INTRODUCTION TO THE EIGHTH AMENDMENT
AN OVERVIEW OF CONSTITUTIONAL PRINCIPLES
John H. Blume & Mark E. Olive
LINKS TO CONTENTS
This is an introduction to death penalty law. The Eighth Amendment to the United States Constitution is the key constitutional provision in capital cases; thus, in the main, we discuss here the Eighth Amendment principles developed by the Supreme Court in the modern era of capital punishment (post-1972). However, because the Due Process Clause, the Sixth Amendment and several other constitutional provisions are also relevant to capital cases, certain aspects of the Court's jurisprudence in these areas will also be discussed.
In Furman v. Georgia, 408 U.S. 238 (1972), the Court found that all existing capital punishment schemes violated the Eighth Amendment.1 While the Furman Court "did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments," Gregg v. Georgia, 428 U.S. 153, 188 (1976), it did recognize that "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice." Id. Because of its uniqueness, the death penalty can not be imposed under sentencing procedures that "create a substantial risk that it [will] ... be inflicted in an arbitrary and capricious manner." Id. Because the Court found that the capital sentencing procedures then being utilized did create such a risk, the Furman Court invalidated those procedures as incompatible with contemporary standards of decency. 2
To avoid creating a substantial risk of arbitrary and capricious infliction of the death penalty, capital sentencing schemes since Furman have been required to meet "twin objectives" to be "at once consistent and principled but also humane and sensible to the uniqueness of the individual." Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). In Gregg v. Georgia, supra, and its companion cases,3 the Court determined that these twin objectives are "best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." 428 U.S. at 195.4 The guidance is sufficient only if it "channel[s] the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.'" Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (quoting Gregg v. Georgia, 428 U.S. at 198. Moreover, the process must accord proper significance to the "relevant facts of the character and record of the individual offender, "especially the compassionate or mitigating factors stemming from the diverse frailties of human kind." Woodson v. North Carolina, 428 U.S. 280, 304 (1976). While some have noted the tension between the central principles of guided discretion and individualized consideration, see Walton v. Arizona, 497 U.S. 639, 669-73 (1990) (Scalia, J., dissenting), the tension is justified on the ground that both principles are necessary elements in "a moral inquiry into the culpability of the defendant." California v. Brown, 479 U.S. 538, 544 (1987).
One of the most basic principles of modern death penalty jurisprudence is that "[sentencing] juries [must] be carefully and adequately guided in their deliberations." Gregg v. Georgia, 428 U.S. at 193. This is, in essence, the core holding of Furman: "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." Gregg, 428 U.S. at 189.
For the most part, the principle of guided discretion is relevant to assessing the validity of statutory aggravating circumstances. Aggravating factors, which are essential to the constitutionality of any death penalty scheme,5 must "genuinely narrow the class of death-eligible persons" in a way that reasonably "justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. at 877. In other words -- and on a more practical level -- the death penalty is not permitted for all murders. The most common valid aggravating circumstances involve murders committed during the commission of another felony, i.e., burglary, armed robbery, rape, etc. See Gregg, 428 U.S. at 101-02. Furthermore, both on their face, and as applied, aggravating circumstances must permit the sentencer to make a "principled distinction between those who deserve the death penalty and those who do not." Lewis v. Jeffers, 497 U.S. 764, 774 (1990); see also Richmond v. Lewis, 506 U.S. 40, 46 (1992) ("a statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty"); Clemons v. Mississippi, 494 U.S. 738, 758 (1990) ("invalid aggravating circumstance provided "no principled way to distinguish the case in which the death penalty is imposed, from the many cases in which it was not "); Maynard v. Cartwright, 486 U.S. 356 (1988) ("[t]he construction or application of an aggravating circumstance is unconstitutionally broad or vague if it does not channel or limit the sentencer's discretion in imposing the death penalty").6
In Maynard v. Cartwright, supra, the United States Supreme Court unanimously set out the legal principles which control claims of this nature. In addressing the validity of a death sentence based solely on the statutory aggravating circumstance that the murder was "especially heinous, atrocious and cruel,"7 the Court reasoned that an Eighth Amendment vagueness challenge to an aggravating factor in a capital case may not be analyzed under the familiar "as-applied" approach generally employed in due process vagueness challenges to criminal statutes. 486 U.S. at 361.
