Death Penalty

Front 1

What is the DP?

Back 1

-Capital punishment
-The lawful imposition of death as a sanction for certain types of offenses
-The act of killing or executing a person who is found guilty of committing a capital offense by the government

Front 2

Who can prescribe the DP?

Back 2

-Congress
-Any state legistlature

Front 3

Who uses the DP?

Back 3

-State governments
-Federal government
-Military

Front 4

Death Row Today

Back 4

-CA, FL, TX = have the highest number of inmates on DR
-TX, VA, OK, FL = highest number of executions

Front 5

1600s/Colonial

Back 5

-Based on England's DP laws and practices
-Permitted the use of DP for many offenses
-Most executed for murder and most by hanging
-Purpose: just retribution, deterrent effect, reminder of government's power, religious/morality and a chance to save souls

Front 6

North v. South during Colonial Times

Back 6

-Northern colonies made crimes like murder, manslaughter, rape punishable by death
-Southern colonies included many property offenses (many of their laws reinforced the racial divide in the colonies)

Front 7

Puritan v. Quaker during Colonial Times

Back 7

-Puritans: 12 death eligible crimes; most justified by the bible; most colonies had similar statutes regarding capital offenses
-Quakers: originally prohibited it but later allowed it for murder and treason; justifications also based on religious reasoning

Front 8

Characteristics of Colonial Executions

Back 8

-Delayed a week or two so that offender could repent (allowed to go to church and have minister visit)
-Drew a large crowd (often publicized)
-Carried out locally
-Symbolic public ceremony where public could see the consequences of sin and crime
-Procession to gallows -> church sermon -> execution warrant read -> last words -> executed

Front 9

1700s/Early Abolitionists

Back 9

-Dr. Ben Rush in 1700s questioned the support and belief the DP was a deterrent (violation of social contract and "brutalizing effect" aka counter deterrent effect)
-"House of Reform": a place where offenders could learn to be law abiding members of society via moral education (movement toward penitentiary and Walnut Street Jail)
-Degrees of murder: taking into account varying circumstances, PA abolished DP for all crimes except Murder 1 and other states followed but only limited the number and types of offenses that were punishable by death not eliminate mandatory capital punishment
-Effect: 1. creation of degrees of murder, 2. decrease in the number of offenses punishable by death, 3. removed executions from the public, 4. decreased annual number of executions

Front 10

Abolitionists v. Proponents

Back 10

-Abolitionists: society was more civilized, DP only used in barbaric nations, prisons could handle offenders, methods were gruesome and brutal (proponents agreed with this)
-Proponents: society was not evolved, worried about prisons being able to keep society safe, long terms in prison not the best punishment for serious offenders

Front 11

1800s

Back 11

-Use of DP increased substantially
-Some states limiting the offenses punishable by executions
-MI first state to abolish the DP for all crimes except treason
-Executions no longer a solemn event so taken out of public eye
-Mandatory -> discretionary statutes: gave juries the option of imposing life in prison rather than DP
-Almost all executions became state authority over time (as opposed to local)

Front 12

Types of hangings

Back 12

1. Drop-down: trap-door with rope on neck, botched a lot
2. Upright jerker: offender lifted off ground with weights and pulleys then rope was cut that let weights fall which lifted body, still botched and didn't always work

Front 13

Capital punishment enhancements

Back 13

-Varied in severity
-Worst offenders not given a proper or honorable burial
-Displaying body in a public place (i.e. an iron cage)
-Dismemberment after hanging
-Given to medical officials for dissection

Front 14

DP in the South

Back 14

-Used public hanging until early 20th century
-Most capital offenses & DP was a way to threaten the black population (or sympathetic whites)
-Most executed in the south were black, **blacks disproportionately given DP for all capital offenses
-Plagued by public lynchings until 1946

Front 15

1900s/Progressive Era

Back 15

-6 states completely outlawed DP
-By 1920, push away from DP diminished and many states began to reinstate (fear of threat of revolution and communism & WWI, class conflicts high, depression led to high unemployment and an increase in the punitive view of offenders)
-Electrocution most frequent method
-1930s had highest number of executions in US history
-!950s/60s see decrease and all executions under state control
-Furman moratorium in '72

Front 16

DP Today

Back 16

-Most executed in South, by lethal injection, white with a white victim, male
-Still higher proportion of blacks executed compared to general population

Front 17

Caryl Chessman (1960)

