Capital Punishment: A Legal Overview Including the Supreme Court Decisions of the 2004-2005 Term
Released: 2005-07-22T00:00:00

Constitutionality of the Death Penalty

Is the death penalty consistent with the Eighth Amendment's prohibition against theimposition of cruel and unusual punishments? The Supreme Court considered various applicationsof the death penalty in the 1930s, 40s and 50s. (1) In each case, it upheld the state's action without addressing thebroader issue of the constitutionality of the death penalty.

In a 5-4 decision in 1972, Furman v. Georgia , (2) the Supreme Court invalidated federal and state capital punishmentlaws which permitted wide discretion in the application of the death penalty. With one Justicecharacterizing the death penalty laws as "capricious," (3) the majority ruled that they constituted cruel and unusualpunishment in violation of the Eighth Amendment and the due process guarantees of the FourteenthAmendment based upon the inherent arbitrariness of their application particularly in the case ofracial minorities and the poor. (4)

The hundreds of inmates on death row who had been sentenced to die between 1967 and1972 had their death sentences commuted as a result of Furman , (5) but those numbers began tochange again as states enacted revised legislation tailored to satisfy the Supreme Court's objectionsto arbitrary and capricious decisions which permitted the application of the death sentence. On July2, 1976, the Supreme Court reviewed the post- Furman capital punishment statutes of five states (6) in a series of five cases. Therevised laws were of two major types: The first type provided for guided discretion which wasupheld by the Supreme Court in three cases. (7) The second type consisted of those statutes which provided for amandatory death sentence for specific crimes, and allowed no judicial or jury discretion beyond thedetermination of guilt. These statutes were held to be unconstitutional. (8) In sum, what may be gleanedfrom these five cases suggest that while the sentencing authority may possess some discretion, itcannot be the unbridled discretion which was found impermissible in Furman . The discretion mustbe limited and directed in order to minimize the potential for arbitrary and capricious actions.

Aggravating and Mitigating Factors

Capital punishment may only be imposed under procedures that provide sentencers withthose aggravating factors which will support imposition of the penalty and that require sentencersto take into account any evidence offered in mitigation for the defendant.

Aggravating factors, established either as elements of the capital offense or as statutoryfactors to be found by the sentencing judge or jury, must be sufficiently clear and restricting. According to the Supreme Court's decision in Zant v. Stephens , "To avoid capricious and arbitrarydecisions, states that use aggravating circumstances to impose the death penalty. . . must reasonablyjustify the imposition of a more severe sentence for the defendant compared to others found guiltyof murder." (9)

The aggravating factors may not be so vague as to invite a return to the arbitrary inflictionof the penalty that the Court saw in Furman . In Maynard v. Carwright , (10) the Court made clear thatnot every murder could fall under the "specially heinous, atrocious or cruel" aggravatingcircumstance and that the state must construe such an aggravating circumstance so that there wouldbe some principled way to distinguish the few cases in which the aggravating circumstance appliesfrom the many cases in which it does not. The test for whether a particular aggravating factor passesconstitutional muster is whether "the statutory language is itself too vague to provide any guidanceto the sentencer. If so [the question becomes] whether the . . . courts have further defined the vagueterms. . . [so as] to provide some guidance to the sentencer." (11)

In Lockett v. Ohio , (12) the Supreme Court required many states to revise their deathpenalty statutes by ruling that the sentencing authority in capital cases must consider every possiblemitigating factor to the crime rather than limiting the mitigating factors that could be considered toa specific list. (13) In Smith v. Texas , (14) theCourt recently confirmed the principle when it overturned Smith's death sentence based uponprevious Court precedents requiring judges to include in their jury instructions that proper andmeaningful consideration be given to all mitigating evidence. Smith argued that jurors weren'tallowed to consider evidence including that he was 19 at the time of the robbery during which themurder occurred, that he had a troubled home life, and that he had a low IQ and learning disability;the Texas court erroneously rejected the claim, saying that it wasn't relevant because there was nolink between murder and his diminished capacity.

Juvenile Offenders

In 1982, the Supreme Court was asked to decide whether the execution of a juvenile offenderwas permissible under the Constitution. Eddings v. Oklahoma (15) was the first case the Courtagreed to hear based on the age of the offender who was 16 at the time he murdered a police officer. Without deciding on the constitutionality of the juvenile death penalty, the Court vacated thejuvenile's death sentence on the basis that the trial had failed to consider additional mitigatingcircumstances. (16) However, the case was significant because the Court decided that the chronological age of a minoris a relevant mitigating factor that must be considered at sentencing. (17)

Writing for the majority, Justice Powell stated: "... youth is more than a chronological fact. It is atime and condition of life when a person may be most susceptible to influence and to psychologicaldamage. Our history is replete with laws and judicial recognition that minors, especially in theirearlier years, generally are less mature and responsible than adults." (18)

In 1988, the Supreme Court did consider this particular issue in Thompson v.Oklahoma . (19) In a 5-3 decision, the Court vacated the death sentence of the defendant who at age 15participated in the brutal murder of his former brother-in-law. Four justices agreed that theexecution of a 15-year-old would be cruel and unusual punishment per se (in, or byitself). (20) Applying the test of Eighth Amendment analysis, Justices Stevens, Brennan, Marshall, andBlackmun were of the opinion that the execution would constitute cruel and unusualpunishment because it was "inconsistent with our respect for the dignity of men" and it failedto contribute to the two principal social purposes of the death penalty: retribution anddeterrence. (21) Justice O'Connor concurred, but noted that Oklahoma's death penalty statute set no minimumage at which the death penalty could be imposed. (22) Sentencing a 15-year-old under the Oklahoma statute wasinconsistent with the standard for special care and deliberation required in death penaltycases. (23)

