNA Testing, DNA Testing.” Accessed January 30, 2020 at <www.law.cornell.edu>

(a) In General.—Upon a written motion by an individual sentenced to imprisonment or death pursuant to a conviction for a Federal offense (referred to in this section as the “applicant”), the court that entered the judgment of conviction shall order DNA testing of specific evidence if the court finds that all of the following apply:

(1)The applicant asserts, under penalty of perjury, that the applicant is actually innocent of—

(A) the Federal offense for which the applicant is sentenced to imprisonment or death; or

(B) another Federal or State offense, if—

(i) evidence of such offense was admitted during a Federal sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or new sentencing hearing; and

(ii) in the case of a State offense … there is no adequate remedy under State law to permit DNA testing of the specified evidence relating to the State offense; and … the applicant has exhausted all remedies available under State law….

(2) The specific evidence to be tested was secured in relation to the investigation or prosecution of the Federal or State offense referenced in the applicant’s assertion under paragraph (1).

(3) The specific evidence to be tested—

(A) was not previously subjected to DNA testing and the applicant did not knowingly fail to request DNA testing of that evidence in a prior motion for postconviction DNA testing; or

(B) was previously subjected to DNA testing and the applicant is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing.

(4) The specific evidence to be tested is in the possession of the Government and has been subject to a chain of custody….

(5) The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic practices.

(6) The applicant identifies a theory of defense that—

(A) is not inconsistent with an affirmative defense presented at trial; and

(B) would establish the actual innocence of the applicant….

(7) If the applicant was convicted following a trial, the identity of the perpetrator was at issue in the trial.

(8) The proposed DNA testing of the specific evidence may produce new material evidence that would—

(A) support the theory of defense referenced in paragraph (6); and

(B) raise a reasonable probability that the applicant did not commit the offense.

(9) The applicant certifies that the applicant will provide a DNA sample for purposes of comparison.

(10) The motion is made in a timely fashion….

(d) Time Limitation in Capital Cases.—In any case in which the applicant is sentenced to death—

(1) any DNA testing ordered under this section shall be completed not later than 60 days after the date on which the Government responds to the motion filed under subsection (a); and

(2) not later than 120 days after the date on which the DNA testing ordered under this section is completed, the court shall order any post-testing procedures under subsection (f) or (g), as appropriate.

[245] Webpage: “Post Conviction DNA Testing.” National Conference of State Legislatures, 2013. <www.ncsl.org>

DNA analysis has proved to be a powerful tool to exonerate individuals wrongfully convicted of crimes. One way states use this ability is through laws enabling post-conviction DNA testing. These measures provide a mechanism for certain convicted individuals to apply to a court for DNA testing that may prove their innocence. This process is used outside of the person’s regular course of appeals, or after their appeals have been exhausted.

[246] Article: “Remedying Wrongful Convictions Through DNA Testing: Expanding Post-Conviction Litigants’ Access to DNA Database Searches to Prove Innocence.” By Kayleigh E. McGlynn. Boston College Law Review, February 25, 2019. <lawdigitalcommons.bc.edu>

Page 730: “In 2004, Congress enacted the federal post-conviction DNA testing statutes.131 By 2013, all fifty states had enacted post-conviction DNA testing statutes.132

[247] Webpage: “Postconviction Testing of DNA Evidence Grant Program.” U.S. Department of Justice, National Institute of Justice, October 23, 2019. <nij.ojp.gov>

Since the advent of forensic DNA analysis, a growing number of Americans convicted of violent crimes have been exonerated through DNA analysis of evidence that was untested at the time of trial. New technologies have increased the likelihood of successful DNA analysis of aged, degraded, limited, or otherwise compromised biological evidence. As a result, crime scene samples once thought to be unsuitable for testing may now yield viable DNA profiles. Moreover, samples that had previously generated inconclusive DNA results may be amenable to reanalysis using newer methods.

NIJ [National Institute of Justice] provides funding to help defray the costs (e.g., of additional personnel, overtime, testing supplies, and services) associated with postconviction DNA testing for violent felony offenses (as defined by State law) in which actual innocence might be demonstrated. Funds may be used to review suitable postconviction cases and to locate and analyze biological evidence. …

Fiscal Year … 2019 … 2008 … Totals … $59,003,754

[248] Webpage: “Exonerations Resulting from NIJ [National Institute of Justice] Postconviction DNA Testing Funding.” U.S. Department of Justice, National Institute of Justice. Accessed February 5, 2020 at. <nij.ojp.gov>

This competitive grant program, Postconviction Testing of DNA Evidence, provides funding to states to help defray the costs associated with postconviction DNA testing. States may use funds in cases involving violent felony offenses (as defined by state law) in which actual innocence might be demonstrated. Funds may be used to review the cases and to locate and analyze biological evidence associated with them.

The goals of the program are to:

1. Review appropriate postconviction cases to identify those in which DNA testing could prove the actual innocence of a person convicted of a violent felony offense(s) as defined by state law.

2. Locate biological evidence associated with such postconviction cases.

3. Perform DNA analysis of appropriate biological evidence. …

List of Exonerations … Exoneree [=] Henry McCollum … Sentence [=] Death … 51 entries

[249] Paper: “The Execution of the Innocent.” By Michael L. Radelet and Hugo Adam Bedau. Law and Contemporary Problems, 1998. Pages 105–124. <scholarship.law.duke.edu>

Page 106:

To be sure, in some ninety percent of the cases described in our previous publications, there is some acknowledgement by public officials in one or more branches of government that the trial court’s judgment of guilt was incorrect. But our investigations failed to disclose a single case in the twentieth century where a government official in this country admitted that an execution carried out under his authority, or to his knowledge in his jurisdiction, took the life of an innocent defendant.8

8 As far as we know, the last execution that was later officially acknowledged to have been in error occurred in Illinois in 1887, when four Haymarket defendants were hanged in Illinois. A fifth defendant took his own life on the eve of the scheduled executions. Six years later, Governor John Altgeld pardoned the three surviving codefendants because all eight “had been wrongfully convicted and were innocent of the crime….” Paul Avrich, The Haymarket Tragedy 423 (1984). On August 21, 1993, Governor Walter D. Miller formally apologized for the wrongful hanging of Thomas Egan in 1882. See generally C. John Egan, Jr., Drop Him Til He Dies (1994).

[250] Ruling: Kansas v. Marsh. U.S. Supreme Court, June 26, 2006. Decided 5–4. Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Concurring: Scalia. Dissenting: Souter, Stevens, Ginsburg, Breyer. <www.law.cornell.edu>

Majority:

Justice Souter argues … that the advent of DNA testing has resulted in the “exoneratio[n]” of “innocent” persons “in numbers never imagined before the development of DNA tests.” … Based upon this “new empirical demonstration of how ‘death is different,’ ” … the dissent concludes that Kansas’ sentencing system permits the imposition of the death penalty in the absence of reasoned moral judgment. …

Concurrence:

It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

Dissent: “Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests.”

[251] Article: “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution.” By Jeffrey L. Kirchmeier. Tulsa Law Review, 2006. Pages 403–436. <digitalcommons.law.utulsa.edu>

Page 404:

[T]here is no conclusive proof that any one of the more than one thousand inmates executed in modern times was innocent.7 … However, an interesting twist occurs when you talk about the past because death penalty opponents have the somewhat ghoulish hope to prove that someone already executed was in fact innocent.8

7 … “Not one of the more than 1,000 people executed in the U.S. since the death penalty was allowed to resume in 1976 has been proved innocent.” Frank Green, “DNA Tests Prove Coleman’s Guilt,” Richmond-Times Dispatch A1, A6 (Jan. 13. 2006).

Page 415: “Those exoneration cases have focused on death row inmates found to be innocent while they were still alive. While those cases highlight the serious risk and likelihood of executing innocent defendants under our current legal system, since Gregg v. Georgia was decided [in 1976] there has not been conclusive proof that an innocent defendant has actually been executed.”

[252] Article: “DNA Test Casts Doubt on Executed Texas Man’s Guilt.” Associated Press, November 12, 2010. <rapidcityjournal.com>

“In the nearly 35 years since capital punishment was reinstated in the U.S., there has never been a case in which someone was definitively proven innocent after being executed.”

[253] Article: “Lawsuit Seeks to Explore Evidence That Man Executed in Killing Might Have Been Innocent.” By Justin Jouvenal. Washington Post, January 23, 2020. <www.washingtonpost.com>

“No one has been officially exonerated of a crime for which he or she was executed in the modern era, [executive director of the Death Penalty Information Center] Dunham said, but evidence has emerged in at least 18 cases, suggesting that innocent people might have been executed.”

[254] In April 2020, Just Facts searched for a more recent case of a person who was executed and exonerated than those detailed in the five footnotes above. The search revealed no such cases and included:

[255] Webpage: “Innocence.” National Coalition to Abolish the Death Penalty. Accessed January 17, 2020 at <www.ncadp.org>

“Now is the time to gather our voices and let it be ‘shouted from the rooftops’ that innocent people have been put to death.”

[256] Webpage: “Executed But Possibly Innocent.” Death Penalty Information Center. Accessed January 17, 2020 at <deathpenaltyinfo.org>

There is no way to tell how many of the 1,513 people executed since 1976 may also have been innocent. Courts do not generally entertain claims of innocence when the defendant is dead. Defense attorneys move on to other cases where clients’ lives can still be saved.

It is now broadly accepted that the judicial review provided to death-penalty cases in the United States has been inadequate to prevent the execution of at least some prisoners who were wrongly convicted and sentenced to death.

[257] Report: “Fatal Flaws: Innocence and the Death Penalty in the U.S.A.” Amnesty International, November 1998. <www.amnesty.org>

Page 8: “Once a prisoner is executed in the U.S.A., the case is considered legally closed. The U.S. criminal justice system offers no legal mechanism to review posthumous claims and uncover lethal error. It will likely never be known with absolute certainty if Roger Coleman was guilty or innocent of the crime for which he was put to death.†”

NOTE: † “Today, January 12, 2006, Governor Mark Warner has announced that the DNA testing in the Roger Keith Coleman case has confirmed Roger’s guilt.” [Press release: “On the Roger Coleman DNA Testing Results.” By James C. McCloskey. Centurion Ministries, January 12, 2006. <centurion.org>]

[258] Article: “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution.” By Jeffrey L. Kirchmeier. Tulsa Law Review, 2006. Pages 403–436. <digitalcommons.law.utulsa.edu>

Page 405: “[D]eath penalty opponents hope that with the proof that an innocent person was executed, an overwhelming majority of Americans will oppose the death penalty.1515 Justice Scalia noted that if the innocence of a recently executed inmate were discovered, ‘we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.’

Page 422:

There are several reasons historically why some innocence cases receive more attention than others. First, substantial resources are often devoted to some cases. Second, there are organizations, usually with a political agenda, that are willing to devote those substantial resources to the case. … Finally, an innocence case where innocence can be conclusively established will gain more attention than cases where innocence is not conclusive.

[259] Article: “Innocence After Death.” By Samuel Wiseman. Case Western Reserve Law Review, 2010. Pages 687–750. <scholarlycommons.law.case.edu>

Page 689:

A diverse array of parties have initiated efforts to exonerate innocent defendants, from the defendants themselves (in living exoneration cases) to family members,12 innocence projects,13 religious groups,14 the media,15 and even representatives of foreign governments.16 When these parties seek exoneration through the courts, the forum in which nearly eighty percent of the post-conviction exonerations since 1989 have occurred,17 they face limited procedural options.

Page 701: “The Boston Globe, religious groups, and innocence projects have made several requests in court for DNA testing in cases of deceased capital defendants.”

[260] Press release: “Gov. Ritter Grants Posthumous Pardon in Case Dating Back to 1930s.” Office of Governor Bill Ritter, Jr., January 7, 2011. <files.deathpenaltyinfo.org>

Gov. Bill Ritter granted a full and unconditional posthumous pardon today to Joe Arridy, who was convicted of killing a 15-year-old girl, sentenced to death and executed by lethal gas seven decades ago.

But an overwhelming body of evidence indicates the 23-year-old Arridy was innocent, including false and coerced confessions, the likelihood that Arridy was not in Pueblo at the time of the killing, and an admission of guilt by someone else.

“Granting a posthumous pardon is an extraordinary remedy,” Gov. Ritter said. “But the tragic conviction of Mr. Arridy and his subsequent execution on Jan. 6, 1939, merit such relief based on the great likelihood that Mr. Arridy was, in fact, innocent of the crime for which he was executed, and his severe mental disability at the time of his trial and execution. Pardoning Mr. Arridy cannot undo this tragic event in Colorado history. It is in the interests of justice and simple decency, however, to restore his good name.”

The Arridy case has been featured in books, magazines and newspapers nationwide. The request for Arridy’s pardon was brought to Gov. Ritter by local attorney David A. Martinez, who has spent years researching the case.

[261] Article: “Glendening Pardons Black in 1919 Murder.” By Jay Apperson and Andrea F. Siegel. Baltimore Sun, June 1, 2001. <www.baltimoresun.com>

More than eight decades after convicted killer John Snowden professed his innocence all the way to the gallows, Gov. Parris N. Glendening determined yesterday that the man’s execution “may well have been a miscarriage of justice”—and granted him a posthumous pardon. …

… Parole and probation investigators assembled trial transcripts and newspaper accounts and submitted a report to the parole commission.

[262] Article: “S.C. Pardons 2 Black Men Executed in 1915.” Associated Press, October 14, 2009. <www.cbsnews.com>

Two great-uncles of syndicated radio host Tom Joyner, sent to the electric chair for the 1913 murder of a Confederate Army veteran, were unanimously pardoned Wednesday by South Carolina. …

The talk show host and legal historian Paul Finkelman then began to work to clear the Griffins’ names because they thought they were framed by another man….

Joyner and his attorney made a presentation to the state parole and probation board on Wednesday, then left the room while the board voted.

[263] Book: The History of the Death Penalty in Colorado. By Michael L. Radelet. University Press of Colorado, 2017.

Page 122: “Governor Ritter … in January 2011 … acknowledged that in 1939, the state had executed an innocent man named Joe Arridy and granted him a full posthumous pardon. It was an astounding act, unprecedented in Colorado….”

Pages 124–126:

By 1999, the last people to be executed and later exonerated had been hanged in the 1880s.53

Between 2000 and 2015, however, five inmates who were executed in the twentieth century outside of Colorado were exonerated.

In Maryland in 2001, Gov. Parris Glendening issued a pardon to John Snowden … who was hanged in 1919….

In 2005 Georgia pardoned Lena Baker, who in 1945 became the only woman to have died in that state’s electric chair. … Authorities who reviewed the case concluded that he … was killed in self-defense, and therefore Baker should have been convicted of involuntary homicide (at most).55 But even so, it was clear that Baker still killed the man.56

In 2009 South Carolina pardoned two African American brothers—Thomas and Meeks Griffin—who had been electrocuted in 1915 for murdering a white Confederate War veteran. They were convicted on the perjured testimony of the actual murderer, who falsely fingered the men to save himself from the executioner.57

On December 17, 2014, a judge in South Carolina … vacated the conviction of George Stinney, who was executed at age fourteen in 1944. … His innocence was not definitively proved….

53 In Illinois in 1893, Gov. Peter Altgeld pardoned three of the Haymarket defendants six years after four of their codefendants had been hanged. … Altgeld issued the pardons because all eight “had been wrongfully convicted and were innocent of the crime.” Paul Avrich, The Haymarket Tragedy 423 (1984).

NOTE: The two people executed under a death penalty after 1939 (in 1944 and 1945) later had the murder conviction overturned or received a pardon. The next two footnotes show that the official actions were not based on innocence, and thus these cases do not meet the threshold for an “exoneration.”

[264] Article: “South Carolina Judge Vacates Conviction of George Stinney in 1944 Execution.” By Campbell Robertson. New York Times, December 17, 2014. <www.nytimes.com>

Calling it a “great and fundamental injustice,” a South Carolina judge on Wednesday vacated the 1944 murder conviction of 14-year-old George J. Stinney Jr., the youngest person executed in the United States in the last century.

Judge Carmen T. Mullen of Circuit Court did not rule that the conviction of Mr. Stinney for the murder of two white girls in the town of Alcolu was wrong on the merits. She did find, however, that the prosecution had failed in numerous ways to safeguard the constitutional rights of Mr. Stinney, who was black, from the time he was taken into custody until his death by electrocution.

[265] Article: “Executed Woman to Get Pardon in Georgia.” Associated Press, August 16, 2005. <www.nytimes.com>

The only woman ever executed in Georgia’s electric chair, Lena Baker, is being granted a posthumous pardon, 60 years after she was put to death for killing a man she said had held her in slavery and threatened her life. …

The board did not find that Ms. Baker was not guilty of the crime, but it did find that the decision to deny her clemency in 1945 “was a grievous error, as this case called out for mercy,” Ms. Lipscomb said.

[266] Article: “Tests Inconclusive in Murder Case.” Associated Press, December 12, 2000. <apnews.com>

The DNA tests neither link Ellis Wayne Felker to the death of 19-year-old Evelyn Joy Ludlam nor clear him of the crime, for which he was executed, Forensic Science Associates of Richmond, Calif., said Monday. …

Hoping technology unavailable at trial might determine Felker’s involvement, the Boston Globe, the Atlanta Journal-Constitution, the Macon Telegraph and CBS News obtained court permission in July to perform tests. …

If DNA testing had proved Felker did not commit the crime, it would have been the first time DNA evidence exonerated an American inmate who was put to death.

[267] Article: “DNA Tests Confirm Guilt of Executed Man.” By Maria Glod and Michael D. Shear. Washington Post, January 13, 2006. <www.washingtonpost.com>

“The testing in Coleman’s case marks only the second time nationwide that DNA tests have been performed after an execution. In 2000, tests ordered by a Georgia judge in the case of Ellis W. Felker, who was executed in 1996, were inconclusive.”

[268] Article: “DNA Ties Man Executed in ’92 to the Murder He Denied.” By James Dao. New York Times, January 13, 2006. <www.nytimes.com>

Thirteen years after Roger K. Coleman went to the electric chair declaring, “An innocent man is being murdered tonight,” a new DNA test has found that he was almost certainly the source of genetic material found in the body of his murdered sister-in-law, Virginia officials announced on Thursday. …

The testing was closely watched across the nation because of the belief that it would provide powerful momentum to death penalty abolitionists if it were to prove that an innocent man had been put to death.

[269] Press release: “On the Roger Coleman DNA Testing Results.” By James C. McCloskey. Centurion Ministries, January 12, 2006. <centurion.org>

Today, January 12, 2006, Governor Mark Warner has announced that the DNA testing in the Roger Keith Coleman case has confirmed Roger’s guilt. … We now know that Roger’s proclamations of innocence, even as he sat strapped in the electric chair moments before his death, were false. …

Through my efforts, spanning from 1988 until the day of Roger’s execution on May 20, 1992, Centurion Ministries conducted an exhaustive reinvestigation of Roger’s conviction. Up until the Centre of Forensic Sciences issued the most recent DNA results, I had always believed in Roger’s complete innocence. In my view, he had no motive, means, or opportunity to do this crime. I now know that I was wrong.

[270] “Report of the Circuit Attorney on the Murder of Quintin Moss and Conviction of Larry Griffin.” St. Louis Circuit Attorney, July 12, 2007. <files.deathpenaltyinfo.org>

Page 1:

In June of 2005, Circuit Attorney Jennifer M. Joyce … met an attorney for Walter Moss—the oldest brother of Quinton Moss [the victim]. Prior to his meeting … Walter Moss received an unsolicited report from the NAACP – Legal Defense and Educational Fund (hereinafter “LDF”). … Mr. Moss and the LDF asked Circuit Attorney Joyce to investigate issues raised in the LDF report and address concerns that 1) the wrong person was convicted for the murder … and 2) that new evidence existed that pointed to the killers….

… After review the LDF report, Joyce created and led a team of three lawyers and two investigators to begin the process of investigating the information presented….

Page 3: “After 14 years of appeals and post-conviction activity at every level of the appellate courts, including the United States Supreme Court, Larry Griffin was executed on June 21, 1995. The CAO [Circuit Attorney’s Office] Team concluded that Larry Griffin was fairly and rightfully convicted of the murder of Quinton Moss.”

Page 11:

• The 24-month investigation by the Circuit Attorney’s Office has established that no credible evidence exists to suggest that Larry Griffin was wrongfully convicted.

• Larry Griffin had prior assaultive criminal convictions, including bank robbery and another pending capital murder case; thus making the case involving murder of Quintin Moss eligible for the death penalty.

• Larry Griffin pled guilty to Murder Second Degree in connection with the other capital murder case pending against him.4

4 Larry Griffin was charged with Capital Murder for the shooting death of a known drug dealer Sylvester Crawford and the Assault First of Harvey Wilkerson, a person standing with Crawford. Once the State obtained the death penalty for the murder of Quintin Moss, the State accepted Griffin’s plea of guilty on the Crawford murder to a lesser charge.

[271] Article: “DNA Tests Undermine Evidence in Texas Execution.” By Dave Mann. Texas Observer, November 11, 2010. <www.texasobserver.org>

Claude Jones always claimed that he wasn’t the man who walked into an East Texas liquor store in 1989 and shot the owner. … But DNA tests completed this week at the request of the Observer and the New York-based Innocence Project show the hair didn’t belong to Jones after all. …

Because the DNA testing doesn’t implicate another shooter, the results don’t prove Jones’ innocence. But the hair was the only piece of evidence that placed Jones at the crime scene. So while the results don’t exonerate him, they raise serious doubts about his guilt.

[272] Article: “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution.” By Jeffrey L. Kirchmeier. Tulsa Law Review, 2006. Pages 403–436. <digitalcommons.law.utulsa.edu>

Page 429: “There are a number of reasons it is more difficult to find that an executed person is innocent than it is to find that a living death row inmate is innocent. First, attorneys are appointed to represent living death row inmates, while courts do not provide resources for dead inmates.”

