ACS NATIONAL CONVENTION STUDENT PANEL ON THE DEATH PENALTY THURSDAY, JULY 26 TH, 2007

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1 ACS NATIONAL CONVENTION STUDENT PANEL ON THE DEATH PENALTY THURSDAY, JULY 26 TH, 2007 CAPITAL PUNISHMENT, CRUELTY AND THE CONSTITUTION: CURRENT ISSUES IN THE AMERICAN DEATH PENALTY MEMORANDUM BY: COURTNEY LORDS (UNIVERSITY OF OREGON SCHOOL OF LAW) CLINT MILLER (SEATTLE UNIVERSITY SCHOOL OF LAW) FRED SMITH (STANFORD LAW SCHOOL) INTRODUCTION The use of the death penalty as a form of criminal punishment in the United States remains a controversial subject. The death penalty has been in use from the early colonial days. 1 In 1963, Justice Goldberg, joined by Justices Douglas and Brennan, wrote a dissent in Rudolph v. Alabama, 375 U.S. 889 (1963), a rape case in which the defendant was sentenced to death, that challenged the constitutionality of the death penalty that inspired litigants to begin filing lawsuits challenging the death penalty. By 1967, states had halted their executions, creating a de facto national moratorium on death penalty sentencing. The death penalty thus has been in use as a punishment except for the brief period from 1967 to the mid-1970s when the Supreme Court struck down most states statutes (discussed in detail, below). Almost immediately, many states then rewrote their statutes to address the Court s concerns about the arbitrariness of application, and in the late 1970s some states began using the death penalty again. Today, 38 states, including New York, have death penalty statutes, while 12 states and the District of Columbia do not. In 2004, New York s death penalty statute was declared unconstitutional; the state has not executed anyone since the national moratorium ended in Three other states with death penalty statutes New Hampshire, New Jersey, and Kansas also have not executed anyone since the moratorium. Overall, the use of the death penalty appears to be diminishing once again, this time state by state. While a strong majority of those polled continue to support its use, that support is not as robust as it was even a decade ago. A May 2006 Gallup Poll found that overall support of the death penalty was 65%, down from 80% in FORMS OF EXECUTION The electric chair was introduced as a means of execution at the end of the nineteenth century by New York, which conducted its first execution in this manner in In 1924, the use of cyanide gas was introduced as Nevada sought a more humane way of executing those convicted of capital crimes 2 Thirty-seven of the thirty-eight states that now allow capital punishment use 1 From 2 (Bohm, 1999).

2 lethal injection as the primary method for execution 3 perhaps because the public believes it to be the most humane form of execution (Nebraska continues to use only electrocution as its method of execution). See Hill v. McDonough, 126 S. Ct (U.S. 2006). For instance, since 1976, 917 executions have occurred through lethal injection, while 153 executions occurred through electrocution. Electrocution used to be the favored method of execution but it has only been used four times in the last five years. The gas chamber has been used eleven times since 1976, while there are only three incidences of hangings. Other than Gary Gilmore s execution, death by firing squad has been utilized only one other time in the last thirty years, also in Utah, in WHO IS EXECUTED IN THIS COUNTRY? As of January 2007, there are 3,350 people on death row in this country. 4 The three states with the most people on death row are California (660), Florida (397), and Texas (393). Of the 3,350 inmates on death row, 45% are white, 42% are black, and 11% are Hispanic. Since 1976, 57% of those executed were white, 34% were black, and 7% were Hispanic. There were 50 women on death row as of June 7, 2007, equating to 1.7% of the total death row population. 5 Eleven women have been executed since RACIAL DISPARITY IN APPLICATION OF THE DEATH PENALTY IS WIDELY ACKNOWLEDGED Since the death penalty s reinstatement, courts and scholars have wrestled with the death penalties racially disparate application where more people are sentenced to death in cases involving white victims than in cases involving black victims. Most notably, in McCleskey v. Kemp, 481 U.S. 279 (1987), the United States Supreme Court confronted evidence that in Georgia, the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. Id. at 286. Professors David C. Baldus, Charles Pulaski, and George Woodworth compiled these statistics in a paper often referred to in shorthand as the Baldus Study. 7 Relying on this evidence, McCleskey argued that this disparity violated the Fourteenth Amendment s equal protection clause, as well as the Eighth Amendment s prohibition against cruel and unusual punishment. The Court rejected both claims in a 5-4 decision. Justice Powell, writing for the majority found the evidence presented by McCleskey failed to demonstrate which actors in the criminal justice system were responsible for the disparity. As a result, the Petitioner s could not prove which actors, if any, acted with a racially discriminatory intent. Further, the court rejected the Eight 3 Death Penalty Information Center, History of the Death Penalty: Part I Death Penalty Information Center, (last visited June 24, 2006). 4 Source: NAACP LDF Death Row, U.S.A. (January 1, 2007) 5 "Death Penalty For Female Offenders" by Victor L. Streib, (June 7, 2007) 6 Id. 7 David Baldus, George Woodworth & Charles A. Pulaski, Jr., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & C. 661 (1983). 2