In 1989, in Stanford v. Kentucky (24) and Wilkins v. Missouri (25) the SupremeCourt held in a 5-4 decision that the Eighth Amendment does not prohibit the death penalty forcrimes committed at age 16 (Wilkins) or 17 (Stanford). While the Thompson plurality usedthe three-part analysis to determine if sentencing a juvenile to death constituted cruel andunusual punishment, the Stanford plurality did not. The Thompson v. Oklahoma's standardEighth Amendment analysis consisted of an evaluation of: (a) evolving standards of decency;(b) the behavior of juries and legislators to determine what is abhorrent to the conscience ofthe community; and (c) because of the juvenile's reduced culpability, the punishment isdisproportionate to the severity of the crime and the application of the death penalty to thisclass of offenders does not measurably contribute to the purposes underlying the penalty. The Stanford plurality decision rejected the third element of the three part analysis, to wit, that thepunishment is disproportionate to the severity of the crime and makes no measurablecontribution to its deterrence. (26)

In Stanford v. Kentucky, the Supreme Court considered the evolving standards ofdecency in society as reflected in historical, judicial, and legislative precedents; currentlegislation; juries' and prosecutors' views; and public, and professional opinions. (27) However, the Courtbased its determination of evolving standards of decency on legislative authorization of capitalpunishment for an individual who murders at 16 or 17 years of age and it does not, said theCourt, offend the Eighth Amendment's prohibition against cruel and unusualpunishment. (28) The Court referred to contemporary standards of decency in this country and concluded thatthe Eighth and Fourteenth Amendments did not proscribe the execution of a juvenile over 15but under 18. (29) The Court noted that those states that permitted the death penalty for 16 and 17-year-oldoffenders indicate that there was no national consensus which was "sufficient to label aparticular punishment cruel and unusual." (30) A plurality of the Court rejected the suggestion that it (theCourt) should bring its own judgment to bear on the desirability of permitting the deathpenalty for juveniles. (31) The Court also found that public opinion polls andprofessional associations were "uncertain foundations" on which to base constitutionallaw. (32)

The dissenting judges argued that the record of state and federal legislation protectingjuveniles because of their inherent immaturity was not relevant in formulating a nationalconsensus. (33)

In 1997, Christopher Simmons was tried, convicted, and sentenced to death for firstdegree murder for a crime that he committed at age 17. He appealed to the Missouri SupremeCourt, which affirmed the conviction and the sentence. (34) On his initialappeal, Simmons could not argue that his youth prohibited his execution because the U.S.Supreme Court held in 1989 in Stanford v. Kentucky that there was no national consensusagainst the execution of young adults who were 16 or 17-years-of-age at the time of theircrimes and, as a result, executing juveniles was not considered "cruel and unusual"punishment under the Eighth Amendment. (35) Hence, the Missouri Supreme Court affirmed the CircuitCourt of Jefferson County Missouri on the death sentence. (36)

In 2002, the U.S. Supreme Court in Atkins v. Virginia reversed Penry v. Lynaugh (37) , which held that anational consensus did not exist against the execution of the mentally retarded. (38) In Atkins v.Virginia , the Supreme Court decided that a consensus had developed in the thirteen yearssince Penry was decided and that executing the mentally retarded violates the EighthAmendment. (39) Assuming that the U.S. Supreme Court's ruling in Atkins may correspondingly cause a shiftin the Court's view toward the execution of juvenile offenders, Simmons, in 2003, filed a writof habeas corpus , arguing that a national consensus opposing the execution of 16 and17-year-old offenders had developed since the Court's decision in Stanford v. Kentucky. (40) The MissouriSupreme Court agreed, reasoning that the Supreme Court would today hold that suchexecutions are prohibited by the Eighth Amendment as applied to the States through theFourteenth Amendment. (41)

The U.S. Supreme Court accepted the Roper v. Simmons (42) case for review inorder to decide two issues: (a) whether a lower court may contradict a previous ruling by theU.S. Supreme Court. Particularly, whether it was permissible for the Missouri Supreme Courtto conclude that the penalty of death for juvenile offenders is a "cruel and unusualpunishment" which violates the Eighth Amendment, and in contradiction of the Court'sdecision in Stanford v. Kentucky and (b) whether a national consensus now opposes theexecution of juvenile offenders younger than 18-years-of-age and therefore, whether thepunishment now violates the Eighth Amendment's prohibition against cruel and unusualpunishment.

In a 5-4 opinion written by Justice Kennedy, the Court affirmed the holding of theMissouri Supreme Court that imposition of the juvenile death penalty had "become trulyunusual over the last decade" (43) and therefore violates the Constitution.

Similarly to reconsidering the permissibility of executing the retarded in Atkins, it alsoreconsidered the permissibility of executing juvenile offenders under the age of 18 in Roper ,looking for guidance to the enactments of the legislatures that had considered the issue sinceits holding in Stanford. Up to the time of the decision in Roper , 20 states did not specificallyprohibit the execution of a juvenile offender; (44) 12 states had rejected the death penalty altogether; (45) and 18, bylegislation had set the minimum age at 18. (46) In the 15 years between the Stanford v. Kentucky and Roper v. Simmons decisions, 5 states either by legislation or case law raised or established theminimum age at 18. (47) As a starting point in its decision, the Court consideredthese changes in the law, as well as the limited use of the death penalty in those states wherethe death penalty still was available for juveniles. (48)

The Court observed that the trend toward abolishing the death penalty for juvenileswas evidence that society's current views regarding juveniles as "categorically less culpablethan the average criminal." (49) The Court found three differences between juveniles andadults that prohibit the classification of juveniles among the worst offenders: (a) juvenilesshow a lack of maturity and an undeveloped sense of responsibility as compared toadults; (50) (b)juveniles are more vulnerable or susceptible to negative influences and outside pressures,including peer pressure; (51) and (c) the character of juveniles is not as well formed asthat of adults, and the personality traits of juveniles are more transitory. (52)