The Maynard Court emphasized that an Eighth Amendment challenge to a statutory aggravating circumstance requires a wholly different type of analysis. As a practical matter, such a challenge requires that reviewing courts evaluate the challenged aggravating circumstance on its face, entirely apart from the facts of the particular case in which it was applied. That is because an overbroad statutory aggravating circumstance vests in sentencing courts the sort of "open-ended discretion" to impose the death penalty which the Supreme Court condemned in Furman, and where a death sentence is imposed under such a regime of unbridled discretion, the state may not save the sentence by demonstrating that the result would have been the same even if the sentencer's discretion had been properly narrowed and guided. Maynard, 486 U.S. at 361-363.
However, even if a statutory aggravating circumstance does not, on its face, provide meaningful guidance to a capital sentencing authority, such an aggravating circumstance can nevertheless support a death sentence if the state courts have narrowed its scope to a constitutionally sufficient degree and if such a narrowing construction actually guided the sentencer in the case under review. Godfrey v. Georgia, 446 U.S. 420 (1980); see also Walton v. Arizona, 497 U.S. 639 (1990) (recognizing authority of state supreme court to supply limiting definition of facially overbroad or vague aggravating circumstance). In one application of this principle, the Court held that the Idaho Supreme Court's limiting instruction of it's "utter disregard for human life" aggravating circumstance -- i.e. that "the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded pitiless slayer" -- passed Eighth Amendment muster. Arave v. Creech, 507 U.S. 463, 468 (1993). The limiting instruction was satisfactory because it defined a "state of mind that is ascertainable from surrounding facts". Id. at 1541-42. Because some murderers do exhibit feeling, the Court also determined that the aggravating circumstance genuinely narrowed the class of persons eligible for the death penalty as required by Zant v. Stephens, 462 U.S. 862 (1983). Id.8
A number of other challenges to statutory and non-statutory aggravating circumstances have met with mixed success. A quick review of some that have been successful, as well as those that have failed, provides some insight into the limits of guided discretion.
The Court has held that aggravating circumstances may not encompass rights guaranteed to those facing criminal prosecutions. For example, the defendant's "lack of remorse" may not be treated as an aggravating factor because such a circumstance infringes upon a defendant's right not to testify. See Zant, 462 U.S. at 885. He may have remained silent, as the Fifth and Fourteenth Amendments allow him to do without adverse consequences, and his silence converted by a prosecutor into an expression of lack of remorse.9 Similarly, the Court held in Dawson v. Delaware, 503 U.S. 159 (1992), that a defendant's abstract religious beliefs -- in Dawson's case his membership in a prison gang similar to the Aryan Nation -- may not be used in aggravation of punishment.
The Court has also recognized that aggravating circumstances cannot encompass factors "that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness." Zant v. Stephens, 462 U.S. at 885. Consider, for example, the case in which the defendant's capital crime is, in part, a function of severe mental illness. This was in part the driving force behind the Court's decision in Penry v. Lynaugh, 492 U.S. 302 (1989). The former Texas statute required a trial judge to sentence a defendant to death if the jury answered the following two "special issues" affirmatively: did the defendant commit the act "deliberately?" and, is the defendant likely to be dangerous in the future? A sharply divided Court held that this limited framework created the risk that some types of evidence which should be mitigating, e.g., a defendant's paranoid schizophrenia, could actually result in a death sentence because, in the Texas system, the evidence supported an affirmative answer to the future dangerousness special issue.
Nor can aggravating circumstances be based upon evidence that is inadmissible under state law or the federal constitution, or that is "materially inaccurate or misleading." Zant v. Stephens, 462 U.S. at 887 & nn.23, 24. The clearest application of this principle was Johnson v. Mississippi, 486 U.S. 578 (1988). In Johnson, the Court held that Johnson's death sentence, which was based in part on a prior conviction vacated after his Mississippi capital trial, violated the Eighth Amendment. Mr. Johnson was sentenced to death after a jury found three aggravating circumstances outweighed the mitigating factors. One of the aggravators (that Johnson had been previously convicted of a felony involving the use or threat of violence to another person) was supported solely by a 1963 New York conviction of second degree assault with intent to commit first degree rape.