3 Amendment challenge because McCleskey's death sentence was not disproportionate to other death sentences imposed in the State. Id. at Four justices, Brennan, Marshall, Blackmun, and Stevens, would have found in favor of McCleskey on both claims. McCleskey, they noted, demonstrated that few of the details of the crime or of [his] past criminal conduct were more important than the fact that his victim was white. Id. at 326. The dissenting justices marshaled statistical evidence from the Baldus Study to support this claim. IS THE DEATH PENALTY AN EFFECTIVE DETERRENT? Whether the death penalty deters crime remains in dispute despite studies finding that it does not function as an effective deterrent. Studies comparing the number of murders and the number of executions in states with the death penalty show that these states have a higher murder rate than their counterparts without the death penalty. 8 In 1999, the average murder rate among death penalty states was 5.5 murders per 100,000 people. In the same year, the average murder rate among non-death-penalty states was IS THE DEATH PENALTY CRUEL AND UNUSUAL UNDER THE EIGHTH AMENDMENT? Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. am. VIII. Does the death penalty violate the Eighth Amendment s prohibition on cruel and unusual punishment? The Supreme Court has ruled on the death penalty many times, but these cases have not resolved the ongoing conflict over death as a punishment. In 1972, the United States Supreme Court s landmark 5-4 per curiam decision in Furman v. Georgia overturned the use of the death penalty in a set of consolidated rape and murder cases. Each justice in the majority wrote his own concurrence. The Fourteenth Amendment appears to have provided the constitutional basis for the Furman court s convoluted 5-4 ruling. Only Justices Blackmun and Marshall agreed that the Eighth Amendment prohibited capital punishment for all crimes under all circumstances. Justices Stewart and White concluded that petitioners death sentences must be set aside because prevailing sentencing practices did not then comply with the Eighth Amendment. The majority s fifth vote, cast by Justice Douglas, was based on the Fourteenth Amendment alone. In Furman, the Court determined that most states statutes were pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on cruel and unusual punishments. 10 The result of Furman was invalidation of most applicable states statutes and temporarily (as it turned out) halting executions in the United States as a form of criminal penalty. 11 In the 8 From 9 Id. 10 Furman v. Georgia, 408 U.S. 238, 257 (1972). 11 Id. 3