Stating in Gregg v. Georgia (53) that the two distinct purposes served by the death penaltyare "...retribution and deterrence of capital crimes by prospective offenders," the Court notedthat neither of these justifications have proven to be adequate for imposing the penalty onjuveniles. (54)

The Court included another reason for its elimination of the death penalty for juvenileoffenders: "Our determination that the death penalty is disproportionate punishment foroffenders under 18 finds confirmation in the stark reality that the United States is the onlycountry in the world that continues to give official sanction to the juvenile deathpenalty." (55) TheSupreme Court acknowledged that the interpretation of the Eighth Amendment was itsresponsibility, but it could also look to the laws of other countries and international authoritiesfor direction and instruction for that interpretation. (56) The Court did look to the laws of other countries andfound "overwhelming weight of international opinion against the juvenile deathpenalty...." (57)

Mentally Retarded Offenders

In 1986, the Supreme Court in Ford v. Wainwright (58) held that it wasunlawful to execute the mentally insane. However, the Court did not set out or propose anyguidelines or standards for the state legislative bodies to adopt or follow for the determinationof whether one should be adjudged insane. As a result, problems developed because therewas no implementation of a uniform measure to protect the insane from the death penalty.

On the same day the Court decided Stanford v. Kentucky (59) it also decided Penry v. Lynaugh, (60) a case in which the petitioner, Johnny Penry, had soughtto exclude the mentally insane from the death penalty. The Court decided in Penry that theEighth Amendment's ban on cruel and unusual punishment did not categorically prohibit theexecution of mentally retarded individuals who committed capital offenses. (61) However, writingfor the majority, Justice O'Connor stated that the Eighth Amendment does more than just barthe practices that were condemned by the common law at the time the Bill of Rights wasadopted. (62) Italso bars punishment that would offend our society's "evolving standards of decency that markthe progress of a maturing society" as expressed by "the legislation enacted by the country'slegislatures" and "the actions of sentencing juries." (63)

When Stanford and Penry were decided in 1989, there was only one state, Georgia,that banned the execution of mentally retarded individuals, one state, Maryland, that hadenacted similar legislation but it was scheduled to take effect on a later date, and a federalstatute (64) thatcontained a similar prohibition. (65) Therefore, said Justice O'Connor, "[w]hile a nationalconsensus against execution of the mentally retarded may someday emerge...there isinsufficient evidence of such a consensus today." (66) In the meantime, the Court noted that counsel for thedefendant should be able to present, for the court's consideration, the mental state of thedefendant as mitigating evidence at sentencing for the court to determine whether death is theappropriate punishment. (67)

In 2002, the Supreme Court decided the case of Atkins v. Virginia (68) and overturned Penry by ruling that the application of the death penalty to defendants with mental retardationviolated the Eighth Amendment's prohibition against "cruel and unusual" punishment. (69) The evidence foundto be sufficient for the purpose of identifying the "evolving standards" became a key issue inthe case. The evidence before the Supreme Court in Atkins, thirteen years later, revealed that16 of the 38 states with capital punishment had joined Georgia and Maryland in enacting lawsto exempt the mentally retarded. (70) Examining state statutes, the opinions of professionalorganizations, and a proportionality analysis, the Court concluded that the evolving standardsof decency, as well as their own considered judgments, forced the conclusion that theexecution of mentally retarded defendants was unconstitutional. (71)

The Court also decided against executing the mentally retarded based on the theorythat they are disadvantaged at trial because of their mental impairments. (72) Calling attentionto false confessions, a lowered ability to make a persuasive showing of mitigating factors, thepossibility that they may be less able to assist their counsel at trial, the fact that they aregenerally poor witnesses, and a demeanor that may create the impression of lack of remorse,the Court's majority concluded that mentally retarded defendants face a special risk ofwrongful execution--particularly when there is a likelihood for the jury to decide that theirretardation enhances the risk of "future dangerousness". (73)

Recognizing that there was no consensus on which offenders are in fact consideredretarded, the majority felt that the task for deciding or making this determination should beleft to the States. (74)

The minority disagreed with any conclusion that sources other than state legislaturesshould be relevant to the consideration of the issue. Chief Justice Rehnquist wrote a separatedissent "...to call attention to the defects in the Court's decision to place weight on foreignlaws, the views of professional and religious organizations, and opinion polls in reaching itsconclusion." (75) Believing that the legislatures are more suited than the courts at deciding the moralconsideration of the people, he also questioned the use of opinion polls, and religiousorganizations as things that "...elected representatives of a State's populace have notdeemed...persuasive enough to prompt legislative action." (76) Justice Scaliasupported the Chief Justice's conclusion by stating that "...the Prize for the Court's MostFeeble Effort to fabricate [a] `national consensus' must go to its appeal (deservedly relegatedto a footnote) to the views of assorted professional, ... religious organizations, members of theso-called `world community,' and ... opinion polls." (77)

Rape Offenders

Prior to Furman v. Georgia (78) and Gregg v. Georgia (79) , there does notappear to be any cases regarding the Supreme Court review of the constitutionality of theimposition of capital punishment for the crime of rape. In 1953, in Rudolph v. Alabama (80) the Court denied awrit of certiorari involving the appeal of a sentence of death for the rape of theprosecutrix. (81) Justices Goldberg, Douglas, and Brennan dissented on the theory that there was an issue asto whether the Eighth and Fourteenth Amendments to the Constitution permitted "theimposition of the death penalty on a convicted rapist who has neither taken nor endangeredhuman life." (82) The dissent noted the trend in this country and throughout the world against punishing rapeby death. (83) Thedissent noted the "evolving standards of decency that mark the progress of our maturingsociety" and questioned whether a less severe penalty for the crime of rape would more likelyachieve the goals of punishment. (84) The dissent also questioned whether the constitutionalproscription against disproportionate punishment permitted "... the taking of human life toprotect a value other than human life ...." (85)

