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Death Penalty Seminar
University of Toledo School of Law
Hamilton, Melissa

[I] Introduction to Capital Punishment Law and Litigation
[A] “The Death Penalty in 2005,” Death Penalty Information Center (December 2005)
[A.1] Decline in State Death Penalty Application: In 2005, the number of death sentences dropped to record lows and even some of the most heinous killers were given life-without-parole. Death sentences averaged around 300/year nationally during the late 1990s. Since then, the number has dropped 55% to 125 in 2004.
CA has the largest death row, now with 648 inmates.
[A.1.1] Low Public Support: The high point of political support for DP came in 1994 when 80% of the public endorsed the DP. Now, only 39% chose the DP, 39% chose life with no parole, 6% favored a long sentence with parole for murders.
[A.1.2] But See: There is a higher proportion of women being put to death because of new laws that aggregate killing when the victim is under the age of 14. This has given rise to more domestic crimes being tried as capital cases.
[A.2] Increase in Federal Death Penalty Application: Unlike the trend in almost all states, however, the number of federal death sentences has increased in recent years, although they still represent only a small percentage of the national total.
[A.3] Still Racist: Over 73% of those executed this year had been convicted of murdering white victims, even though less than 50% of murder victims in this country are white.
[A.4] Reasons for the changes:
[A.4.1] Innocence Proof: Well in 2005, the number of innocent people freed from death row equaled 122.
[A.4.2] Scientific Growth: With the growth of science, people want DNA proof that a person is guilty of murder.
[A.4.3] Religious Opposition: growing religious opposition to the use of the DP
[A.4.4] Expensive: The cost of the DP is also declining its popularity. The DP cost NJ taxpayers $253mil. In CA, taxpayers are paying about a quarter of a billion dollars for each execution.
[B] “Death Row U.S.A.,” NAACP Legal Defense and Educational Fund, Inc. (Spring 2006)
Jurisdictions with capital punishment statutes: 40; Jurisdictions without DP statutes: 13
[C] “A Peculiar Institution? Capital Punishment and the American Civilizing Process,” David Garland, Moffett Lecture on Ethics (Dec. 2004)
[C.1] Introduction: It’s interesting that we debate so much about the DP even though it’s only applied 150 times a year and we never talk about the massive incarceration occurring. There is very little in today’s normative debates that would not be familiar to those who addressed the issue 200 years ago.
[C.1.1] Summary: The DP is a microcosm for the American political process. The elites in European countries can act in a counter-majoritarian way because this is in the civilizing way. We don’t have a centralized policy-making authority so we don’t have the same capacity to achieve reform.
[C.2.1] Criticisms of the DP:
[C.2.1.1] Not Absolute: The DP is so delayed and reviewed that it’s far from being absolute at all.
[C.2.1.2] Don’t Follow Thru: More offenders are sentenced each year than are ever prosecuted so it’s really just a holding bin.
[C.2.1.3] Not Often Enforced: The DP varies widely between each state including how often the statute on the books is even enforced.
[C.2.1.4] Geo Concentration: The DP is geographically concentrated mostly in the south.
[C.2.1.5] Lots of Discretion: 15,000 arrests are transformed into about 150 DP sentences. This process involves multiple levels of discretionary exercise – most of which are not reviewable.
[C.2.1.6] High Reversal Rate: There is an astonishing amount of legal and procedural errors – in capital cases, there is a reversal rate of 68%.
[C.2.1.7] Victims’ Revenge: The DP is increasingly framed in terms of victims’ satisfaction.
[C.2.1.8] Hidden from Public: Executions are hidden from public view and they are swift and uneventful. This tends to undermine the purposes of deterrence.
[C.2.1.9] US Behind the World: The US is only Western nation to support DP still.
[C.2.2] There are important qualities of the American government that shapes DP (and other) policy
[C.2.2.1] Democratic: The system is strikingly democratic and sensitive to public opinion. The jury chooses who is going to die.
[C.2.2.2] Legal Rules: The American system is more than any other intensely regulated by legal rules.
[C.2.2.3] The Role of Experts: The jury ultimately chooses whether or not to impose the DP but that decision is made within a procedure that relies heavily on expert testimony.
[C.2.2.4] Cultural Shadow: The DP has an important cultural shadow for social politics. How you feel about the DP reflects your beliefs in other areas.
[C.2.3] Constrained Civilizing Process:
[C.2.3.1] Generally: The explanation of the American DP jurisprudence is the theory of constrained civilizing processes. This is a theoretical account of long-term social chance. This civilizing process is a general mechanism of social transformation that produces specific psychological, cultural, and behavioral changes.
[C.2.3.2] “Civilizing Process”: The long-term trajectory is as follows. At the beginning of the modern period, the DP was in widespread use everywhere and nobody thought it was illegitimate. Then the institution undergoes a slow process of modification and abolition. 