Back 17

-Convicted of robbery, rape, kidnapping among others in 1948, sentenced to death on kidnapping charge which he denied
-On death row for many years where he wrote several books, filed several appeals, granted several stays of execution (8 times)
-Case reached global audiences (several US, European, S. American countries protested on his behalf)
-Executed in 1960 via gas chamber
-Case fueled anti-death penalty cause

Front 18

Challenging the DP

Back 18

-Methods and procedural issues have historically been challenged
-Legality not challenged until 1960s: courts did not want to intervene in state matters; 5th, 8th, 14th amendments interpreted as permitting the death penalty

Front 19

5th Amendment

Back 19

-Prohibits self-incrimination and double jeopardy (of life)
-Federal due process (life, liberty, or property)
-Sets our rules for indictment by grand jury and eminent domain

Front 20

8th Amendment

Back 20

-Prohibits government from imposing "cruel and unusual punishment" (and excessive fines and excessive bail)
-"Evolving standards of decency": court departs from historical interpretation of DP, not limited to the intent of the framers, changes over time as we progress as a society
-DP may become unconstitutional if imposed in a way that involves cruelty, pain, or inhumane

Front 21

14th Amendment

Back 21

-States due process (life, liberty, property) and equal protection clause (guaranteed right to counsel in all capital trials)
-Selective incorporation of Bill of Rights (brought it to state matters)

Front 22

Cruel and Unusual punishment

Back 22

-Punishments disproportionate or excessive in comparison to the offense committed
-Protects citizens from excessive governmental interference & human dignity
-Definition changes with the time (evolving standards of decency)

Front 23

Boykin v. Alabama (1969)

Back 23

-2 issues: whether or not the DP for committing robbery is cruel and unusual punishment in violation of the 8th and 14th amendment AND did Boykin understand the consequences of his guilty plea/was it voluntary
-Held that it was unclear if the defendant voluntarily and understandingly entered a guilty plea, because one's liberty is at stake, the court must be sure that there is true understanding of one's plea. Reversed.
-First time the USSC agreed to consider the constitutionality of the DP rather than procedure (but did not address this matter)

Front 24

Test cases for Furman

Back 24

-4 test cases selected to address constitutionality of DP
-2 rape cases & 2 murder cases selected

Front 25

Furman v. Georgia (1972)

Back 25

-Facts: William Furman, IQ of 65 (i.e. mentally deficient), had court appointed counsel with limited resources, entire trial lasted 1 day, while burglarizing a home and trying to flee, he shoots the home owner. Trial court found him guilty of murder and sentenced to death
-Issue: Does the application of the DP constitute cruel and unusual punishment in violation of the 8th and 14th amendment?
-Holding: Held that yes, capital punishment statutes were unconstitutional. DP as imposed by existing law, was arbitrarily, capriciously, and unfairly imposed and was in violation of the 8th (based on unlimited discretion given to sentencing authorities in capital trials - i.e. gave too much discretion to jurors in deciding a sentence)
-DID NOT make the DP unconstitutional, just the statutes at the time
-Impact: put a "moratorium" on DP (stopped all executions), voided DP statues in 40 states, over 600 death sentences for prisoners on DR were vacated
-In response: first enactment of LWOP, states revised their DP statutes and modified them

Front 26

Gregg v. Georgia (1976)

Back 26

-Facts: Gregg was convicted of armed robbery and murder. He was sentenced to death. Appealed his case to the state supreme court, where they affirmed. This included a series of cases.
-Issue: Is the imposition of death prohibited under the 8th & 14th?
-Holding: No, DP does not violate 8th & 14th under all circumstances. Under certain circumstances the DP may be used if carried out appropriately (overturned moratorium)
-The court did little to ensure defendant benefit from the new reform (many attorneys were inexperienced, lacked training, and the necessary resources to effectively carry out a capital trial)
-Impact: requires special procedures that ensure lawful application of the DP so there is consistent application and consideration of individual circumstances
-Established: 1. guided discretion statues, 2. bifurcated trials, 3. automatic appellate review, 4. proportionality review

Front 27

Guided Discretion Statues

Back 27

-Jury discretion is directed and limited to minimize the risk of arbitrary action
-If convicted of a death-eligible offense, jury may impose death if found that the state proved at least 1 statutory aggravating circumstances
-3 types: aggravating v. mitigating, aggravating only, structured discretion
-Aggravating circumstances: makes it more serious (e.g., criminal history, cruelty, victim under 12)
-Mitigating: calls for a lighter sentence (e.g., surrender, good character, assisting authorities)