It was not until 1977, that the Supreme Court in Coker v. Georgia (86) decided the issueof whether it was constitutional to impose the death penalty for the offense of rape. Applyingthe proportionality test, the Court decided that the death penalty is a grossly disproportionateand excessive punishment for the crime of rape of an adult woman and, therefore, is forbiddenby the Eighth Amendment as cruel and unusual punishment. (87) In order to ascertainwhether the capital rape statute met this test, the Court looked to objective evidence whichwas based upon public sentiment. (88) This evidence was based upon the history of legislativeattitudes and jury responses as an objective approach in the process of determining the"country's present judgment regarding the acceptability of death as a penalty for rape of anadult woman." (89)

While considering the history, the Court noted that "At no time in the last 50 years[has] a majority of the States authorized death as a punishment for rape." (90) Although the Courtnoted that after its decision in Furman, "thirty-five States reinstituted the death penalty for atleast limited kinds of crimes" (91) , these actions were an indication of the acceptance of thedeath penalty for murder; however, when you view the legislative responses to Furman inregard to capital rape statutes, a different view is presented. (92) The Court held thatthese actions by the state legislatures reflect a rejection of capital punishment for rape whichconfirmed their finding that death is a disproportionate penalty for the rape of an adultwoman. (93)

The Court did not just consider public sentiment based upon state legislatures andsentencing juries but concluded that it must also analyze for itself the question of theacceptability of the death penalty for the crime of rape under the Eighth Amendment becauseits judgment is contemplated by the Constitution. (94) Neither did the Court deny that rape was a serious crime,acknowledging that "[s]hort of homicide" rape "is the ultimate violation of self." (95) Nonetheless, theCourt found that "in terms of moral depravity and the injury to the person and to the public[rape] does not compare with murder" because it "by definition does not include the death ofor even the serious injury to another person." (96) "The murderer kills; the rapist, if no more than that, doesnot." (97) Notwithstanding the fact that Coker was found to have committed rape under two aggravatingcircumstances, the Court said it did not change its holding that the death sentence is adisproportionate punishment for rape and, consequently, a violation of the EighthAmendment. (98)

Death Penalty For One Who Does Not Kill

Since 1982, the Supreme Court has addressed the "law of parties" (99) and its applicabilityin capital cases on four occasions. In Enmund v. Florida (100) , the Courtdecided in 1982 that Enmund's agreement to act as a getaway driver in a robbery that endedin murder was insufficient to warrant death. Enmund did not kill or intend to kill and thus hisculpability is plainly different from that of the robbers who killed. The Court wrote, " Wehave concluded that imposition of the death penalty in these circumstances is inconsistentwith the Eighth and Fourteenth Amendments." (101) The Court ruled that in order to be eligible for the deathpenalty, a defendant either had to kill, attempt to kill, or intend to kill. (102)

In 1987, the Supreme Court reconsidered Enmund when it accepted Tison v.Arizona (103) for review. In Tison , two brothers were sentenced to death for a quadruple homicide theirfather committed after the brothers helped him escape from prison. Although the brothers didnot intend to kill, the Court was of the opinion that their involvement in the prison break wassubstantial, and the supply of weapons they took along suggested that they were ready to killif necessary. "[T]he reckless disregard for human life implicit in knowingly engaging incriminal activities known to carry a grave risk of death represents a highly culpable mentalstate that may be taken into account in making a capital sentencing judgment when thatconduct causes its natural...lethal result" (104) the Court concluded. "We will not attempt to preciselydelineate the particular types of conduct and states of mind warranting imposition of the deathpenalty....Rather, we simply hold that major participation in the felony...combined withreckless indifference to human life, is sufficient to satisfy the Enmund culpabilityrequirement. (105)

Eluding the Court in Bradshaw v. Stumpf , (106) was the issue of whether the death penalty may beimposed when the prosecution argues in successive trials that each of two accomplicespersonally killed the victim who had been murdered with a single shot. Stumpf, among otherthings, pled guilty, and was sentenced to death for a crime for which the state later sought thedeath penalty for his accomplice. (107) The state knew one of the two juries would have to bein error if in separate trials they found first Stumpf and then his accomplice subject to thedeath penalty as the lone shooter.

The Sixth Circuit reversed Stumpf's conviction, finding that the state securedconvictions of both Stumpf and his accomplice for the same crime, using inconsistent theoriesand also because his guilty plea was not knowing and voluntary because he was not aware thatspecific intent was an element of the crime to which he plead guilty. While Stumpf admittedto wounding the husband, he denied ever having shot the man's wife. Despite this, the juryfound Stumpf to be the principal shooter and sentenced him to death. The U.S. Supreme Courtgranted certiorari on two issues--one of which was: does the Due Process Clause requirevacating a defendant's guilty plea when the state subsequently prosecutes another person inconnection with the crime and allegedly presents evidence at the second defendant's trial thatis inconsistent with the first defendant's guilt? (108) During the penalty phase of his trial (he had previouslyentered a guilty plea), he turned around and argued that a co-defendant was the shooter at theco-defendant's trial which version was supported by the testimony of the third co-defendant. Because this issue was not properly presented to the Court (the defendant instead argued thathis guilty plea was involuntary, which the Court rejected), the case was remanded to the SixthCircuit for it to consider the effect of the prosecutor's inconsistent theories on the deathsentences. (109) However, the Court decided that Stumpf was informed of the specific intent element of theaggravated murder charge and the prosecutorial inconsistencies between the two trials did notwarrant voiding his guilty plea. (110)