The key stages in this civilizing process:
(1) reduce range of capital offenses eligible, (2) the abolition of the aggravated death sentence, (3) the removal of executions from the public gaze, (4) the adoption of technologies designed to speed death and reduce pain, (5) the emergence of normative discourse challenging the institution, (6) the appearance of sharp class-based divisions in public attitudes about the DP, (7) secular decline in the frequency of executions and (8) the movement full abolition, first de facto, then de jure.
[C.2.3.3] “Constrained”: The characteristics of institutional design or social organization that limit the capacity or willingness of elites to carry thru counter-majoritarian reforms they might otherwise be disposed to enact.
Constraints of this kind are built into American’s decentralized government.
[C.2.3.3.a] Evidence of Constraint: Most of the evidence comes from the American South, where racism and populism is most pronounced. The most prominent lynching states 100 yrs ago, tend to be the most high-rate execution states today.
[C.2.3.3.b] Juxtapose other Countries without these Constraints:
In other western societies, political leaders were willing and able to bring about nation-wide abolition by legislature fiat, in the face of strong public opposition. Political elites in these countries had the political capacity to carry thru this reform because bipartisan agreements, supported by effective party discipline, kept the matter outside of electoral competition. And they had the legal capacity to do so because the enactment of criminal penalties was within the sovereign jurisdiction of the national parliament.
The government structure of the USA makes the elite action of this kind impossible. The abolitionist mechanism used by most other western nations simply is not available to the US government.
[C.2.3.3.c] Furman v. Georgia: SCOTUS ruled that that the DP was unconstitutional as then administered. It looked then as if the obstacles to national reform had been overcome and the last stage of the abolition completed. But political and institutional constraints quickly re-asserted themselves as the political backlash to Furman as states passed new capital statutes to fit the SCOTUS requirements. 
A top-down, counter-majoritarian elite reform was thus reversed by institutional constraints and their political consequences.
[1] Reasons the Court was Constrained:
(1) The language of the American const. explicitly envisages a DP, so that an abolitionist decision would fly in the face of the document’s original meaning. (2) By the 1970s, SCOTUS was acting in a climate of great public fear about crime and violence. (3) A legacy of public anger about the Warren Court’s liberal activism which was deemed too have extended Ds’ rights at the expense of public safety.
[C.2.3.3.d] How Has the Court Dealt with These Constraints?
juridification, democratization, and civilization
[1] Juridification: aim is to reform the system thru law; to rationalize and regulate and otherwise arbitrary system
This strategy has produced a series of unintended outcomes. The effort to ensure that death decisions are rule-governed rather than arbitrary has foundered in the face of the competing demands of two legal principle s—the need to ensure equality between cases and the need for the individualized consideration of the D’s unique circumstances. The multiplication of technical formalities and procedural requirement increase the importance of competent and well-funded legal counsel. In a system where competence and resources are lacking at the trial level but become available late in the post-conviction review, the effect is to front-load error and back-load its discovery.
Ironically, it is the virtues of juridification – together with the adversarial processes it has unleashed – that have produce the vices of interminable delay, massive expense, thousands on death row, and high levels of procedural error.
[2] Democratiziation: emphasizes that DP is the authentic will of the people. This shifts the responsibility away from the law and toward the sovereign authority of the people themselves.
It is the democratization strategy that opens the system up to the subjective passions and prejudices of ordinary people who bring in their racial stereotypes and their limited range of yman sympathy and personal identification.
[3] Civilization: the legal encouragement of technical innovation, the disavowal of archaic inhumane techniques, and the exclusion of sympathetic categories of individuals (mentally retarded, juveniles).
The problem with softening the DP is that it undermines the institution’s essential purposes
[II] Framework of the Modern Death Penalty
[A] NAACP Litigation Strategy
[A.1] Law By Terror: The NAACP were concerned with dealing with terror. There was racial violence, lynching, bombing etc. used to sustain racial segregation. People wouldn’t have just complied with the laws because of it but instead they complied because of the threat of violence (many extra-legal consequences). They were often lynched because of supposedly violating crimes.
[A.2] Double Standards: There were two “codes.” There were sentencing guidelines for punishments for the different races. This shaped the way we look at the DP. The explicit laws changing the punishments based on the race of the perpetuator and victims were eventually done away with but the legacy remains.
[A.3] Rise to DP Litigation: They got involved with DP litigation to respond to this huge concern in the south. By the 1940s and 50s, the lynching has decreased but the amount of death sentences used against racial minorities has increased. All of the rapes in the 1960s that triggered DP were black men raping white women (or some white men raping white women, but no minority victims). It’s this push that gives rise to the Furhman case in 1962. The early cases were purposefully broad. They were timed to try and prompt a response from the court (to replicate what was happening in Europe, that is, a ban on the DP).