Front 28

Aggravating v. Mitigating DP Statutes

Back 28

-Most widely used type of DP statute
-1 aggravator must be found before DP can be considered
-1 or more aggravating factors weighed against mitigating factors
-3 outcomes: aggravating outweighs mitigating = death, mitigating outweighs aggravating = LWOP, equal = death may be imposed
-Issues: not all factors count equally, don't just add/subtract factors so leaves it open to greater interpretation and discretion (which is what is was trying to reduce), juries merely use "common sense" in weighing each factor; in FL, AL, DE jury's sentencing recommendation is advisory and judge can legally ignore it after giving it "great weight" but 2002 USSC rules that juries determine sentence but not impacted those states

Front 29

Aggravating Only DP Statutes

Back 29

-If a jury finds at least 1 statutory aggravating factor then death may be recommended
-2 exceptions: treason & hijacking a place = death without needed aggravating factors
-Juries may consider mitigating factors even though not listed statutorily

Front 30

Structured Discretion Statutes

Back 30

-Most unusual type (only in 3 states)
-DP results if state proves beyond a reasonable doubt that the defendant committed murder with at least 1 of the 9 aggravating circumstances in their statutes
-If fail can still convict of murder or other offense, if convicted of murder then during sentencing the state and defense can present mitigating and aggravating

Front 31

Proportionality Review

Back 31

-Process where the state appellate courts compare sentence in the case before it with the sentence imposed in similar cases
-Purpose is to ID sentencing disparities and help eliminate any arbitrariness
-Most states have moved away from this type of review

Front 32

Bifurcated Trials

Back 32

-Guilt phase and sentencing phase
-Most states use the same jury in both phases in capital trials

Front 33

Pre-Trial Process

Back 33

1. Arraignment: charges read and plea entered
2. Preliminary hearing: hearing to determine if there is enough evidence to prosecute
3. Grand jury: group of citizens (23) who review evidence and determine if the evidence is strong enough
4. Indictment: formal written charges affirmed by a grand jury
5. Pre-trial motions and declaration to seek DP

Front 34

Trial Process

Back 34

1. Jury selection ("death qualified" jurors)
2. Each side presents its case with state with burden of proof then verdict
3. Sentencing process: aggravating & mitigating, victim impact, sentencing recommendations
(Most DP applied in South)

Front 35

Appeals Process

Back 35

-Usually over issues or errors of law, not fact
-Offender must file notice with intent to appeal within 30-90 days after conviction and file an affidavit of error or defects in the trial or pretrial proceedings
-80% get affirmed on appeal
-Between 70s and 2001: 1/3 got overturned but decreasing because today all constitutional error is submitted to harm analysis (proving an error was harmful)

Front 36

Direct Appeal

Back 36

-All DP cases have automatic appeal
-Most review both conviction & sentence
-Argue issues of law and procedural errors in case
-Judges can affirm or reverse
-Helps ensure DP applied in a constitutional manner
-Outcomes: vacate conviction and remand to lower court, affirm conviction and remand case for resentencing, reduce sentence to LWOP, affirm both conviction & sentencing, reverse both sentence & conviction (rare)

Front 37

USSC

Back 37

-Writ of Certiorari (rare!): filed with the USSC requesting case and lower court decision to be reviewed
-Power of judicial review: power of the court to review constitutionality and examine the actions of the other branches of government and lower courts
-Granting writ based on rule of 4 (4 justices have to agree) and issues of mootness, ripeness, political question, standing, etc.

Front 38

Post-Conviction Appeal

Back 38

-If a defendant has an unsuccessful appeal to USSC can go back to state for post-conviction review
-New appeals process (similar to direct appeal)
-Petition to state trial court: may raise issues not in the record on appeal (i.e., ineffective counsel, prosecutorial misconduct, juror misconduct)
-Appeal to state supreme court
-Petition to USSC on writ of cert

Front 39

Federal Habeas Corpus Petition

Back 39

-A pleading filed by the defendant to the federal court seeking a writ to bring a person before the court to ensure that the defendants imprisonment is legal (challenge validity of conviction or sentence)
-Usually filed to obtain release from custody for unlawful detention
-Must show that a conviction or sentence is in violation of the US constitution, USSC case law, federal law, or US treaty
-Main way federal court may hear cases from inmates sentenced by the state
-All appeals must be exhausted
-Evidentiary hearing (discretionary): hearing before district court judge, present evidence to prove or disprove statements
-Appeal to Circuit Court of Appeals (heard before a panel of 3 judges)
-Petition to USSC
-1 year statue of limitations begins after conclusion of direct review

