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Until the twentieth century, the law of capital punishment in the United States was almost entirely in the hands of individual states. State legislatures could decide whether to have capital statutes at all, what crimes to render eligible for capital punishment, what procedures to follow in capital trials, and what methods of execution to use. The federal legislature—Congress—also exercised similar policy discretion over the use of capital punishment for federal crimes. However, criminal law has always been primarily the province of state as opposed to federal power, and the vast majority of American executions have been conducted by states rather than by the federal government.
State Legislative Innovations
From the founding of the Republic through the nineteenth century and into the twentieth century, states made a number of changes in their capital statutes. In both the nineteenth and twentieth centuries, there were periodic waves of legislative abolition, starting with Michigan in 1846 and concluding with New Mexico in 1969, but of the twenty-two states that voted to abolish capital punishment for ordinary murder during this period, eleven eventually reinstated the death penalty. As of early 2001 only twelve states and the District of Columbia do not have capital punishment statutes (Massachusetts, the twelfth state, had its capital murder statute struck down under that state’s constitution by the Massachusetts Supreme Judicial Court in 1984).
The states also made changes over the years in the crimes eligible for capital punishment. Perhaps the most significant change was commenced by Pennsylvania in 1794 when it became the first state to divide murder into ‘‘degrees,’’ rendering only ‘‘first-degree’’ murder—murder accompanied by ‘‘premeditation and deliberation’’—eligible for the death penalty. This innovation was widely followed, and it restricted the scope of the death penalty to a smaller pool of convicted murderers. In addition to murder, a number of other crimes were commonly covered by capital statutes well into the twentieth century, including rape, kidnapping, and armed robbery, as well as extraordinary crimes such as treason, espionage, and sabotage.
As for capital trial procedures, the states wrought surprisingly little change on their own over the years before the federal constitution was held to compel such change late in the twentieth century. Before the constitutional era, capital trials did not tend to differ markedly from ordinary felony trials, although capital sentencing was generally placed in the hands of juries rather than judges, who conducted most other, ordinary criminal sentencing. Finally, states made a number of changes over the years in the methods of executions they employed. While public hanging was by far the most prevalent mode of execution at the time of the founding, death by electrocution, by lethal gas chamber, and by lethal injection later almost completely displaced hanging, with lethal injection being by far the most common mode employed today. No American jurisdiction currently conducts any executions in public, despite occasional interest from members of the public and the media.
Early Constitutional Intervention
Before the twentieth century, there was no intimation from the U.S. Supreme Court that the federal constitution placed any special restrictions, substantive or procedural, on the use of capital punishment by the states or the federal government. Rather, it was assumed that the scope of capital statutes, the conduct of capital trials, and the manner of execution were all policy choices entrusted completely to the states or to the political branches of the federal government.
The first significant constitutional ruling regarding the use of capital punishment arose in an unusual and unusually fraught context—the trial of the Scottsboro Boys, nine young black men accused of raping two white women on a freight train near Scottsboro, Alabama, in the early 1930s. The men were arrested, indicted, and tried in short order, and convicted and sentenced to death on the basis of extremely flimsy evidence after extremely abbreviated legal proceedings. The case led to a number of appeals in both state and federal courts, but the most famous and legally significant ruling to result from the case was the Supreme Court’s holding that, at least in capital cases, trial judges had an obligation to ensure that indigent defendants who could not adequately represent themselves be appointed counsel to represent them (Powell v. Alabama, 287 U.S. 45 (1932)). This requirement of appointed counsel was not broadly extended to noncapital defendants until the 1960s. While the Scottsboro case is justly famous both for its illumination of the treatment of black defendants in southern criminal courts and for its anticipation of the later use of the due process clause of the Fourteenth Amendment to ‘‘incorporate’’ the Bill of Rights to apply to the states as well as the federal government, it also is a landmark in the legal regulation of capital punishment. The Supreme Court’s ruling signaled, for the first time, that the federal constitution might specially limit the use of the death penalty, long thought to be an unfettered prerogative of state criminal justice systems.
