Capital Punishment

Front 1

"It is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the D's death rests elsewhere."

Back 1

Caldwell v. Missippi (1985) (Marshall)

Front 2

"Death is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the D, it is different in both its severity and its finality. From the point of view of society, the action of a sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the D and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion."

Back 2

Gardner v. Florida (1977) (Stevens) (holding that petitioner was denied due process of aw when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain [in the presentence report]."

Front 3

"We hold that where the D's future dangerousness is at issue, and state law prohibits the D's release on parole, due process requires the sentencing jury to be informed that D is parole ineligible." Based in part on the holding of Gardner v. Florida (no sentence "on the basis of information which he had no opp to deny or explain")

Back 3

Simmons v. South Carolina (1994) (Blackmun)

Front 4

"the benchmark for jduging any claim of ineffectivness must be whether conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."

Back 4

Strickland v. Washington (1984) (O'Connor) (two prongs: assistance of counsel deficient and prejudice) -- O'Connor embraces standards and not rules (see Atul Gawande and the Checklist Manifesto)

Front 5

"To identity before the fact those characeteristics of criminal homicides and their perpetrators which call for the death penalty, and to express those characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks beyond human ability."

Back 5

McGautha (1971) (Harlan) ("the stats are entitled to assume that jurors confronted with the trulya wesome responsibility of decreeing death for a felow human will act with due regard . . . and will consider a variety of factors . . .)

Front 6

In dissent: "Unlike the Crt, I do not believe that the legislatures of the 50 states are so devoid of wisdom and the power of rat'l thought that they are unable to face the problem of capital punishment directly, and to determine for themselves the critiera under which convicted capital felons should be chosen to live or die."

Back 6

McGautha (1971) (Brennan, dissenting)

Front 7

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed."

Back 7

Furman (1972) (Stewart, concurring)

Front 8

"Pregnant with prejudice" -- "We know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, saving those whose social position may be in a more protected position."

Back 8

Furman (1972) (Douglas, concurring)

Front 9

Burger dissent in Furman

Back 9

What would happen if states mandated death for capital ofenses? Also, "it seems remarkable to me that with our basic trust in lay jurors as the keystone in our system of criminal justice, it should not be suggested that we take the most sensitive and important decisions away from them."

Front 10

Blackmun dissent in Furman

Back 10

"There -- on the Legislative Branch . . . , and secondarily on the Executive Branch -- is where the authority and responsibility for this kind of action lies. The authority should not be taken over by the judiciary in the modern guise of an 8A issue."

Front 11

Legislative response to Furman

Back 11

Overwhelming support for the deathpenalty. At least 35 states enacted new statutes that provide for the death penalty.

Front 12

"Without making reasonable efforts to review the file, defense counsel could have had no hope of knowing whether the prosecution was quoting selectively from the stranscript or whether there were circumstances extenuating the behavior described by the victim."

Back 12

Rompilla v. Beard (2005) (Souter)

Front 13

"It is not so much the number of these states that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons 9and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. Moreover, even in those states that allow the execution of mentally retarded offenders, the practice is uncommon."

Back 13

Atkins v. VA (2002) (Stevens) -- this is a case about playing with numbers. Scalia, dissenting: "The Prize for the Court's most feeble effort to fabricate 'national consensus' must go to its appeal . . . to the views of assorted professional and relgious organizations, members of the so-called 'world community,' and respondents to opinion polls."