#6 Class--The Death Penalty--2-20-12

2-20-12

Lecture # 6: Law & Social Policy: The Death Penalty

1. Reading (536 words) (Brandi Melvin)

Callins v. Collins, 510 U.S. 1141 (1994)
Bruce Edwin Callins will be executed [tomorrow] by the state of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses...will behold Callins...strapped to a gurney, seconds away from extinction. Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the...task of determining whether some human being is to live or die.
We hope...that the defendant whose life is at risk will be represented by...someone who is inspired by the awareness that a less-than-vigorous defense...could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge...committed to the protection of defendants' rights...
But even if we can feel confident that these actors will fulfill their roles...our collective conscience will remain uneasy. Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this...challenge, the death penalty remains fraught with arbitrariness, discrimination...and mistake...
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all."
Supreme Court Justice Harry A. Blackmun, from an opinion dissenting from the Supreme Court's decision denying review in a Texas death penalty case, Callins v. Collins, Feb. 22, 1994.

2. Summary of Class #5: Tocqueville on Social and Political Issues (in 450 Words or Less)


In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third tthe Power of the Legislature; the fourth the Power of the Executive Branch and in the fifth we reviewed social and political themes and issues treated by Tocqueville in his classic work, Democracy in America. Here’s what we’ve learned:

Equality, not freedom, is the basic creed of the new American civic religion. Personal liberty and religion became allied in the new world, working together to mold a new order for a new people who were practical, money loving, kind in the administration of the criminal code (as it relates to political prosecutions), addicted to comfort and order, and subject to the fetters of public opinion. Lawyers and judges play a special role in tempering the excesses of majority rule and a private press and independent judiciary are the most powerful institutions in America. Other points:

For Americans, their whole lives are spent as if in a game of chance, in a time of revolution or a day of battle.

Democracy in America (1835-1840) Alexis de Tocqueville: Key Points

TYRRANY OF MAJORITY 68, 71, 223-224, 287-305, 603, 747
INDIVIDUALISM: 683 (isolation), 589
ASSOCIATIONS 219-227, 223, 595-609, 700-702 811 (danger of factions)
MATERIALISM: 627-628
FREE PRESS 213, 222, 811-812
LAWYERS 307-315, 308, 309, 314
PUBLIC EDUCATION: 53-54, 65 (job oriented)
WAR 755-756, 768, 260 (the draft)
NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
KINDNESS 653 (Death Penalty)
DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought), 747 (public approval)
DEPOTISM OF THE FUTURE 805-806
FEAR OF DISORDER, LOVE OF COMFORT 788
LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618.
WOMEN: 687, 692, 696, 700
UPWARD MOBILITY 637
EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
RELIGION & LIBERTY: Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom.
LEGISLATIVE POWER, fear of: 288, 304-305
JUDICIAL POWER 122, 314, 315 812
NEW ARISTOCRACY 645-648
MAIN OBJECTIVE OF LEGISLATION 49, 817
SOURCE OF LAWS 49, 57, 58, 71, 319, 335, 357, 362.
RACE 398-426
MAIN IDEA OF BOOK: 335, 816-817
TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812.
292

298 words

The love of comfort has become the dominant taste of the nation. Tocqueville 618.


3. Lecture #6: The Death Penalty. DV: words. 5 minutes

Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840)

In 1972, the United States Supreme Court ruled that the death penalty as administered in the United States was unconstitutional. Several reasons were cited although none commanded a majority of votes by the Supreme Court Justices: it is fair to say that the animating themes of the decision are cruel and unusual punishment, arbitrary application, lack of procedural guidelines for juries that also allow for application of discretion at appropriate junctures. Only two justices believed that capital punishment had become unconstitutional as a matter of law, cruel and unusual punishment because of the evolving standard of decency discernible in actions of the legislature and jury sentencing decisions. One justice thought the death penalty was cruel and unusual because it was arbitrarily applied and seemed to be governed by the same laws that determined where lightening would strike. In this view, the death penalty is a macabre lottery system.

So, while the death penalty was effectively declared too broken to use in 1972, it was not regarded as too broke to fix. And by 1976, the Supreme Court declared it fixed for good and executions resumed soon thereafter with the execution of Gary Gilmore by firing squad. The main impetus for the fix came from the Model Penal Code designed by the American Law Institute. The MPC designed a model template that would guide the discretion of the jury in capital cases, bifurcate the guilt and sentencing trials and allow the jury to meld, mold and entwine objective criteria with discretion in a way that would satisfy the requirements of due process and equal protection of the law. Or so it was thought. In 2009, the ALI withdrew support for its template and said it doesn’t work.