[273] Article: “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution.” By Jeffrey L. Kirchmeier. Tulsa Law Review, 2006. Pages 403–436. <digitalcommons.law.utulsa.edu>

Page 429: “[W]hile many capital defense attorneys would agree that the discovery of an executed innocent inmate would do great damage to the system of capital punishment, the attorneys have limited time and resources that are better spent on saving the life of someone rather than seeking tardy justice for the dead.”

[274] Commentary: “Ledell Lee and the Long Struggle for ‘Just Mercy’ ” By Lauri Umansky. Philadelphia Sun, February 7, 2020. <www.philasun.com>

“To date, and understandably, the resources of death penalty opponents flood toward last-minute efforts to save innocent lives.”

[275] Article: “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution.” By Jeffrey L. Kirchmeier. Tulsa Law Review, 2006. Pages 403–436. <digitalcommons.law.utulsa.edu>

Page 429: “[I]it is more difficult to prove innocence as time passes. Conclusive proof is difficult enough when the inmate is alive, but as time passes, it becomes more difficult to find reliable witnesses and evidence.”

[276] Paper: “The History of Wrongful Execution.” By Bruce P. Smith. Hastings Law Journal, January 2005. Pages 1185–1234. <repository.uchastings.edu>

Page 1219:

[E]fforts to demonstrate that persons may have been wrongfully executed face more significant obstacles. In many instances, there is no biological evidence available to test. On other occasions, once-testable material may have become degraded—especially when years or decades have elapsed since trial.155

155 “DNA testing may help prevent some … near-tragedies in the future; but it can only be used in the minority of cases involving recoverable, and relevant, DNA samples.” United States x. Quinones, 205 F. Supp. 2d 256, 264 (S.D.N.Y. 2002)

[277] Article: “DNA Tests Could Clear an Executed Man. Why a Judge Said No.” By Jim Dwyer. New York Times, November 18, 2019. Updated 11/20/19. <www.nytimes.com>

Judge Skahan said state law governing DNA tests after conviction did not explicitly permit an estate to ask for them. No court in Tennessee had faced this issue before, she said, and the State Supreme Court might come to a different interpretation. The State Legislature could also act to permit the testing, she said. …

Amy P. Weirich, the Shelby County district attorney general, had opposed the new testing on multiple grounds, but Judge Skahan said she was only ruling that Ms. Alley lacked standing.

Ms. Alley was represented by the Innocence Project in New York and lawyers in Tennessee.

[278] Article: “Innocence After Death.” By Samuel Wiseman. Case Western Reserve Law Review, 2010. Pages 687–750. <scholarlycommons.law.case.edu>

Page 689:

A diverse array of parties have initiated efforts to exonerate innocent defendants, from the defendants themselves (in living exoneration cases) to family members,12 innocence projects,13 religious groups,14 the media,15 and even representatives of foreign governments.16 When these parties seek exoneration through the courts, the forum in which nearly eighty percent of the post-conviction exonerations since 1989 have occurred,17 they face limited procedural options.

Page 702: “The paucity of posthumous exonerations may be explained, in part, by the legal system’s traditional hesitance, seen in the common-law doctrine of abatement, to continue criminal proceedings after the death of the defendant.”

Page 708: “Despite the strong family and community-based justifications for exonerating wrongfully convicted defendants after death, few procedural mechanisms exist for conducting such exonerations.166

[279] Webpage: “Wrongful Convictions.” U.S. Department of Justice, National Institute of Justice. Accessed February 24, 2020 at <nij.ojp.gov>

With the advent of DNA testing over the last two decades, biological evidence retained in cases from the “pre-DNA” era could be tested. In addition, advancements in DNA technology have broadened opportunities for DNA testing. For example, as DNA analysis of aged, degraded, limited or otherwise compromised biological evidence has improved, samples that previously generated inconclusive results might be amenable to reanalysis with newer methods.

[280] Book: Debating the Death Penalty: Should America Have Capital Punishment? Edited by Hugo Bedau and Paul Cassell. Oxford University Press, 2004.

Chapter 6: “Why the U.S Will Abandon Capital Punishment.” By Stephen B. Bright. Pages 152–182.

Page 159: “During the ten years that Krone spent on death row, scientists developed the ability to compare biological evidence recovered at crime scenes with the DNA of suspects. DNA testing established that Krone was innocent.”

[281] Article: “Innocence After Death.” By Samuel Wiseman. Case Western Reserve Law Review, 2010. Pages 687–750. <scholarlycommons.law.case.edu>

Page 688:

The systemic benefits of posthumous exonerations are twofold. First, on a practical level, cases in which the innocence of a defendant can be scientifically proven after conviction are rare; to date, they have been largely limited to convictions obtained prior to 1989,4 for which biological evidence continues to be available for DNA testing.

4 1989 typically marks the beginning of the “DNA revolution.” See, e.g., Talia Fisher & Issachar Rosen-Zvi, “The Confessional Penalty,” 30 Cardozo Law. Rev. 871, 872, 876 (2008) (describing the “DNA revolution of the early 1990s” and documenting DNA-based exonerations that occurred between 1989 and 2003); see also Brandon L. Garrett & Peter J. Neufeld, “Invalid Forensic Science Testimony and Wrongful Convictions,” 95 VA. Law Rev. 1, 4 (2009) (describing the first DNA exoneration in 1989).

[282] Webpage: “The Death Penalty.” Innocence Project, February 10, 2009. <www.innocenceproject.org>

“We have also worked on cases of people who were executed before DNA testing could be conducted to confirm guilt or prove innocence….”

[283] Article: “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution.” By Jeffrey L. Kirchmeier. Tulsa Law Review, 2006. Pages 403–436. <digitalcommons.law.utulsa.edu>

Page 404:

[A]n interesting twist occurs when you talk about the past because death penalty opponents have the somewhat ghoulish hope to prove that someone already executed was in fact innocent.8 The purpose of the abolitionist’s quest is not a wish for the suffering of the innocent but to establish a deathblow to capital punishment.9

8 … After DNA evidence revealed Roger Coleman’s guilt in 2006, one death penalty advocate claimed that the “creepiest” aspect of Coleman’s supporters was that they were “disappointed” he died a guilty man—that they’d rather Virginia had executed a genuinely innocent person.” “The Guilty Martyr,” Weekly Standard 2, 3 (Jan. 23, 2006). However, John C. Tucker, author of May God Have Mercy, a book arguing Coleman’s innocence, noted after the DNA test, “I am certainly glad that this was not a case of an innocent man being executed.” Thomas Frisbie, “Lawyer Here Glad Retest Was Done,” Chicago Sun-Times 40 (Jan. 13, 2006).

Page 422: “Because the point in proving the innocence of an executed inmate is to attack the death penalty, death penalty opponents must gather significant attention on such cases to be successful.”

Page 423: [O]ther defendants like Coleman have received massive media attention because people outside the prison had the motivation and were willing and able to devote time and resources to promoting the case.”

Page 424: “If one considers the recent potential wrongful executions, each of the cases received some significant media attention.”

[284] Paper: “The History of Wrongful Execution.” By Bruce P. Smith. Hastings Law Journal, January 2005. <repository.uchastings.edu>

Pages 1186–1187: “To activists opposed to the death penalty, the prospect that persons might be executed for crimes that they did not commit provides what is probably the most compelling argument in favor of abolishing capital punishment.”

[285] Article: “DNA Tests Confirm Executed Man’s Guilt.” Associated Press. Updated January 12, 2006. <www.nbcnews.com>

The case had been closely watched by both sides in the death penalty debate because no executed convict in the United States has ever been exonerated by scientific testing. …

A finding of innocence would have been explosive news and almost certainly would have had a powerful effect on the public’s attitude toward capital punishment. Death penalty opponents have argued for years that the risk of a grave and irreversible mistake by the criminal justice system is too great to allow capital punishment.

[286] Article: “Fresh Doubts Over a Texas Execution.” By Maurice Possley. Washington Post,, August 3, 2014. <www.washingtonpost.com>

“Opponents of the death penalty have long focused on questionable evidence used against Willingham, believing that his case could be the first to show conclusively that an innocent man was put to death in the modern era of capital punishment.”

[287] Commentary: “Ledell Lee and the Long Struggle for ‘Just Mercy’ ” By Lauri Umansky. Philadelphia Sun, February 7, 2020. <www.philasun.com>

“Posthumous DNA exoneration of Lee would constitute an important step in the fight against capital punishment in the U.S. … With definitive, ‘scientific’ proof that haste cost an innocent man his life, activists will be able to push back a bit harder against the executioners, who like to brag that no innocents have been executed.”

[288] Article: “Prosecutors and Victims: Why Wrongful Convictions Matter.” By Jeanne Bishop and Mark Osler. Journal of Criminal Law & Criminology, 2015. Pages 1031–1048. <scholarlycommons.law.northwestern.edu>

Page 1038:

Prosecutors should resist the natural commitment to an established conviction that the process creates in cases where a wrongful conviction might have occurred. Sometimes unnoticed is a dynamic that made Watkins’ efforts much easier: He was reviewing cases brought by his predecessors.25 The Conviction Integrity Unit was begun only months after Watkins took office26 and prominently undid the work of the District Attorneys Watkins had fought for years as a defense attorney.27 In an important way, Watkins was not admitting his own mistakes, but those of others.28

25 Those predecessors included the legendary law-and-order DA [district attorney] Henry Wade, who served for thirty-six years and is the “Wade” in Roe v. Wade. Wolfgang Saxon, Henry Wade, “Prosecutor in National Spotlight, Dies at 86,” N.Y. Times, Mar. 2, 2001, at B8.

[289] Article: “These DAs [district attorneys] Have a Plan to Undo Some of the Crimes of Their Predecessors.” By Eli Hager. The Nation, March 20, 2018. <www.thenation.com>

“Over the last decade, more than 30 district attorneys nationwide, many who consider themselves part of a new wave of prosecutors more interested in fair play than in a stack of guilty verdicts, have established conviction-integrity units. The standalone teams of lawyers and investigators delve into an office’s past cases, hunting for people wrongfully convicted of a crime.”

[290] Article: “The New Prosecutor’s Dilemma: Prosecutorial Ethics and the Evaluation of Actual Innocence.” By Dana Carver Boehm. Utah Law Review, 2014. Pages 613–675. <dc.law.utah.edu>

Page 624:

This lack of guidelines is problematic given the incentives prosecutors have to maintain a conviction regardless of the merits of the innocence claim before them. While prosecutors generally aspire to seek justice, their default response to postconviction innocence claims is often characterized by reflexive skepticism and strenuous resistance, a reflex generated by the importance of conviction statistics for raises, recognition, and district attorney politics; social pressure from police officers and other prosecutors; the fact that most such claims are baseless; and the importance of giving finality to victims and the public.

Page 630:

All of the exonerations uncovered to date [in Dallas County] were obtained under prior district attorneys, but where the attorneys who prosecuted the cases still work in the DA [district attorney] office, they are notified of the exoneration and its cause, and if appropriate, additional steps to reform office procedure may be taken.73

73 Id. According to Russell Wilson, no prosecutor currently with the office has had a wrongful conviction that was the product of prosecutorial misconduct. The majority of wrongful convictions have been the product of an erroneous eyewitness identification or similar error, often linked with insufficient prior office protocols, which have since been revised during Watkins’s tenure.

[291] Article: “Prosecutors Usually Send People to Prison. These Are Getting Them Out.” By Richard A. Oppel, Jr. and Farah Stockman. New York Times, November 28, 2019. <www.nytimes.com>

Now, a growing number of prosecutors are also working to get wrongly convicted people out.

Their efforts have provided an unflattering look at a system focused on winning convictions, sometimes with little apparent regard for a suspect’s actual guilt. In some instances, re-examining old cases has forced prosecutors to go up against their predecessors or their city’s police force, accusing them of wrongdoing or negligence.

[292] Ruling: People v. Porter. Supreme Court of Illinois, February 21, 1986. Decided 4–3. Majority: Ryan, Miller, Moran, Ward. Dissenting: Clark, Simon, Goldenhersh. <law.justia.com>

Majority:

Following a jury trial in the circuit court of Cook County, the defendant, Anthony Porter, was found guilty of the armed robbery and unlawful restraint of Henry Williams … the murder of Marilyn Green (two counts) … the murder of Jerry Hillard (two counts) … and two counts of unlawful use of weapons…. The defendant waived a jury for the penalty hearing … and the trial judge found the existence of a statutory aggravating factor … (defendant convicted of murdering two individuals) and concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced the defendant to death for the murders of Marilyn Green and Jerry Hillard.…

The defendant elected to waive his right to a jury for purposes of the two-phase death penalty hearing. …

During the second phase of the death penalty hearing before the court, evidence was presented concerning matters in aggravation and mitigation. …

Following arguments of counsel, the trial court concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty.

We note that the police officer who arrested the defendant on August 17, 1982, testified at trial….

The following evidence was presented by the State in aggravation. … On October 6, 1980, the defendant pleaded guilty to robbery and bail jumping and was sentenced to three years in the Illinois Department of Corrections. The defendant was released from prison on November 13, 1981, and was placed on parole for a period of two years.

On August 1, 1982, while on parole, the defendant got into an argument with a man in the neighborhood named Earl Lewis. The defendant had walked by and kicked Lewis’ dog. When the defendant passed by again Lewis asked him why he kicked the dog. The defendant threatened to hurt Lewis, but then started to walk away. He then returned and placed a gun to Lewis’ head and fired. The bullet grazed Lewis’ forehead, who escaped much more serious injury by moving back just as the gun was fired. (On August 4, 1983, the defendant pleaded guilty to the aggravated battery of Earl Lewis and was sentenced to six years in the Illinois Department of Corrections.) Two weeks after the defendant shot Earl Lewis, he committed the offenses that are the subject of this appeal.

[293] Ruling: Porter v. Gramley. U.S. Court of Appeals for the Seventh Circuit, April 25, 1997. Decided 3–0. Majority: Flaum, Kanne, Evans. <caselaw.findlaw.com>

Majority:

In the wee hours of August 15, 1982, Jerry Hillard and Marilyn Green were shot and killed in Chicago’s Washington Park. …

One of Porter’s main contentions on both state and federal post-conviction review has been that “… the jury was not told that [Porter] had known Jerry Hilliard for several years and that the two had belonged to the same gang.” … In his opening statement, Porter’s counsel suggested to the jury that Porter was being set up by a rival gang to take the fall for murdering Hilliard….

Defense counsel later tried—but was unable—to elicit testimony that the two eyewitnesses were members of a rival gang. The defense was successful, however, in showing that Porter and Hilliard were members of the same gang….

[294] Speech: “I Must Act.” By George Ryan, January 11, 2003. <www.nytimes.com>

I never intended to be an activist on this issue. I watched in surprise as freed death row inmate Anthony Porter was released from jail. A free man, he ran into the arms of Northwestern University Professor Dave Protess who poured his heart and soul into proving Porter’s innocence with his journalism students. He was 48 hours away from being wheeled into the execution chamber where the state would kill him. It would all be so antiseptic and most of us would not have even paused, except that Anthony Porter was innocent of the double murder for which he had been condemned to die. …

But I will not stand for it. I must act. Our capital system is haunted by the demon of error, error in determining guilt, and error in determining who among the guilty deserves to die. Because of all of these reasons today I am commuting the sentences of all death row inmates. This is a blanket commutation.

[295] Transcript: “Roberts Confirmation Hearing, Day 3 Part 1.” C-SPAN, September 14, 2005. <www.c-span.org>

Patrick J. Leahy: Let me go to an issue we discussed yesterday, or others did, the issue of capital punishment. We have held in this Committee a number of hearings that show some real flaws in the administration of capital punishment…. Some say, and I think you have even said this, when people are exonerated, it shows the system works. Well, let me tell you about the system in that case. One of the people was Anthony Porter. He spent 16 years on death row. He came within two days of being executed. The system didn’t work on his behalf. A bunch of kids from Northwestern University had taken an elective course on journalism, and the teacher said, why don’t you look into this case, and these kids went out and did it. The kids dug up the information that was there, available to the police, available to the prosecutor, available to the Feds. Nobody before had dug it up. They found it, and the State’s Attorney dropped the case. They got somebody else to confess.

[296] Editorial: “Fatal Flaws of Capital Punishment.” Chicago Tribune, February 12, 1999. <www.chicagotribune.com>

“[W]hat saved Anthony Porter was not ‘the system,’ as apologists have said piously, but a spit-and-chewing-gum network of volunteers, enterprising Northwestern University journalism students….”

[297] Article: “Case Study: The Chicago Tribune Tests a Death Penalty Premise.” By Steve Mills. Poynter Institute, May 26, 2005. <www.poynter.org>

In early 1999, Anthony Porter walked off of Illinois’ Death Row, having come within 50 hours of his execution. … Officials in Illinois responded by saying that Porter’s brush with lethal injection showed that the criminal justice system worked. Never mind that the evidence that ultimately led to his freedom emerged from an investigation done by journalism students at Northwestern University.

At the Tribune, we sought to test the premise that the system worked. … The work resulted in a series of stories … bringing a new skepticism to how the justice system operates.

Some two months after the publication of the November 1999 series, “The Failure of the Death Penalty in Illinois,” then-Gov. George Ryan declared a moratorium on executions. Ryan cited the Tribune’s work.

[298] Webpage: “A Question of Innocence.” American Civil Liberties Union. Accessed February 25, 2020 at <www.aclu.org>

In many other cases, it was good fortune rather than the criminal justice system that established innocence. In several cases, college or law school students investigated cases and unearthed essential evidence. …

Anthony Porter was convicted in 1982 of a drug-related double murder. In September 1998, 2 days before his scheduled execution, his volunteer lawyer won a stay to look into his mental competency (Porter’s IQ has been assessed as between 51 and 75). Then a vital witness recanted, and journalism students at Northwestern University, along with a volunteer criminal investigator, obtained a videotaped confession from the actual murderer. The actual murderer was subsequently sentenced to 37 years in prison. Released in 1999, Mr. Porter spent 16 years on Illinois death row for a murder did not commit.

[299] Article: “The Death Penalty on Trial.” Newsweek, June 11, 2000. <www.newsweek.com>

The big question it raises, still unanswered: how can the 37 other states that allow the death penalty be so sure that their systems don't resemble the one in Illinois? …

… A new crop of Northwestern students helped prove the innocence of Anthony Porter, who at one point had been just two days shy of lethal injection for a pair of 1982 murders. Once again, the issue in Illinois wasn’t the morality of death sentences, but the dangerously sloppy way in which they were handed out. Once again a confession from another man helped erase doubt that the man convicted of the crime, who has an IQ of 51, had committed it.

[300] Article: “A New Ending to An Old Story.” By Jon Jeter. Washington Post, February 17, 1999. Updated 3/9/99. <www.washingtonpost.com>

Porter, who once came within 48 hours of his execution, walked out of jail Feb. 5 and into the arms of the crusading Northwestern journalism professor and the polite college kids who rescued him from a lethal injection. … The parable of Anthony Porter’s redemption—a small but committed group of people toiling on behalf of truth and a man they did not know—satisfies the nation’s appetite for heroes and forgiveness. … “The first time this happens, it’s lightning striking,” Protess said. “The second time, it illustrates the problems both for journalism and the criminal justice system. There are innocent people on death row.”

[301] Film review: “Deadline.” By Anita Gates. New York Times, October 1, 2004. <www.nytimes.com>

The filmmakers are clearly against capital punishment, and … they call on a variety of experts to speak for their side. …

Deadline … begins with a group of Northwestern University journalism students uncovering evidence proving that a man sentenced to death was innocent. The film follows the 2002 clemency hearings ordered by Governor Ryan, visits inmates affected by the commutation and relates heartbreaking horror stories.

[302] Article: “Death Row Reversal Becomes Film.” BBC News. Last updated August 12, 2004. <news.bbc.co.uk>

The film, Deadline, shows how Illinois’s Republican Governor George Ryan—strongly pro-death penalty when elected in 1998—first began to have serious doubts about its use. …

Mr. Ryan told BBC World Service’s Outlook programme that he had first begun to have doubts about the death penalty when Illinois released Anthony Porter, who had spent 16 years on death row for a crime he did not commit. …

Deadline was recently broadcast by the U.S. network NBC after a representative saw it at the Sundance Film Festival.

[303] Article: “Court Stalls Execution, Asks if Killer is Smart Enough to Die.” By Christi Parsons. Chicago Tribune, September 22, 1998. <www.chicagotribune.com>

The Illinois Supreme Court on Monday delayed the execution of a Chicago man for at least six weeks so a judge can determine whether the condemned inmate’s IQ is so low he shouldn’t be put to death.

The stay of execution means convicted murderer Anthony Porter won’t die by lethal injection Wednesday, as had been scheduled.

Instead, he will undergo a fitness hearing in Cook County Circuit Court to determine if he is mentally retarded and unable to understand what is happening to him.

[304] Article: “How and Why Illinois Abolished the Death Penalty.” By Rob Warden. University of Minnesota Journal of Law & Inequality, Summer 2012. Pages 245–286. <scholarship.law.umn.edu>

Page 256: “The stay was granted not out of concern that Porter might be innocent but rather because he had scored so low on an IQ test—fifty-one—that he might not be capable of understanding why and for what he was being executed.”

Page 257: “The stay of execution was intended only to allow time for further testing to determine Porter’s fitness for execution, but the interval was put to a different use: Professor David Protess and a team of undergraduate journalism students working with private investigator Paul Ciolino launched a reinvestigation of the case….”

[305] Article: “Illinois Man Is Finally Cleared in 2 Murders.” By Andrew Bluth. New York Times, March 12, 1999. <www.nytimes.com>

Mr. Porter, 43, was released from jail last month after a group of Northwestern University students found evidence of his innocence.

Judge Fitzgerald, thanking all of the participants in the case … cited “those outside the system,” referring to the students and their professor, David Protess, who obtained a video statement from Alstory Simon, a Milwaukee laborer who admitted killing the couple, Jerry Hillard and Marilyn Green.

[306] Article: “A Watchdog Professor, Now Defending Himself.” By David Carr and John Swartz. New York Times, June 17, 2011. Updated 6/23/11. <www.nytimes.com>

Mr. Protess … started the Innocence Project at Medill in 1999 after spending much of his career looking into questionable convictions for Chicago Lawyer magazine. Working with the Center on Wrongful Convictions, a sibling project at the Northwestern Law School, Mr. Protess methodically vetted cases, laid out lines of inquiry for his student journalists and guided them through their reporting assignments.