Perhaps because Scottsboro was so distinctive a case, the Supreme Court did not quickly move to elaborate upon the U.S. Constitution’s significance in capital cases. Indeed, except for holding in 1947 that a botched electrocution that failed to result in death did not constitutionally bar a second try (State of Louisiana ex rel. Francis v. Resweber, 330 U.S. 853 (1947)), the Court did not make any further significant constitutional rulings regarding capital punishment until the late 1960s. The Warren Court, headed by Chief Justice Earl Warren, revolutionized criminal procedure generally during the 1960s by holding that almost all of the specific criminal procedural protections contained in the Bill of Rights were applicable not only to federal cases but to state criminal trials as well. The Warren Court also broadly construed these constitutional protections, requiring, for example, that arrested suspects be given warnings before being questioned and that attorneys be present during many line-ups (Miranda v. Arizona, 384 U.S. 436 (1966); United States v. Wade, 388 U.S. 218 (1967)). In addition to seeing such revolutionary expansion of the constitutional rights of the accused, the 1960s were also a time of declining popular support for the use of capital punishment. A Gallup poll conducted in 1966 showed for the first (and it has turned out to be the only) time in the twentieth century that more of those polled opposed capital punishment for murder than supported it. At the same time, the NAACP Legal Defense Fund was successfully pursuing a ‘‘moratorium’’ strategy in criminal courts around the country, attempting to prevent any executions from going forward by raising every legal claim conceivably available. It is not surprising, therefore, that the Supreme Court chose this time to reenter the death penalty debate.
In 1968, the last year of the Warren Court, the Court gave a small but significant victory to the abolitionist forces when it ruled that states could not automatically exclude from capital trial juries all of those with conscientious scruples against capital punishment, as many jurisdictions did as a matter of course. (Witherspoon v. Illinois, 391 U.S. 510 (1968)). Rather, such potential jurors can now be removed for cause only if their attitudes about capital punishment would prevent or substantially impair the performance of their duties as jurors. Abolitionist litigators were emboldened by this ruling, which many hoped or believed would lead to the constitutional abolition of capital punishment entirely.
These hopes were crushed, however, only a few years later when, in 1971, the Supreme Court heard and rejected the first sweeping challenge to the American practice of capital punishment. The Court held that the due process clause of the Fourteenth Amendment was not violated by the existence of completely standardless capital sentencing procedures—in which the sentencing jury was told it had absolute discretion to impose a sentence of life or death for whatever reasons it deemed appropriate—nor did the constitution require that capital trials and sentencing procedures be bifurcated into two separate hearings (McGautha v. California, 402 U.S. 183 (1971)). This decisive defeat seemed to mark the end of constitutional challenges to the administration of capital punishment.
Constitutional Abolition in Furman V. Georgia
In a startling turnaround, however, the very next year the Supreme Court heard the very same challenge to American capital sentencing practices, but this time under the Eighth Amendment’s proscription of cruel and unusual punishments. Once again, abolitionist lawyers argued that standardless capital sentencing procedures violated the federal constitution—and this time, they prevailed. The Supreme Court’s ruling in (Furman v. Georgia, 408 U.S. 238 (1972)), had the effect of abolishing the death penalty as it was then administered in the United States, invalidating the statutes of thirty-nine states, the District of Columbia, and the federal government.
But the reasoning behind the Court’s landmark ruling was far from clear. The Court was closely divided—5 to 4—and each of the five Justices in the majority authored his own opinion and refused to join the opinion of any other Justice. Only two Justices—William J. Brennan and Thurgood Marshall—were convinced that the death penalty in all cases constituted cruel and unusual punishment. The other Justices in the majority were more concerned with the procedures used to impose the death penalty and with the patterns of its application. The fact that so many defendants charged with serious felonies were eligible for the death penalty while so few were actually sentenced to death led Justice Potter Stewart to compare receiving the death penalty with being struck by lightning. Justice William O. Douglas feared that the application of the death penalty was not merely arbitrary, but actually discriminatory against racial minorities, the poor, and the politically unpopular. The absence of any guidance to sentencing juries to prevent such questionable patterns of imposition, concluded Justice Byron White, demonstrated the lack of legislative will behind the death penalty. The dissenting Justices, who also produced a range of separate opinions, objected that the majority was using the Eighth Amendment to usurp a legislative function and speculated that state legislatures might be able to remedy their flawed capital sentencing schemes.