In this, the sixth lecture, we will consider the state of the law regarding capital punishment in the United States generally and I will describe the current status of executions in Kentucky. 297 words.

Allow me to read a letter from the February 2010 edition of the Los Angeles Times by the president emeritus of the American Law Institute):
Los Angeles Times
The death penalty -- it's unworkable
The American Law Institute, instrumental in structuring the model statutes on which most death sentences are based, has withdrawn its support of such laws.

By Michael Traynor
February 4, 2010

Nearly 50 years ago, as concern grew in the country about the fairness of death penalty laws, the American Law Institute published a "model statute" aimed at helping state lawmakers draft laws to ensure that death sentences were meted out fairly and consistently. 

Last fall, the institute withdrew its support for the model death penalty law. The decision was a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country. 

The institute, with a membership of more than 4,000 lawyers, judges and law professors of the highest qualifications, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. 

In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model -- such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities -- withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice.

Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed.

I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems.

The death penalty cannot balance the need for consistency in sentencing with the need for individualized determinations. Its administration is unequal across racial groups. There is a grave lack of resources for defense lawyers. The law is distorted by the politics of judicial elections, and it consumes a disproportionate share of public resources. 

California's death penalty exemplifies these problems. Portions of California's law were copied from the institute's model statute. The system now is on the verge of collapse. There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes. 

Resources are woefully inadequate. More than half of the people on death row don't have access to a constitutionally-required lawyer. A statewide commission found that there remains a serious risk that the state will execute an innocent person. And then there is the cost. Housing a prisoner on death row costs taxpayers $90,000 a year more than if that prisoner were held in another type of high-security prison. The total additional cost for housing all of California's death row inmates is more than $60 million a year.

These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute's model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence.

The institute's action comes at a time of widespread reevaluation of capital punishment. Fifteen states have abandoned capital punishment, including three in the last three years. In 2009, the country saw the lowest number of death sentences since the death penalty was reinstated in 1976. 

We now have decades of experience, which the institute lacked when it proposed its model statute almost 50 years ago. Life without the possibility of parole, now an important alternative in nearly every state, was then virtually untried. To the extent that society needs to punish murderers severely, it can do so far more effectively using tough yet fair prison sentences rather than through an ineffective and extravagant death penalty. 

The American Law Institute could have chosen to do nothing. But having laid the intellectual and legal groundwork for the modern death penalty, it concluded that it had a responsibility to act now that the system's fatal flaws have fully emerged. 

The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system. How much longer can any of us? 

Michael Traynor is president emeritus of the American Law Institute and lives in Berkeley


4. Lecture #6: Student Assignments for Class # 6: Capital Punishment

Lecture #6: Capital Punishment
[February 20, 2012]
___________________________________
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.
In republican government, it is in the nature of the constitution for judges to follow the letter of the law Montesquieu, The Spirit of the Laws (1748) page 76.

End
2-20-12
Class Assignments: Death Penalty

1. Furman v. Georgia 408 U. S. 238 ; Josh Porter (please brief opinion by Justice Douglas), Jenn S ( please brief opinion by Justice Stewart), Lu ( please brief Justice Whites’ opinion); John Brown (please brief Justice Marshall’s view), Darrick (please brief Justice Blackmun’s opinion in dissent), Chris ( please brief Justice Powell’s views), Zach ( please cover Justice Rehnquist’s opinion).

2. Gregg v. Georgia 428 U. S. 153 ( and Woodson v. North Carolina 428 U.S. 280) Jonathan Raymond, please brief the majority ruling and if you can, tell us what role the American Law Institute played in the outcome; Jillian Smith, please summarize the other opinions by Justices Stevens, Rehnquist, White, Brennan and Marshall ( is death different?);

3. Herrera v. Collins, 506 US 390 ( is actual innocence a reason to overturn the death sentence?) Chris Robert, brief the majority opinion. Nicholas, please brief Justice O’Connor’s concurring opinion; Jasmine, please cover Justice Blackmun’s dissent.

4. Callins v Collins; Brandi Melvin: cover Justice Blackmun’s dissent.

5. Atkins v. Virginia 536 U.S. 304: Cathy Barnes (brief the majority opinion and try to extract the exact method(s) used to determine the standard of decency); Paige Hamby, brief the dissents, especially Justice Rehnquist and the use of foreign law.