Counsel--Effectiveness Under The Sixth Amendment

Although it has been established that criminal defendants have the right to assistanceof counsel, it was not until 1970 that the Supreme Court defined this right as "...the right tothe effective assistance of counsel." (111) Except for the Court's decision regarding the issue ofcounsel having a conflict of interest (112) the Court did not define "effective" until it decided thecase of Strickland v. Washington , (113) whereby the Court articulated a general test forineffective assistance of counsel in criminal trials and in capital sentencing proceedings. (114) In Burger v.Kemp, 483 U.S. 776, 794-795 (1987), the Court held that because the defense counsel'sdecision not to develop and present any mitigating evidence at a capital sentencing proceedingwas supported by his "reasonable professional judgment", the defendant was not deniedeffective assistance of counsel. Relying on the guidelines contained in Strickland , the Courtfound no deficiency leading to a breakdown in the adversarial process. In Darden v.Wainwright, 477 U.S. 168 (1986), the Court said there was no merit to the petitioner's claimof ineffective assistance of counsel at the sentencing phase of the trial because the petitionerfailed to satisfy the first part of the two-part Strickland test; the record shows several reasonswhy counsel reasonably could have chosen to rely on a simple plea for mercy from petitionerhimself, rather than to attempt to introduce mitigating evidence; a defendant must overcomethe presumption that, under the circumstances, the challenged action of counsel might beconsidered sound trial strategy. Id. at 184-187.

In Lockhart v. Fretwell (115) the Court refined the Strickland test to require that notonly would a different trial result be probable because of attorney performance, but that thetrial result which did occur was fundamentally unfair or unreliable. (116)

In 1999, the Court granted certiorari in Williams v. Taylor (117) on the questionof the standard to be applied by federal courts in granting a habeas petition following thepassage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) (118) , and on theFourth Circuit's application of the Strickland standard in a capital case. (119) Finding that theVirginia Supreme Court's decision rejecting Williams' ineffective assistance claim was both"contrary to" and an "unreasonable application of" doctrine well-established in Strickland ,the Court believed that Williams was eligible for habeas relief.

Generally, when "...a defendant alleg[es] a Sixth Amendment violation, [he/she] mustdemonstrate `a reasonable probability that, but for counsel's unprofessional errors, the resultsof the proceeding would have been different.'" (120) It reaffirmed the two-pronged Strickland test, holdingthat the Virginia Supreme Court's "...decision turned on its erroneous view that a 'mere'difference in outcome is not sufficient to establish constitutionally ineffective assistance ofcounsel." (121) The Court explained in Strickland the two components on which the petitioner, Williams,relies: "First, the defendant must show that counsel's performance was deficient. Thisrequires showing that counsel made errors so serious that counsel was not functioning as the'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant mustshow that the deficient performance prejudiced the defense. This requires showing thatcounsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose resultis reliable." (122)

There is an exception to this general rule that the defendant must show probable effectupon the outcome where the assistance of counsel has been denied entirely or during a criticalstage of the proceeding; such effect will simply be presumed. (123) But only in"circumstances of that magnitude" will the defendant be relieved of the burden to show thatcounsel's inadequate performance undermined the reliability of the verdict. (124) The Court hasalso held in several cases that "'circumstances of that magnitude' may also arise when thedefendant's attorney actively represented conflicting interests." (125) However,according to the decision in Mickens v. Taylor, (126) an analysis of a conflict of interest will require the sameanalysis and demonstration of prejudice that is required under Strickland as opposed to thepresumption of prejudice and the resulting automatic reversal. (127)

In Florida v. Nixon , (128) the Supreme Court through Justice Ginsburg, providedan analysis of strategies for capital counsel including concession of guilt. The Court in Nixon held that Counsel's concession that his client committed murder, made without the defendant'sexpress consent, does not automatically rank as prejudicial ineffective assistance of counselunder United States v. Cronic (129) ; the counsel's performance must be evaluated under the Strickland (130) test rather than under the Cronic test. The Court recognized that some decisions concerning"basic trial rights" must be made by the defendant and require that "...an attorney must bothconsult with the defendant and obtain consent to the recommended course of action." (131) These basic trialrights include the "'ultimate authority' to determine 'whether to plead guilty, waive a jury,testify in his or her own behalf, or take an appeal'". (132) For othermatters, "[a]n attorney undoubtedly has a duty to consult with the client regarding 'importantdecisions', including questions of overarching defense strategy [but this] obligation, however,does not require counsel to obtain the defendant's consent to 'every tactical decision'...(anattorney has authority to manage most aspects of the defense without obtaining his client'sapproval)." (133) Regarding capital cases, the Court recognized that:

...the gravity of the potential sentence in a capitaltrial and the proceeding's two-phase structure vitally affect counsel's strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trialstrategies, not least because the defendant's guilt is oftenclear.

Prosecutors are more likely to seek the deathpenalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelmingand the crime heinous (134) ....In such cases, 'avoiding execution [may be] the bestand only realistic result possible'" ABA Guidelines for the Appointment and Performance ofDefense Counsel in Death Penalty Cases Â§ 10.9.1, Commentary (rev. ed. 2003), reprinted in31 Hofstra L. Rev. 913, 1040 (2003). (135)

In circumstances where guilt is clear "...counsel must strive at the guilt phase to avoida counterproductive course" such as presenting "logically inconsistent" strategies in theguilt-phase defense and sentencing phase. (136)

To summarize, in capital cases:

[C]ounsel must consider in conjunction both theguilt and penalty phases in determining how best to proceed. When counsel informs thedefendant of the strategy counsel believes to be in the defendant's best interest and thedefendant is unresponsive, counsel's strategic choice is not impeded by any blanket ruledemanding the defendant's explicit consent. Instead, if counsel's strategy, given the evidencebearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter;no tenable claim of ineffective assistance would remain. (137)