Just as many believed that the Supreme Court’s rejection of due process challenges to capital punishment spelled the end of constitutional abolition, many believed that the Court’s decision in Furman spelled the end of capital punishment in America. This latter belief proved as ill-founded as the former. Furman created an angry backlash in many states, and thirty-five states almost immediately redrafted their capital sentencing schemes in order to attempt to salvage the death penalty in the wake of the Court’s constitutional ruling. Four years after its seemingly final pronouncement in Furman, the Court granted review to consider five of the new statutes, from the states of Florida, Georgia, Texas, Louisiana, and North Carolina.
Post-Furman Constitutional Regulation
The Court’s five decisions in 1976 both revived the practice of capital punishment in America and established an ongoing role for courts to supervise death penalty practices under the Constitution. The Court struck down two of the challenged statutes—those from Louisiana and North Carolina—because they required mandatory imposition of the death penalty upon conviction of certain crimes (Roberts v. Louisiana, 428 U.S. 325 (1976)); (Woodson v. North Carolina, 428 U.S. 280 (1976)). While such statutes were an understandable reaction to Furman’s concern about unbridled jury discretion, the Court nonetheless concluded that there was an overwhelming societal consensus against mandatory capital sentencing and thus that such sentencing ran afoul of the ‘‘evolving standards of decency’’ that the Eighth Amendment enshrined in the Constitution. The Court upheld the three remaining statutes on the ground that they appropriately guided the discretion of capital sentencing juries (Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976)). The Florida and Georgia statutes, though somewhat different from one another, both provided for jury consideration of ‘‘aggravating’’ and ‘‘mitigating’’ factors during a separate capital sentencing hearing, as the drafters of the Model Penal Code had suggested well before Furman, and this model has become the dominant one in post-Furman capital sentencing. Texas required that its sentencing juries answer a set of ‘‘special issues’’ or questions that would then form the basis for the trial judge’s imposition of either death or a lesser sentence. In its three opinions upholding the new statutes from Florida, Georgia, and Texas, the Court did not attempt to list in any definitive fashion the prerequisites for a valid capital punishment scheme; rather, the Court upheld each statutory scheme on the basis of its own peculiar mix of procedural protections. The 1976 opinions permitted executions to resume in the United States in 1977, but the provisional tone and approach of these opinions established an ongoing role for the Supreme Court in regulating the use of capital punishment in the post-Furman era.
In subsequent opinions, the Supreme Court elaborated on the constitutional role of both ‘‘aggravating’’ and ‘‘mitigating’’ evidence. Aggravating factors, according to the Court, play a constitutionally significant role in both narrowing the class of the death eligible and channeling the sentencer’s discretion during the penalty phase. However, the Court made clear that the narrowing function need not necessarily be performed by aggravating factors when it held that state legislatures could narrow—i.e., make smaller—the class of those eligible for the death penalty simply by drafting capital murder statutes that excluded some murderers from the definition of capital murder (Lowenfield v. Phelps, 484 U.S. 231 (1988)). But the Court has never required states to narrow the class of death eligible to some particular size. As a result, most states capital sentencing schemes have seen a proliferation of statutory aggravating factors that render most, though not all, murderers eligible for the death penalty. Indeed, it seems likely, and at least one empirical study in Georgia (Baldus et al.) has expressly concluded, that the vast majority of persons convicted of murder who would have been eligible for the death penalty prior to Furman remain death eligible under the ‘‘reformed’’ capital statutes.
The second function of aggravating factors— the channeling of sentencer discretion during the penalty phase—also has been rendered less than indispensable by the Court. On the one hand, the Court has insisted that statutory aggravating factors cannot be excessively broad or vague, and thus it has occasionally struck down extraordinarily capacious aggravators, such as one widely adopted from the Model Penal Code that asks whether the murder was ‘‘especially heinous, atrocious or cruel.’’ On the other hand, the Court has permitted state courts to salvage such aggravators by giving them ‘‘narrowing’’ constructions, and it has held some dubiously broad constructions to be sufficiently narrowed, such as the Idaho Supreme Court’s ‘‘coldblooded, pitiless slayer’’ construction of one of its aggravators (Arave v. Creech, 507 U.S. 463 (1993)). Moreover, while the Court has held that if states include aggravating factors in their sentencing schemes, such factors may not be overly broad and vague, it has never held that states must include aggravators or their equivalent as part of constitutionally valid penalty phase proceedings.