Front 40

Clemency

Back 40

-Power given to public officials to lower or moderate a punishment
-US v. Wilson held that the defendant can refuse to accept a pardon, if he does not bring his pardon to the attention of the Court (via plea or motion) the court cannot recognize his pardon

Front 41

Ex Post Facto

Back 41

-Makes an act criminal or increases the punishment (or severity) after the act was committed
-The constitution does not allow the creation of any ex post facto laws
-Malloy v. South Carolina: method of execution can be changed with no increase in punishment

Front 42

Double Jeopardy

Back 42

-A person cannot be charged of the same crime twice (5th Amendment)
-Stoud v. US: Tried multiple times because of trial errors but court held that "Birdman" initiated all the retrials, so not double jeopardy

Front 43

Jury Selection

Back 43

-Refusing to ask voir dire questions about racial prejudices is wrong
-Systematic exclusion of minorities is a violation
-In DP cases, those who say they would never impose the DP under any circumstance or those who would always impose it can be excluded ["death qualification"]

Front 44

Witherspoon v. Illinois (1968)

Back 44

-Facts: Witherspoon convicted of murdering a Chicago LEO, 47 jurors excluded based on beliefs of DP; Witherspoon argues that this process makes the jury less representative of the community
-Issue: Wether or not removing a juror based on their views against DP violates the 6th Amend. guarantee to impartial jury?
-Holding: Yes, this creates bias and not impartial, jurors who say they will not impose the DP may be dismissed BUT jurors who only oppose DP may not, can only be excused if their attitude prevents them from being impartial

Front 45

McClesky v. Kemp (1987)

Back 45

-Used social science to examine cases after Furman - showed pattern of racial discrimination based on race of victim and offender
-BUT Court says evidence of a pattern of discrimination is not enough to make a sentence unconstitutional
-Basically, DP is constitutional even if stats show is applied in a racially biased way

Front 46

Roper v. Simmons (2005)

Back 46

-Facts: sentenced to death when he was 17, case was reconsidered after decision from Atkins (using similar reason) appealed case
-Issue: Is the execution of a minor cruel and unusual and violation of 8th Amend?
-Holding: Court says executing juveniles (under 18) is unconstitutional (overturned Stanford v. Kentucky)
-Noted cannot cognitively function at the level that lets them understand their crimes, they are less culpable (immature, irresponsible, impulsive, lack of control), and can still be reformed & based on evolving standards of decency cruel to execute

Front 47

Capital Crimes

Back 47

-No, only especially heinous crimes, not all murderers get DP
-Coker v. Georgia (1977): DP not appropriate punishment for rape of an adult woman, when victim is not killed
-Kennedy v. Louisiana (2008): reaffirmed previous, states cannot impose DP for a crime against the person where the victim is not killed
-Besides murder, espionage, treason, mailing of injurious articles with intent to kill or resulting in death, capital drug trafficking in FL, capital sexual battery in FL
-# of offenses reduced in 2011 to 41

Front 48

Who May or May Not be Executed

Back 48

-8th Amend. violation needs inequality in: punishment imposed, harm done, and blameworthiness of the defendant
-Insane and Mentally Handicapped: Ford v. Wainwright held that it is a violation of 8th and 14th to execute insane person because cannot appreciate why they are being punished; Aktins held that executing mentally handicapped is cruel and unusual because of cognitive impairments making them less culpable
-Juvenile Offenders: Thompson v. Oklahoma one of the first cases to hear on constitutionality for juveniles, OK had no minimum age but court held that the execution of youth who were 15 or younger at the time of the offense was unconstitutional; Stanford v. Kentucky held that 8th Amend. does not prohibit the DP for those who committed capital offenses under the age of 18 - so ages of 16 & 17 (later overturned by Roper v. Simmons)

Front 49

Assistance of Counsel

Back 49

-Lawyers for capital defendants have to be effective and must advocate for client
-Strickland v. Washington (1984) established a 2 prong test: show that attorney performance was deficient based on prevailing professional norms (and how it led to adverse outcome in case) and court must determine if the attorney performance were adequate would the outcome of the case have been different

Front 50

Federal Capital Crimes

Back 50

-Late 1800s Congress reduced number of capital crimes to 3: murder, rape, treason
-1994, passed DP legislation: Violent Crime Control & Law Enforcement Act & Federal Death Penalty Act, increasing number of capital crimes to about 50 because of race riots and sharp increase in juvenile violent crime
-Eligible offenses today: murder (smuggling aliens/drugs or of government official, espionage, use of explosives, of a juror or federal prisoner), destruction of aircraft or cars that result in death, terrorist murder, murder involving torture, aircraft hijacking result in murder

