Capital Punishment: Legal Aspects

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.