6. Stephanie Carr: brief Roper v. Simmons, 543 U.S. 551 (2005) was a decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5-4 decision overruled the Court's prior ruling upholding such sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989), overturning statutes in 25 states that had the penalty set lower. Nicole Maddox, please brief the dissents.

7. Brittany: Brief the majority opinion in Kennedy v. Louisiana 554 U.S. 407: Cassle, brief the dissent by Justice Alioto. Also, the Senator David Vitter Resolution regarding this case AND the factual error and Justice Alioto’s quote: On October 1, 2008, however, the Supreme Court declined to revisit its decision that imposing the death penalty for child rape is unconstitutional. Concurring in the denial of rehearing, Justice Scalia explained his views against rehearing by denying the relevance of the factual error, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.[18]
8. Jacob Giesecke February 4, 2010 letter to the Los Angeles Times by Michael Traynor, president emeritus of the American Law Institute.
(Case Material Summaries are from Wikipedia):
1. Furman v. Georgia, 408 U.S. 238 (1972) was a United States Supreme Court decision that ruled on the requirement for a degree of consistency in the application of the death penalty. The case led to a de facto moratorium on capital punishment throughout the United States, which came to an end when Gregg v. Georgia was decided in 1976.
In a 5-4 decision, the Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. Each of the justices filed their own concurrence or dissent; none were able to gather more than three other justices to support them. Only Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias against black defendants. The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.[1] Wikipedia.
2. Gregg v. Georgia 428 U. S. 153 (and Woodson v. North Carolina 428 U.S. 280) Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976), reaffirmed the United States Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. Referred to by a leading scholar as the July 2 Cases[1] and elsewhere referred to by the lead case Gregg, the Supreme Court set forth the two main features that capital sentencing procedures must employ in order to comport with the Eighth Amendment bar on "cruel and unusual punishments." The decision essentially overturned the de facto moratorium on the death penalty imposed by the Court in its 1972 decision in Furman v. Georgia 408 U.S. 238 (1972). Furman, Justice Potter Stewart remarked that the death penalty was "cruel and unusual in the same way that being struck by lightning is cruel and unusual." The Court set out two broad guidelines that legislatures must follow in order to craft a constitutional capital sentencing scheme:
 First, the scheme must provide objective criteria to direct and limit the death sentencing discretion. The objectiveness of these criteria must in turn be ensured by appellate review of all death sentences.
 Second, the scheme must allow the sentencer (whether judge or jury) to take into account the character and record of an individual defendant.
In Gregg, Proffitt, and Jurek, the Court found that the capital sentencing schemes of Georgia, Florida, and Texas, respectively, met these criteria; whereas in Woodson and Roberts, the Court found that the sentencing schemes of North Carolina and Louisiana did not. Wikipedia.
Other views expressed in these cases
Justices Brennan and Marshall expressed their views, which they also articulated in Furman, that the death penalty does not deter crime and that our society has evolved to the point that it is no longer an appropriate vehicle for expressing retribution. In every subsequent capital case that would come before the Court during their tenures, they would refer to their opinions in Gregg in support of their vote against the death penalty.
Justice White countered that capital punishment cannot be unconstitutional because the Constitution expressly mentions it and because two centuries of Court decisions assumed that it was constitutional. Furthermore, for White the judgment of the legislatures of 35 states was paramount, and suggested that the punishment should remain in use. He also felt that the Court should defer to a state legislature's response to the problem of juror response to the prospect of capital punishment, rather than dictate that the Eighth Amendment requires a particular response.
White also disagreed that the Constitution required a separate penalty hearing before imposing the death penalty. "Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death." He also saw no difference between Louisiana's definition of first-degree murder and Texas's definition of capital murder.
Justice Rehnquist would have upheld North Carolina's and Louisiana's mandatory death penalties. He disputed the historical evidence adduced in support of the claim that American juries dislike mandatory death penalties. He also felt that the Court's decisions had an analytical flaw. The Court had struck down the mandatory death penalty because it took away discretion from the jury. Yet, Rehnquist pointed out, a jury in Georgia could reject the death penalty for no reason at all. Thus, Georgia's scheme did not alleviate the concerns articulated in Furman about the arbitrariness of the death penalty any more than North Carolina's ignored them. He also disputed whether the appellate review of death sentences inherent in the systems the Court had approved could truly ensure that each death sentence satisfied those concerns. He finally took issue with the idea that the fact that "death is different" requires any extra safeguards in the sentencing process.
Justice John Paul Stevens remarked in October 2010 that his vote in the decision was regrettable. Stevens told the Washington Post that his vote was made with respect for precedent within the court that held capital punishment to be constitutional.
JONATHAN RAYMOND, THE Majority
JILLIAM SMITH, the other views
3. Herrera v. Collins, 506 US 390 Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment's ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas relief. Chief Justice William Rehnquist’s majority opinion held that a claim of actual innocence based on newly discovered evidence did not state a ground for federal habeas relief. Herrera had claimed that, because the new evidence demonstrated innocence, his execution would violate the Eighth Amendment’s ban on cruel and unusual punishment which applied to the states through the Fourteenth Amendment. Rehnquist’s opinion noted that “[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Wikipedia.
Rehnquist’s opinion, although not explicitly holding that the Eighth Amendment does not prohibit executing an innocent person, emphasized that Herrera was not raising a constitutional violation. In discussing what relief Herrera would be entitled to were he to succeed on his claim of “actual innocence,” Rehnquist wrote, “Were petitioner to satisfy the dissent's ‘probable innocence’ standard…the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner's new-found evidence a jury might find him not guilty at a second trial.”
Blackmun's Dissent
Justice Blackmun, joined by Justices Stevens and Souter, dissented. Blackmun believed that "[n]othing could be more contrary to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent." Blackmun would have remanded the case to the district court for a determination as to whether a hearing should be held and to resolve the merits of Herrera's claim of actual innocence.
Chastising the majority for its circumspection, Blackmun wrote, "We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence," and he took note of "the State of Texas' astonishing protestation to the contrary." Wikipedia.
CHRIS ROBERT Majority
NICOLAS LAUGHLIN, the Concurring Opinion by Justice O’Connor
JASMINE , Blackmun’s Dissent

