Capital Punishment Outline

Nesset_Capital Punishemnt_Summer 2010 – Capital Punishment and the Judicial Process (Coyne)

I) Basic Concepts
A) History
1) Traditionally
(a) Much more widespread use of capitol punishment
(b) Modern trend away from capitol punishment in the civilized world
2) SC trends after Furman
(a) 1976 – early 80’s: S.C review of capitol statutes
(b) late 70’s – late 80’s/early 90’s – S.C reviewed capitol procedures
(i) were the statutes being followed properly to allow for constitutional safeguards
(c) late 80’s – present – S.C. hears fewer cases and the ones that are reviewed favor the expeditation of executions and finality
B) Appeals Process
1) direct appeal to state supreme court
2) cert pettion to us sup. Court
3) state habeas – t ct.
4) appeal of state habeas to the state sup. Court
5) cert petition to the US sup. Court
6) fed habeas – fed district ct
7) appeal th the fed. Cir ct
8) cert us sup ct
9) last minute appeals/clemency hearings – repeat the entire process, 3-8 in days or hours
C) Jusitifications
1) deterrence
2) retribution
D) problems
1) psychological deprivation of many death row inmates
2) Discriminatory imposition
(a) Often race based
(b) Often times worst offenders do not get death
3) Innocence
(a) What is necessary to overturn after sentencing
4) Cost
(a) Costs more to execute
5) Victims
(a) What are their roles in the justice system
II) Methods of Execution
A) Background
1) Challenges based on 8th amendment
2) Factors considered by court
(a) Constitutional framework
(i) Intent of framers vs. Evolving stds of decency
(1) Scalia: was method was unacceptable at the time of adoption of the 8th amendment
(2) Brennan: look at current scientific knowledge and other states
(b) Existence of other methods
(i) Just because newer methods exist does not make old methods unconstitutional
(ii) States refusal to adopt an alternative only violates the 8th amendment if the alternative creates a substantial decrease in the risk of pain
(c) Level of pain
(i) Some pain is not unconstitutional; look for wonton or unnecessary pain
(ii) Look at pain when properly done and not when botched
(iii) Consider strictness of protocol in a state
(d) Deference to legislative decision
(i) Method selected by legislature has presumtion of validity
(e) Mutilation and Violence (state level only)
B) Methods
1) Gas Chamber
(a) SC
(i) Gray v. Lucas – all methods involve some pain and terror and gas chamber is not signifigantly different to violate 8th amendment
(ii) Gomez v. U.S. Dist. Ct. – dissent argued for evolving stds but rejected
(b) Lower Ct
(i) Hunt v. Smith – availability of newer method does not make old method unconstitutional
(ii) Fierro v. Gomez (1994) (district court) – rejects gas chamber
(1) Lack of protocol
(2) Pain during regular execution even if properly conducted
(3) Pronounced movement away
(iii)
2) Lethal Injection
(a) SC
(i) Baze v. Rees (2008)
(1) A State’srefusal to adopt proffered alternative procedures mayviolate the Eighth Amendment only where the alternativeprocedure is feasible, readily implemented, and in factsignificantly reduces a substantial risk of severe pain
3) Hanging
(a) SC
(b) Lower Ct
(i) Campbell v. Wood – test is not pain at death but pain before death/ hanging OK
4) Electric Chair
(a) SC
(i) Glass v. Louisiana – dissent