Capital Punishment Outline | ID 64567 | University of Texas Law School

Capital Punishment Outline

MORAL DISCUSSION

Arguments Against CP

Arbitrariness

i. Stewart Furman Concurrence (bolt of lightning)
ii. 120 executions / 6000 death eligible homicides per year
iii. Can’t serve purposes if so rarely used
iv. Nathanson says abolition only answer

Discrimination

i. Race of victim most important (Douglas in Furman)
ii. Baldous Study of Georgia

Irrevocability
Brutalization

i. Camus

Incompatibility with Evolving Standards of Human Dignity

i. Marshall Furman Concurrence

Arguments for CP

Retribution

i. Kant: CP is a categorical imperative
ii. Hegel: Restoration of Moral Equilibrium
iii. Catharsis Retributivism

Incapacitation
Deterrence

i. Empirically problematic

Proportionality

i. Need something over and above life w/out parole
ii. US argument bc nowhere else even has LWoP

Cost

i. Could be less expensive, but currently isn’t

CONSTITUTIONALIZATION OF CP

Pre-Furman History

1950’s: Powell v. Alabama

i. Right to counsel in capital cases

1962: Incorporation of Bill of Rights
1963: Rudolph v. Alabama

i. CP disproportionate for rape of adult?
ii. SC denies cert

1966: NAACP attack on CP via “moratorium strategy”

i. It works, popularity of CP goes way down

1968: Witherspoon v. Illinois

i. Death-qualifying limited to “inalterable opposition”

1971: McGautha v. CA / Crampton v. OH

i. DP attacks on bifurcated proceedings (OH) and “standardless discretion” of sentencing juries (CA)
ii. Both attacks fail on DP grounds

Furman v. Georgia (1972)

“Standardless Discretion” challenged on 8th Amendment Theory
Holding: CP regimes shut down
Concurring Opinions

i. Douglas
1. Concerned with discriminatory administration
2. Conflation of 8th Amendment requirements with EP clause concerns
ii. Stewart
1. Getting CP under this regime is C&U like being struck by lightning is C&U
iii. White
1. Practice is becoming so marginalized that it has ceased to serve its stated purposes (RID)
a. Though available, prosecutors weren’t seeking CP and juries weren’t returning death sentences
2. Cruel because it’s pointless, Unusual because it’s so rare
iv. Brennan
1. Could work in abstract, but current practice doesn’t serve CP’s stated purposes (RID)
v. Marshall
1. Evolving Stanards of Decency prohibit current administration methods
2. Pathologies of CP hidden from public
3. Similar to Camus

Dissenting Opinions

i. Burger / Blackmun
1. Concern that states will make CP mandatory to avoid arbitrariness problem

Aftermath

35 states pass new CP statutes w/in 4 years

i. 10 mandatory CP statutes
ii. 25 statutes based on MPC
1. Statutory aggravators

1976

i. 5 CP cases come to SC and are decided on the same day
1. Gregg v. Georgia
2. Jurek v. Texas
3. Proffitt v. Florida
4. Woodson v. North Carolina
5. Roberts v. Louisiana

1976 Cases

Statutes Attacked

i. Georgia (Gregg)
1. Murder, Rape, Robbery, Kidnapping, Treason, Hijacking
2. Plus at least one aggravator
a. Outrageously wantonly vile or inhuman
b. Involved aggravated battery / torture
c. Prior conviction for capital felony
d. Committed after escape from prison / Trying to av

Cases

Godfrey v. Georgia (1980)

i. “Outrageously wantonly vile or inhuman” statutory aggravator struck down as unconstitutionally vague
ii. Doesn’t satisfy Gregg requirement that CP statutes provide “meaningful basis” for distinguishing cases in which CP should be imposed from cases where it shouldn’t

Zant v. Georgia (1983)

i. One of three statutory aggravators supporting Zant’s death sentence was the one struck down in Godfrey
ii. Death sentence upheld because other two aggravators were valid, and jury wasn’t asked to “weigh” aggravators against mitigators
iii. In “non-weighing” states, one valid aggravator is enough

Clemons v. MS (1990)

i. MS regime had juries “weigh” aggravators against mitigators
ii. Under this regime, if at least one unconstitutionally vague aggravator supports death sentence, the sentence can be saved if
1. The finding of the invalid aggravator was “harmless” or
2. The appellate court reweighs the valid aggravators against the mitigators and says aggravators outweigh mitigators
iii. SCOTUS upholds practice of allowing appellate courts to carry out weighing function statutorily relegated to juries

Walton v. AZ (1990)

i. Walton sentenced to death under facially vague aggravator
1. “Especially heinous, cruel, or depraved manner”
ii. AZ supreme court had narrowed the meaning of this aggravator with clarifying construction