4. Callins v Collins 510 U.S. 1141; Brandi Melvin: cover Justice Blackmun’s dissent. BRANDI MELVIN (this assignment will be the opening reading).
Justice Blackmun , dissenting.
On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing …..
Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake….To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S., at 605 (plurality opinion). ……
On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [n.1] Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, ___ U. S. ___ (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, ___ U. S. ___ (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. ___ (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. [n.2]
….A year later, the Court reversed its course completely in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam, with each of the nine Justices writing separately). The concurring Justices argued that the glaring inequities in the administration of death, the standardless discretion wielded by judges and juries, and the pervasive racial and economic discrimination, rendered the death penalty, at least as administered, "cruel and unusual" within the meaning of the Eighth Amendment. Justice White explained that, out of the hundreds of people convicted of murder every year, only a handful were sent to their deaths, and that there was "no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." 408 U. S., at 313. If any discernible basis could be identified for the selection of those few who were chosen to die, it was "the constitutionally impermissible basis of race." Id., at 310 (Stewart, J., concurring).
I dissented in Furman. Despite my intellectual, moral, and personal objections to the death penalty, I refrained from joining the majority because I found objectionable the Court's abrupt change of position in the single year that had passed since McGautha. While I agreed that the Eighth Amendment's prohibition against cruel and unusual punishments " `may acquire meaning as public opinion becomes enlightened by a humane justice,' " 408 U. S., at 409, quoting Weems v. United States, 217 U.S. 349, 378 (1910), I objected to the "suddenness of the Court's perception of progress inthe human attitude since decisions of only a short while ago." 408 U. S., at 410. Four years after Furman was decided, I concurred in the judgment in Gregg v. Georgia, 428 U.S. 153 (1976), and its companion cases which upheld death sentences rendered under statutes passed after Furman was decided. See Proffitt v. Florida, 428 U.S. 242, 261 (1976), and Jurek v. Texas, 428 U.S. 262, 279 (1976). Cf. Woodson v. North Carolina, 428 U.S. 280, 307 (1976), and Roberts v. Louisiana, 428 U.S. 325, 363 (1976).
There is little doubt now that Furman's essential holding was correct. Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all. Eddings v. Oklahoma, 455 U. S., at 112. I never have quarreled with this principle; in my mind, the real meaning of Furman's diverse concurring opinions did not emerge until some years after Furman was decided. See Gregg v. Georgia, 428 U. S., at 189 (opinion of Stewart, Powell, and Stevens, JJ.) ("Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action"). Since Gregg, I faithfully have adhered to the Furman holding and have come to believe that it is indispensable to the Court's Eighth Amendment jurisprudence. Wikipedia.
5. Atkins v. Virginia 536 U.S. 304: Atkins v. Virginia, 536 U.S. 304 (2002), is a case in which the Supreme Court of the United States ruled 6-3 that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments. THE FOUR CRITERIA for DETERMINING THE STANDARD OF DECENCY. The Eighth Amendment to the United States Constitution forbids cruel and unusual punishments. In the ruling it was stated that, unlike other provisions of the Constitution, the Eighth Amendment should be interpreted in light of the "evolving standards of decency that mark the progress of a maturing society." The best evidence on this score was determined to be the judgment of state legislatures. In dissent, Justices Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist argued that in spite of the increased number of states which had outlawed the execution of the mentally retarded, there was no clear national consensus, and that even given if there were, there was no basis in the Eighth Amendment for using such measures of opinion to determine what is "cruel and unusual". Justice Antonin Scalia commented in his dissent that "seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members". The citing of an amicus brief from the European Union also drew criticism from Chief Justice Rehnquist, who denounced the "Court's decision to place weight on foreign laws." Wikipedia.
CATHY BARNES, Majority
PAiGE HAMBY, Dissents
6. Roper v. Simmons 543 U.S. 551 (2005) Roper v. Simmons, 543 U.S. 551 (2005) was a decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5-4 decision overruled the Court's prior ruling upholding such sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989), overturning statutes in 25 states that had the penalty set lower. "evolving standards of decency" test, the Court held that it was cruel and unusual punishment to execute a person who was under the age of 18 at the time of the murder. Writing for the majority, Justice Kennedy cited a body of sociological and scientific research [1] that..
Justice Scalia wrote a dissent joined by Chief Justice Rehnquist and Justice Thomas. Justice O’Connor also wrote a dissenting opinion. The dissents put into question whether a “national consensus” had indeed formed among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles (the other 12 states executed neither juveniles nor adults).
However, the primary objection of the Court's two originalists, Justices Scalia and Thomas, was whether such a consensus was relevant. Justice Scalia argued that the appropriate question was not whether there was presently a consensus against the execution of juveniles, but rather whether the execution of such defendants was considered cruel and unusual at the point at which the Bill of Rights was ratified. Wikipedia.
STEPHANIE CARRR, the Majority
NICOLE MADDOX, the Dissents