[307] Article: “Illinois Man Is Finally Cleared in 2 Murders.” By Andrew Bluth. New York Times, March 12, 1999. <www.nytimes.com>

Chief Judge Thomas R. Fitzgerald of Cook County Circuit Court overturned both murder convictions against … Anthony Porter, who came within two days of being executed for the 1982 shooting deaths of a young couple during a robbery in a South Side park.

Mr. Porter, 43, was released from jail last month after a group of Northwestern University students found evidence of his innocence.

[308] Webpage: “Anthony Porter.” National Registry of Exonerations, June 2012. Last updated 1/12/18. <www.law.umich.edu>

“In February 1999 … Porter was freed, having spent 17 years on death row, and the charges against him were dismissed the following month. … Governor George H. Ryan granted Porter a pardon based on innocence and in 2000 Porter received a $145,875.29 award from the Illinois Court of Claims.”

[309] Ruling: Porter v. Gramley. U.S. Court of Appeals for the Seventh Circuit, April 25, 1997. Decided 3–0. Majority: Flaum, Kanne, Evans. <caselaw.findlaw.com>

Majority:

In the wee hours of August 15, 1982, Jerry Hilliard and Marilyn Green were shot and killed in Chicago’s Washington Park. Two men who were drinking alcohol and swimming in a park pool that morning were the main witnesses to the events that transpired. One of the men, Henry Williams, got out of the pool around 1 a.m.;  he was immediately robbed at gunpoint by Porter, whom both Williams and his fellow swimmer, William Taylor, knew from around the neighborhood. …

Taylor meanwhile had continued to swim in the pool. When he got out, he too saw Porter pointing a gun at Hilliard, and Taylor actually saw Porter shoot Hilliard, who collapsed on the bleachers. (Taylor did not see Porter shoot Green, but blood matching Green’s was found in the bleacher area.) Porter then fled from the bleachers, carrying a gun and passing within three feet of Taylor. Taylor went up to the bleachers to Hilliard’s body, and police arriving at the scene found Taylor standing there. Both Williams and Taylor later identified Porter in a mug book, and Taylor identified Porter in a lineup as well. On cross-examination, Taylor admitted that he originally did not tell the police that he saw Porter shoot Hilliard, but he claimed he did so only out of fear of Porter.

A police officer, who was responding to a call about the shooting, encountered Green shortly after she was shot. Green was running from the bleacher area, and she pointed to the south where the officer saw Porter running. The officer stopped and frisked Porter but found no weapons and released him. The officer filed no report of stopping Porter. The officer, however, testified that he informed the detective on the scene in Washington Park of the incident, and the officer also identified Porter in court. …

… The eyewitness and police testimony is simply too strong against Porter. We therefore deny Porter any relief on his ineffective assistance of counsel claim. …

… A further evidentiary hearing would be little more than the proverbial fishing expedition. We therefore grant Porter a certificate of appealability regarding both of his claims but deny Porter any relief on the merits. The District Court’s judgment is affirmed.

[310] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

Page 6:

During the criminal trial of Anthony Porter, William Taylor testified that he observed Porter, who he knew from the neighborhood, standing over Jerry Hillard at the time shots were fired. … Henry Williams testified at the trial that Anthony Porter, robbed him at gunpoint and then immediately proceeded into the bleachers where Hillard and Green were shot. … Porter was also identified as having been in Washington Park immediately after the shooting by Officer Anthony Liace of the Chicago Police Department. (See the trial testimony of Officer Liace at pages 567–570 of Exhibit 6C).

Page 7: “On December 11, 1998, Ciolino obtained a written statement from William Taylor … wherein Taylor claimed that he did not observe Porter actually fire the gun which killed Hillard and Green. Taylor provided a similar statement to Professor Protess on December 4, 1998….”

Page 15: “Ciolino prepared a statement … which purported to be a recantation of the testimony Taylor provided in the trial of Anthony Porter. In this statement Taylor states that on the night of the murders of Hillard and Green that he “did not see Porter with a gun or shoot anyone.’

[311] Transcript: “Thomas McCann Testimony in Re: John Doe Investigation.” Grand Jury of Cook County, February 22, 1999. <blogs.chicagotribune.com>

Pages 27–28:

Q. And in the affidavit it had really four big parts concerning Anthony Porter?

A. Yes.

Q. I will read them to you: “I was present in the park when the shooting occurred”?

A. Yes. …

Q. “I did not see Anthony Porter shoot anybody”?

A. Yes.

Q. “I have never seen Anthony Porter with a gun”?

A. Yes.

Q. “I did not see who shot the victims that day”?

A. Yes.

Q. That’s what he said to you guys?

A. Yes. …

Q. And eventually Taylor signed off on it?

A. Yes. …

Q. Didn’t he tell you that he thought he saw Anthony Porter run by him on those bleachers?

A. He said he thought he saw Anthony in the park, he saw someone run past him. I don’t think he said that he saw Anthony. …

Q. But that was not included in the affidavit, that he saw Anthony Porter in the park that night, right?

A. Right.

[312] Ruling: People v. Simon. Illinois Appellate Court for the First District, May 22, 2017. Decided 3–0. Majority: Simon, Connors, Harris. <www.courtlistener.com>

Majority: “On September 7, 1999, petitioner pleaded guilty to the murder of Marilyn Green and the voluntary manslaughter of Jerry Hillard and was sentenced to concurrent terms of 37 years and 15 years, respectively.”

[313] Article: “Illinois Man Is Finally Cleared in 2 Murders.” By Andrew Bluth. New York Times, March 12, 1999. <www.nytimes.com>

“Judge Fitzgerald, thanking all of the participants in the case … cited ‘those outside the system,’ referring to the students and their professor, David Protess, who obtained a video statement from Alstory Simon, a Milwaukee laborer who admitted killing the couple, Jerry Hillard and Marilyn Green.”

[314] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

“On February 3, 1999 Alstory Simon provided a video-taped statement to Ciolino and his partner admitting to having shot Hillard and Green. Simon claimed that the shooting of Hillard was self-defense and the shooting of Green was accidental.”

[315] Ruling: Ciolino v. Simon. Illinois Appellate Court for the First District, January 13, 2020. Decided 3–0. Majority: Griffin, Pierce, Walker. <il.findacase.com>

Majority:

Once the controversial practices of the Innocence Project were revealed … Anita Alvarez, the Cook County State’s Attorney, agreed to revisit Simon’s case. After a year-long investigation in which more than 100 witnesses were interviewed, the State’s Attorney Office concluded that, in light of the unlawful investigative conduct by Ciolino and Protess and the inadequate representation that Simon received, the case was so tainted and the convictions so called into doubt, that Simon’s convictions could not stand. The State’s Attorney Office moved to formally abandon all charges against Simon, and the circuit court granted the motion and vacated Simon’s convictions. Simon was released from prison after serving 15 years.

At a news conference announcing the decision to drop the charges against Simon, Alvarez, as State’s Attorney, stated that the “investigation by David Protess and his team involved a series of alarming tactics that were not only coercive and absolutely unacceptable by law enforcement standards, they were potentially in violation of Mr. Simon’s constitutionally protected rights.” Alvarez continued, expressing that, in her view, “the original confession, made by Alstory Simon and the coercive tactics that were employed by investigator Ciolino have tainted this case from the outset and brought into doubt the credibility of many important factors.” She concluded that “[t]he bottom line is that the investigation conducted by Protess and private investigator Ciolino, as well as the subsequent legal representation of Mr. Simon, were so flawed that it is clear that the constitutional rights of Mr. Simon were not scrupulously protected as our law requires. This conviction therefore cannot stand.”

[316] Article: “Inmate in Landmark Illinois Case Released From Prison.” By Charlie Wojciechowski. NBC5 Chicago, October 30, 2014. <www.nbcchicago.com>

After a re-examination of the case, the Cook County State’s Attorney’s Office asked the judge Thursday to free Simon. The judge vacated the sentence and conviction.

“At the end of the day and in the best interests of justice, we could reach no other conclusion that the investigation of this case has been so deeply corroded and corrupted that we can no longer maintain legitimacy of this conviction,” Cook County State’s Attorney Anita Alvarez said.

[317] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

On February 9, 1999 Eugene Beckwith testified before the Grand Jury that he was in the swimming pool of Washington Park … when Hillard and Green were killed. He testified that he saw Anthony Porter, who he knew from the neighborhood, in the bleachers where the murders occurred immediately before the shooting….

On February 11, 1999 Mark Senior testified before the Grand Jury that he saw Porter, who he knew from the neighborhood, in the bleachers where the murders occurred immediately before the shooting of Hillard and Green. …

On February 17, 1999 Kenneth Edwards testified before the Grand Jury that he also saw Porter in the bleachers where the murders occurred immediately before the shooting of Hillard and Green and that he saw Porter shoot the victims.

[318] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

Ciolino prepared a statement … which purported to be a recantation of the testimony Taylor provided in the trial of Anthony Porter. In this statement Taylor states that on the night of the murders of Hillard and Green that he “did not see Porter with a gun or shoot anyone.”

On February 10, 1999, in a court reported statement taken by Assistant State’s Attorney Thomas Gainer, Taylor maintained that although he did not see Porter fire the gun he did see Porter run by him immediately after the shooting in the bleachers.

[319] Transcript: “David Protess Testimony in Re: John Doe Investigation.” Grand Jury of Cook County, February 22, 1999. <blogs.chicagotribune.com>

Page 31:

Q. [Assistant State’s Attorney Thomas Gainer] I also—I mean, you and I have discussed the fact that we now know that Paul Ciolino used a what he called a pretext statement when he spoke with Alstory Simon. He created a tape of a phony witness to the 1982 shooting deaths of Jerry Hillard and Marilyn Green. Did you talk to your students about the use of ruse for the pretext in interviewing a witness?

A. [David Protess] Not at this point. …

Q. All right. Did anybody ever discuss with these—this group of students the fact that Ciolino was going to use this technique?

A. I learned a day or two before Mr. Ciolino interviewed Alstory Simon that he was thinking about using this technique, and I believe I mentioned it to one of my students, Shawn Armburst.

[320] Ruling: Ciolino v. Simon. Illinois Appellate Court for the First District, January 13, 2020. Decided 3–0. Majority: Griffin, Pierce, Walker. <il.findacase.com>

Majority:

Ciolino also showed Simon a video that the Innocence Project had made using a paid actor. The actor in the video stated that he was an eyewitness to the murders and that he saw Simon kill Hillard and Green. …

Ciolino was interviewed on television following Simon’s conviction. Ciolino described the tactics he used in securing Simon’s confession. Ciolino acknowledged that he used a paid actor to make a video who identified Simon as the shooter.

[321] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

Alstory Simon’s Claims of Coercion by Ciolino and Rimland’s Ineffective Assistance of Counsel (see the Affidavit of Alstory Simon attached as Exhibit 46) …

Ciolino then made me watch a videotape of a black male person stating that he was a witness to the murders and that he actually saw me shoot the two victims. At this point I became angry, repeated that I knew nothing about the murders, told them that the witness in the videotape was a liar, and again told the men to leave my house.

[322] Article: “Death Row Lessons and One Professor’s Mission.” By Pam Belluck. New York Times, March 6, 1999. <www.nytimes.com>

Mr. Protess knows private investigators like Mr. Ciolino may use techniques that journalists would not. Mr. Ciolino tried to elicit Mr. Simon’s confession by showing a videotape of a man who said he saw Mr. Simon commit the murders. The man, who worked for Mr. Ciolino, was only pretending to be an eyewitness. …

Mr. Protess said he considered a tactic like Mr. Ciolino’s tape inappropriate for journalists unless it was the only way to get information “in a story with life and death stakes.” He said other methods were available in the Porter case.

[323] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

After first talking to Walter Jackson, Protess then sent the journalism students to see Walter Jackson with a statement for him to sign. Jackson signed the statement … wherein Jackson claimed that Simon had admitted to him that he shot Hillard and Green.

Walter Jackson now admits that the entire statement is false. Alstory Simon never told Walter Jackson he shot Hillard and Green and the reason he signed this statement was because Protess had promised to get him out of jail and provide him with money when he got out of jail. …

It was after Inez Jackson Simon was first contacted by Walter Jackson, who asked her to help free Porter, that Protess, Ciolino and several of the students went to visit Inez on January 29, 1999.

On January 29, 1999 Inez Jackson Simon claimed in both a written statement and on video tape that she … claimed that Simon then fired two shots and both Hillard and Green immediately slumped over on the bleachers. …

Inez Jackson Simon now admits that this entire story is false. …

Inez Jackson Simon has admitted that the reason she gave the false statement to Protess and Ciolino was in an effort to help her nephew, Walter Jackson, and son, Sonny Jackson, get out of jail. …

Inez also states in her video-taped statements … that Protess promised her money if she helped him free Porter. She states that Protess repeatedly told her that she would get a big check.

[324] Ruling: Ciolino v. Simon. Illinois Appellate Court for the First District, January 13, 2020. Decided 3–0. Majority: Griffin, Pierce, Walker. <il.findacase.com>

Majority:

Inez Jackson and Walter Jackson explained that they had implicated Simon based on promises from David Protess of the Innocence Project. Inez Jackson reportedly had serious drug and alcohol problems and was allegedly given food, cash, alcohol, and other things of value by Protess and his team. In an affidavit, Walter Jackson admitted that he provided false evidence against Simon for money and for help with his own legal problems, and that he encouraged Inez Jackson, his aunt, to also provide false testimony in order to help with his legal troubles. It was additionally brought to light for the first time in Simon’s successive postconviction proceedings that Inez Jackson had provided a statement to the police when they were originally investigating the murders in which she stated that she was with Simon the night of the murders and that he did not commit them.

[325] Article: “Witness Recants on Video.” By Jeff Coen. Chicago Tribune, January 19, 2006. <www.chicagotribune.com>

The estranged wife of Alstory Simon has given a videotaped deposition recanting statements that helped get Simon charged with two murders and aided the effort to see Anthony Porter released from Death Row. …

In a copy of the videotape reviewed by the Tribune, Inez Jackson Simon … was asked during questioning by defense lawyer Terry Ekl why she wanted to make a new statement.

“Cause I didn't want to die carrying it to my grave, knowing he was innocent,” said Simon, who has AIDS and emphysema.

[326] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

Jack Rimland, Paul Ciolino and Martin Abrams all shared office space at 900 W. Jackson Ave. in Chicago at the time Ciolino procured Rimland to represent Simon and Abrams represented Inez Jackson Simon. …

In 1999 Jack Rimland was the President of the Illinois Attorneys for Criminal Justice. On May 7, 1999, while purporting to be representing Alstory Simon, he presented awards to David Protess, Paul Ciolino and five (5) students for their actions in freeing Anthony Porter and developing evidence against his client. Rimland, in presenting these awards stated: “David Protess and his students utilized their talents as investigative journalists and successfully uncovered crucial evidence resulting in the freeing of Anthony Porter.” (See May 21, 1999 Inside Medill News attached as Exhibit 43). …

[327] Ruling: Ciolino v. Simon. Illinois Appellate Court for the First District, January 13, 2020. Decided 3–0. Majority: Griffin, Pierce, Walker. <il.findacase.com>

Majority:

Simon, in fact, retained attorney Jack Rimland to represent him in the murder case. Jack Rimland was an attorney in Chicago that shared office space with Ciolino. Rimland purportedly convinced Simon to plead guilty by telling Simon that he needed to make the deal in order to avoid the death penalty or life in prison. Rimland, on Simon’s behalf, did not challenge the confession that Simon gave to Ciolino nor did he present any other evidence to the court, including the evidence that implicated Porter in the first place and led to his conviction.

… During the time Rimland was representing Simon, Rimland maintained contact with his officemate Ciolino. For example, Rimland presented an award to Ciolino and other Innocence Project members for the work they did to overturn Porter’s conviction even though he was concurrently representing Simon in a case for the same murders.

[328] Ruling: Ciolino v. Simon. Illinois Appellate Court for the First District, January 13, 2020. Decided 3–0. Majority: Griffin, Pierce, Walker. <il.findacase.com>

Majority:

Rimland purportedly convinced Simon to plead guilty by telling Simon that he needed to make the deal in order to avoid the death penalty or life in prison. Rimland, on Simon’s behalf, did not challenge the confession that Simon gave to Ciolino nor did he present any other evidence to the court, including the evidence that implicated Porter in the first place and led to his conviction.

Simon further claims that Rimland told him to apologize to the victims’ families in order to make his confession seem legitimate.

[329] Petition: Illinois v. Simon. Circuit Court of Cook County, Illinois, December 2005. <blogs.chicagotribune.com>

On November 29, 2005 Rev. Robert Braun executed an affidavit … where he makes the following statements of fact regarding Alstory Simon and attorney, Jack Rimland. …

• Simon told him that his attorney, Jack Rimland, told him that he should go along with the deal and plead guilty and that Rimland told him that it did not make any difference if he didn’t commit the murders.

Rev. Braun states in his affidavit … that he called Rimland personally and told Rimland he thought it was wrong for Simon to plead guilty to a crime he did not commit. Rimland told him that it did not make any difference if Simon did not commit the murders because it he went to trial he would get convicted and then would get the death penalty. …

Alstory Simon’s Claims of Coercion by Ciolino and Rimland’s Ineffective Assistance of Counsel (see the Affidavit of Alstory Simon attached as Exhibit 46)

At various times, attorney Rimland also told me I could face the death penalty, that the prosecution had a strong case against me, and that I needed to make a deal so that I could avoid death row or life in prison. …

Rimland never told me that I had a right to file a motion in court for a judge to determine whether the statement I gave to Ciolino was admissible against me in light of the tactics used by Ciolino. In short, he never told me that I had any sensible alternative other than to plead guilty and to take the deal the prosecution was offering. …

Besides establishing that attorney Rimland wrongfully coerced Petitioner into pleading, the newly discovered evidence establishes that Rimland also failed to investigate the legitimacy of the evidence against Petitioner, but rather took it at faced value based on his own incompetence or his conflict of interest due to his relationship with Investigator Ciolino and Professor Protess. Either way, attorney Rimland provided ineffective assistance of counsel in violation of the 6th Amendment.

[330] Article: “Double Murder Case Unravels.” By Douglas Holt and Steve Mills. Chicago Tribune, February 4, 1999. <www.chicagotribune.com>

“The private investigator recommended Rimland to Simon. ‘I will look out for his best interests, whether that’s advising him to remain silent or advising him to talk,’ Rimland said late Wednesday. ‘Obviously if he is charged, he’s looking at the death penalty.’

[331] “University Statement Regarding David Protess.” By Alan K. Cubbage. Northwestern University, April 6, 2011. <www.northwestern.edu>

This afternoon Medill Dean John Lavine shared information with his faculty that explained his decision several weeks ago not to assign teaching responsibilities to Professor David Protess this quarter. Protess is on leave from both teaching and directing the Medill Innocence Project this quarter.

Lavine’s decision followed a thorough review by the University and its outside counsel, Jenner & Block, of the information provided by Protess to Lavine and University attorneys in connection with a court case and of the practices and procedures of the Medill Innocence Project, which has been led by Protess. The review uncovered numerous examples of Protess knowingly making false and misleading statements to the dean, to University attorneys, and to others. Such actions undermine the integrity of Medill, the University, the Innocence Project, students, alumni, faculty, the press, the public, the State and the Court. …

In sum, Protess knowingly misrepresented the facts and his actions to the University, its attorneys and the dean of Medill on many documented occasions. He also misrepresented facts about these matters to students, alumni, the media and the public. He caused the University to take on what turned out to be an unsupportable case and unwittingly misrepresent the situation both to the Court and to the State.

[332] Article: “A Watchdog Professor, Now Defending Himself.” By David Carr and John Swartz. New York Times, June 17, 2011. Updated 6/23/11. <www.nytimes.com>

[D]uring an investigation into a questionable conviction, the Cook County state’s attorney turned her attention instead on Mr. Protess and his students. Since then, questions have been raised about deceptive tactics used by the Medill students, about allegations that Mr. Protess cooperated with the defense lawyers (which would negate a journalist’s legal privilege to resist subpoenas) and, most damning, whether he altered an e-mail to cover up that cooperation.

Medill, which enjoys an international reputation, in significant part because of his work, removed him from teaching in April, and this week he retired from Northwestern altogether, and now runs the Chicago Innocence Project. …

Mr. Protess has since signed a negotiated agreement to leave the university.

[333] Ruling: Ciolino v. Simon. Illinois Appellate Court for the First District, January 13, 2020. Decided 3–0. Majority: Griffin, Pierce, Walker. <il.findacase.com>

Majority: “Some concerns were raised about the Innocence Project’s conduct in this case and in other cases. After Northwestern University conducted a court-ordered internal investigation into the controversial journalistic and investigative practices of the Innocence Project under Protess, he was separated from the University.”

[334] Sixth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to have the Assistance of Counsel for his defence.”

[335] Fifth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“No person shall … be deprived of life, liberty, or property, without due process of law….”

[336] Fourteenth Amendment to the Constitution of the United States. Ratified July 9, 1868. <justfacts.com>

“No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[337] Ruling: Gideon v. Wainwright. U.S. Supreme Court, March 18, 1963. Decided 9–0. Majority: Black, Warren, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg. Concurring: Clark, Harlan. <supreme.justia.com>

Majority:

Not only … precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

[338] Ruling: Douglas v. California. U.S. Supreme Court, March 18, 1963. Decided 6–3. Majority: Warren, Black, Douglas, Brennan, White, Goldberg. Dissenting: Clark, Harlan, Stewart. <caselaw.findlaw.com>

Majority:

We are dealing only with the first appeal, granted as a matter of right to rich and poor alike … from a criminal conviction. …

… The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between “possibly good and obviously bad cases,” but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.

