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Capital Punishment
University of Texas Law School
Steiker, Jordan M.

University of Texas School of Law
Professor Jordan Steiker – Spring 2012
Capital Punishment Outline
Topic 1: The Big Picture
·         Adopted by the 13 colonies, mirroring the former English rule.  At the time the Constitution is adopted, the death penalty is just a normal part of the justice system.
o   Our Constitutions has phrases in it that assume that the death penalty is constitutional.  The Due Process Clause lends to the argument that life may be taken if due process is provided. 
§  Our founders were quite influenced by an essay written by Cesare Beccaria that was anti-death penalty. 
§  In the 1790s, degrees of murder were adopted by Pennsylvania, making it possible for some murderers not to be executed.  This was the first state to do so.  Pennsylvania was also the first to establish prisons.  Ideology began moving away from corporeal bodily punishments to penitentiaries, focused on penitence. 
·         In the 19th Century, many states abolished the death penalty.  Michigan was one of the first.
o   Movement away from the death penalty being mandatory.  Juries now have the discretion.  By the 20th Century, virtually every American jurisdiction makes the death penalty non-mandatory.
o   Executions are moved from being local events to state events, so that they are conducted in usually only one prison in the state.  More humane.  Louisiana was one of the latest jurisdictions to centralize executions. 
o   Effort to humanize execution methods.  Chief method for most of our history was hanging.  There were many botched hangings, so that electrocution was believed to be better.  Less visible disruption to the body, began in the 1890s.  SC said there was nothing unconstitutional about electrocution in the 1890s.   
·         Early 20th Century, many states began abolishing the death penalty. 
o   Major argument for retaining the death penalty was that without it, people would get lynched.  Lynching was an enormous practice up until the 1920s.  More than 1,500 lynchings nationwide in the 1890s. 
§  Death penalty was reinstated in many states because of the mass lynchings. 
·         Death penalty stabilizes after WWI.  Death penalty becomes as robust as ever in the 1930s.  Gradual decline in the 1940s.  De facto moratorium on executions by the 1960s.  In 1968, the number of executions was 0.  10 years go by without executions. Big factor in that is the constitutional regulation of the death penalty.   
o   Modern day peak for executions was 1998-2000.  Since then, there has been a steady decline.  More dramatic and more significant, there has been a decline in the number of people sentenced to death.  67% drop from 1996 to 2010.  Less than 80 people were sentenced to death in 2011. 
·         Prosecutors are seeking the death penalty far less than before.  Why the huge decline in sentencing?
o   Crimes rates haven’t gone down, but the population has gone up.       
o   DNA testing has shown many people originally sentenced to death were innocent.  New Jersey, New Mexico, and Illinois have legislatively abolished the death penalty.  1966 was the only year where more people opposed the death penalty than supported it. 
§  Big explanation for the drop in people who support the death penalty is the alternative of life imprisonment without possibility of parole.  This option is fairly new.   
o   SC cases have limited categories of people who may be executed.  Minors and mentally handicapped persons may not be executed.  Murder is the only crime punishable by death. 
o   Cost has become an increasingly important issue.  Death penalty is hugely more expensive than non-death penalty alternatives and prosecutors know this. 
§  Where is the cost?  Capital trial costs are hugely more expensive that non-capital trials.  In can take 3 or 4 months to pick a capital jury compared to 3 or 4 days for a normal jury. 
§  Numerous expensive experts are brought to the jury.  Can costs hundreds of thousands of dollars. 
·         Texas has a bifurcated trial system.  Very unusual!
·         If the prosecutor doesn’t seek the death penalty, the sentencing part of the trial in completely unnecessary. 
Arguments on Either Side  
·         Deterrence
o   Rarity of executions means that it is difficult to know the deterrent effect the death penalty has. 
o   In the 50s and 60s, deterrence was a much more popular argument than it is today. 
§  Con argument holds “brutalization” effect that people are being desensitized to violence. 
·         Symbol
o   Value in communicating society values.
§  Con argument is the symbolic use of the death penalty.  Sentences but not executions, includes California, Pennsylvania, and Ohio. 
·         Almost all abolitionist states are in the Midwest (Iowa, Minnesota, Wisconsin, Illinois) and Northeast (Rhode Island, Massachusetts, Utah). 
·         5 states that have executed the most are all in the South (VA, FL, TX, Mississippi, and OK). 
·         Retributivism 
o   Can be a justification for punishment.  And is often used as an argument for proportionality. 
§  Offenders need punishment and deserve it. 
o   Kant argued that it was our moral duty to impose the death penalty on murderers.  “We don’t execute murderers because of some social value.”  (Utilitarian-Deterrence)  “We should do it because it’s the morally appropriate right response to wrongdoing.” 
o   Lex Talionis – An eye for an eye.  Biblical. 
o   Camus doubts that retribution theory works.  “Every society gets the criminals it deserves.”
§  You’d need to believe that a murderer is 100% responsible for that murder in order to murder him.  Gap between criminally culpable and 100% responsible.  That gap should stop us from using the death penalty.   
§  It is a basic principle of law that there are things that mitigate culpability.  This can both support and defend the above theory. 
Jeffrey Reiman
Justice, Civilization, and the Death Penalty; Answering van den Haag
·         Wants to separate right from duty.  Even if the state has a right to the death penalty because the individual deserves it, the State should forego deserved punishment.   
o   Creates a relationship between the State and the individual that is intolerable.  We can tolerate incarceration.  People still have an acknowledged humanity there. 
o   Death penalty f

arge role, created an opportunity for legal group advocacy.  Creates public law. 
o   NAACP’s Legal Defense Fund (LDF) becomes very important. 
§  LDF became involved after a 1963 non-decision by SCOTUS (Rudolph v. Alabama) involving a denial of cert. Dissent from a denial of cert occurs when a Justice says that the Court should have taken a case.  Happens just a few times every term.    
·         Justice Goldberg wrote a dissent from a denial of cert saying that the death penalty is excessive punishment for the crime of rape. 
§  Goldberg didn’t address the issue of rape, but 90% of those sentenced to death for rape from 1920 to 1967 are black defendants who supposedly raped white women.     
o   LDF used moratorium strategy, began attacking the death penalty in every state.  Because of incorporation, new challenges were available in criminal cases.  Some of the challenges were death penalty related, but a large number of the claims were not related to the death penalty itself – illegally seized evidence, inappropriately gained confessions.
LDF Attacks on the Death Penalty
·         Jury Composition
o   Witherspoon (1968).  Prior to Witherspoon, a prosecutor could remove anyone with any reservations about the death penalty.  Court found that this violated the 6th Amendment (right to a jury trial).  Now you can only excuse people who say that their views are so strong, they would never impose it.  
·         Unitary Trial Proceedings
o   Attacked the fairness of deciding your guilt and your sentence at one time. 
§  Forces you to concede guilt in order to bring mitigating evidence to help lessen your punishment. 
·         But, today this kind of happens anyway through procedure.  If offends the jury to have a theory of innocence presented in the guilt phase and then a theory of mitigation in the sentencing phase.
·         Challenging the guilt at the sentencing phase is self-destructive.  The jury already doesn’t like you.   
§  Mitigation strategies were not developed in the 60s, so the Court didn’t think you were really losing anything by having this type of proceeding. 
o   Today, mitigation is bad because it opens you up to the other side presenting negative information about you as well as the mitigation you want presented. 
o   In many states, you weren’t allowed to present evidence that wasn’t related to guilt or innocence.  
§  That you were provoked or drunk could be presented.
§  But that you had a horrible childhood or you gave back to your community could not be presented.