7. Kennedy v. Louisiana, 554 U.S. 407 (2008) was a landmark decision by the Supreme Court of the United States that held that the Eighth Amendment's Cruel and Unusual Punishment Clause did not permit a state to punish the crime of rape of a child with the death Justice Scalia wrote a dissent joined by Chief Justice Rehnquist and Justice Thomas. Justice O’Connor also wrote a dissenting opinion. The dissents put into question whether a “national consensus” had indeed formed among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles (the other 12 states executed neither juveniles nor adults).
penalty; more broadly, the power of the state to impose the death penalty against an individual for committing a crime that did not result in the death of the victim is now limited to crimes against the state (i.e., espionage, treason). Justice Alito sharply criticized the majority for usurping the role of the legislature. Alito argued that Kennedy's rationale for defining national consensus was flawed, because the previous Coker decision had "stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency." In this Alito followed former Chief Justice Warren Burger, who had dissented from Coker because it, in his view, prevented a full debate over the uses of the recently-reinstated death penalty. In this vein, Alito also argued that "The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society."[13] In January 2009, U.S. Senator for Louisiana David Vitter introduced S. Res. 4, "A resolution expressing the sense of the Senate that the Supreme Court of the United States erroneously decided Kennedy v. Louisiana, No. 07-343 (2008), and that the eighth amendment to the Constitution of the United States allows the imposition of the death penalty for the rape of a child." This resolution was never voted upon by the full Senate and died in committee when the 111th Congress adjourned.[21] On October 1, 2008, however, the Supreme Court declined to revisit its decision that imposing the death penalty for child rape is unconstitutional. Concurring in the denial of rehearing, Justice Scalia explained his views against rehearing by denying the relevance of the factual error, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.[18]. Wikipedia.

BRITTANY HAMPTON, the Majority
CASSLE KENNEDY, the Dissents

8. Letter from the February 2010 edition of the Los Angeles Times by the president emeritus of the American Law Institute 297 words (Traynor letter is 794 words):
Los Angeles Times
The death penalty -- it's unworkable
The American Law Institute, instrumental in structuring the model statutes on which most death sentences are based, has withdrawn its support of such laws.