Dissent:

California does not discriminate between rich and poor in having a uniform policy permitting everyone to appeal and to retain counsel, and in having a separate rule dealing only with the standards for the appointment of counsel for those unable to retain their own attorneys. The sole classification established by this rule is between those cases that are believed to have merit and those regarded as frivolous. …

I cannot agree that the Constitution prohibits a State, in seeking to redress economic imbalances at its bar of justice and to provide indigents with full review, from taking reasonable steps to guard against needless expense.

[339] Webpage: “Trial Versus Appellate Versus Postconviction Work.” University of Michigan Law School. Accessed December 13, 2019 at <www.law.umich.edu>

Once a defendant is convicted and has exhausted her direct appeals, the postconviction process begins. The Supreme Court has never held that indigent defendants have a constitutional right to the assistance of counsel after their first appeal, but some states have public defender offices or independent organizations with postconviction sections. And most jurisdictions have statutory rights to postconviction counsel in capital cases and in some non-capital cases as well. Postconviction processes vary dramatically by state.

[340] Paper: “Indigent Defense Systems in the United States.” By Robert L. Spangenberg and Maria L. Beeman. Duke University School of Law, Law and Contemporary Problems, 1995. Pages 31–49. <scholarship.law.duke.edu>

Page 38:

The distinction between a “state commission” state and a state with a statewide public defender system can be subtle. Oklahoma, for example, has a state commission and a state public defender program. The Office of Indigent Defense Services (“OIDS”) divides case responsibility among four centralized, staffed units: capital trials, capital cases on direct appeal, capital post-conviction cases, and noncapital direct appeals for the entire state.

[341] Report: “LBO [Legislative Budget Office] Analysis of Executive Budget Proposal: Ohio Public Defender Commission.” By Joseph Rogers. Legislative Budget Office of the Legislative Service Commission, April 2019. <www.lsc.ohio.gov>

Page 5:

Death Penalty Representation

This is a program with the purpose of providing competent legal counsel to indigent persons under the sentence of death (Ohio’s death row inmates on direct appeal, state post-conviction, federal habeas corpus, and clemency appeals), as well as legal assistance, criminal investigation and mitigation, and trial services to private appointed attorneys in such cases. This program also supports training seminars on death penalty law to help ensure that the state bar meets requirements imposed under Ohio Supreme Court Superintendence Rule 20. This program has nine staff attorneys, and three supervisors. The staff attorneys work on capital appeals, post-conviction, and habeas corpus cases. These attorneys not only provide counsel during the review of death penalty cases through the state courts, but also as those cases go through the federal habeas corpus litigation process, which is complex and time consuming.

Pages 10–11:

Federal Representation … FY 2019 Estimate [=] $38,315 …

This line item contributes to the funding of State Legal Defense Services, specifically the Death Penalty Division, which provides, coordinates, and supervises post-trial legal representation to indigent defendants in federal courts on federal habeas corpus proceedings where the defendant is appealing the imposition of a death sentence by a state trial court.5

It is supported by money appropriated from the Federal Representation Fund (Fund 3S80), which consists of payments collected from a federal court when it has appointed the State Public Defender to provide legal representation to an indigent defendant in a federal trial or in a federal habeas corpus proceeding, primarily matters involving the death penalty. Nearly 97% of the appropriated amount in each fiscal year is allocated for personal services (wages, salaries, fringe benefits, and payroll checkoff charges), and the remainder is for supplies and maintenance.

[342] Report: “Indigent Defense Spending and Cost Containment in Texas.” By Dottie Carmichael and others. Prepared by Public Policy Research Institute at Texas A&M University for Texas Indigent Defense Commission, December 2018. <www.tidc.texas.gov>

Page 28:

First, the DA’s [district attorney’s] decision whether to seek the death penalty is the paramount factor driving capital case costs, regardless of whether the case ends in a trial, plea, or dismissal. Cases in which the defendant faced the death penalty cost at least 4 times more than cases in which the defendant faced life without parole. Between FY07 and FY15 YTD [year to date], the average cost of a proceeded capital case was $93,231 compared to $21,022 for a proceeded noncapital case.

[343] Report: “Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation.” By James R. Spencer, Robin J. Cauthron, and Nancy G. Edmunds. Committee on Defender Services, Judicial Conference of the United States, May 1998. <www.uscourts.gov>

Page 7: “The average number of hours billed in non-capital homicide cases from FY 1992 to FY 1997 was 117, as compared to 962 in a sample of federal death penalty cases (including cases never authorized). The average number of hours billed in authorized cases was 1,464.”

Page 18: “Since the First Judiciary Act in 1789, federal law has provided for the appointment of a minimum of two lawyers per defendant in a capital case. Judges have generally appointed two lawyers in federal death penalty cases….”

[344] Report: “A Study of the Compensation of Private Court-Appointed Conflict Counsel in Criminal Cases in Florida.” Florida Legislature, Senate Committee on Appropriations and House Appropriations Committee, January 15, 2013. <www.flcourts.org>

Page 28: “Capital – 1st Degree Murder (lead/Co-Counsel) … Current Flat Fee [=] $15,000 … Capital – 1st Degree Murder – Death penalty waived … Current Flat Fee [=] $2,500”

[345] Resolution 39-11: “Adopting Revised Fee Schedule for Appointed Legal Counsel Reimbursement to Reflect Revisions in Attorneys Fees.” Board of County Commissioners of Clermont County, Ohio, April 13, 2011. <clermontcommonpleas.com>

1. Reimbursement for representation in trial level cases not involving a death penalty specification will be made based on the maximum rate of $50.00 per hour for out-of-court services and $60.00 per hour for in-court services. Reimbursement for representation in trial level cases involving a death penalty specification will be made based on the maximum rate of $95.00 per hour for both in-court and out-of-court services.

2. The prescribed maximum fees permitted in trial level proceedings are:

Aggravated Murder (w/ specs [with death penalty]) * $75,000 Fee Maximum

* Ohio Supreme Court Rule 20 of the Rules of Superintendence for the Courts of Ohio requires the appointment of two (2) attorneys in capital offense cases. This fee is the maximum that will be paid on the combined bills of both attorneys appointed to the case.

Aggravated Murder (w/o specs [without death penalty]) $8,000/ 1 attorney, $10,000/ 2 attorneys

Murder $5,000

[346] Webpage: “Capital Punishment.” National Center for State Courts. Accessed February 10, 2020 at <www.ncsc.org>

Arkansas

In cases where the death penalty is sought … two qualified attorneys shall be assigned to represent the defendant. … Lead trial counsel assignments … have prior experience as lead counsel in no fewer than five jury trials of serious and complex cases where tried to completion, as well as prior experience as lead counsel or cocounsel in at least one case in which the death penalty was sought. …

Georgia

Two attorneys shall be appointed to handle matters in death penalty cases. Lead Counsel … must have been lead counsel on at least on death-penalty murder trial to verdict or three capital (non-death penalty) trials to verdict, one of which must have been a murder case, or been co-counsel on two death penalty cases …

Idaho

In as case in which the death penalty may be imposed: at the time of the initial appearance in the magistrate division, two qualified trial attorneys shall be appointed to represent an indigent defendant, unless the administrative district judge … makes specific findings that two attorneys are not necessary. …

Lead trial counsel assignments shall be made to attorneys who have served either as lead or co-counsel in one case in which the death penalty might have been imposed and which was tried through to completion or served as lead counsel in the sentencing phase of a death penalty case.…

Indiana

Indiana Criminal Procedure Rule 24 (2001) states that the presiding judge in a capital case must appoint two qualified attorneys to represent an indigent defendant. …

… To be eligible to serve as lead counsel, an attorney shall … have prior experience … in no fewer than five felony jury trials which were tried to completion; have prior experience as lead or co-counsel in at least one case in which the death penalty was sought; and have completed within two years prior to appointment at least twelve hours of training in the defense of capital cases….

Louisiana

In any capital case in which a defendant is found to be indigent, the court shall appoint no less than two attorneys to represent the defendant. At least two of the appointed attorneys must be certified as qualified to serve in capital cases. … The court shall only designate as lead and associate counsel those attorneys who have either been previously certified by the Louisiana Public Defender Board and whose certification is still in good standing or those attorneys who … may be certified by the district court judge handling the case. …

Montana

Both appointed attorneys … either individually or in combination, must have had significant experience within the past 5 years in the trial of criminal cases to conclusion, including a capital case or a case involving charges of or equivalent to deliberate homicide….

Tennessee

The court shall appoint at least two attorneys to represent a defendant at trial in a capital case. … Lead counsel must … have at least one of the following: experience as lead counsel in the jury trial of at least one capital case; experience as co-counsel in the trial of at least two capital cases; experience as co-counsel in the trial of a capital case and experience as lead or sole counsel in the jury trial of at least one murder case….

Utah

Utah Criminal Procedure Rule 8 (2001) states that for indigent defendants in capital cases, the court shall appoint two or more attorneys to represent the defendant. …

At least one of the appointed attorneys must have tried to verdict six felony cases within the past four years or twenty-five felony cases total; at least one of the appointed attorneys must have appeared as counsel or cocounsel in a capital or felony homicide case which was tried to a jury and which went to final verdict.…

Virginia

While … Virginia code, effective July 1, 1992, does not require more than one attorney, the appointment of two attorneys is strongly urged for trial, appellate, and habeas proceedings. If a public defender is appointed as either “lead” or “co-counsel,” the other attorney should be appointed from the private bar.

Lead counsel must have at least five years of criminal litigation practice including acting as primary counsel (defense or prosecution) in at least five jury trials involving violent crimes with a maximum penalty of 20 years or more have at least one of the following: experience as “lead counsel” in the defense of at least one capital case within the past five years; or experience as co-counsel in the defense of at least two capital cases within the past seven years….

Washington

At least two lawyers shall be appointed for the trial and also for the direct appeal. All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation, which is appropriate to a capital case. … At least one counsel at trial must have five years’ experience in the practice of criminal law, be familiar with and experienced in the utilization of expert witnesses and evidence, and be learned in the law of capital punishment by virtue of training or experience.

[347] “Report of the Judicial Council Death Penalty Advisory Committee.” Kansas Judicial Council, February 13, 2014. <cdm16884.contentdm.oclc.org>

Page 4:

The Committee’s preliminary analysis shows that, on average, for capital eligible cases that go to trial, cases in which the death penalty is sought involve more than double the number of court days than cases in which the death penalty is not sought. …

Average number of district court days in cases that went to trial:

24 cases in which the death penalty was sought: 39.8 court days

14 cases in which the death penalty was not sought: 16.8 court days

[348] Report: “Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation.” By James R. Spencer, Robin J. Cauthron, and Nancy G. Edmunds. Committee on Defender Services, Judicial Conference of the United States, May 1998. <www.uscourts.gov>

Page 9:

Because the same jury will generally decide the penalty phase as a well as the guilt phase, the court must determine whether jurors should be disqualified because their views about the imposition of the death penalty, for or against, would make them unable to follow the law governing penalty phase deliberations. … Jury selection takes much longer in federal death penalty cases than in non-capital federal criminal cases both because the total number of jurors questioned is larger to allow for those who may be excused due to the death qualification inquiry, pretrial publicity or other factors related to the nature of the case, and because of the more extensive questioning of each individual prospective juror. For example, one judge who ordinarily selects a jury for a criminal case in an afternoon reported that it took three weeks to complete jury selection in a federal death penalty case.

[349] Report: “Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation.” By James R. Spencer, Robin J. Cauthron, and Nancy G. Edmunds. Committee on Defender Services, Judicial Conference of the United States, May 1998. <www.uscourts.gov>

Page 5:

Federal law provides for a two part (bifurcated) trial in a capital case.14 In the first part, the guilt phase, the jury is asked to determine whether the prosecution has proven, beyond a reasonable doubt, that the defendant has committed a crime punishable by death. If a conviction is returned on a capital count, then in the second part, the penalty phase, the jury must first determine whether the prosecution has proven additional facts (aggravating circumstances) in order to satisfy threshold requirements for imposing the death penalty. If so, the jury considers evidence offered by the prosecution to justify the death penalty, including aggravating circumstances in addition to those required for the threshold finding, and evidence the defense offers as a reason not to sentence the defendant to death (mitigating circumstances).

[350] Report: “Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation.” By James R. Spencer, Robin J. Cauthron, and Nancy G. Edmunds. Committee on Defender Services, Judicial Conference of the United States, May 1998. <www.uscourts.gov>

Page 11:

Another factor affecting the cost and complexity of capital cases is the importance of expert testimony in both the guilt and penalty phases. Payments to experts are a substantial component of defense costs in federal death penalty cases. Coopers & Lybrand found that about 19% of payments for representation in federal capital cases for FY 1997 went to services other than counsel: primarily experts and investigators.36 This figure may understate the total spending on these services, because some of these costs are included as reimbursable expenses on attorney vouchers, rather than in separate vouchers submitted by the expert or investigator.

Pages 12–13:

In general, both the prosecution and the defense rely more extensively on experts in death penalty cases than in other federal criminal cases. Although prosecution forensic science experts typically are salaried employees of law enforcement agencies, the defense generally must hire experts who charge an hourly rate for their services. …

Two important categories of expert services frequently used in federal death penalty cases but not in noncapital federal criminal cases are mitigation specialists and jury consultants. Mitigation specialists typically have graduate degrees, such as a Ph.D. or masters degree in social work, and have extensive training and experience in the defense of capital cases. They are generally hired to coordinate an investigation of the defendant's life history, identify issues requiring evaluation by psychologists, psychiatrists or other medical professionals, and assist attorneys in locating experts and providing documentary materials for them to review. …

Without exception, the lawyers interviewed by the Subcommittee stressed the importance of a mitigation specialist to high quality investigation and preparation of the penalty phase.

[351] Report: “Indigent Defense Spending and Cost Containment in Texas.” By Dottie Carmichael and others. Prepared by Public Policy Research Institute at Texas A&M University for Texas Indigent Defense Commission, December 2018. <www.tidc.texas.gov>

Page 23: “The DA’s [district attorney’s] decision whether to seek the death penalty remains the driving factor underlying the use of experts in potentially capital cases. … Proceeded non-capital cases have no expert costs 67% of the time, compared to just 24% in proceeded capital cases.”

[352] Report: “County-Based and Local Public Defender Offices, 2007.” By Donald J. Farole, Jr. and Lynn Langton. U.S. Department of Justice, Bureau of Justice Statistics, September 2010. <www.bjs.gov>

Page 8:

In 2007, 25 of the 27 states with county-based public defender offices had death penalty statutes. (The District of Columbia, Michigan, and West Virginia did not have the death penalty in 2007.) Public defender offices in states with a death penalty statute received more than 1,200 death penalty eligible cases, spending nearly $30 million to provide capital case representation (table 8). … Public defender offices represented 932 indigent defendants in cases in which the prosecutor filed for the death penalty. …

Table 8. Capital case representation among offices in states with death penalty statutes, by office caseload, 2007 … All offices … Death penalty eligible cases … Representation expendituresa [=] $29,751,000 … Number of death penalty casesb [=] 932 … a Rounded to the nearest thousand dollars. b Death penalty eligible cases in which the prosecutor filed for the death penalty, potentially including cases that were received prior to 2007.

[353] Calculated with data from the report: “County-Based and Local Public Defender Offices, 2007.” By Donald J. Farole, Jr. and Lynn Langton. U.S. Department of Justice, Bureau of Justice Statistics, September 2010. <www.bjs.gov>

Page 8:

Public defender offices represented 932 indigent defendants in cases in which the prosecutor filed for the death penalty. …

Table 8. Capital case representation among offices in states with death penalty statutes, by office caseload, 2007 … All offices … Death penalty eligible cases … Representation expendituresa [=] $29,751,000 … Number of death penalty casesb [=] 932 … a Rounded to the nearest thousand dollars. b Death penalty eligible cases in which the prosecutor filed for the death penalty, potentially including cases that were received prior to 2007.

CALCULATION: $29,751,000 total expenditures / 932 defendants = $31,921.67

[354] Webpage: “CPI Inflation Calculator.” Bureau of Labor Statistics. Accessed December 16, 2019 at <data.bls.gov>

“$31,921.67 in December 2007 has the same buying power as $39,090.96 in November 2019”

[355] Report: “FY15 Capital Trial Case Study: Potentially Capital Case Costs at the Trial Level.” North Carolina Office of Indigent Defense Services, November 2015. <www.ncids.org>

Pages 1–2:

Overall, annual attorney expenditures in potentially capital cases have remained stable between FY [fiscal year] 07 and FY15 ($11.0 million and $10.9 million respectively). However, the average case cost has risen at a relatively consistent

rate for both proceeded capital and proceeded non-capital cases.

Average Cost Proceeded Capital … FY02–FY06 [=] $58,592 … FY 07–FY15 YTD [year to date] [=] $93,231 …

Although average case cost has increased, overall expenditures have remained stable as a result of a significant reduction in the percentage of potentially capital cases that prosecutors have elected to proceed capitally, from a high of 28.1% in FY08 to a low of 11.0% in FY13.

Two primary factors have contributed to the increase in case costs: 1) a temporary 11.8% increase in the PAC [private appointed counsel] hourly rate for capital trial work, which was reduced in FY11, and 2) a 19% increase in the average number of attorney hours worked per case.

Hourly Rate Increase: The average cost of a case rose due to the increase in the attorney hourly rate beginning in FY07, peaked in FY12, and has been steadily declining since due to the subsequent rate reductions that occurred in FY11.

Increase in Average Attorney Hours per Case: The study identified a number of factors driving the increase in attorney hours per case, including changes to forensic technologies, the need to ensure the accuracy of testing procedures and reporting by the State Crime Lab, an increase in the use of digital evidence in prosecutions that has increased the volume and complexity of discovery attorneys need to review, and an increase in the length of time cases are taking to dispose, partly due to the increased demand for forensic testing that has caused backlogs at the State Crime Lab.

While a number of factors are driving the increase in the average number of attorney hours per case, two factors appear to be particularly significant:

Enhanced Forensic Technologies and Errors in Forensic Analysis: Enhanced forensic technologies, such as innovations in DNA testing, have significantly increased the prosecutorial demand for lab testing, which in turn has required defense counsel to perform forensic examinations of case evidence and to enlist the expertise of forensic experts. Cases that involve the application of one or more forensic science are often more complicated and require additional attorney time. Moreover, backlogs at the State Crime Lab and the exposure of serious errors in forensic testing procedures and reporting have required defense counsel to scrutinize forensic evidence more carefully and to challenge problematic procedures.

• In FY02, fewer than 1 in 20 potentially capital cases required a forensic expert. By FY15, just under 1 in 5 required one or more forensic experts.

• Today, forensic evidence that warrants the assistance of one or more forensic experts adds between $10,425 to $18,745 to the cost of a potentially capital case in additional attorney time.

• Cases that warrant a forensic expert’s assistance have, on average, at least three times the number of expert types per case regardless of the capital status of the case.

Increase in Digital Evidence: The shift to digital media and the corresponding increased availability of video, audio, and DVD recordings, including multiple iterations of many of the recordings, has increased the volume and complexity of evidence in cases. While digital evidence has many benefits, it has also led to increased attorney time to review the material to fully investigate the facts of a case.

Page 4: “In January 2011, IDS [Office of Indigent Services] adopted a two-tiered payment structure in potentially capital cases, which lowered the attorney hourly rate for potentially capital cases from $95 to $85 when the case is declared non-capital or for cases in which a year has passed without the case being declared capital by the prosecution.”

[356] Report: “Indigent Defense Spending and Cost Containment in Texas.” By Dottie Carmichael and others. Prepared by Public Policy Research Institute at Texas A&M University for Texas Indigent Defense Commission, December 2018. <www.tidc.texas.gov>

Pages 55–56:

Capital death cases present an unpredictable and costly challenge for rural Texas jurisdictions. When an indigent defendant is accused of a capital murder felony, small and mid-sized counties, which may have indigent defense operating budgets in the tens of thousands of dollars, are responsible for legal defense costs that can stretch upwards of $1 million.99 Moreover, qualified capital defense professionals may be unavailable for hundreds of miles. To help address these dual problems, in 2008 TIDC [Texas Indigent Defense Commission] established the Regional Public Defender Office for Capital Cases (RPDO).

Today every Texas county with fewer than 300,000 residents can pay an annual formula-based premium in return for “murder insurance” (see Figure X for participating counties). In the case that an indigent defendant is accused of a capital murder felony, subscribing jurisdictions are spared the financial shock of an unexpected high-cost capital defense representation, and criminal justice stakeholders can rest assured people facing capital death charges will receive a meaningful defense that conforms to requirements of the US Constitution, Texas State Bar guidelines, and other professional standards of defense. …

TIDC worked with Lubbock County to create the statewide, opt-in Regional Public Defender Office for Capital Cases (RPDO).

• Provides comprehensive, standards-based capital defense representation

• Like an insurance policy against budget spikes from costly capital litigation …

Though funding and geography have historically limited the ability of rural jurisdictions to provide high-quality defense services in capital death cases, those choosing to contract with the RPDO are automatically in full conformance with the State Bar of Texas’ Capital Defense guidelines.102 For a predictable annual fee, these counties can provide death penalty defendants with a full team of highly qualified caseload-controlled attorneys and defense team members specializing in death-penalty law.103

With pleas less expensive than trials, the study found estimated costs105 for an RPDO case ($55,198) to be about 25% less than a similar case defended by private assigned counsel ($73,571).106 Since plea agreements typically include a waiver of the right to appeal, future costs to both counties and the state are dramatically constrained as well. Since inception in 2008, the RPDO has closed 138 cases with only 8 cases—just 6%—disposed in death-eligible trials.107

Above the membership fee, counties pay only the costs of expert witnesses. However, because the facts of the case and defense theory are determined so promptly, the study found RPDO attorneys spend about $1,500 less on experts in a non-capital trials108 and about $30,000 less in capital re-trials.109

[357] Entry: “deterrence.” Merriam-Webster Dictionary. Accessed February 25, 2020 at <www.merriam-webster.com>

Definition a: “the act or process of deterring: such as the inhibition of criminal behavior by fear especially of punishment”

[358] Article: “Five Things About Deterrence.” U.S. Department of Justice, National Institute of Justice, May 2016. <www.ncjrs.gov>

“Does punishment prevent crime? If so, how, and to what extent? Deterrence—the crime prevention effects of the threat of punishment—is a theory of choice in which individuals balance the benefits and costs of crime.”