4 following years, however, 35 states revised their statutes and actively reinstated the death penalty for at least some types of crime. 12 In 1976, the death penalty was revived when the Supreme Court upheld death penalty statutes in Florida, Georgia, and Texas, ruling that the death penalty was constitutional under the Eighth Amendment. 13 Whether the death penalty by its very nature constitutes cruel and unusual punishment has not been squarely addressed directly by the United States Supreme Court. The Court appears to have disregarded opportunities to decide cases based on the Eighth Amendment. In In re Kemmler, for example, although the Court refused to address the meaning of the Eighth Amendment, it notably held that the Fourteenth Amendment s due process guarantee in the administration of criminal justice, requires that no different or higher punishment shall be imposed upon one than is imposed upon all for like offenses. 14 The Supreme Court has apparently struggled with the definition of cruel and unusual punishment; not only has it rarely used the Eighth Amendment s proscription in deciding cases, but it also has not yet declared a meaningful test for its application. Even before Furman, some argued that the Supreme Court s opinions under the cruel and unusual punishment clause have suggested not only the evolving standards of decency formula, but also a more purposive approach that takes into account nothing less than the dignity of man. 15 In protecting such a fundamental value something that was a significant part of philosophical and political discourse during the mid-eighteenth century when the Constitution was being written the Court has interpreted the clause to forbid punishments which are degrading in their severity and wantonly imposed. 16 SUPREME COURT RULES AGAINST EXECUTION OF THE MENTALLY RETARDED, THE MENTALLY ILL AND JUVENILES? The Court has narrowed the application of the death penalty by finding it inappropriate in cases involving juveniles, the mentally retarded, and the mentally ill. Within the past five years, litigants have successfully challenged the practice of executing mentally retarded persons, mentally ill persons, and juveniles. 17 These challenges differ from the other death penalty cases because defendants did not broadly challenge whether states may execute inmates at all, but instead focused on particularly vulnerable classes of persons. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court ruled that the execution of mentally retarded defendants violates the Eighth Amendment's ban on cruel and unusual punishment. In Roper v. Simmons, 543 U.S. 551 (2005), the Court ruled that imposition death penalty for those who had committed their crimes under 18 years of age was cruel and unusual punishment. When the Court endorsed these arguments, it relied primarily on two factors. First, public polling data showed that executing such persons 12 Coker v. Georgia, 433 U.S. 583, (1977). 13 Coker, 433 U.S. at 594 (stating the Supreme Court s holding in Gregg v. Georgia, 428 U.S. 153 (1976)). 14 In re Kemmler, 136 U.S. at Arthur J. Goldberg and Alan M. Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1784 (1970). 16 Id. at Atkins v. Virginia, 536 U.S. 304 (2002) (involving a mentally retarded defendant); Roper v. Simmons, 543 U.S. 551 (2005) (addressing a juvenile s claim). 4

5 offends contemporary evolving standards of decency. Second, in both instances the court observed that numerous states over the past two decades have banned executions of mentally retarded persons and juveniles. This year in Panetti v. Quarterman, 127 S. Ct. 2842, 2862 (2007), the Supreme Court clarified that an individual s delusions may render him incompetent for execution. The Court held that a prisoner s mere awareness of the State s link between his crime and the punishment to be inflicted cannot be a strict test for competency if the prisoner s delusions put the link in a context so far removed from reality that the punishment can serve no proper purpose. Id. The consistency and direction of these changes by states further indicate that executing such inmates is cruel and unusual under evolving contemporary standards. AN OPEN QUESTION: IS LETHAL INJECTION CRUEL AND UNUSUAL AS A METHOD OF EXECUTION? While the Supreme Court has not yet addressed when, if ever, the execution method of lethal injection amounts to cruel and unusual punishment, lower courts have. A lower court in California, for example, has temporarily halted all lethal injections in the nation s most populous state, pending further review of the state s execution methods. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006). The district court showed particular concern about the lack of involvement by medical professionals in administering lethal injections, as well as the use of a drug called pancuronium bromide, which litigants contend hides rather than dulls the pain experienced by persons subjected to lethal injection using this formulary. Over the past year, courts have also temporarily halted lethal injection protocols in Arkansas, Missouri, and Tennessee, though the relevant courts of appeals have very recently reversed the lower court decisions in each of these cases. See Nooner v. Norris, 2007 U.S. App. LEXIS (8th Cir. Ark. July 9, 2007); Taylor v. Crawford, 2007 U.S. App. LEXIS (8th Cir. Mo. June 4, 2007); Workman v. Bredesen, 486 F.3d 896 (6th. Cir. Tenn. May 7, 2007) (Sutton, J.). CAPITAL PUNISHMENT AND THE FIRST AMENDMENT Also worth noting is a developing line of cases finding that the public has a First Amendment right to know how executions are administered. Courts have observed that the public generally, and the press specifically, cannot serve their proper government watchdog function if the state obstructs their ability to learn about, and in some cases witness, executions. In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), for example, the Ninth Circuit rejected the state s use of a large curtain during executions, which blocked the press s ability to see executioners prepare inmates for death. The court found that the procedure restricts the public s First Amendment right to view executions from the moment the condemned is escorted into the execution chamber. Pending litigation in California relies on this principle to challenge the use of pancuronium bromide ( Pavulon ) during executions, a paralytic chemical that apparently serves only one function: to mask inmates expressions of pain. Pacific News Service v. Tilton (N.D. Cal. 2006); but see Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) (rejecting a challenge to the drug where defendant alleged that it violated the Eighth Amendment because it served no legitimate purpose). 5