Front 51

Federal Procedures

Back 51

-Start at District Court level
-All aggravating circumstances must be proven beyond a reasonable doubt
-At least 1 aggravator must be found to allow a death sentence
-Requires unanimity for aggravating but not mitigating (all 12 for aggravating but only 1 for mitigating)
-Specific to federal cases: must have at least 2 attorneys (one must have experience in capital cases), need US attorney general's approval to file capital charges, 2 separate sets of aggravating circumstances for murder/espionage/drug related, each juror signs to swear discrimination played no role in their sentencing recommendation if that is death

Front 52

Federal Executions

Back 52

-Before 1995, carried out in state where offense committed but if no DP in that state than a federal judge chose another state to conduct execution
-In 1995, first federal death row created
-Vast majority male, hanged (but lethal injection only used today), and convicted on murder or rape, espionage, rioting, etc.
-Timothy McVeigh: OK City Bombing, 8 counts of murder for 8 federal LEOs

Front 53

Racial Bias in Federal level

Back 53

-Study by Justice Depart. showed patterns of racial discrimination in those who received DP at federal level with 80% being minorities and 40% coming from same 5 jurisdictions, explained by racial differences in gang membership
-Racial Justice Act and Fairness in Death Sentencing Act tried to correct this but neither was enacted

Front 54

Innocence Protection Act of 2004

Back 54

-Created in response to number of inmates found innocent on DR (85 then)
-Deals with possible innocence and inadequate representation among DR inmates, trying to reduce risk of executing innocent people
-3 main sections: 1. exonerating innocent through DNA testing with rules and procedure that govern the applications for DNA testing by inmates in federal system and requires DNA testing of all defendants without destruction of DNA throughout term of incarceration, 2. improving the quality of representation in state capital crimes to increase reliability in capital cases verdict, 3. compensation of wrongfully convicted increased and set at $100000/year

Front 55

DP in Military

Back 55

-Little is known about how the military DP system is used or enforced
-Mostly used for crimes committed during war
-Historically given DP for crime of desertion, avoiding service, more recently for murder and rape
-Similar racial issues
-Has not executed anyone since 1961 (no formal record)
-Method is lethal injection
-Housed in military base in Kansas

Front 56

Military DP Eligible Crimes

Back 56

1. Offenses committed anytime: murder, rape, misbehavior before the enemy, espionage, etc
2. Offenses committed during war: desertion, spying, assaulting a superior officer, etc.
3. Grave breaches of the law of war: taking hostages, willful killing or torture, extensive destruction, etc.

Front 57

Military DP Procedures

Back 57

-All service members entitled to an Article 32 hearing prior to being charged or court-martialed
-Military jury must be unanimous in verdict and sentence
-Commanding general has final approval on the sentence and conviction
-President must sign affirmative order approving execution
-Sentencing process similar to other systems, required to find at least 1 aggravator to consider a death sentence and then weigh those against mitigating
-Military aggravators may differ such as creating risk of danger to national security, etc.
-Death sentence includes a dishonorable discharge and the DP

Front 58

Global DP Views

Back 58

-Some consensus for abolishing DP across the world with most countries thinking it is not an appropriate punishment
-China, Iran, Saudi Arabia, US responsible for vast majority of executions with China having most
-Method varies but usually lethal injection, electrocution, hanging (some use beheading or stoning as standard method)

Front 59

International opinion on DP

Back 59

-UN Commission on Human Rights has tried to get US to stop executions
-Europe views DP as a human rights violation and often restricts business deals to non-DP countries
-US has used international consensus against the DP as an argument to restrict its use

Front 60

1st Amendment

Back 60

-Freedom of speech
-Freedom of religion
-Freedom of the press
-Right to assemble and petition the government

Front 61

2nd Amendment

Back 61

-Individual's right to bear arms

Front 62

3rd Amendment

Back 62

-Prohibits the forced quartering of soldiers during peacetime

Front 63

4th Amendment

Back 63

-Prohibits unreasonable searches and seizures
-Sets out requirements for search warrants based on probable cause

Front 64

6th Amendment

Back 64

-Right to a fair and speedy public trial by jury with rights to be notified of accusations, to confront the accuser, to obtain witnesses, and to retain counsel

Front 65

7th Amendment

Back 65

-Right to trial by jury in certain civil cases, according to common law