In the most recent Supreme Court decision on the issue of "ineffective assistance ofcounsel", the Court in Rompilla v. Beard , (138) followed a series of rulings, including Wiggins v.Smith (139) which faulted lawyers for failing to investigate defendants' records for mitigating evidencewhich "was the result of inattention, not reasoned strategic judgment," and may have madethe difference between a life or death sentence. (140) In Wiggins v. Smith the Court ruled that attorneys incapital cases must diligently investigate the background of their clients in order to findpossible mitigating evidence that could sway a jury's or a judge's sentencing decisions. Thecase became significant when the Court concluded that Wiggins' trial lawyers had failed todo the work necessary to represent their client effectively. The Court's decision made it clearthat defense counsel representing a client facing a death sentence must thoroughly investigateall reasonable avenues of defense, and cannot excuse inadequate performance merely byclaiming they made a "tactical" decision not to pursue an uninvestigated line of defense. (141)

Racial Discrimination

In 1972, the death penalty was held in Furman v. Georgia (142) to beunconstitutional due to the arbitrariness and discriminatory impact it had on racial minoritiesand the poor. Four years later, new capital punishment laws, which were suppose to preventarbitrariness and discrimination, were upheld by the Supreme Court in 1976. (143)

Nonetheless, the Supreme Court continued to face questions concerning theapplication of the death penalty to racial minorities. In McClesky v. Kemp , (144) a challenge wasbased on a study that showed Black murderers of White victims were far more likely to besentenced to death than Black murderers of Black victims, which the Court concluded wasinsufficient to establish evidence of discrimination either in general or in McClesky's case.

In Batson v. Kentucky , (145) the Supreme Court required courts to give genuineattention to cleansing the criminal justice process of the taint of racial discrimination in juryselection. Batson requires trial judges to assess the district attorney's reasons for excludingAfrican-Americans from jury service in order to determine whether the prosecutors intendedto discriminate. (146)

In 2002, Thomas Miller-El asked the Supreme Court to enforce the rule of Batson prohibiting racial discrimination in the exercise of peremptory challenges in jury selection. In 2003, the Court held that reasonable jurists could differ on whether Miller-El hadappealable issues and ordered the U.S. Court of Appeals for the Fifth Circuit to grant acertificate of appealability to further review the case. (147) The Court, inan 8-1 opinion, criticized the Fifth Circuit's "dismissive and strained interpretation" of criticalfacts, ruled that the lower court's refusal to consider Miller-El's Batson claim was based upona standard of review that was too demanding, and remanded the case for furtherconsideration. (148) On remand, the Fifth Circuit again found thatprosecutors had not intentionally excluded African Americans from Miller-El's capitaljury. (149) OnJune 28, 2004, the Supreme Court granted certiorari a second time, in order to addresswhether the Fifth Circuit again erred in reviewing Miller-El's claim that the prosecutionpurposefully excluded African-Americans from his capital jury in violation of Batson v.Kentucky.

On June 13, 2005, the Supreme Court in Miller-El v. Dretke (150) overturnedMiller-El's death conviction because of the racial bias that tainted the selection of the jury inthe use of peremptory challenges in his murder trial. In both Miller-El and Johnson v.California (151) the Court cited its 1986 ruling in Batson v. Kentucky which barred the practice of the racialdiscriminatory use of peremptories.

Justice Souter reviewed the tactics used by the Dallas County prosecutors to ensurethat no African-Americans were on the jury that determined Miller-El's fate, who isAfrican-American. (152) Prosecutors "shuffled" the jury pool members when toomany African-Americans appeared in the front of the panel and they asked different questionsof White and Black potential jurors, Justice Souter said. (153) When askingthe Black jurors about their views on the death penalty, the prosecutors used a far moregraphic description of executions, apparently to make it more likely they would expressdisapproval and disqualify themselves. (154)

In the Johnson case, Justice Stevens wrote for the majority in deciding that theCalifornia Supreme Court had made it too difficult for defendants to make out a prima facieclaim of bias in jury selection. (155) Johnson, who is African-American, was accused ofmurdering a White child. The prosecutor used three of his 12 peremptory challenges to strikeAfrican-Americans from the jury pool thus causing Johnson's jury to be all White. (156) On appeal,Johnson raised the Batson claims and his conviction was set aside. The conviction was laterreinstated by the California Supreme Court, which said Johnson was required to provide"strong evidence" that racial factors were "more likely than not" the reasons for thechallenges in order to begin a Batson inquiry. (157) The California Supreme Court also said that Batson gave states the right to set their own standards for evaluating claims of jury selectionbias. (158) Justice Stevens said the "overriding interest in eradicating discrimination" requires state courtsto adopt standards that make it easier for Batson claims to be tested--rather than beingexcluded at the outset. (159)

Jury's Role in Capital Sentencing

The Supreme Court has considered cases addressing the issue of juror bias in capitalcases and the defendant's right to a fair trial guaranteed by the Sixth and FourteenthAmendments. These cases have focused on either the juror's attitude regarding the deathpenalty, i.e. whether they are strongly opposed or in favor of the death penalty, or raciallybiased.

In Witherspoon v. Illinois , (160) the Court held "...that a sentence of death cannot beimposed or recommended if the jury that imposed or recommended it was chosen byexcluding veniremen for cause simply because they voiced general objections to the deathpenalty or expressed conscientious or religious scruples against its infliction." (161) The Court notedthat even someone opposed to the death penalty "...can make the discretionary judgmententrusted to him by the state and can thus obey the oath...." (162) However, astate may exclude those jurors whose attitudes about the death penalty would affect theirdecision regarding the defendant's guilt. (163)

Later, the Court qualified Witherspoon by stating that it did not hold that the statecould exclude only those jurors who would automatically vote against capitalpunishment. (164) In Wainwright , the Court held that the standard forexcluding a juror because of his/her in opposition to the death penalty "...is whether the juror'sviews would `prevent or substantially impair the performance of his duties as a juror inaccordance with his instructions and his oath.'" (165) The Court viewed the question of jurors' beliefs withregard to the death penalty as simply a routine inquiry into juror bias governed by SixthAmendment standards applicable to all cases rather than the Eighth Amendment's prohibitionagainst cruel and unusual punishment. (166) Here as well as elsewhere, the Court said "the quest isfor jurors who will conscientiously apply the law and find the facts." (167)