[359] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 29: “The theory of deterrence is predicated on the idea that if state-imposed sanction costs are sufficiently severe, certain, and swift, criminal activity will be discouraged.”

[360] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens, White, Rehnquist, Burger, Blackmun. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Part] III

We now hold that the punishment of death does not invariably violate the Constitution. …

The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.28

… Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.30

Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate.31 The results simply have been inconclusive. …

Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties,32 there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act.33 And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.34

The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. … Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent.

30 Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke to this effect before the British Royal Commission on Capital Punishment:

“Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. … The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.” Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950).

A contemporary writer has noted more recently that opposition to capital punishment “has much more appeal when the discussion is merely academic than when the community is confronted with a crime, or a series of crimes, so gross, so heinous, so cold-blooded that anything short of death seems an inadequate response.” Raspberry, “Death Sentence,” Washington Post, Mar. 12, 1976, p. A27, cols. 5–6. …

34 We have been shown no statistics breaking down the total number of murders into the categories described above. The overall trend in the number of murders committed in the nation, however, has been upward for some time. In 1964, reported murders totaled an estimated 9,250. During the ensuing decade, the number reported increased 123%, until it totaled approximately 20,600 in 1974. In 1972, the year Furman was announced, the total estimated was 18,520. Despite a fractional decrease in 1975 as compared with 1974, the number of murders increased in the three years immediately following Furman to approximately 20,400, an increase of almost 10%. See FBI, “Uniform Crime Reports,” for 1964, 1972, 1974, and 1975, Preliminary Annual Release.

Dissent (Brennan): “Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment…. I would set aside the death sentences imposed … as violative of the Eighth and Fourteenth Amendments.”

Dissent (Marshall):

First, the death penalty is excessive. … And second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable. …

… The evidence … remains convincing, in my view, that “capital punishment is not necessary as a deterrent to crime in our society.” …

The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments.

[361] Paper: “The Deterrent Effect of Capital Punishment: Evidence from a ‘Judicial Experiment.’ ” By Hashem Dezhbakhsh and Joanna M. Shepherd. Economic Inquiry, July 2006. Pages 512–535. <www.sfu.ca>

Page 512: “Psychologists and criminologists studied the death penalty initially and reported no deterrent effect…. Economists joined the debate later….”

Page 516: “In the United States, the deterrence issue has been a topic of acrimonious debate for decades. The initial participants were psychologists and criminologists. Their research was either theoretical or based on comparisons of crime patterns for matched regions with different rates of execution. The studies generally found no deterrent effect….”

[362] Paper: “The Deterrent Effect of Capital Punishment: A Question of Life and Death.” By Isaac Ehrlich. American Economic Review, 1975. Pages 397–417. <www.jstor.org>

Page 415:

Previous investigations, notably those by Sellin, have developed evidence used to unequivocally deny the existence of any deterrent or preventive effects of capital punishment. This evidence stems by and large from what amounts to informal tests of the sign of the simple correlation between the legal status of the death penalty and the murder rate across states and over time in a few states. Studies performing these tests have not considered systematically the actual enforcement of the death penalty, which may be a far more important factor affecting offenders’ behavior than the legal status of the penalty.

[363] Book: The Death Penalty In America: Current Controversies. Edited by Hugo Adam Bedau. Oxford University Press, 1998.

Chapter 9: “Murder, Capital Punishment, and Deterrence: A Review of the Literature.” By William C. Bailey and Ruth D. Peterson. Pages 135–161.

Pages 137–138:

From early in this century through the 1960s the comparative methodology provided the most common approach to testing for the possible deterrent effect of the death penalty. Investigators compared homicide rates for jurisdictions with (retentionist states) and without (abolitionist states) capital punishment … or examined rates for states before and after the abolition and/or reinstatement of the death penalty…. In both types of investigations, the punishment measure of concern was the statutory provision or absence of the death penalty.

[C]hanges in the murder rates of states experiencing a change in the provision for the death penalty paralleled almost exactly changes in homicides in neighboring states where no statutory change had occurred. Also contrary to the deterrence thesis, simple comparisons of retentionist and abolitionist jurisdictions showed that the provision for the death penalty had no discernible effect on murder.

Page 153: “[T]he approaches taken in deterrence research follow a progression from using a comparative methodology whereby homicide rates are compared for abolitionist versus retentionist jurisdictions, or before and after a change in capital punishment policy, or before and after highly publicized executions, to the use of more and more sophisticated multivariate techniques.”

[364] Paper: “The Death Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny.” By Robert Weisberg. Annual Review of Law and Social Science, 2005. Pages 151–171. <www.iapsych.com>

Page 153:

Generally, what research existed before 1972 did little to establish any deterrent effect. Most of the early work was done by criminologists or psychologists whose empirical work relied mainly either on comparisons of homicide rates in states with and without capital punishment, or, within a particular jurisdiction, on comparisons of homicide rates before and after executions. But because this research did not employ the statistical technique of multiple regression, it could not meaningfully distinguish the effect of capital punishment on murder from the effects of other factors.

[365] Paper: “The Death Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny.” By Robert Weisberg. Annual Review of Law and Social Science, 2005. Pages 151–171. <www.iapsych.com>

Page 154:

However, Sellin could not explain a few contiguous pairs with dramatic differences—especially Ohio/Michigan and Colorado/Kansas—perhaps because he did not address the possibility that some paired states differ significantly along social, economic, or political dimensions that affect murder rates. Sellin also looked at murder rates in a number of states over time as a way to finesse the initial condition problem. That is, he examined murder rates in particular states when they changed from having the death penalty to abolishing it or from not having it to reinstituting it. And, once again, he found no evidence of deterrence. Sellin acknowledged the problem of recursive effect—the possibility that states abolish capital punishment when and because the murder rate is falling, thus raising a problem of reverse causality—and he performed some tests that yielded results inconsistent with this hypothesis.

[366] Textbook: Statistical Science in the Courtroom. Edited by Joseph L. Gastwirth. Springer, 2000.

Chapter 19: “Death and Deterrence: Notes on a Still Inchoate Judicial Inquiry.” By Robert J. Cottrol. Pages 379–392.

Page 383: “Although the Sellin report asserts that comparisons were made among states that were socially, culturally, and economically similar, the data did not indicate income, age, concentration of population, ethnicity, or other variables that are usually considered as potentially important in influencing the homicide rate.”

Page 384:

If Maine, which had no death penalty during this period, and Massachusetts (which did have capital punishment at the same time) had roughly similar murder rates, can that be used as evidence of the lack of the deterrent power of the death penalty? At a minimum we would want to note that Massachusetts contains a large, diverse, multiethnic city, Boston, while Maine lacked a comparable city. Thus a major variable or set of variables likely to increase the homicide rate was not subject to any statistical controls in the Sellin study. Indeed, it was not even mentioned as a possible confounding factor.

[367] Testimony: “Statistical Evidence on Capital Punishment and the Deterrence of Homicide.” By Paul Rubin. U.S. Senate Judiciary Committee on the Constitution, Civil Rights, and Property Rights, February 1, 2006. <www.judiciary.senate.gov>

“Cross-sectional studies also suffer serious problems. Most importantly, they preclude any consideration of what happens to crime, law enforcement, and judicial processes over time. Cross-section data also prevent researchers from controlling for jurisdiction-specific characteristics that could be related to murder, such as greater urban density in some states.”

[368] Paper: “Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment.” By Joanna M. Shepherd. Journal of Legal Studies, June 2004. Pages 283–321. <www.jstor.org>

Page 287:

Throughout the time period shown, murder rates in capital punishment states are higher than in states without the death penalty. …

Many critics of capital punishment interpret Figure 2 as evidence that executions have no deterrent effect. … However, several differences between southern, norther, and western states might explain the contrast in murder rates. For example, the time series of murder rates in Figure 2 do not control for differences in the labor market prospects or demographic compositions of the state with and without capital punishment laws.

[369] Calculated with data from:

a) Dataset: “Prisoners Executed Under Civil Authority in the United States, by Year, Region, and Jurisdiction, 1977–2017.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <bjs.gov>

b) Dataset: “Table 1. Intercensal Estimates of the Resident Population for the United States, Regions, States, and Puerto Rico: April 1, 2000 to July 1, 2010.” U.S. Census Bureau, Population Division, September 2011. <www2.census.gov>

c) Dataset: “Table 1. Annual Estimates of the Resident Population for the United States, Regions, States, and Puerto Rico: April 1, 2010 to July 1, 2019.” U.S. Census Bureau, Population Division, December 2019. <www2.census.gov>

d) Dataset: “Table 5: Crime in the United States by State, 2008.” Federal Bureau of Investigation, September 2009. <ucr.fbi.gov>

e) Dataset: “Table 5: Crime in the United States by State, 2009.” Federal Bureau of Investigation, September 2010. <ucr.fbi.gov>

f) Dataset: “Table 5: Crime in the United States by State, 2010.” Federal Bureau of Investigation, September 2011. <ucr.fbi.gov>

g) Dataset: “Table 5: Crime in the United States by State, 2011.” Federal Bureau of Investigation, September 2012. <ucr.fbi.gov>

h) Dataset: “Table 5: Crime in the United States by State, 2012.” Federal Bureau of Investigation, October 2013. <ucr.fbi.gov>

i) Dataset: “Table 5: Crime in the United States by State, 2013.” Federal Bureau of Investigation, November 2014. <ucr.fbi.gov>

j) Dataset: “Table 5: Crime in the United States by State, 2014.” Federal Bureau of Investigation, September 2015. <ucr.fbi.gov>

k) Dataset: “Table 5: Crime in the United States by State, 2015.” Federal Bureau of Investigation, September 2016. <ucr.fbi.gov>

l) Dataset: “Table 3: Crime in the United States by State, 2016.” Federal Bureau of Investigation, September 2017. <ucr.fbi.gov>

m) Dataset: “Table 5: Crime in the United States by State, 2017.” Federal Bureau of Investigation, September 2018. <ucr.fbi.gov>

NOTE: An Excel file containing the data and calculations is available upon request.

[370] Testimony: “Statistical Evidence on Capital Punishment and the Deterrence of Homicide.” By Dr. Paul Rubin, U.S. Senate, Judiciary Committee on the Constitution, Civil Rights, and Property Rights, February 1, 2006. <www.judiciary.senate.gov>

“Recent research on the relationship between capital punishment and homicide has created a consensus among most economists who have studied the issue that capital punishment deters murder. Early studies from the 1970s and 1980s reached conflicting results.”

[371] Paper: “Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment.” By Joanna M. Shepherd. Journal of Legal Studies, June 2004. Pages 283–321. <www.jstor.org>

Page 285: “The debate in economics literature on the deterrent effect of capital punishment began with Isaac Ehrlich (1975, 1977). Since then, many researchers have used a variant of Ehrlich’s model and data (1933–69 national time series or 1940 and 1950 state-level, cross-sectional data) to support or criticize his findings.”

[372] Article: “Does Death Penalty Save Lives? A New Debate.” By Adam Liptak. New York Times, November 18, 2007. <www.nytimes.com>

“To economists, it is obvious that if the cost of an activity rises, the amount of the activity will drop. … To many economists, then, it follows inexorably that there will be fewer murders as the likelihood of execution rises.”

[373] Paper: “The Deterrent Effect of Capital Punishment: A Question of Life and Death.” By Isaac Ehrlich. American Economic Review, 1975. Pages 397–417. <www.jstor.org>

Page 406:

In the empirical investigation an attempt is made to test the main behavioral implications of the theoretical model. The econometric model of crime and law enforcement activity devised by the author (1973a) is applied to aggregate crime statistics relating to the United States for the period 1933–69. The model treats estimates of the murder rate and the conditional probabilities of apprehension, conviction, and execution as jointly determined by a system of simultaneous equations.

Pages 415–416:

The analysis rests on the presumption that offenders respond to incentives. Not all those who commit murder may respond to incentives. But for the theory to be useful in explaining aggregate behavior, it is sufficient that at least some so behave. …

The basic strategy I have attempted to follow in formulating an adequate analytic procedure has been to develop a simple economic model of murder and defense against murder, to derive on the basis of this model a set of specific behavioral implications that could be tested against available data, and, accordingly, to test those implications statistically. The theoretical analysis provided sharp predictions concerning the signs and the relative magnitudes of the elasticities of the murder rate with respect to the probability of apprehension and the conditional probabilities of conviction and execution for murder.

[374] Article: “Economic and Historical Implications for Capital Punishment Deterrence.” By Rudolph J. Gerber. Notre Dame Journal of Law, Ethics & Public Policy, 2004. Pages 437–450. <scholarship.law.nd.edu>

Page 438: “Punishment and execution appear in this economic calculus as costs. If the execution cost appears sufficiently likely, economic theory posits that it dissuades the contemplating murderer from homicide.”

Page 440:

Homicidal benefits might include such things as material acquisition and/or psychological satisfaction. If the rationally calculating potential murderer sees the risk of these costs exceeding the likelihood of these benefits, her choice would be to abandon the homicidal course of conduct. A realistic assessment of the likelihood of risk becomes an important part of this economic calculus.

[375] Paper: “Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment.” By Joanna M. Shepherd. Journal of Legal Studies, June 2004. Pages 283–321. <www.jstor.org>

Pages 301–302:

The specification now includes three deterrence variables: a potential criminal’s perception of his chances of being sentenced to death row (the original probability of a death row sentence), a potential criminal’s perception of his chances of being executed (the original probability of execution), and a potential criminal’s perception of how long he will wait on death row if he is executed (the new conditional probability of the wait on death row if he is executed).

[376] Paper: “The Death Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny.” By Robert Weisberg. Annual Review of Law and Social Science, 2005. Pages 151–171. <www.iapsych.com>

Page 154:

The pivotal moment in the history of death penalty deterrence research came in the mid-1970s with the work of University of Chicago economist Isaac Ehrlich. … Ehrlich was the first to study capital punishment’s deterrent effect using multivariate regression analysis (Ehrlich 1975). This approach enabled Ehrlich to distinguish the effects on murder of such different factors as the racial and age composition of the population, average income, unemployment, and the execution rate.

[377] Paper: “The Deterrent Effect of Capital Punishment: Evidence from a ‘Judicial Experiment.’ ” By Hashem Dezhbakhsh and Joanna M. Shepherd. Economic Inquiry, July 2006. Pages 512–535. <www.sfu.ca>

Page 524:

The economic variables include real per capita personal income and the unemployment rate. The demographic variables are the percentages of population age 15–19, age 20–24, and belonging to a minority group. Age and race variables are included because of the differential treatment of youth by the justice system, variation in the opportunity cost of time through the life cycle, and racially based differences in opportunities. We also include full-time state police employees as a nonpunishment deterrent factor; enhanced police presence may increase detection and apprehension, deterring some criminal activities.

Page 525:

The effects of the other variables on murder are also consistent across models. Murder is negatively related to both per capita real income and the unemployment rate, as indicated by the significant negative coefficients for these variables. The effect of income is consistent with economic theory; as income increases, the opportunity cost of apprehension increases, and murders decrease. Several studies have found a similar relationship between income and crime (see, e.g., Gould et al. 2002; Shepherd 2004). …

The demographic variables all have the expected relationships with murder rates. The minority variable has significantly positive coefficients in all models, suggesting a positive relationship with murder. Many minority groups have fewer legitimate earning opportunities, and thus a lower opportunity cost of criminal activities relative to their white counterparts. The variable for the percentage of the population age 20–24 has a significantly positive coefficient. The percentage of the population that is 15–19, on the other hand, has a negative and significant relationship with murder. The contrasting signs on the age variables are consistent with existing research that finds that most violent crimes are committed by offenders in their early twenties as in Tonry (1996).

[378] Testimony: “Statistical Evidence on Capital Punishment and the Deterrence of Homicide.” By Dr. Paul Rubin, U.S. Senate, Judiciary Committee on the Constitution, Civil Rights, and Property Rights, February 1, 2006. <www.judiciary.senate.gov>

[M]ost of the early studies—both the first wave and the second generation—suffered from fundamental flaws: they suffered important data limitations because they used either national time-series or cross-section data. …

Most recent studies have overcome the fundamental problems associated with national time-series and cross-section data by using panel-data techniques. Panel data are data from several units (the fifty states or all U.S. counties) over several different time periods; that is, panel data follow a cross-section over time. For example, a panel dataset might include data on each of the fifty states, or even on each U.S. county, for a series of years. These improved data allow researchers to capture the demographic, economic, and jurisdictional differences among U.S. states or counties, while avoiding aggregation bias. Furthermore, panel data produce many more observations than cross-section or time-series data, enabling researchers to estimate any deterrent effect more precisely. In addition to enjoying the benefits of panel data, recent studies have access to more recent data that make conclusions more relevant for the current environment.

Using improved data and more sophisticated regression techniques, twelve refereed papers have been published or are forthcoming in the economics literature. Their conclusion is unanimous: all of the modern refereed papers find a significant deterrent effect.

[379] Paper: “Does Capital Punishment Have a Deterrent Effect? New Evidence From Postmoratorium Panel Data.” By Hashem Dezhbakhsh, Paul H. Rubin, and Joanna M. Shepherd. American Law and Economics Review, 2003. Pages 344–376. <www.researchgate.net>

Pages 372–373:

In this study we use a panel data set covering 3,054 counties over the period 1977–96 to examine the deterrent effect of capital punishment. The relatively low level of aggregation allows us to control for county-specific effects and also avoid problems of aggregate time-series studies. …

… An increase in any of the three probabilities of arrest, sentencing, or execution tends to reduce the crime rate. Results are robust to specification of such probabilities. In particular, our most conservative estimate is that the execution of each offender seems to save, on average, the lives of eighteen potential victims. (This estimate has a margin of error of plus and minus ten). …

Our main finding, that capital punishment has a deterrent effect, is robust to choice of functional form (double-log, semilog, or linear), state-level versus county-level analysis, sampling period, endogenous versus exogenous probabilities, and level versus ratio specification of the main variables. Overall, we estimate fifty-five models; the estimated coefficient of the execution probability is negative and significant in forty-nine of these models and negative but insignificant in four models.

[380] Paper: “Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment.” By H. Naci Mocan and R. Kaj Gittings. Journal of Law and Economics, October 2003. Pages 453–478. <www.jstor.org>

Page 465: “In all specifications, the coefficient of the execution rate is negative and statistically significant, indicating that an increase in the risk of execution lowers the homicide rate.”

Page 474:

We find a significant relationship among the execution, removal, and commutation rates and the rate of homicide. Each additional execution decreases homicides by about five, and each additional commutation increases homicides by the same amount, while one additional removal from death row generates one additional homicide. These results are robust to model specifications and measurement of the variables. Executions, commutations, and removals have no impact on robberies, burglaries, assaults, or motor vehicle thefts.

[381] Paper: “State Executions, Deterrence, and the Incidence of Murder.” By Paul R. Zimmerman. Journal of Applied Economics, May 2004. Pages 163–193. <ucema.edu.ar>

Page 185:

The 95% confidence interval around the mean for the non-adjusted estimate is approximately [4, 25] and [7, 31] for the adjusted estimate. Taking the unadjusted probabilities model as the preferred case,21 these results indicate that each execution deters at least 4 murders per year and at most 25 murders. Interestingly, this range includes estimates obtained from both the original Ehrlich (1975) study (who found 18 murders being deterred per execution) and more recent studies employing panel data estimation techniques.22

21 Recall that the adjusted probabilities model does not satisfy the test of overidentifying restrictions. Thus, emphasis is placed on the results obtained from the unadjusted probabilities model.

22 Using county-level panel data, Dezhbakhsh et al. (2003) estimate that an execution deters approximately 18 murders on average. Mocan and Gittings (2003), using state-level data, estimate five murders being deterred per execution.

[382] Paper: “Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment.” By Joanna M. Shepherd. Journal of Legal Studies, June 2004. Pages 283–321. <www.jstor.org>

Page 284: “This paper is the first to empirically examine the relationship between deterrence and the length of time on death row before execution. I find that shorter waits on death row increase deterrence. Specifically, one extra murder is deterred for every 2.75-year reduction in the death row wait before execution.”

Pages 314–315:

In 35 of the 56 regressions, the wait on death row has the expected effect: the longer the wait on death row before execution, the higher the murder rate. … The six significant coefficients in the specifications indicate that, on average, one fewer murder is committed for every 2.75-year reduction in the expected death row wait. …

These results suggest that the national trend of longer death row waits in lessening the deterrent effect of capital punishment.

[383] Paper: “The Deterrent Effect of Capital Punishment: Evidence from a ‘Judicial Experiment.’ ” By Hashem Dezhbakhsh and Joanna M. Shepherd. Economic Inquiry, July 2006. Pages 512–535. <www.sfu.ca>

Page 513: “We supplement the before-and-after comparisons with time-series and panel data regression analyses. Unlike most existing studies, we use both pre- and postmoratorium data. The regressions disentangle the effect of having death penalty laws on murder from the effect of actual executions on murder.”

Page 519:

The execution variable and its lag have negative and highly significant coefficients in all equations, indicating that more executions are associated with fewer murders. The coefficient of the binary variable that identifies the moratorium years is positive and significant, indicating that even after we control for other relevant variables, the moratorium still leads to an increase in murders.10

10 It would be tempting to use these estimates to ascertain how many lives are spared as the result of each execution. The arithmetic is simple, but the interpretation is difficult. Given the relatively large sampling span over which both executions and murder rates vary greatly, a local interpolation will not be very informative. If the model was estimated over a much shorter span, such an exercise could then be of some use.

Pages 524–525:

Moreover, the significant execution and moratorium coefficients in the equations that include both variables (models 5, 6, and 7) suggest that the deterrent effect of executions is quite distinct from the deterrent effect of a death penalty statute. The frequency of executions increases the magnitude of the deterrent effect in states [that] have death penalty laws. Similarly, the deterrent effect is weaker for states that have the death penalty but do not exercise it.