As for mitigating factors, the Court has concluded that such evidence plays an entirely different role in capital sentencing. While aggravators narrow or channel discretion, mitigators create the opportunity for the exercise of discretion through individualized sentencing. A few years after rejecting mandatory capital sentencing, the Court went further and held that the Eighth Amendment also requires that sentencers be permitted to consider all relevant mitigating evidence that might call for a sentence less than death (Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982)). Hence, states are not free to limit the range of mitigating factors to a statutory list, the way they frequently do with aggravators. And capital sentencing proceedings now have the potential—at least when the defendant has access to sufficient resources and competent counsel—to become in-depth explorations of the defendant’s background and personal moral culpability for the crime at issue. As many members of the Court have noted, however, the constitutional roles of aggravating and mitigating evidence are in some tension with each other. The sentencer’s discretion to impose death must be confined, but the sentencer’s discretion not to impose death must be unlimited. In the words of Justice Antonin Scalia, to acknowledge that there is an inherent tension between these two commands ‘‘is rather like saying that there was perhaps an inherent tension between the Allies and the Axis Powers in World War II’’ (Walton v. Arizona, 497 U.S. 639, 664 (1990) (Scalia, J., concurring)).
Perhaps because it has insisted that sentencing juries be required to consider any and all mitigating evidence offered by the defense, the Supreme Court has been reluctant to hold that the existence of particular mitigating evidence categorically excludes some defendants from the class of the death eligible. In particular, the Court has rejected claims that the Constitution categorically forbids the execution of either juveniles or persons with mental retardation, although it has required that state legislatures make clear their intention, if it exists, to render eligible for capital punishment those offenders who are younger than sixteen at the time of their crimes (Thompson v. Oklahoma, 487 U.S. 815 (1988)). In addition, although the Court initially approved a categorical exemption for defendants who were convicted of felony murder but did not themselves kill or intend to kill, the Court later narrowed this ruling. The narrowed exemption permits defendants to be executed for murders committed by others during the course of joint felonies if the defendant played a substantial role in the felony and evinced a reckless disregard for human life (Tison v. Arizona, 481 U.S. 137 (1987)). The only other categorical exemption from capital punishment mandated by the Court came only one year after it revived the death penalty in 1976, in a pair of cases forbidding the imposition of the death penalty for the crime of rape, for which death had been imposed frequently, and for kidnapping, for which death had been imposed occasionally (Coker v. Georgia, 433 U.S. 584 (1977); Eberheart v. Georgia, 433 U.S. 917 (1977)). Since these decisions in 1977, all executions have been of convicted murderers. Whether crimes not specifically dealt with by the Court—such as the rape of children, hijacking, or treason—might still be constitutionally valid predicates for the imposition of capital punishment remains to be determined.
The Court’s rejection of the death penalty for rape was ostensibly based on the disproportion between the crime of rape and the punishment of death and not on the widely known fact that the death penalty for rape was disproportionately imposed on black men who raped white women in southern states. Such claims of racial discrimination in the application of capital punishment were widely made in state and lower federal courts in the 1950s and 1960s; indeed, Justice Douglas’s opinion in Furman itself in 1972 explicitly made reference to racial discrimination as a reason to reject the American system of capital punishment. The Court managed to avoid a head-on confrontation with the issue of race until 1987, when it heard and decided the claim of a black defendant sentenced to death in Georgia for the murder of a white victim (McCleskey v. Kemp, 481 U.S. 279 (1987)). McCleskey’s lawyers presented a detailed empirical study of capital sentencing in Georgia in which researchers found, among other things, a strong statistical correlation, after multiple regression analysis, between the white race of the victim and the imposition of the death penalty. The researchers also found that among murder defendants whose victims were white, black defendants were much more likely to receive the death penalty than white defendants. The Court split 5–4 on the question, but ultimately ruled against McCleskey. The Court held that defendants claiming racial discrimination in the imposition of capital punishment may not rely on statistical evidence of racial bias; rather, such defendants must offer particularized proof of intentional racial discrimination in the prosecution or decision of their individual cases. Direct proof of such discrimination, of course, is difficult if not impossible to obtain even when such discrimination occurs. Moreover, the nature of the strong statistical correlation found—between death and the race of the victim rather than the race of the defendant—suggests that the bias involved might often be what is sometimes called ‘‘unconscious’’ racial discrimination, in which (largely white) sentencers tend to empathize selectively with victims whose race is the same as their own and sentence accordingly; evidence of this sort of discrimination can come only from the hearts and mouths of decision-makers if statistical methods of proof are ruled out. After the Court’s ruling, concerns about racial discrimination in capital sentencing moved from the judicial to the legislative arena. Congress considered but refused to adopt a proposed ‘‘Racial Justice Act,’’ which would have precluded the carrying out of executions in jurisdictions in which certain showings of racial disproportion could be made until such disproportion was corrected. A number of states considered similar measures, with one state (Kentucky) actually adopting a weaker version of the failed federal statute (Kentucky, Revised Statutes (1998) at 532. 300–309).