By Michael Traynor
February 4, 2010

Nearly 50 years ago, as concern grew in the country about the fairness of death penalty laws, the American Law Institute published a "model statute" aimed at helping state lawmakers draft laws to ensure that death sentences were meted out fairly and consistently. 

Last fall, the institute withdrew its support for the model death penalty law. The decision was a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country. 

The institute, with a membership of more than 4,000 lawyers, judges and law professors of the highest qualifications, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. 

In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model -- such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities -- withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice.

Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed.

I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems.

The death penalty cannot balance the need for consistency in sentencing with the need for individualized determinations. Its administration is unequal across racial groups. There is a grave lack of resources for defense lawyers. The law is distorted by the politics of judicial elections, and it consumes a disproportionate share of public resources. 

California's death penalty exemplifies these problems. Portions of California's law were copied from the institute's model statute. The system now is on the verge of collapse. There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes. 

Resources are woefully inadequate. More than half of the people on death row don't have access to a constitutionally-required lawyer. A statewide commission found that there remains a serious risk that the state will execute an innocent person. And then there is the cost. Housing a prisoner on death row costs taxpayers $90,000 a year more than if that prisoner were held in another type of high-security prison. The total additional cost for housing all of California's death row inmates is more than $60 million a year.

These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute's model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence.

The institute's action comes at a time of widespread reevaluation of capital punishment. Fifteen states have abandoned capital punishment, including three in the last three years. In 2009, the country saw the lowest number of death sentences since the death penalty was reinstated in 1976. 

We now have decades of experience, which the institute lacked when it proposed its model statute almost 50 years ago. Life without the possibility of parole, now an important alternative in nearly every state, was then virtually untried. To the extent that society needs to punish murderers severely, it can do so far more effectively using tough yet fair prison sentences rather than through an ineffective and extravagant death penalty. 

The American Law Institute could have chosen to do nothing. But having laid the intellectual and legal groundwork for the modern death penalty, it concluded that it had a responsibility to act now that the system's fatal flaws have fully emerged. 

The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system. How much longer can any of us? 

Michael Traynor is president emeritus of the American Law Institute and lives in Berkeley



Following are Wikipedia summaries:
In Gregg v. Georgia (1976) the Court majority upheld death‐sentencing when the legislature created statutory standards to guide the sentencing body's discretion in a separate trial where additional evidence relevant to sentencing could be adduced. A companion case, Woodson v. North Carolina, rejected a mandatory death penalty for all capital murderers, finding the Eighth Amendment evolving standards of decency required the individualized consideration of aggravating and mitigating circumstances. Ring v. Arizona (2002) required that juries, not judges, determine the presence of the aggravating factors that made one death‐eligible, and that these factors be proven beyond a reasonable doubt. 

Before Furman, most executions had been for murder, some for rape, and a few for kidnapping, treason, espionage, and aircraft piracy. In Coker v. Georgia (1977), the Court barred the death penalty for rape of an adult woman. Today, nearly all death sentences are imposed for homicide. 

Looking to objective indicators of the evolving standards of decency, the Court has reserved the death penalty for those most culpable offenders: The actual killer, or the accomplice who attempts to kill, intends to kill, or is a major participant in an accompanying felony and possesses a reckless indifference to human life, is death‐eligible (Tison v. Arizona, 1987). But the mentally retarded (Atkins v. Virginia, 2002), the insane (Ford v. Wainwright, 1986), and those under sixteen at the time of the offense (Thompson v. Oklahoma, 1988) are not. 

Between the Gregg decision in 1976 and 1 July 2003, there were 882 persons executed in 33 jurisdictions. Over three‐fourths of these executions occurred below the Mason‐Dixon line, led by Texas (311) and Virginia (89). The pace of executions rose sharply in the 1990s, perhaps in part as a consequence of the 1996 Anti‐Terrorism and Effective Death Penalty Act's trimming back of federalhabeas corpus relief mechanisms. At midyear 2003, over 3,500 persons awaited execution: 98 percent male, and 54 percent of minority race. 

Significant decisions in 2002 and in 2003 (regarding ineffective assistance of penalty phase counsel,Wiggins v. Smith), indicate the Court majority is willing to exert controls over the development of capital punishment policies and procedures that they had largely left to state legislatures, courts, and governors. Still, since many state judges and all the others face electoral challenges, conventional political processes will continue to play a major role in shaping future death penalty polices, including possible moratorium measures.