[384] Paper: “Deterrence Versus Brutalization: Capital Punishment’s Differing Impacts Among States.” By Joanna M. Shepherd. Michigan Law Review, 2005. Pages 203–256. <repository.law.umich.edu>

Pages 205–206:

Using the same large data set of U.S. counties from 1977 to 1996 that many other crime studies use (and that I used in one of my earlier studies), I change the focus from national averages for deterrence.5 Instead, I examine whether capital punishment’s impacts on murder rates differ among states. …

After investigating various possible explanations, I identify an important factor (although other factors are also undoubtedly important): on average, the states where capital punishment deters murder execute many more people than do the states where capital punishment incites crime or has no effect. Using various statistical techniques, I show that a threshold number of executions for deterrence exists, which is approximately nine executions during the sample period. In states that conducted more executions than the threshold, executions, on average, deterred murder. In states that conducted fewer executions than the threshold, the average execution increased the murder rate or had no effect.

[385] Paper: “Deterrence Versus Brutalization: Capital Punishment’s Differing Impacts Among States.” By Joanna M. Shepherd. Michigan Law Review, 2005. Pages 203–256. <repository.law.umich.edu>

Pages 205–206:

Using the same large data set of U.S. counties from 1977 to 1996 that many other crime studies use (and that I used in one of my earlier studies), I change the focus from national averages for deterrence.5 Instead, I examine whether capital punishment’s impacts on murder rates differ among states. …

After investigating various possible explanations, I identify an important factor (although other factors are also undoubtedly important): on average, the states where capital punishment deters murder execute many more people than do the states where capital punishment incites crime or has no effect. Using various statistical techniques, I show that a threshold number of executions for deterrence exists, which is approximately nine executions during the sample period. In states that conducted more executions than the threshold, executions, on average, deterred murder. In states that conducted fewer executions than the threshold, the average execution increased the murder rate or had no effect.

[386] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page iii:

The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. …

The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government.

Page 1:

In 1976, the Supreme Court decision in Gregg v. Georgia … ended the 4-year moratorium on executions that had resulted from its 1972 decision in Furman v. Georgia….

During the 35 years since Gregg, and particularly in the past decade, many additional studies have renewed the attempt to estimate the effect of capital punishment on homicide rates. Most researchers have used post-Gregg data from the United States to examine the statistical association between homicide rates and the legal status, the actual implementation of the death penalty, or both. The studies have reached widely varying, even contradictory, conclusions. … Commentary on the scientific validity of the findings has sometimes been acrimonious. The Committee on Deterrence and the Death Penalty was convened against this backdrop of conflicting claims about the effect of capital punishment on homicide rates.

[387] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 2:

Conclusion and Recommendation: The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide. Consequently, claims that research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment.

The committee was disappointed to reach the conclusion that research conducted in the 30 years since the earlier NRC [National Research Council] report has not sufficiently advanced knowledge to allow a conclusion, however qualified, about the effect of the death penalty on homicide rates. Yet this is our conclusion. Some studies play the useful role, either intentionally or not, of demonstrating the fragility of claims to have or not to have found deterrent effects. However, even these studies suffer from two intrinsic shortcomings that severely limit what can be learned from them about the effect of the death penalty—as it has actually been administered in the United States in the past 35 years—on the death penalty.

[388] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 31:

[K]ey challenges to estimating the causal effect of capital punishment on murder rates … stem from the necessity of using nonexperimental data to estimate this effect. A useful way of conceptualizing these challenges is to note the important differences between data generated from experiments and data generated under nonexperimental conditions. In an experiment, the effectiveness of a treatment is tested by administering the treatment to a randomly selected group of subjects and comparing their outcomes to another group of randomly selected subjects who receive the control treatment. Randomization of treatment status is intended to ensure the equivalence of the treatment and control groups except for treatment status. The purpose of an experiment is to measure the effect of a specified treatment on one or more outcomes relative to an alternative treatment, generally referred to as the control treatment. Experiments are a widely accepted way of scientifically testing for causal effects: there is general agreement that the findings are reflective of causal effects.

For obvious reasons, it is not possible to conduct a randomized capital punishment experiment. Suppose, however, that such an experiment were possible. In such an experiment, three key features would be relevant: (1) specification of what constitutes treatment, (2) randomization of the capital punishment treatment, and (3) experimental control of the treatment.

Page 37: “If the data being analyzed were the product of a randomized capital punishment experiment, the question of how other factors influence murder rates would not have to be addressed. Randomization of the capital punishment sanction regime would insure that the use of capital punishment was uncorrelated with other factors influencing murder rates.”

Page 42:

The possibility of reciprocal effects greatly complicates estimation of the deterrent effect of capital punishment. For example, suppose that states with high rates of executions (as measured by the percentage of homicides that result in executions) tend also to have lower homicide rates. One interpretation of this negative association is deterrence: that is, more certain application of the death penalty reduces murders. However, if there are reciprocal effects of crime rates on sanction levels, this negative association might just as well reflect the resource saturation effect noted above: that is, higher murder rates and crime rates tend to overwhelm the capacity of the justice system to respond to crime. Higher crimes rates may, for example, reduce the effectiveness of police in apprehending criminals or may make overburdened prosecutors more receptive to accepting plea bargains for noncapital sanctions in order to avoid trials. Both such mechanisms could contribute to reductions in the frequency of executions.

[389] Book: Introductory Econometrics: Using Monte Carlo Simulation with Microsoft Excel. By Humberto Barreto and Frank M. Howland. Cambridge University Press, 2006.

Page 491:

Omitted variable bias is a crucial topic because almost every study in econometrics is an observational study as opposed to a controlled experiment. Very often, economists would like to be able to interpret the comparisons they make as if they were the outcomes of controlled experiments. In a properly conducted controlled experiment, the only systematic difference between groups results from the treatment under investigation; all other variation stems from chance. In an observational study, because the participants self-select into groups, it is always possible that varying average outcomes between groups result from systematic difference between groups other than the treatment. We can attempt to control for these systematic differences by explicitly incorporating variables in a regression. Unfortunately, if not all of those differences have been controlled for in the analysis, we are vulnerable to the devastating effects of omitted variable bias.

[390] Book: Multiple Regression: A Primer. By Paul D. Allison. Pine Forge Press, 1998.

Chapter 1: “What Is Multiple Regression?” Pages 1–23. <us.sagepub.com>

Page 1: “Multiple regression is a statistical method for studying the relationship between a single dependent variable and one or more independent variables. It is unquestionably the most widely used statistical technique in the social sciences. It is also widely used in the biological and physical sciences.”

Page 20:

Multiple regression shares an additional problem with all methods of statistical control, a problem that is the major focus of those who claim that multiple regression will never be a good substitute for the randomized experiment. To statistically control for a variable, you have to be able to measure that variable so that you can explicitly build it into the data analysis, either by putting it in the regression equation or by using it to form homogeneous subgroups. Unfortunately, there’s no way that we can measure all the variables that might conceivably affect the dependent variable. No matter how many variables we include in a regression equation, someone can always come along and say, “Yes, but you neglected to control for variable X and I feel certain that your results would have been different if you had done so.”

That’s not the case with randomization in an experimental setting. Randomization controls for all characteristics of the experimental subjects, regardless of whether those characteristics can be measured. Thus, with randomization there’s no need to worry about whether those in the treatment group are smarter, more popular, more achievement oriented, or more alienated than those in the control group (assuming, of course, that there are enough subjects in the experiment to allow randomization to do its job effectively).

[391] Book: Regression With Social Data: Modeling Continuous and Limited Response Variables. By Alfred DeMaris. John Wiley & Sons, 2004.

Page 9:

Regression modeling of nonexperimental data for the purpose of making causal inferences is ubiquitous in the social sciences. Sample regression coefficients are typically thought of as estimates of the causal impacts of explanatory variables on the outcome. Even though researchers may not acknowledge this explicitly, their use of such language as impact or effect to describe a coefficient value often suggest a causal interpretation. This practice is fraught with controversy….

Page 12:

Friedman … is especially critical of drawing causal inferences from observational data, since all that can be “discovered,” regardless of the statistical candlepower used, is association. Causation has to be assumed into the structure from the beginning. Or, as Friedman … says: “If you want to pull a causal rabbit out of the hat, you have to put the rabbit into the hat.” In my view, this point is well taken; but it does not preclude using regression for causal inference. What it means, instead, is that prior knowledge of the causal status of one’s regressors is a prerequisite for endowing regression coefficients with a causal interpretation, as acknowledged by Pearl 1998.

Page 13: “In sum, causal modeling via regression, using nonexperimental data, can be a useful enterprise provided we bear in mind that several strong assumptions are required to sustain it. First, regardless of the sophistication of our methods, statistical techniques only allow us to examine associations among variables.”

[392] Paper: “Econometric Methods for Causal Evaluation of Education Policies and Practices: A Non-Technical Guide.” By Martin Schlotter, Guido Schwerdt, and Ludger Woessmann. Education Economics, January 2011. <www.tandfonline.com>

Page 110:

Using standard statistical methods, it is reasonably straightforward to establish whether there is an association between two things—for example, between the introduction of a certain education reform (the treatment) and the learning outcome of students (the outcome). However, whether such a statistical correlation can be interpreted as the causal effect of the reform on outcomes is another matter. The problem is that there may well be other reasons why this association comes about.

Page 111:

Whenever other reasons exist that give rise to some correlation between the two things of interest—the treatment and the outcome—the overall correlation cannot be interpreted as the causal effect of the treatment on the outcome. Broadly speaking, this is what economists call the “endogeneity problem”. The term stems from the idea that treatment cannot be viewed as exogenous to the model of interest, as it should be, but that it is rather endogenously determined within the model—depending on the outcome or being jointly determined with the outcome by a third factor. Because of the problem of endogeneity, estimates of the association between treatment and outcome based on correlations will be biased estimates of the causal effect of treatment on outcome.2

Standard approaches try to deal with this problem by observing the other sources of possible correlation and take out the difference in outcomes that can be attributed to these other observed differences. This is the approach of multivariate models that estimate the effects of multiple variables on the outcome at the same time, such as the classical ordinary least-squares (OLS) or multilevel modeling (or hierarchical linear models, HLM) techniques. They allow estimating the association between treatment and outcome conditional on the effects of the other observed factors.

2 Other possible sources of endogeneity include self-selection (objects with different characteristics can choose whether to be treated or not) and simultaneity (treatment and outcome are choice variables that are jointly determined). In econometric terms, measurement error in the treatment variable can also be interpreted as an endogeneity problem, because it gives rise to a particular form of association between treatment and outcome (one that generally biases the estimates toward finding no effect, even if there was one).

[393] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 36: “If, for example, capital punishment jurisdictions tended also to impose more severe imprisonment sanctions than noncapital jurisdictions, a reduced level of homicide in such jurisdictions may be attributable to these other features of their sanction regime and not to the death penalty.”

Page 37–38:

As we emphasize throughout this report, these variations [in homicide rates] are important to making a valid determination of the deterrent effect of the death penalty, because if other influences on the murder rate are correlated with the use of the death penalty, the estimated deterrent effect may be contaminated by the effect of these other influences on the homicide rates. … If the probability of apprehension is correlated with the imposition of the death penalty, a finding that the death penalty seemingly deters murders might actually reflect police effectiveness in deterring murder. Such contamination may also come from social, economic, or political factors that affect the homicide rate and that are outside the criminal justice system.

There have been numerous commentaries on the sources of variation in U.S. homicide rates, with many focusing specifically on the sharp drop in homicides since the early 1990s…. However, these commentaries provide very limited guidance on how to account for other possible sources of change in homicide rates in a statistical analysis of the deterrent effect of the death penalty.

[394] Article: “Uses and Abuses of Empirical Evidence in the Death Penalty Debate.” By John J. Donohue and Justin Wolfers. Stanford Law Review, January 9, 2006. Pages 791–846. <users.nber.org>

Page 798: “[I]t may be that despite efforts in all of these studies to control for a range of social and economic trends, other omitted factors are preventing the relationship between executions and homicides from being correctly captured.”

Page 801:

The lesson from examining these time-series data is that it is crucial to take account of the fact that most of the variation in homicide rates is driven by factors that are common to both death penalty and non-death penalty states…. The empirical difficulty is that these factors may be spuriously correlated with executions, and hence the plausibility of any attempt to isolate the causal effect of executions rests heavily on either finding useful comparison groups or convincingly controlling for these other factors.

Pages 821–822:

First, a “get tough on crime” attitude might lead to longer jail sentences,74 increased use of life without parole,75 harsher prison conditions,76 as well as increased use of the death penalty. It might be that criminals are responding to these other changes in deterrence, and given that the existing estimates contain no (or inadequate) controls for these factors, they may be driving the correlation between homicides and executions. There are good reasons to be concerned by this possibility, as very few criminals are potentially affected by the death penalty, while many inmates are likely to be affected by these broader changes in deterrence policies.

[395] Paper: “What do Panel Studies Tell Us About a Deterrent Effect of Capital Punishment? A Critique of the Literature.” By Aaron Chalfin, Amelia M. Haviland, and Steven Raphael. Journal of Quantitative Criminology, February 2012. Pages 5–43. <gspp.berkeley.edu>

Page 8:

On the whole, we find the current research literature that uses panel data to test for a deterrent effect of capital punishment to be uninformative for a policy or judicial audience. This is to a small degree due to minor but important issues of appropriate model estimation and to a large degree due to unconvincing identification of causal effects and unconvincing theoretical justification for the model specifications employed.

Page 33: “We also note that similar to several other sets of authors, these authors also assume that their results are not biased by omitted variables, such as measures of the risks of other sanctions for murder, or by potential reverse causality.”

[396] Paper: “State Executions, Deterrence, and the Incidence of Murder.” By Paul R. Zimmerman. Journal of Applied Economics, May 2004. Pages 163–193. <ucema.edu.ar>

Pages 165–166:

Another issue that confounds estimation of the deterrent effect of capital punishment is a possible simultaneous relationship between the relevant deterrence probabilities and the rate of murder.6

6 The term deterrence probabilities refers collectively to the probability of being arrested for murder, the probability of being sentenced to death conditional upon arrest for murder, and the probability of being executed conditional on being sentenced to death throughout. The use of these three measures might not be inclusive of all the relevant probabilities underlying the imposition of an execution. For instance, before an arrest can be made the crime must be either reported to the police or discovered (although in the case of murder most offenses are reported). In addition, the probability of being sentenced to death given an arrest is actually determined by a series of probabilities including the probability of being prosecuted given an arrest (note that some arrests might not be prosecuted due to mistakes in arrests, the arrest of persons who are later determined to be innocent, etc.), the probability of conviction given prosecution, and the probability of a death sentence given conviction. Data limitations preclude the consideration of all the potentially relevant conditional probabilities. However, the measures considered here are similar to those employed in other studies (e.g., Ehrlich (1975), Dezhbakhsh et al. (2003)).

[397] Book: Multiple Regression: A Primer. By Paul D. Allison. Pine Forge Press, 1998.

Chapter 1: “What Is Multiple Regression?” Pages 1–23. <us.sagepub.com>

Page 1: “Multiple regression is a statistical method for studying the relationship between a single dependent variable and one or more independent variables. It is unquestionably the most widely used statistical technique in the social sciences. It is also widely used in the biological and physical sciences.”

Page 20:

Multiple regression shares an additional problem with all methods of statistical control, a problem that is the major focus of those who claim that multiple regression will never be a good substitute for the randomized experiment. To statistically control for a variable, you have to be able to measure that variable so that you can explicitly build it into the data analysis, either by putting it in the regression equation or by using it to form homogeneous subgroups. Unfortunately, there’s no way that we can measure all the variables that might conceivably affect the dependent variable. No matter how many variables we include in a regression equation, someone can always come along and say, “Yes, but you neglected to control for variable X and I feel certain that your results would have been different if you had done so.”

That’s not the case with randomization in an experimental setting. Randomization controls for all characteristics of the experimental subjects, regardless of whether those characteristics can be measured. Thus, with randomization there’s no need to worry about whether those in the treatment group are smarter, more popular, more achievement oriented, or more alienated than those in the control group (assuming, of course, that there are enough subjects in the experiment to allow randomization to do its job effectively).

[398] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 5:

Much of the panel research simply assumes that potential murderers respond to the objective risk of execution. There are significant complexities in computing this risk even for a well-informed researcher, let alone for a potential murderer. …

The committee is also skeptical that potential murderers can possibly estimate the objective risk, whatever it is. Hence, there is good reason to believe that perceived risk deviates from the objective risk. The research does not address how potential murderers’ perceptions of capital punishment—and, more generally, noncapital sanction risks—are formed. …

… Because there are no studies that include empirical analyses on the question of how potential murderers perceive the risk of sanctions, there is no basis for assuming that the trend line specified by researchers corresponds to the trend line (if any) that is perceived by potential murderers.

Page 34: “It is a truism that sanction threats cannot deter unless at least some would-be offenders are aware of the threat. There is a large literature on sanction risk perceptions that demonstrates that the general public is very poorly informed about actual sanction levels and the frequency of their imposition (Apel, in press).”

Page 107: “To make headway on whether and to what degree the death penalty affects the behavior of potential murderers, it is imperative to have knowledge about how their perceptions of execution risk are formed and then possibly revised on the basis of new information.”

[399] Article: “Deterrence: A Review of the Evidence by a Criminologist for Economists.” By Daniel S. Nagin. Annual Review of Economics, 2013. Pages 83–105. <www.annualreviews.org>

Page 94: “An important finding of the early panel perceptual deterrence studies in which participants were surveyed on their sanction risk perception and self-reported delinquency over time was that there is considerable instability in sanction risk perceptions and that nonoffenders and novice offenders had higher sanction risk perceptions relative to experienced offenders.”

Page 97:

A major theoretical and empirical gap involves how active criminals and people on the margin of criminality perceive the sanction regime. Deterrence is the behavioral response to perceptions of sanction threats. Establishing the linkage between risk perceptions and actual sanction regimes is imperative. Unless perceptions adjust, however crudely, to changes in the sanction regime, the desired deterrent effect will not be achieved.

[400] Book: Essays in the Economics of Crime and Punishment. Edited by Gary S. Becker and William M. Landes. National Bureau of Economic Research, 1974.

Chapter 1: “Crime and Punishment: An Economic Approach.” By Gary S. Becker. Pages 1–54.

Page 9:

The approach taken here follows the economists’ usual analysis of choice and assumes that a person commits an offense if the expected utility to him exceeds the utility he could get by using his time and other resources at other activities. Some persons become “criminals,” therefore, not because their basic motivation differs from that of other persons, but because their benefits and costs differ.

[401] Paper: “The Death Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny.” By Robert Weisberg. Annual Review of Law and Social Science, 2005. Pages 151–171. <www.iapsych.com>

Page 153:

[W]hatever measures of statistical significance one uses, social scientists face a couple of blunt facts about death penalty and deterrence. First, the percentage of people sentenced to death in the United States who actually are executed is minute, so if research is concerned with the actual or perceived likelihood of a death-sentenced murderer suffering the ultimate penalty, the data will always seem insufficient.

[402] Article: “Uses and Abuses of Empirical Evidence in the Death Penalty Debate.” By John J. Donohue and Justin Wolfers. Stanford Law Review, January 9, 2006. Pages 791–846. <users.nber.org>

Page 794:

Our key insight is that the death penalty—at least as it has been implemented in the United States since Gregg ended the moratorium on executions—is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot be reliably disentangled from the large year-to-year changes in the homicide rate cause by other factors. … Moreover, we are pessimistic that existing data can resolve this uncertainty.

Page 841:

[W]e suspect that our conclusion that econometric studies are highly uncertain about the effects of the death penalty will persist for the foreseeable future. Quite simply, it is difficult to foresee any states providing a sharp enough policy shock for social scientists to reliably estimate an effect on homicide rates.109 Consequently, we strongly suggest that substantial caution is required in interpreting any studies purporting to show that recent data can speak more clearly than earlier studies allowed.

[403] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 23: “Because the fraction of murders resulting in a death sentence is small and the fraction that results in executions even smaller, absolute differences in these fractions between the high and low use states are correspondingly small. It is these small absolute differences that typically form the basis for statistical inferences about the deterrent effect of the death penalty in the panel-type studies.”

[404] Paper: “Prison Conditions, Capital Punishment, and Deterrence.” By Lawrence Katz, Steven D. Levitt, and Ellen Shustorovich. American Law and Economics Review, 2003. Pages 318–343. <doi.org>

Page 319: “The limited implementation of capital punishment in this period presents a serious impediment to empirical analysis. Between 1946 and 1997 there were a total of 1,885 executions, representing one execution for every 320 reported homicides. … Even if a substantial deterrent effect does exist, the amount of crime rate variation induced by executions may simply be too small to be detected.”

Pages 321–322: “Estimates of the coefficient on executions are extremely sensitive to the choice of controls and invariably estimated with little precision. There simply does not appear to be enough information in the data on capital punishment to reliably estimate a deterrent effect.”

[405] Paper: “Facts or Ideology: What Determines the Results of Econometric Estimates of the Deterrence Effect of the Death Penalty? A Meta-Analysis.” By Berit Gerritzen and Gebhard Kirchgassner. Open Journal of Social Sciences, June 2016. <m.scirp.org>

Specifically, economic models of crime assume that criminals are rationally behaving individuals and that the emotionality of murder does not constitute a barrier to deterrence.13 The literature also assumes that the subjective risk perception of a potential criminal individual is equivalent to the objective risk of apprehension, conviction and execution.14 Garoupa44 has reviewed behavioral economic alternatives to the classical economics-of-crime approach. According to him, relaxing the rationality assumption would allow for an enrichment of modelling behavior, but comes at the cost of losing tractability (p. 12). …

Overall, the literature on the deterrent effect of capital punishment is inconclusive; there are serious methodological problems that are unlikely to be solved in the (near) future.

[406] Book: Deterrence and the Death Penalty. By the Committee on Deterrence and the Death Penalty, National Research Council of the National Academies. Edited by Daniel S. Nagin and John V. Pepper. National Academies Press, 2012. <doi.org>

Page 4: “[T]he existing studies use strong and unverifiable assumptions to identify the effects of capital punishment.”