The statistical evidence offered in McCleskey—and reproduced in other jurisdictions, including the northern city of Philadelphia— suggests that the Court’s constitutional regulation of capital punishment in the post-Furman era has failed to address many of the concerns raised in 1972 about the arbitrary or discriminatory administration of capital punishment. Central to this failure, in the eyes of many expert observers of the judicial process, has been the lack of competent counsel in capital cases. Despite the Court’s assertion that capital cases on occasion call for more stringent procedural protections than noncapital criminal cases, the Court has been unwilling to tighten in capital cases the fairly lax constitutional standard for ‘‘effective assistance of counsel’’ guaranteed to all criminal defendants by the Sixth Amendment. At the same time, the Court cut back substantially in the post-Furman era on the availability of federal habeas corpus review of state criminal convictions, a cutback that was partly codified and partly even intensified by Congress’s redrafting of the habeas statute in the Anti-Terrorism and Effective Death Penalty Act, which was passed in 1996. The widespread lack of competent counsel in capital cases, coupled with the tightening of federal review, has led to growing concerns about the fairness and reliability of capital sentencing in the United States.
Growing Concerns about Fairness and Reliability
For much of the last quarter of the twentieth century, the Supreme Court played a seemingly intensive, even intrusive, role in the regulation of capital punishment. It issued several significant opinions every year on constitutional challenges to the administration of capital punishment, and many perceived the resulting doctrines to be complex and confusing. Ultimately, however, the Court’s constitutional requirements for valid capital statutes are fairly undemanding, and the Court has rejected a variety of more sweeping challenges that would have truly changed the nature and availability of capital punishment in America—such as challenges to the execution of juveniles and the mentally retarded, challenges to racial disproportion in capital sentencing, and challenges regarding the quality of counsel and the availability of federal review in capital cases. However, at least for awhile, the appearance of intensive regulation seemed to trump the reality of its absence, and complaints about undue judicial intervention in capital sentencing were widely heard and helpful in easing the passage of the ‘‘habeas reform’’ statute in 1996.
In the last few years of the twentieth century, however, concerns about the fairness and reliability of the administration of capital punishment seemed to grow significantly. In the year 2000, the governor of a state—Republican Governor George Ryan of Illinois—declared a moratorium on executions, citing evidence that innocent people had been erroneously convicted and sentenced to death. More than two dozen municipalities—including Atlanta, Baltimore, Philadelphia, and San Francisco—imposed similar measures, and President Bill Clinton, in the last months of his presidency, stayed what would have been the first federal execution in thirty-seven years to await the completion of a study by the Department of Justice on racial and geographical disparities in administration of the federal death penalty. In the same year, the legislature of New Hampshire—the only retentionist state with no one on ‘‘death row’’— became the first state legislature in the post-Furman era to vote to abolish the death penalty; its vote, however, was vetoed successfully by Democratic Governor Jeanne Shaheen.
These developments suggest that the weakness of federal constitutional regulation of capital punishment is becoming more apparent both to political actors and to the public at large. It is possible that the new century may bring about a turn in the fate of the institution of capital punishment in the United States.
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