[B] Furman v. Georgia (1972): as applied, discriminatorily and arbitrarily, the DP violates the C&U clause of the 8th amendment
[B.1] Facts: D presents evidence that the DP in GA is applied in a racially discriminatory way.
[B.2] Issue: Is the DP a cruel and unusual punishment?
[B.3] Per curiam Holding: The imposition of the DP in the cases in front of the Court would constitute cruel and unusual punishment under the 8th amendment.
[B.3.1] Summary of Reasoning:
[B.3.1.1] DP is totally illegal: Two justices (Brennan and Marshall) accepted the view that standards of decency required that the 8th amendment be interpreted to ban the DP for any crime regardless of its depravity.
[B.3.1.2] As Applied: Three justices focused on the procedures by which convicted defendants were selected for the death penalty rather than on the actual punishment inflicted.
[B.4] Douglas, Concurrence
[B.4.1] Summary: The DP is cruel and unusual when it discriminates against Ds based on their race/class/wealth/social position or if it is imposed under procedures that allow for such prejudices to come into play.
[B.4.2] Reasoning:
[B.4.2.1] ‘A penalty . . . should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatorily.’: The phrase “cruel and unusual” suggest that it is ‘cruel and unusual’ to apply the death penalty–or any other penalty– selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.
Any law which is non

ctivity: Death is inflicted, they say, only in ‘extreme’ cases.
When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment.
all cases to which the laws apply are necessarily ‘extreme.’ Nor is the distinction credible in fact. If, for example, petitioner Furman or his crime illustrates the ‘extreme,’ then nearly all murderers and their murders are also ‘extreme.’
[B.6] Stewart, Concurrence
[B.6.1] Summary: He holds the DP is C&U not because of the racist application but because it is totally unique – it’s both excessive thus cruel and infrequently applied thus unusual.
[B.6.2] Reasoning:
[B.6.2.1] DP is total unique from all other punishments: The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in (1) its total irrevocability, (2) its rejection of rehabilitation of the convict as a basic purpose of criminal justice and (3) its absolute renunciation of all that is embodied in our concept of humanity.
[B.6.2.2] Cruel Punishments Are Excessive in Kind: these sentences are ‘cruel’ in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary.
[B.6.2.3] Unusual Punishments Are Infrequently Sentenced: these sentences are ‘unusual’ in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare.
[B.6.2.4] Racial Discrimination Issue: But racial discrimination has not been proved, and I put it to one side.
[B.7] White, Concurrence
[B.7.1] Summary: He does not decide that all forms of the DP are unconst. That issue isn’t presented by this case, he says, and thus he doesn’t decide it. He says that because the DP is so seemingly randomly applied, there is no reason to believe it furthers any penal goals that justify it’s existence.
[B.7.2] Reasoning:
[B.7.2.1] DP doesn’t achieve any penal goals: It’s so seldom imposed that it’s not a credible deterrent or any other penal goal. Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.
It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.
[B.7.2.2] there is no basis to distinguish DP-eligible cases from others: The DP is exacted with great 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.
[B.8] Marshall, Concurrence
[B.8.1] Summary: He thinks that the DP is C&U if the majority of Americans knowing the problems in the DP would find it barbarously cruel. They just need to know that it’s (1) discriminatory, (2) innocents are punished and (3) it hurts the whole penal system.
[B.8.2] Reasoning
[B.8.2.1] If people knew they would not support: I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance. Thus, I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional.
Facts that would change everybody’s minds:
[B.8.2.1.a] Discrimination: capital punishment is imposed discriminatorily against certain identifiable classes of people
[B.8.2.1.b] Innocence: there is evidence that innocent people have been executed before their innocence can be proved
If an innocent man has been found guilty, he must then depend on the good faith of the prosecutor’s office to help him establish his innocence. There is evidence, however, that prosecutors do not welcome the idea of having convictions, which they labored hard to secure, overturned, and that their cooperation is highly unlikely.
No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real.
[B.8.2.1.c] Havoc Wreaking: the death penalty wreaks havoc with our entire criminal justice system
The deleterious effects of the death penalty are also felt otherwise than at trial. For example, its very existence ‘inevitably sabotages a social or institutional program of reformation.’ In short ‘(t)he presence of the death penalty as the keystone of our penal system bedevils the administration of criminal justice all the way down the line and is the stumbling block in the path of general reform and of the treatment of crime and criminals.’
[C] Gregg v. Georgia (1976): upholding the const. of GA’s new bifurcated aggravation/mitigation DP statute
[C.1] Facts:
The Georgia statute, as amended after Furman  retains the death penalty for six categories of crime: murder, kidnaping for ransom or where the victim is harmed, armed robbery, rape, treason, and