Pages 6–7:

[P]otential murderers’ risk perceptions are assumed to depend on observable frequencies of arrest, conviction, and execution. The ad hoc choices of alternative models of risk perceptions lead to very different inferences on the effects of capital punishment, and none of them is inherently any more justifiable than any other. …

The standard procedure in capital punishment research has been to impose sufficiently strong assumptions to yield definitive findings on deterrence. … Another common assumption is that the response of criminality to sanctions is homogeneous across states and years. … The use of strong assumptions hides the problem that the study of deterrence is plagued by model uncertainty and that many of the assumptions used in the research lack credibility.

[407] Paper: “New Claims About Executions and General Deterrence: Déjà Vu All Over Again?” By Richard Berk. UCLA Department of Statistics, March 11, 2005. <www.sas.rochester.edu>

Page 31: “A researcher might well want to estimate the probability of an execution conditional upon a death sentence, but there is absolutely no serious research I know of showing that potential murderers think this way (even if they could get the data).”

[408] Paper: “What do Panel Studies Tell Us About a Deterrent Effect of Capital Punishment? A Critique of the Literature.” By Aaron Chalfin, Amelia M. Haviland, and Steven Raphael. Journal of Quantitative Criminology, February 2012. Pages 5–43. <gspp.berkeley.edu>

Page 7:

Regarding the conceptual discussion, we are of the opinion that the connection between the theoretical reasoning underlying general deterrence and the regression models typically specified in this literature is tenuous. … Presumably, a rational offender would only be deterred by changes in policy or practice that alter the risk of actually being put to death, and the expected time to execution conditional on being caught and convicted. It is not clear to us that the typical specification of the murder “cost function” as a linear function of these explanatory variables accurately gauges actual or perceived variation in such risks. This point takes on particular importance as variants in the basic specification lead to quite different results and we do not find strong theoretical reasoning justifying one specification over the other.

[409] Paper: “New Claims About Executions and General Deterrence: Déjà Vu All Over Again?” By Richard Berk. UCLA Department of Statistics, March 11, 2005. <www.sas.rochester.edu>

Page 1: “This paper addresses the problem of ‘influence,’ which occurs when a very small and atypical fraction of the data dominate the statistical results. The number of executions by state and year is the key explanatory variable, and most states in most years execute no one.”

Page 32:

From 1977 to 1997, most states during most years executed no one. A few states on rare occasion executed up to 5 individuals in a particular year. Years with 5 executions or less represent 99% of the data. Limiting the analysis to these 99% of the observations, there is no evidence of a negative relationship between the number of executions lagged by one year and either the homicide rate or the number of homicides. Including the 11 execution extreme values can for some analyses suggest possible negative effect, but only for these 11 observations and only if one ignores the very wide confidence intervals. …

All of the points made about the 11 extreme values apply to the data from Texas. Moreover, a simple simulation demonstrates that even when one knows for certain that in the 49 other states executions are on the average unrelated to the homicide rate, including the data from Texas can give the false impression that a deterrence relationship exists.

Page 33:

[T]he results raise serious questions about whether anything useful about the deterrent value of the death penalty can ever be learned from an observational study with the data that are likely to be available. With an intervention that is so highly skewed, a very small portion of the data will likely impart significant influence on the results. Generalizations to the mass of the data then become very risky. It is difficult to imagine how such problems can be overcome no matter how skilled or sophisticated the data analyst.

[410] Paper: “What do Panel Studies Tell Us About a Deterrent Effect of Capital Punishment? A Critique of the Literature.” By Aaron Chalfin, Amelia M. Haviland, and Steven Raphael. Journal of Quantitative Criminology, February 2012. Pages 5–43. <gspp.berkeley.edu>

Page 41:

[T]he lack of variation in the key underlying explanatory variables and the heavy influence exerted by a few observations in state panel data regressions seems to be a fundamental problem for all panel data studies of this question, independent of the issues we raise regarding theory and model specification. The fact that the key explanatory variable does not vary for over 85% of the observations in the typical panel data set raises serious questions regarding whether one wants to place much stock in results generated by a handful of state-year observations.

… Moreover, we do not see additional methodological tools that are likely to overcome the multiple challenges that face researchers in this domain, including the weak informativeness of the data, a lack of theory on the mechanisms involved, and the likely presence of unobserved confounders.

[411] Article: “Incapacitation Theory.” By Alana Barton. Encyclopedia of Prisons & Correctional Facilities. Edited by Mary Bosworth. Sage Publications, 2005.

Page 463:

Proponents of the incapacitation theory of punishment advocate that offenders should be prevented from committing further crimes either by their (temporary or permanent) removal from society or by some other method that restricts their physical ability to reoffend in some other way. Incarceration is the most common method of incapacitating offenders; however, other, more severe, forms such as capital punishment are also used. The overall aim of incapacitation is to prevent the most dangerous or prolific offenders from reoffending in the community. …

Incapacitation is a reductivist (or “forward looking”) justification for punishment. Reductivism is underpinned by the theory of moral reasoning known as utilitarianism, which maintains that an act is defensible and reasonable if its overall consequences are beneficial to the greatest number of people. Thus, the pain or suffering imposed on an offender through punishment is justified if it reduces or prevents the further harm that would have been caused to the rest of society by the future crimes of that offender.

[412] Article: “The Death Penalty as Incapacitation.” By Marah S. McLeod. Virginia Law Review, 2018. Pages 1123–1198. <scholarship.law.nd.edu>

Pages 1152–1153:

Turning first to the question of adequacy, it is readily apparent that life without parole may not prevent dangerous capital offenders from committing future violence.143 … It is evident that life without parole, without more, is not fully incapacitating. Life-long incarceration protects those outside prison walls from dangerous inmates but leaves fellow inmates vulnerable to attack without means of self-protection or the ability to retreat.

Pages 1155–1156:

[T]he non-lethal alternative of life without parole may be inadequate to protect the lives and safety of others. It may protect those who live in free society outside the prison walls, for the risk of prisoner escape may be small160 and can be mitigated through perimeter security measures; but it may not ensure safety for those who live in the society within the prison walls-inmates, prison guards (who are often unarmed161), medical staff, chaplains, and the visiting families and friends of prisoners. …

160 Some evidence exists regarding the rate of violence perpetrated during escapes, but there is little disaggregation of the data for capital and non-capital prisoners. See, e.g., Richard F. Culp, “Frequency and Characteristics of Prison Escapes in the United States: An Analysis of National Data,” 85 Prison J. 270, 285, 287 (2005). Anecdotes are easier to find. See, e.g., Beard v. Kindler, 558 U.S. 53, 55–58 (2009) (recounting the petitioner’s escape after arrest, second escape after conviction for capital murder, and third escape after recapture).

[413] Ruling: Arave v. Creech. U.S. Supreme Court, March 30, 1993. Decided 7–2. Majority: O’Connor, Rehnquist, White, Scalia, Kennedy, Souter, Thomas. Dissent: Blackmun, Stevens. <supreme.justia.com>

Majority:

Thomas Creech has admitted to killing or participating in the killing of at least 26 people. The bodies of 11 of his victims—who were shot, stabbed, beaten, or strangled to death—have been recovered in seven States. Creech has said repeatedly that, unless he is completely isolated from humanity, he likely will continue killing. And he has identified by name three people outside prison walls he intends to kill if given the opportunity.

Creech’s most recent victim was David Dale Jensen, a fellow inmate in the maximum security unit of the Idaho State Penitentiary. When he killed Jensen, Creech was already serving life sentences for other first-degree murders. …

After independently reviewing the record, the Idaho Supreme Court also held that the evidence clearly supported the trial judge’s findings of aggravating and mitigating circumstances, including the finding that Creech had exhibited “utter disregard for human life.” …

[W]e decline to invalidate the “utter disregard” circumstance on the ground that the Idaho Supreme Court’s limiting construction is insufficiently “objective.”

Of course, it is not enough for an aggravating circumstance, as construed by the state courts, to be determinate. Our precedents make clear that a State’s capital sentencing scheme also must “genuinely narrow the class of persons

eligible for the death penalty.” …

[W]e hold today only that the “utter disregard” circumstance … on its face meets constitutional requirements.

Dissent:

I must stress … the rather obvious point that a “facial” challenge of this nature—one alleging that a limiting construction provides inadequate guidance—cannot be defeated merely by a demonstration that there exists a narrowing way to apply the contested language. The entire point of the challenge is that the language’s susceptibility to a variety of interpretations is what makes it (facially) unconstitutional. …

… Today’s majority stretches the bounds of permissible construction past the breaking point. … The Osborn formulation is worthless, and neither common usage, nor legal terminology, nor the Idaho cases support the majority’s attempt to salvage it. The statute is simply unconstitutional and Idaho should be busy repairing it.

[414] Ruling: Jurek v. Texas. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens. Concurring: Burger, White, Rehnquist, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

[Section] III

In addition, Texas adopted a new capital-sentencing procedure. … That procedure requires the jury to answer three questions in a proceeding that takes place subsequent to the return of a verdict finding a person guilty of one of the above categories of murder. The questions the jury must answer are these:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. …

If the jury finds that the State has proved beyond a reasonable doubt that the answer to each of the three questions is yes, then the death sentence is imposed. If the jury finds that the answer to any question is no, then a sentence of life imprisonment results. …

… It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not … mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge’s prediction of the defendant's future conduct.9 … For those sentenced to prison, these same predictions must be made by parole authorities.11 … What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.

[Section] IV

We conclude that Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments.

Concurrence: “Petitioner claims that the additional questions upon which the death sentence depends are so vague that in essence the … jury possesses standardless sentencing power; but I agree … that the issues posed in the sentencing proceeding have a common-sense core of meaning and that criminal juries should be capable of understanding them.”

Dissent (Brennan): “I would set aside the death sentences … as violative of the Eighth and Fourteenth Amendments.”

Dissent (Marshall): “In Furman v. Georgia … I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.”

[415] Article: “The Death Penalty as Incapacitation.” By Marah S. McLeod. Virginia Law Review, 2018. Pages 1123–1198. <scholarship.law.nd.edu>

Page 1144:

Of the half-dozen states that have statutes making future dangerousness necessary or sufficient for the death penalty, only one—Idaho—requires the future danger to be lethal.99 The other five—Texas, Virginia, Oklahoma, Oregon and Wyoming—simply require a likelihood of future violence.100

99 Idaho requires that the defendant be found to have a “propensity to commit murder which will probably constitute a continuing threat to society.” Idaho Code § 19-2515(9)(i)(2017) (emphasis added).

[416] Virginia Code Title 19.2, Chapter 15, Article 4.1, Section 19.2-264.2: “Conditions for Imposition of Death Sentence.” Accessed April 29, 2020 at <law.lis.virginia.gov>

Conditions for Imposition of Death Sentence

In assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim; and (2) recommend that the penalty of death be imposed.

[417] Report: “Capital Punishment, 2013—Statistical Tables.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics. December 2014. Revised 12/19/14. <www.bjs.gov>

Table 8. Criminal history profile of prisoners under sentence of death, by race and Hispanic origin, 2013 … All races a … Prior felony convictions c … Yes [=] 67.3% … Prior homicide convictions d … Yes [=] 9.0% … Note: Percentages are based on offenders for whom data were reported. … a Includes American Indians or Alaska Natives and Asians, Native Hawaiians, or other Pacific Islanders. … c Data were not reported for 217 inmates. d Data were not reported for 36 inmates.

[418] Textbook: Capital Punishment in America: A Balanced Examination (2nd edition). By Evan J. Mandery. Jones & Bartlett Learning, 2012.

Page 67: “As a result of the Supreme Court’s decision in Furman v. Georgia, the sentences of all death row inmates in the United States were commuted to life imprisonment with the possibility of parole.”

[419] Webpage: “History of Capital Punishment in California.” California Department of Corrections and Rehabilitation. Accessed January 2, 2020 at <www.cdcr.ca.gov>

“In February 1972, the California Supreme Court found that the death penalty constituted cruel and unusual punishment under the California state constitution and 107 condemned inmates were resentenced to life with the possibility of parole and removed from California’s death row.”

[420] Paper: “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society From Capital Offenders.” By James W. Marquart and Jonathan R. Sorensen. Loyola of Los Angeles Law Review, November 1, 1989. Pages 5–28. <pdfs.semanticscholar.org>

Page 6: “The Furman ruling also invalidated the death sentences of hundreds of inmates awaiting execution in thirty states and the District of Columbia.7 The capital offenders affected by the decision had their death sentences commuted to life imprisonment and were subsequently ‘released’ into the general prison population to serve the remainder of their sentences.”

[421] Paper: “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders.” By James W. Marquart and Jonathan R. Sorensen. Loyola of Los Angeles Law Review, November 1, 1989. Pages 5–28. <pdfs.semanticscholar.org>

Page 21: “Overall, the Furman offenders committed six killings in the institutional setting. The four prisoner homicides occurred in Alabama, Florida, Louisiana, and Pennsylvania. Both prison guard murders occurred in Ohio.”

[422] Calculated with data from:

a) Paper: “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders.” By James W. Marquart and Jonathan R. Sorensen. Loyola of Los Angeles Law Review, November 1, 1989. Pages 5–28. <pdfs.semanticscholar.org>

Page 22: “Of the 558 Furman-commuted inmates … two hundred forty-three (44%) of the capital offenders have been released to society.”

b) Article: “Two Decades After People v. Anderson.” By Jonathan R. Sorenson, James W. Marquart, and Madhava R. Bodapati. Loyola of Los Angeles Law Review, November 1, 1990. Pages 45–56. <digitalcommons.lmu.edu>

Page 51: “In February 1972, there were 107 murderers on California’s death row. … Since commutation … over the eighteen-year period from 1972 to 1989 … forty-one inmates who have been released from prison, through parole or straight discharge….”

CALCULATION: (243 Furman parolees + 41 Anderson parolees) / (558 Furman commutees + 107 Anderson commutees) = 43%

[423] Calculated with data from the previous footnote and:

a) Paper: “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders.” By James W. Marquart and Jonathan R. Sorensen. Loyola of Los Angeles Law Review, November 1, 1989. Pages 5–28. <pdfs.semanticscholar.org>

Page 24: “Table 7. Total Recidivism by Offense* … New Felony Offense … Murderers [=] 20 (10.6%) … Rapists [=] 9 (17.6%) … * Of the four armed robbers released, one returned to prison in 1987 for committing an armed robbery.”

b) Article: “Two Decades After People v. Anderson.” By Jonathan R. Sorenson, James W. Marquart, and Madhava R. Bodapati. Loyola of Los Angeles Law Review, November 1, 1990. Pages 45–56. <digitalcommons.lmu.edu>

Page 53: “Table 1: Comparison of the Recidivism of the Anderson- and Furman-Commuted Murderers … Anderson-Commutees … New Felony Offense [=] 10 (24.4%)”

CALCULATION: (30 Furman parolees with new felonies + 10 Anderson parolees with new felonies) / (243 Furman parolees + 41 Anderson parolees) = 14%

[424] Report: “Offender Information: Kenneth McDuff.” Texas Department of Criminal Justice. Accessed April 8, 2020 at <www.tdcj.texas.gov>

“Prior Prison Record … death sentence, murder w/ malice, sentence commuted to life 8/29/72, paroled 10/11/89 to Milam Co. … Convicted in the March 1992 abduction and murder of 22-year-old Melissa Ann Northrup.”

[425] Article: “Texas Executes Serial Killer.” United Press International. November 17, 1998. <www.upi.com>

One of the most notorious killers in Texas history, McDuff was originally sentenced to death for the 1966 slayings of three Fort Worth teenagers. But he was spared from the electric chair, which Texas used at that time, when the U.S. Supreme Court struck down the death penalty in 1972. His sentence was commuted to life in prison. … His subsequent killing spree spurred the Texas Legislature to enact sweeping reforms of the state’s parole process. McDuff was convicted of killing two other women and is a suspect in 11 other slayings.

[426] Article: “Death Row ‘Class of 1972’ in Spotlight After Parolee’s Murder Arrest.” By Contra Costa Times staff and Matthias Gafni. Willits News, January 13, 2013. Updated 8/24/18. <www.willitsnews.com>-row-class-of-1972-in-spotlight-after-parolees-murder-arrest/

Her slaying was unsolved for decades, but DNA found under Wiltsey’s fingernail matched hair from Darryl Kemp, who was serving a life sentence in Texas for three rapes.

Kemp had been on death row for two rapes and the rape and murder of a Los Angeles nurse in the 1950s. After the 1972 court decision, his sentence was commuted to life, and he was paroled in 1978. He killed Wiltsey four months after his release.

Kemp was convicted and again sentenced to death in 2009; he awaits execution in San Quentin State Prison.

[427] Webpage: “Condemned Inmate List.” California Department of Corrections and Rehabilitation. Updated May 6, 2020. <www.cdcr.ca.gov>

“Kemp Darryl … Sentence Date [=] 6/25/2009 … Offense Date [=] 11/14/1978”

[428] Ruling: Demps v. Florida. Florida Supreme Court, June 5, 2000. Decided 7–0. Majority: Harding, Shaw, Wells, Anstead, Pariente, Lewis, Quince. <cases.justia.com>

Per Curiam:†

The present crime involves the stabbing death of an inmate “snitch.” When the murder took place, Bennie Demps already was serving two consecutive life sentences and a twenty-year sentence for two other first-degree murders and an attempted murder (he had locked three people in the trunk of a car and shot repeatedly into the trunk). His death sentences for those murders had been reduced to life pursuant to Furman. …

… Demps was convicted of first-degree murder for his role in the crime and was sentenced to death based inter alia on the fact that he had committed two prior first-degree murders.2 We affirmed.

2 Codefendants Jackson and Mungin were convicted of first-degree murder and sentenced to life imprisonment (the jury recommended death for Jackson and life for Mungin). Unlike Demps, neither Jackson nor Mungin had been convicted of prior murders.

NOTE: † A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[429] Webpage: “Execution List: 1976–Present.” Florida Department of Corrections. Accessed April 2, 2020 at <www.dc.state.fl.us>

“Demps, Bennie … Date of Offense [=] 9/06/76 … Date of Execution [=] 6/07/00”

[430] Webpage: “Robert Lee Massie.” Office of the Clark County Prosecuting Attorney. Accessed April 8, 2020 at <www.clarkprosecutor.org>

“Executed March 27, 2001 by Lethal Injection in California … He was sentenced to death in 1965, but the sentence was commuted to Life by Furman in 1972. Massie was paroled in 1978 and murdered liquor store owner during armed robbery 8 months later.”

[431] Article: “Death Row ‘Class of 1972’ in Spotlight After Parolee’s Murder Arrest.” By Contra Costa Times staff and Matthias Gafni. Willits News, January 13, 2013. Updated 8/24/18. <www.willitsnews.com>

“Robert Lee Massie, a former death row inmate from San Francisco, also killed only months after his parole release in 1978. He was again condemned and executed in 2001.”

[432] Ruling: State v. Bradley. Supreme Court of Ohio, May 10, 1989. Decided 5–2. Majority: Douglas, Moyer, Sweeney, Holmes, Resnick. Dissenting: Wright, Brown. <casetext.com>

Majority:

The charges now before us stem from an incident that occurred on February 2, 1984 at the Southern Ohio Correctional Facility in Lucasville. On that date, appellant allegedly approached Eric Bowling, a sixty-two-year-old civilian supervisor of the institution’s sheet metal shop, and beat him about the head and face with a ten-gauge bar of sheet metal. …

The jury returned a verdict finding beyond a reasonable doubt that the aggravating circumstances which appellant was guilty of committing outweighed the mitigating factors presented and recommended that the death sentence be imposed. …

[W]e find appellant’s extensive list of propositions of law to be without merit. Further, we find the aggravating circumstances of the crime outweigh, beyond a reasonable doubt, any mitigating factors, and that the sentence imposed was proportionate and appropriate. Accordingly, the judgment of the court of appeals is affirmed.

Dissent (Brown):

I respectfully submit that the judgment in this case should be reversed and remanded for a retrial as the consequence of three major errors, each one prejudicial. First, the defendant did not have adequate representation at trial. Second, the conviction and sentence are contaminated by the admission of highly prejudicial hearsay. These two errors are related and best understood in combination. Finally, the principal witness for the prosecution had been judicially declared mentally incompetent. His testimony was received by the trial court in violation of established legal precedent.

Dissent (Wright): “[A] murder committed while one is incarcerated should lead to a speedy demise of the culprit in accordance with law. Both deterrence and retribution would be served by this course of action. … However … I suggest that no fair-minded person—be he layman or lawyer—could reasonably conclude that Bradley’s counsel properly represented their client at trial.”

[433] “Capital Crimes Annual Report State and Federal Cases 2010.” Ohio Attorney General, Criminal Justice Section, April 1, 2011. <www.ohioattorneygeneral.gov>

Page 57: “On 02/02/84, Bradley murdered 62-year-old civilian supervisor, Eric Bowling, at the Southern Ohio Correctional Facility in Lucasville. Bradley, who was incarcerated for murder, beat Mr. Bowling in the head with a ten-gauge bar of sheet metal. … On 1/09/05, William J. Bradley died of natural causes.”

[434] Paper: “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders.” By James W. Marquart and Jonathan R. Sorensen. Loyola of Los Angeles Law Review, November 1, 1989. Pages 5–28. <pdfs.semanticscholar.org>

Page 21: “Two of these murderers were again sentenced to death, one for the murder of an inmate in Florida, and the other for the murder of a correctional officer in Ohio.”

[435] Dataset: “Death Penalty.” Gallup. Accessed December 21, 2019 at <news.gallup.com>

“Are you in favor of the death penalty for a person convicted of murder? … 2019 Oct 1–13 … Favor [=] 56% … Not in favor [=] 42% … No opinion [=] 2%”

[436] Article: “Americans Now Support Life in Prison Over Death Penalty.” By Jeffrey M. Jones. Gallup, November 25, 2019. <news.gallup.com>

Even as Americans have shifted to viewing life imprisonment without parole as preferable to execution, a majority still favor use of the death penalty, according to Gallup’s long-term death penalty trend question, which was updated in an Oct. 1–13 poll. That question, first asked in 1936, simply asks Americans if they are “in favor of the death penalty for a person convicted of murder,” without providing an alternative option. Currently, 56% of U.S. adults say they are in favor of the death penalty for convicted murderers in response to this question.