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
1. The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
2. "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
3. "A severe punishment that is clearly and totally rejected throughout society."
4. "A severe punishment that is patently unnecessary."
Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles.

The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, 536 U.S. 304 (2002), and executing people who were under age 18 in Roper v. Simmons, 543 U.S. 551 (2005), to be violations of the Eighth Amendment, regardless of the crime.
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The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual.[12] The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor," shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment.[13] However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."[14]
In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that punishing a natural-born citizen for a crime by taking away his citizenship is unconstitutional, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society." The ruling's reference to "evolving standards of decency" is frequently cited precedent in the court's interpretation of the Eighth Amendment's prohibition on "cruel and unusual punishment."

Death penalty for rape
In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that "rape by definition does not include the death of or even the serious injury to another person." The dissent countered that the majority "takes too little account of the profound suffering the crime imposes upon the victims and their loved ones." The dissent also characterized the majority as "myopic" for only considering legal history of "the past five years."
On June 25, 2008, in Kennedy v. Louisiana,[16] the Court returned to the subject of its decision in Coker and ruled that the death penalty was excessive for child rape "where the victim’s life was not taken."[17] The Supreme Court failed to note a federal law, which applies to military court-martial proceedings, providing for the death penalty in cases of child rape.[18] On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that "the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"[19]

Special procedures for death penalty cases
The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, 408 U.S. 238 (1972). In a 5-4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found capital punishment to be unconstitutionally cruel and unusual, while three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold — even though it is sometimes claimed that it did — that capital punishment is per se unconstitutional.[20]
States with capital punishment rewrote their laws to address the Supreme Court's decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found, in a 7-2 ruling, that Georgia's new death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for "specific jury findings" followed by state supreme court review comparing each death sentence "with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Because of the Gregg decision, executions resumed in 1977.
Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws to be unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, 428 U.S. 280 (1976), because these laws remove discretion from the trial judge to make an individualized determination in each case.[21] Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme Court overturned a sentence based upon a finding that a murder was "outrageously or wantonly vile, horrible, and inhuman," as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court found that an "especially heinous, atrocious or cruel" standard in a homicide case was too vague. However, the vagueness of this language depends on how lower courts interpret it. In Walton v. Arizona, 497 U.S. 639 (1990), the Court found that the phrase "especially heinous, cruel, or depraved" was not vague in a murder case, because the state supreme court had expounded on its meaning.[22]
The Court has generally held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, "the Eighth Amendment requires increased reliability of the process..."
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Evolving standards of decency
In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those "evolving standards of decency".[16] The Court has then applied those standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless cruelly disproportionate to the offense in question.[16]
An example of the "evolving standards" idea can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system.
The "evolving standards" test is not without its scholarly critics. For example, Professor John Stinneford asserts that the "evolving standards" test misinterprets the Eighth Amendment:
The Framers of the Bill of Rights understood the word “unusual” to mean “contrary to long usage.” Recognition of the word’s original meaning will precisely invert the “evolving standards of decency” test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of “societal consensus” and contemporary “standards of decency.”[23]
On the other hand, Dennis Baker has asserted that the evolving standards of decency test accords with the moral purpose of the Eighth Amendment and the Framer’s intent that the right be used to prevent citizens being subjected to all forms of unjust and disproportionate punishments.[24] As Professor John Bessler points out, "An Essay on On Crimes and Punishments," written by Cesare Beccaria in the 1760s, advocated for proportionate punishments. Many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria's treatise and were influenced by it.[25]


But on February 22, 1994, less than two months before announcing his retirement, Blackmun announced that he now saw the death penalty as always and in all circumstances unconstitutional by issuing a dissent from the Court's refusal to hear a routine death penalty case (Callins v. Collins), declaring that "[f]rom this day forward, I no longer shall tinker with the machinery of death." Subsequently, adopting the practice begun by Justices Brennan and Marshall, he issued a dissent from denial of certiorari in every death penalty case, citing and reiterating his Callins dissent. As Linda Greenhouse and others have reported, Blackmun's law clerks prepared what would become the Callins dissent well in advance of the case coming before the Court; Blackmun's papers indicate that work began on the dissent in the summer of 1993, and in a memo preserved in Blackmun's papers, the clerk writing the dissent wrote Blackmun that