6 DISCUSSION QUESTIONS 1. What are the appropriate roles of the three branches of government on this issue? The federal government versus state governments? 2. The death penalty has been abandoned by virtually all democratic, industrialized nations except for the United States. Should this fact be persuasive in determining our national course of action? 3. Is the imposition of the death penalty a violation of the Fourteenth Amendment s due process protection when it is imposed in some states, but not in others? When it is imposed on an individual for committing a single rape or murder, but not on a serial murderer who confessed to killing 48 women? 4. Is the Supreme Court s current definition of cruel and unusual punishment under the Eighth Amendment cohesive? What other factors or elements should be included or excluded? 5. If the Supreme Court declines to rule the death penalty unconstitutional, should certain forms of execution be prohibited? What evidence supports your argument? 6. Statistics demonstrate that the use of the death penalty in this country disfavors African- Americans, especially if they are convicted of committing a crime against a white person. How should that be addressed? 7. Is the death penalty an effective deterrent against the commission of crimes for which this penalty may be imposed? Does it serve a valuable retributive purpose in providing relief to victims families? RECOMMENDED READING GENERAL: Death Penalty Information Center, LETHAL INJECTION: Weinstein, Harry and Dolan, Maura "The Chaos Behind California Executions" Los Angeles Times (October 2, 2006) Guidry, Orin "Message From the President: Observations Regarding Lethal Injection" American Society of Anesthesiologists (June 30, 2006) Denise Grady, "Doctors See Way to Cut Suffering in Executions." The New York Times (June 23, 2006) 6

7 ARBITRARINESS AND RACE: Herbert, Bob, "Who Gets the Death Penalty?" New York Times, May 13, Bright, Taylor and Phillips, Jeb, "Execution of Justice" Birmingham Post-Herald, December 14-18, "Deadly Disparities" The New York Times, September 17, 2000 (editorial). Bonner, Raymond and Lacey, Marc, "Pervasive Disparities Found in the Federal Death Penalty" New York Times, September 12, CONSTITUTIONALITY Ledewitz, Bruce: "Could the death penalty be a cruel punishment?"; 3 Widener Journal of Public Law 121 (1993) Steiker, Carol and Steiker, Jordan: "Sober second thoughts: reflections on two decades of constitutional regulation of capital punishment"; 109 Harvard Law Review 355 (1995) Bader Aldave, Barbara, "Forward: The Future of Capital Punishment in the United States," 81 Oregon Law Review 1 (2002) Denno, Deborah W.: "Getting to death: Are executions constitutional?"; 82 Iowa Law Review 319 (1997) Harding, Roberta M.: "The gallows to the gurney: analyzing the (un)constitutionality of the methods of execution"; 6 The Boston University Public Interest Law Journal 153 (1996) 7