Results for the long-term death penalty question are based on Gallup poll telephone interviews conducted Oct. 1–13, 2019, with a random sample of 1,526 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia.

For results based on the total samples of national adults, the margin of sampling error is ±3 percentage points at the 95% confidence level.

[437] Article: “Americans Now Support Life in Prison Over Death Penalty.” By Jeffrey M. Jones. Gallup, November 25, 2019. <news.gallup.com>

If you could choose between the following two approaches, which do you think is the better penalty for murder—[Rotated: the death penalty (or) life imprisonment, with absolutely no possibility of parole]? … 2019 … Death penalty [=] 36% … Life imprisonment [=] 60% …

Even as Americans have shifted to viewing life imprisonment without parole as preferable to execution, a majority still favor use of the death penalty, according to Gallup’s long-term death penalty trend question, which was updated in an Oct. 1–13 poll. That question, first asked in 1936, simply asks Americans if they are “in favor of the death penalty for a person convicted of murder,” without providing an alternative option. Currently, 56% of U.S. adults say they are in favor of the death penalty for convicted murderers in response to this question. …

Results for the life imprisonment versus death penalty question are based on Gallup poll telephone interviews conducted Oct. 14–31, 2019, with a random sample of 1,506 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. … For results based on the total samples of national adults, the margin of sampling error is ±3 percentage points at the 95% confidence level.

[438] Article: “Vast Majority of Americans Think McVeigh Should Be Executed.” By Jeffrey M. Jones. Gallup, May 2, 2001. <news.gallup.com>

In two weeks, Timothy McVeigh is scheduled to be executed for the deaths of 168 people in the April 1995 bombing attack on the Alfred P. Murrah Federal Building in Oklahoma City. A CNN/USA Today/Gallup poll, conducted April 20–22, shows that the vast majority of Americans—including a majority of those who generally oppose the death penalty—believe McVeigh should be executed. …

According to the poll, 81% of Americans believe McVeigh should be executed, while 16% think he should not. A majority of people who say they generally oppose the death penalty, 58%, believes McVeigh should be executed, while 42% do not. The latest Gallup poll figures show that 67% of Americans favor the death penalty in general, while 25% are opposed. Death penalty opponents who favor McVeigh’s execution tend to be younger (below the age of 50), have a conservative or moderate rather than a liberal ideology, or live in the eastern or western parts of the country. …

The results … are based on telephone interviews with a randomly selected national sample of 1,015 adults, 18 years and older, conducted April 20–22, 2001. For results based on this sample, one can say with 95 percent confidence that the maximum error attributable to sampling and other random effects is plus or minus 3 percentage points.

[439] Article: “Hussein Trial to Resume Under Tight Scrutiny.” By Mark Gillespie. Gallup, November 28, 2005. <news.gallup.com>

The trial of former Iraqi President Saddam Hussein and his seven co-defendants, charged with crimes against humanity, is scheduled to resume Dec. 5 in Baghdad under tight security.

A new CNN/USA Today/Gallup poll, conducted Nov. 11–13, shows that nearly three out of four Americans (72%) would favor the death penalty for Hussein, should he be found guilty, while 25% would oppose such a sentence. This is similar to the results from a June poll, in which 71% of Americans favored the death penalty for Hussein, while 24% opposed it. By way of comparison, 64% of Americans in Gallup’s Oct. 13–16 poll favored the death penalty for American defendants convicted of murder.

The charges against Hussein stem from mass executions carried out in 1982 in the Iraqi town of Dujail. More than 140 people were sentenced to death and still more imprisoned and tortured following an assassination attempt on Hussein. The trial could be the first of several for Hussein. …

These results are based on telephone interviews with a randomly selected national sample of 1,006 adults, aged 18 and older, conducted Nov. 11–13, 2005. For results based on this sample, one can say with 95% confidence that the maximum error attributable to sampling and other random effects is ±3 percentage points. For results based on the 491 national adults in the Form A half-sample … the maximum margins of sampling error are ±5 percentage points.

[440] Article: “Americans Weigh in on Death Penalty for Marathon Bomber.” By Sarah Dutton and others. CBS News, April 15, 2015. <www.cbsnews.com>

As the U.S. marks the two year anniversary of the Boston Marathon bombings, 60 percent of Americans polled favor the death penalty for Dzhokhar Tsarnaev.

Last week, a jury convicted Tsarnaev on 30 federal charges related to the bombings and the subsequent manhunt. When asked about this particular case, 30 percent of people polled said they oppose the death penalty. …

This poll was conducted by telephone April 8–12, 2015 among a random sample of 1,012 adults nationwide. Data collection was conducted on behalf of CBS News by SSRS of Media, PA. Phone numbers were dialed from samples of both standard land-line and cell phones. The error due to sampling for results based on the entire sample could be plus or minus three percentage points. The error for subgroups may be higher. Interviews were conducted in English and Spanish. This poll release conforms to the Standards of Disclosure of the National Council on Public Polls.

[441] Article: “Birth Control Still Tops List of Morally Acceptable Issues.” By Megan Brenan. Gallup, May 29, 2019. <news.gallup.com>

Regardless of whether or not you think it should be legal, for each one, please tell me whether you personally believe that in general it is morally acceptable or morally wrong. …

Divorce … Morally acceptable [=] 77% … Morally wrong [=] 20% … The death penalty … Morally acceptable [=] 60% … Morally wrong [=] 35% … Buying and wearing clothing made of animal fur … Morally acceptable [=] 53% … Morally wrong [=] 45% … Abortion … Morally acceptable [=] 42% … Morally wrong [=] 50% … Suicide … Morally acceptable [=] 17% … Morally wrong [=] 79% …

Results for this Gallup poll are based on telephone interviews conducted May 1–12, 2019, with a random sample of 1,009 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. For results based on the total sample of national adults, the margin of sampling error is ±4 percentage points at the 95% confidence level. All reported margins of sampling error include computed design effects for weighting.

[442] Report: “Gallup Poll Social Series: Values and Beliefs.” By Jeff Jones and Lydia Saad. Gallup News Service, May 2019. <news.gallup.com>

Page 1 (of PDF):

Results are based on telephone interviews conducted May 1–12, 2019 with a random sample of—1,009—adults, ages 18+, living in all 50 U.S. states and the District of Columbia. For results based on this sample of national adults, the margin of sampling error is ±4 percentage points at the 95% confidence level. …

Samples are weighted to correct for unequal selection probability, non-response, and double coverage of landline and cell users in the two sampling frames. They are also weighted to match the national demographics of gender, age, race, Hispanic ethnicity, education, region, population density, and phone status (cell phone-only/landline only/both and cell phone mostly). Demographic weighting targets are based on the March 2018 Current Population Survey figures for the aged 18 and older U.S. population. Phone status targets are based on the January–June 2018 National Health Interview Survey. Population density targets are based on the 2010 census. All reported margins of sampling error include the computed design effects for weighting.

Page 13 (of PDF): “Abortion … Ideology … Conservative … Morally acceptable [=] 23% … Morally wrong [=] 71% … Liberal … Morally acceptable [=] 73% … Morally wrong [=] 22%”

Page 14 (of PDF): “The death penalty … Ideology … Conservative … Morally acceptable [=] 66% … Morally wrong [=] 31% … Liberal … Morally acceptable [=] 46% … Morally wrong [=] 46%”

[443] Webpage: “Death Penalty.” Gallup. Accessed November 15, 2019 at <news.gallup.com>

“Why do you oppose the death penalty for persons convicted of murder? [OPEN-ENDED] Based on those opposed to the death penalty … 2014 Oct 12–15 … Wrong to take a life [=] 40%”

[444] Webpage: “How Does the Gallup Poll Social Series Work?” Gallup. Accessed November 15, 2019 at <www.gallup.com>

Gallup interviews U.S. adults aged 18 and older living in all 50 states and the District of Columbia using a dual-frame design, which includes both landline and cellphone numbers. Gallup samples landline and cellphone numbers using random-digit-dial methods. Gallup purchases samples for this study from Survey Sampling International (SSI). Gallup chooses landline respondents at random within each household based on which member had the next birthday. Each sample of national adults includes a minimum quota of 70% cellphone respondents and 30% landline respondents, with additional minimum quotas by time zone within region. Gallup conducts interviews in Spanish for respondents who are primarily Spanish-speaking. …

Gallup interviews a minimum of 1,000 U.S. adults aged 18 and older for each GPSS [Gallup Poll Social Series] survey. …

Yes, Gallup weights samples to correct for unequal selection probability, nonresponse, and double coverage of landline and cellphone users in the two sampling frames. Gallup also weights its final samples to match the U.S. population according to gender, age, race, Hispanic ethnicity, education, region, population density, and phone status (cellphone only, landline only, both, and cellphone mostly). Demographic weighting targets are based on the most recent Current Population Survey figures for the aged 18 and older U.S. population.

[445] Calculated with data from the webpage: “Death Penalty.” Gallup. Accessed November 15, 2019 at <news.gallup.com>

“Why do you favor the death penalty for persons convicted of murder? [OPEN-ENDED] Based on those who favor the death penalty … 2014 Oct 12–15 … An eye for an eye/They took a life/Fits the crime [=] 35% … They deserve it [=] 14% … Fair punishment [=] 4% … Serve justice [=] 4%”

CALCULATION: 35% + 14% + 4% + 4% = 57%

[446] Webpage: “How Does the Gallup Poll Social Series Work?” Gallup. Accessed November 15, 2019 at <www.gallup.com>

Gallup interviews U.S. adults aged 18 and older living in all 50 states and the District of Columbia using a dual-frame design, which includes both landline and cellphone numbers. Gallup samples landline and cellphone numbers using random-digit-dial methods. Gallup purchases samples for this study from Survey Sampling International (SSI). Gallup chooses landline respondents at random within each household based on which member had the next birthday. Each sample of national adults includes a minimum quota of 70% cellphone respondents and 30% landline respondents, with additional minimum quotas by time zone within region. Gallup conducts interviews in Spanish for respondents who are primarily Spanish-speaking. …

Gallup interviews a minimum of 1,000 U.S. adults aged 18 and older for each GPSS [Gallup Poll Social Series] survey. …

Yes, Gallup weights samples to correct for unequal selection probability, nonresponse, and double coverage of landline and cellphone users in the two sampling frames. Gallup also weights its final samples to match the U.S. population according to gender, age, race, Hispanic ethnicity, education, region, population density, and phone status (cellphone only, landline only, both, and cellphone mostly). Demographic weighting targets are based on the most recent Current Population Survey figures for the aged 18 and older U.S. population.

[447] Webpage: “Death Penalty.” Gallup. Accessed November 15, 2019 at <news.gallup.com>

Why do you favor the death penalty for persons convicted of murder? (Open-Ended) Based on those who favor the death penalty … 2014 Oct 12–15 … Deterrent for potential crimes/Set an example [=] 6% … Totals exceed 100% due to multiple mentions …

Do you feel that the death penalty acts as a deterrent to the commitment of murder, that it lowers the murder rate, or not? … 2011 Oct 6–9 … Yes, it does [=] 32% … No, it does not [=] 64% … No opinion [=] 4%

[448] Webpage: “How Does the Gallup Poll Social Series Work?” Gallup. Accessed November 15, 2019 at <www.gallup.com>

Gallup interviews U.S. adults aged 18 and older living in all 50 states and the District of Columbia using a dual-frame design, which includes both landline and cellphone numbers. Gallup samples landline and cellphone numbers using random-digit-dial methods. Gallup purchases samples for this study from Survey Sampling International (SSI). Gallup chooses landline respondents at random within each household based on which member had the next birthday. Each sample of national adults includes a minimum quota of 70% cellphone respondents and 30% landline respondents, with additional minimum quotas by time zone within region. Gallup conducts interviews in Spanish for respondents who are primarily Spanish-speaking. …

Gallup interviews a minimum of 1,000 U.S. adults aged 18 and older for each GPSS [Gallup Poll Social Series] survey. …

Yes, Gallup weights samples to correct for unequal selection probability, nonresponse, and double coverage of landline and cellphone users in the two sampling frames. Gallup also weights its final samples to match the U.S. population according to gender, age, race, Hispanic ethnicity, education, region, population density, and phone status (cellphone only, landline only, both, and cellphone mostly). Demographic weighting targets are based on the most recent Current Population Survey figures for the aged 18 and older U.S. population.

[449] Article: “Less Support for Death Penalty, Especially Among Democrats.” Pew Research Center, April 16, 2015. <www.people-press.org>

“About six-in-ten (61%) say the death penalty does not deter people from committing serious crimes; 35% say it does deter serious crime.”

[450] Webpage: “About the Survey.” Pew Research Center, April 16, 2015. <www.people-press.org>

The analysis in this report is based on telephone interviews conducted March 25–29 among a national sample of 1,500 adults, 18 years of age or older, living in all 50 U.S. states and the District of Columbia (525 respondents were interviewed on a landline telephone, and 975 were interviewed on a cell phone, including 567 who had no landline telephone). …

The following table shows the unweighted sample sizes and the error attributable to sampling that would be expected at the 95% level of confidence for different groups in the survey: … Total sample [=] 2.9 percentage points

[451] Webpage: “LB268 – Eliminate the Death Penalty and Change and Eliminate Provisions Relating to Sentencing.” Nebraska State Legislature. Accessed December 18, 2019 at <nebraskalegislature.gov>

“May 27, 2015 Passed notwithstanding objections of Governor 30–19–0”

[452] Article: “Nebraska and California Voters Decide to Keep the Death Penalty.” By Mark Berman. Washington Post, November 9, 2016. <www.washingtonpost.com>

In Nebraska, voters opted to repeal a bill that was set to abolish the death penalty last year. A referendum Tuesday saw 60 percent of voters opting to scrap that bill, restoring the death penalty there.

After lawmakers in Nebraska voted to abolish capital punishment there, [Governor] Ricketts vetoed it, prompting the legislature to take another vote and override him.

[453] Webpage: “History of Capital Punishment in California.” California Department of Corrections and Rehabilitation. Accessed December 16, 2019 at <www.cdcr.ca.gov>

Proposition 34, the Death Penalty Initiative Statute, was a ballot measure to repeal the death penalty as the maximum punishment for people found guilty of murder. On November 6, 2012, 52 percent of California voters voted against it. If the state’s voters had approved it, the initiative would have replaced the death penalty with life imprisonment without the possibility of parole and the 728 people on death row at the time would have had their sentences converted to life without parole. …

Two competing initiatives appeared on the November 8, 2016, ballot. Proposition 62, the Repeal of the Death Penalty Initiative, would have repealed the death penalty and would have effectively commuted the sentences of condemned inmates from the death penalty with life imprisonment without parole. The measure also had a requirement that condemned inmates work and would have increased the portion of their wages for victim restitution from 20 to 60 percent. A “yes” vote supported repealing the death penalty; a “no” vote opposed the measure. Proposition 62 was defeated with 53.1 percent voting “no” and 46.8 percent voting “yes.”

Proposition 66, the Death Penalty Reform and Savings Act, was also on the November 8, 2016, ballot in California and was approved by the voters. On Dec. 16, 2016, the Secretary of State certified the election results for Proposition 66: 51.1 percent of California voters voted for it and 48.9 percent voted against it.

This initiative keeps the death penalty in place, generally requires habeas corpus petitions to be filed in the court which imposed the sentence, sets time limits on legal challenges, and changes the process for appointing attorneys to represent condemned inmates.

[454] Webpage: “Proposition 62.” California State Legislature, Legislative Analyst’s Office, November 8, 2016. <lao.ca.gov>

“A YES vote on this measure means: No offenders could be sentenced to death by the state for first degree murder. The most serious penalty available would be a prison term of life without the possibility of parole. Offenders who are currently under a sentence of death would be resentenced to life without the possibility of parole.”

[455] Webpage: “Proposition 66.” California State Legislature, Legislative Analyst’s Office, November 8, 2016. <lao.ca.gov>

A YES vote on this measure means: Court procedures for legal challenges to death sentences would be subject to various changes, such as time limits on those challenges and revised rules to increase the number of available attorneys for those challenges. Condemned inmates could be housed at any state prison. …

The vast majority of the 748 condemned inmates are at various stages of the direct appeal or habeas corpus petition process. These legal challenges—measured from when the individual receives a death sentence to when the individual has completed all state and federal legal challenge proceedings—can take a couple of decades to complete in California due to various factors. For example, condemned inmates can spend significant amounts of time waiting for the California Supreme Court to appoint attorneys to represent them. As of April 2016, 49 individuals were waiting for attorneys to be appointed for their direct appeals and 360 individuals were waiting for attorneys to be appointed for their habeas corpus petitions. In addition, condemned inmates can spend a significant amount of time waiting for their cases to be heard by the courts. As of April 2016, an estimated 337 direct appeals and 263 state habeas corpus petitions were pending in the California Supreme Court. …

This measure seeks to shorten the time that the legal challenges to death sentences take. Specifically, it (1) requires that habeas corpus petitions first be heard in the trial courts, (2) places time limits on legal challenges to death sentences, (3) changes the process for appointing attorneys to represent condemned inmates, and (4) makes various other changes. …

… The measure requires that the direct appeal and the habeas corpus petition process be completed within five years of the death sentence. The measure also requires the Judicial Council to revise its rules to help ensure that direct appeals and habeas corpus petitions are completed within this time frame. The five-year requirement would apply to new legal challenges, as well as those currently pending in court. For challenges currently pending, the measure requires that they be completed within five years from when Judicial Council adopts revised rules. …

… The measure requires that attorneys appointed to represent condemned inmates in habeas corpus petitions file the petition with the trial courts within one year of their appointment. The trial court generally would then have one year to make a decision on the petition. If a petition is not filed within this time period, the trial court must dismiss the petition unless it determines that the defendant is likely either innocent or not eligible for the death sentence.

… In order to help meet the above time frames, the measure places other limits on legal challenges to death sentences. For example, the measure does not allow additional habeas corpus petitions to be filed after the first petition is filed, except in those cases where the court finds that the defendant is likely either innocent or not eligible for the death sentence. …

In addition, the measure changes how attorneys are appointed for direct appeals under certain circumstances. Currently, the California Supreme Court appoints attorneys from a list of qualified attorneys it maintains. Under the measure, certain attorneys could also be appointed from the lists of attorneys maintained by the Courts of Appeal for non-death penalty cases. Specifically, those attorneys who (1) are qualified for appointment to the most serious non-death penalty appeals and (2) meet the qualifications adopted by the Judicial Council for appointment to death penalty cases would be required to accept appointment to direct appeals if they want to remain on the Courts of Appeal’s appointment lists.

[456] Article: “Nebraska and California Voters Decide to Keep the Death Penalty.” By Mark Berman. Washington Post, November 9, 2016. <www.washingtonpost.com>

Voters in California opted to reject a proposal that would have abolished the death penalty, voting against it by a margin of 53.9 percent to 46.1 percent.

Meanwhile, California voters also decided by a very narrow margin to pass a measure that would effectively speed up the pace of executions. This proposal won with 50.9 percent of the vote, winning passage with a little more than 151,000 votes out of more than 8.2 million cast.

The measure that passed would mandate earlier appointment of appellate attorneys for death-row inmates and set earlier deadlines for when appeals must be filed and decided.

[457] “Executive Order N-09-19.” By Gavin Newsom. Executive Department, State of California, March 13, 2019. <www.gov.ca.gov>

It Is Hereby Ordered That:

1. An executive moratorium on the death penalty shall be instituted in the form of a reprieve for all people sentenced to death in California. This moratorium does not provide for the release of any person from prison or otherwise alter any current conviction or sentence.

2. California’s lethal injection protocol shall be repealed.

3. The Death Chamber at San Quentin shall be immediately closed in light of the foregoing.

It Is Further Ordered that as soon as hereafter possible, this Order shall be filed with the Office of the Secretary of State and that widespread publicity and notice shall be given to this Order.

[458] Article: “California Death Penalty Suspended; 737 Inmates Get Stay of Execution.” By Tim Arango. New York Times, March 12, 2019. <www.nytimes.com>

Gov. Gavin Newsom announced a moratorium on capital punishment on Wednesday, granting a temporary reprieve for the 737 inmates on the state’s death row, the largest in the Western Hemisphere. …

Mr. Newsom, a longtime opponent of capital punishment, cited its high cost, racial disparities in its application and wrongful convictions, and questioned whether society has the right to take a life. …

An executive order Mr. Newsom signed on Wednesday does three things: grants reprieves to the inmates currently on death row—they will still be under a death sentence, but not at risk of execution; closes the execution chamber at San Quentin prison; and withdraws the state’s lethal injection protocol, the formally approved procedure for carrying out executions.

[459] “Summary of State Questions.” Oklahoma Secretary of State. Accessed January 2, 2020 at <www.sos.ok.gov>

Death Penalty

State Question No. 776 …

This measure adds a new section to the Oklahoma Constitution, Section 9A of Article 2. The new Section deals with the death penalty. The Section establishes State constitutional mandates relating to the death penalty and methods of execution. Under these constitutional requirements:

• The Legislature is expressly empowered to designate any method of execution not prohibited by the United States Constitution.

• Death sentences shall not be reduced because a method of execution is ruled to be invalid.

• When an execution method is declared invalid, the death penalty imposed shall remain in force until it can be carried out using any valid execution method, and

• The imposition of a death penalty under Oklahoma law—as distinguished from a method of execution—shall not be deemed to be or constitute the infliction of cruel and unusual punishment under Oklahoma’s Constitution, nor to contravene any provision of the Oklahoma Constitution.

[460] Webpage: “Search State Questions.” Oklahoma Secretary of State. Accessed January 2, 2020 at <www.sos.ok.gov>

“SQ [State Question] Num. 776 … Citation: Adding new Section 9A to Oklahoma Constitution, Article II … Summary: Death penalty – all death penalty statutes are in effect. It states that methods of execution can be changed. It states that the death penalty is not cruel and unusual punishment … Status: YES: 942,504; NO: 477,717 … Election Date: 11-08-2016”

[461] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

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