The Court also indicated that trial judges have historically been charged withdetermining whether a prospective juror harbors any bias. (168) If the trialjudge, who is in a position to evaluate a juror's credibility, receives a definite impression thatthe juror would be unable to faithfully and impartially apply the law, the judge can removethe juror for cause. (169)

While it appears that jurors are selected or rejected based on their views of the deathpenalty, the Court recognized that jurors who vote to convict may nevertheless entertain"residual doubts" about the defendant's guilt that would "bend them to decide against thedeath penalty." (170) Nonetheless, if a prospective juror could reasonablydetermine guilt or innocence but could not impose the death penalty, that person may beexcluded from the jury. (171) Whereas, if the prospective juror could reasonablydetermine guilt or innocence and impose the death sentence, according to Lockhart v.McCree , they could meet the qualifications for the jury. (172)

The Supreme Court has held that juries should be informed about the alternatives toa death sentence. In Simmons v. South Carolina , (173) the Court held that when a defendant's "futuredangerousness" is at issue, the jury must be accurately informed whether there is anypossibility of parole under the alternative lifetime sentence. (174) In Shafer v.South Carolina , (175) the Court reaffirmed its Simmons due process rule butindicated that it is limited. (176) If the prosecution does not present evidence about thedefendant's future dangerousness, the trial court may bar the jury from considering whetherthere would be any chance of parole while serving a life sentence. (177)

The Constitution bars prosecutors and trial judges from misleading juries (178) or from unfairlyinfluencing their decision on capital punishment. Thus in Dawson v. Delaware , (179) the Courtvacated Dawson's death sentence because the state introduced evidence of his association withthe Aryan Brotherhood against him during the punishment phase of his capital murder trial. Whether such evidence is relevant must be determined by a context sensitive balancing test. The Court said that the evidence in Dawson left the belief that the state had introduced theevidence not because of its relevance to the proceedings, but rather simply "because the jurywould find these beliefs morally reprehensible." (180) For the same reason, it initially concluded that victimimpact statements were unconstitutional and in violation of the Eighth Amendment, (181) a view itadjusted shortly thereafter when it held that victim impact evidence violates the Constitutiononly if it is so unduly prejudicial that it renders the proceedings fundamentally unfair. (182) And the samesentiment prevailed when the Court reversed the death sentence of a convicted murderer whowas shackled in leg irons and handcuffed to a chain around his waist when he faced aMissouri jury during his sentencing hearing. (183) Justice Breyer, writing for the majority, stated thatshackling almost always implies that authorities consider the offender a danger to thecommunity, a factor juries weigh in considering whether to impose the death penalty. (184)

In addition the Court has made clear that a defendant has a constitutional right to a jurydetermination of any facts critical to a finding of guilt or to imposition of the death penalty. In Walton v. Arizona , (185) Walton challenged Arizona's death penalty statuteclaiming that Arizona's sentencing scheme violated the Sixth Amendment right to a jury trial. Under Arizona law, the judge was allowed without a jury, to find aggravating factorsnecessary to sentence the defendant to death instead of life imprisonment. The SupremeCourt held that Arizona's sentencing scheme was compatible with the Sixth Amendment rightto a jury trial in capital cases because aggravating factors were sentencing considerations andnot elements of the crime. (186)

However, in a non-death penalty case in Apprendi v. New Jersey , (187) Apprendichallenged his enhanced sentence for possession of a firearm because the sentencing judge,and not a jury, found that his crime had been motivated by racial hatred--an element of thecrime. The Supreme Court held that if a defendant's sentence can be increased based on afinding of fact (including an aggravating factor), that fact must be found by a jury, beyond areasonable doubt, in order to be consistent with the Sixth Amendment. (188)

In Ring v. Arizona , (189) the Court addressed the conflict between the Walton and Apprendi decisions. In Ring, the Court decided that it was unconstitutional for a judge to findadditional facts that would increase a defendant's sentence when those facts include elementsof the crime. (190) The Court said that a defendant is entitled to a jurydetermination of any fact on which the law conditions an increase in his/her maximumpunishment, overruling Walton in relevant part. (191)

Habeas Corpus Procedures in Capital Cases

The writ of habeas corpus is the procedure by which a federal court inquires into theillegal detention and, potentially, issues an order directing state authorities to release thepetitioner. (192) The Supreme Court has described the function of the writ as a process "[T]o provide a promptand efficacious remedy for whatever society deems to be intolerable restraints. Its rootprinciple is that in a civilized society, government must always be accountable to the judiciaryfor a man's imprisonment: if the imprisonment cannot be shown to conform with thefundamental requirements of law, the individual is entitled to his immediate release." (193)

On April 24, 1996, President Clinton signed into law the Antiterrorism and EffectiveDeath Penalty Act of 1996 (AEDPA). (194) Title I of the AEDPA makes significant changes in thestatutes governing federal habeas corpus practice for state prisoners and enacts a new set ofstatutes to govern federal habeas corpus practice in capital cases. (195) The Courtsummarized the effect of Title I of the AEDPA as follows:

Title I of the act stands more or less independentof the act's other titles in providing for the revision of federal habeas practice and does twomain things. First, in Â§Â§ 101-106, it amends Â§ 2244 and Â§Â§2253-2255 of chapter 153 of Title28 of the United States Code, governing all habeas corpus proceedings in the federal courts. 110 Stat. 1217-1221. Then, for habeas proceedings against a State in capital cases, Â§ 107creates an entirely new chapter 154 with special rules favorable to the state party, butapplicable only if the State meets certain conditions, including provisions for appointment ofpost-conviction counsel in state proceedings. 110 Stat. 1221-1226. In Â§ 107(c), the actprovides that "Chapter 154...shall apply to cases pending on or after the date of enactment ofthis act." 110 Stat. 1226. (196)

Shortly after passage of the AEDPA, it was challenged and upheld in Felker v.Turpin (197) inseveral key provisions. Among the most significant reforms in the act are new tighter filingdeadlines, limitations on successive petitions, restrictions on evidentiary hearings, heightenedexhaustion and deference standards and specific capital case standards. (198) Sinceapparently no state has opted to take advantage of AEDPA's special capital procedures (28U.S.C. ch. 154), (199) the AEDPA general habeas provisions apply to bothcapital and noncapital cases.

