Death Penalty Law Outline

Death Penalty Outline

Spring, 2013

Professor Paul Litton

University of Missouri School of Law

Text: Rickind & Shatz, Cases And Materials On The Death Penalty, West, 2005

Introduction

Main Subject of the course: The Supreme Court’s 8th Amendment jurisprudence and how that has shaped state statutory schemes.

· Supreme Court stayed out of death penalty until 1971 & 1972.

o Struck down statutes not because death penalty is unconstitutional per se, but because not doing a good job instructing juries and parsing out who should get the death penalty and who should not.

· A few years later, the Supreme Court upheld a few statutory schemes.

Arguments for and against the death penalty

· Moral Arguments:

o Minimal Invasion Argument (Bedau):

1. Punishment is justified only if it is necessary to achieve a compelling state interest

2. The Death Penalty is more invasive of liberty than LWOP

3. LWOP is sufficient to achieve the compelling state interest behind punishment

4. CP (Capital Punishment) is not necessary to achieve a compelling state interest

– Conclusion: We should abolish CP

– Objections (to premise 3): 1. LWOP is NOT sufficient to deter. 2. Retribution is ALSO a compelling state interest which LWOP is not sufficient to satisfy

o RE: Objection #2-

– Pojman- Death is deserved for murder, perhaps other crimes- the murderer forfeits his right to life

– Bedau: This is begging the question- we don’t rape the rapist, or rob the robber…

o RE: Objection #1-

– Pojman: Data is ambiguous. * The default position should not be “No CP,” b/c common sense tells us that CP deters. He also argues that we should make executions public (to enhance deterrence)

– Bedau: The data is NOT ambiguous, the data shows that CP does not deter, and in fact supports the “brutalization effect.”

o What about the unfair application?

– Pojman says “unequal justice is still justice. Not every speeder gets a ticket.”

o Further Questions:

1. Even if deserved, what is the state interest? Even if the right to life is forfeit, why should the state take it?

2. Even if CP is deserved, why about other concerns? How much retributive justice is achieved through CP? Compared to LWOP?

· Countervailing Considerations:

1. The inevitable injustice of executing the innocent (1973- present: 138+ death row exonerations and 1,200 executions, so ratio of 8:1)

2. Pragmatic considerations: the cost (money and time) of CP compared to LWOP; the “brutalization effect”

3. General arbitrariness?

4. Invidious Determinants: race, poverty, race of victim, etc.

Van Den Haag’s “Best Bet” argument

· Bet that CP does deter

· If it doesn’t deter à we only lose murders.

· If it does deter à we lose innocents by not having it

· Better to lose murders than innocents.

History of the Death Penalty in the US

A. Trends: Societal Support for CP

Abolitionist Waves: 1830’s, 1840’s, 1890-WWII

· 1936- 62% pro, 35% anti

· 1957- 45% pro, 35% anti (Civil Rights Era)

· 1966- 42% pro, 46% anti (Miranda, etc.)

· 1976- 66% pro, 28% anti

· 1980’s- 1994- increasing support

· 1994- 80% pro, 15% anti

· Today: if LWOP is an option, 47% prefer CP, 48% prefer LWOP

o Today: number of executions has decreased, but number of death sentences handed down by juries is more.

B. Racial, Geographic Components:

a. Pre-Civil War CP in the South

– Death Penalty entrenched in the South

– Laws to protect the institution of slavery

– Black codes (more capital crimes for slaves)

b. Post-Civil War and Post-XIV Amendment:

– Discretionary sentencing yielded similar results

– Lynchings

c. Post-Furman:

– 70% of executions have happened in the former Confederacy

– Seminal cases (Furman, Gregg, etc.) have included black defendants from the South.

C. Efforts to make the System Rational, Consistent, Fair:

a. 1790’s: Murder in degrees (PA is the first because afraid that juries would acquit to spare a defendant’s life)

b. Limiting CP to murder (the worst of the worst), rape, treason

c. Movement toward discretionary sentencing away from mandatory death penalty

a. Until Furman = unlimited discretion

b. After Furman = guided discretion

Courts and state criminal justice

· Historically, courts are reluctant to influence.

· Intervention in 1932 (Powell v. Alabama)

1. Defendants denied due process

2. No opportunity to obtain counsel

3. Entitled to appointed counsel

· In DP cases, states have to appoint counsel.

· Courts won’t tinker with criteria for death.

MCGAUTHA V. CALIFORNIA (1971) p. 35

· Jury instructions: unguided discretion

· Defendant: system leads to arbitrariness

o So few are given death sentences

o No standards

· Holding: No Due Process violation (14th Amendment)

o Discretion = progress

o Standards are impossible

o OK not to set criteria before the crime because there’s no real way to do it: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in laguage which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” (p. 42).

o Why are standards impossible?

o In favor of DP