In a case driven by the AEDPA's statute of limitations, the Court in Bell v.Thompson (200) decided that a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit erred bywithdrawing its decision in a habeas case months after its original ruling was considered finalby the issuance of its original mandate. Initially, a three-judge panel issued a split decisiondenying Thompson's Sixth Amendment ineffective assistance of counsel claim. The samethree judges later unanimously announced their decision to consider whether this prior rulingwas mistaken in view of available evidence that Thompson was suffering from schizophreniaat the time of the offense. After reconsidering the case, the Sixth Circuit corrected its earlierdecision and remanded the case to the district court for further proceedings, concluding thattrial counsel had failed to conduct a reasonable investigation of Thompson's social history,failed to present powerful, readily available mitigating evidence, and failed to pursue knownleads that might have helped in preparing the case for purposes of mitigation. The State ofTennessee challenged the Sixth Circuit's power to withdraw its prior decision, especially sinceThompson's case had progressed to the extent that it had in reliance on the Sixth Circuit's firstopinion. What is at issue is the authority of a federal appeals court, on the basis of newlydiscovered evidence that is favorable to the defense, to change its earlier decision and ordera case reopened as the State is preparing to carry out a death sentence.

The Supreme Court, divided (5-4), did not touch Thompson's death sentence butdecided that the Sixth Circuit's decision remanding the case for an ineffective assistance ofcounsel hearing was an abuse of discretion. Writing for the majority, Justice Kennedyconcluded that the scheduling of Thompson's execution was reasonable and the Sixth Circuit'sactions were an extraordinary departure from standard procedure. While it was recognizedthat the Sixth Circuit panel was acting on honest intentions, the State maintained that, legally,the court was not allowed to change its mind. The Court noted that with the policiesembodied in the Antiterrorism and Effective Death Penalty Act of 1996 in cases arising fromfederal habeas corpus review of a state conviction, the court's discretion under Rule 41 mustbe exercised "in a way that is consistent with the 'State's interest in the finality of convictionsthat have survived direct review within the state court system'" (201)

Retroactive Applications

The "...threshold question in every habeas case...." is whether the petitioner's claim isdefeated by the nonretroactivity of the rule he/she seeks to apply to his/her petition. (202) For federalcourts, this question is governed by the rule of Teague v. Lane. (203)

The Supreme Court addressed the rule of retroactivity in a capital sentencing contextin Beard v. Banks . (204) In Mills v. Maryland , (205) the Court heldinvalid a capital sentencing scheme that required juries to disregard mitigating factors thatthey had not found unanimously. In Beard, the Court held that the Mills rule does not apply retroactively. In its analysis, the Court considered whether the rule was dictated by existingprecedent relative to whether the unlawfulness of Mills' sentence would be apparent to "allreasonable jurist." After tracing the jurisprudential roots of the Mills decision, the Courtconcluded that reasonable jurists could have differed as to whether the prior cases compelledthe results in Mills . As confirmation, the Court noted that the Mills case (and a later releasedcase) had dissents.

The Beard Court also provided guidance on the two Teague exceptions. The firstexception is reserved for "primary, individual conduct beyond the power of the criminallaw-making authority to proscribe." (206) This, Beard observes as would Schriro v.Summerlin (207) thereafter, is matter appropriately considered retroactive by its substantive nature rather thanan exception to the procedural Teague rule. (208) Elsewhere, the Court has suggested that this exceptioncovers things like "the execution of mentally retarded...regardless of the procedurefollowed." (209) "In providing guidance as to what might fall within [the watershed] exception," the Court hasrepeatedly referred to the rule of Gideon v. Wainwright , (210) and only to thisrule. (211) Incontrast to Gideon's solitary standing, the Court has identified more than a few decisionsconcerning procedural rights that may not claim "watershed" status for Teague purposes. (212)

One of the hallmarks of new Supreme Court decisions is that until their announcementmany of the lower courts are likely to have ruled erroneously on the issue. The questionbecomes when may defendants convicted or sentenced on the basis of these errors claim thebenefit of the new decision and have their convictions or sentences overturned. (213) Generally newdecisions of the Supreme Court will apply "retroactively" (214) to defendantscurrently on trial or on direct appeal. (215) Also, a defendant may take advantage, of a new Courtrule in a few other limited situations, for example, decisions which construe a criminal statuteto exclude certain acts or conduct. (216) New decisions of the Court sometimes apply"retroactively" to those on collateral review, and rarely apply "retroactively" to thosepetitioners on second or successive collateral reviews. (217)

International Law Considerations

The Supreme Court granted certiorari in Medellin v. Dretke to determine what effectU.S. Courts should give to a ruling by the International Court of Justice at the Hague (ICJ). On May 23, 2005, the Court dismissed its writ of certiorari as injudiciously granted primarilybecause President Bush intervened and ordered state courts to abide by the ICJ ruling. (218) The Courtnoted that there was a likelihood that Medellin would be back before the Supreme Court oncethe case runs its course in the Texas court and the losing party appeals. (219) The case issignificant because of its implications for the World Court and U.S. foreign relations and theongoing Supreme Court debate over the relevance and effect of international law on theCourt's decisions.