After his Mississippi conviction, Johnson successfully challenged the 1963 assault conviction in the New York courts on the basis that he was not informed of his right to appeal. See People v. Johnson, 506 N.E.2d 1177 (N.Y. 1987). Johnson then sought post conviction relief from the Mississippi Supreme Court, which was denied. Subsequently, the United States Supreme Court granted certiorari to determine whether the reversal of the 1963 conviction affected the validity of the death sentence. The Supreme Court concluded that since the 1963 conviction was ultimately reversed, evidence regarding it was entirely irrelevant to the Mississippi jury's sentencing decision. Therefore, because the jury "was allowed to consider evidence that ha[d] been revealed to be materially inaccurate," 486 U.S. at 590, Johnson's death sentence violated the Eighth Amendment.10
The Court has consistently maintained that a capital defendant must be given a fair opportunity to meet, rebut or explain any evidence which the state offers as a reason the defendant should be sentenced to death. In the lead case establishing the "fair rebuttal" principle, Gardner v. Florida, 430 U.S. 349 (1977), the Court invalidated the death sentence because the judge who imposed the death sentence relied upon a confidential pre-sentence report not disclosed to defense counsel. The Court reasoned:
Our belief that that debate between adversaries is often essential to the truth seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases. 430 U.S. at 360.
Over the years, the Court has reaffirmed this "basic due process right" in a variety of contexts.11 A somewhat recent affirmation of this principle was in Simmons v. South Carolina, 512 U.S.154 (1994). In a plurality opinion, the Court reversed the defendant's death sentence on due process grounds, holding that the trial court's failure to tell the jury the truth regarding a capital defendant's parole ineligibility if sentenced to life imprisonment, transgressed Simmons' right of fair rebuttal, especially in light of fact that prosecutor stressed the defendant's future dangerousness in his sentencing phase argument. Id., 512 U.S. at 171.
The Supreme Court has made clear that, in capital cases, the Due Process Clause of the Fourteenth Amendment is violated when a refused jury instruction, amply supported by the evidence presented at trial, results in a substantially increased risk of error in the fact-finding process. Beck v. Alabama, 447 U.S. 625, 637 (1980).12 When a jury is faced with the choice of either convicting or acquitting a defendant of capital murder and when the evidence tends to show the defendant committed some violent crime, irrelevant considerations are interjected into the fact-finding process. Id. The possibility arises that the jury may convict the defendant due to its belief that the defendant committed some crime, and should not, therefore, be allowed to go unpunished. Id. at 642. The Beck Court found this possibility constitutionally unpalatable, and mandated that the jury be given a "non-capital, third option," rather than simply guilt or acquittal of a capital crime, when the evidence supported it. Id. at 637, 641.13
In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court held that "the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition." Id. at 70. The Court, after discussing the potential help that might be provided by a psychiatrist, stated:
We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the states the decision on how to implement this right. Id. to 83.
Ake was based upon the due process requirement that the fact-finding process must be reliable in criminal proceedings. Id. at 77-83. Due process requires the state to make available mental health experts for indigent defendants, because "the potential accuracy of the jury's determination is ... dramatically enhanced" by providing indigent defendants with competent psychiatric assistance. Id. at 81-83. Because Ake's constitutional entitlement obviously extended beyond mental health professionals, the decade since Ake was decided witnessed a tremendous expansion of expert funding for indigent defendants. Significantly, both state and federal courts have recognized that Ake requires that indigent defendants be provided with funds to retain psychiatric, psychological, medical, forensic, investigative, mitigation and other types of assistance.
Before moving on, however, another set of issues relating to psychiatric examinations conducted by the State should be briefly discussed. In Estelle v. Smith, 451 U.S. 454 (1981), the Court held that the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel are applicable to the penalty phase of a capital trial. Smith was evaluated by a state-retained psychiatrist -- Dr. James Grigson -- to determine his competency to stand trial. Grigson failed to provide Smith with Miranda warnings prior to the interview. At the sentencing phase of the proceedings, the prosecution called Dr. Grigson, who testified that Smith was a "severe sociopath" who had demonstrated no remorse and who would continue to commit violent acts in the future. The Court concluded that a "criminal defendant, who neither initiates a psychiatric evaluation not attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." 451 U.S. at 468. Thus, because Smith did not receive Miranda warnings, Grigson's testimony violated Smith's Fifth Amendment rights. Id. at 469.
The Court also held that Grigson's testimony violated the Sixth Amendment, because defense counsel were only notified that Grigson was evaluating Smith for the purpose of determining his competency to stand trial. Because Smith's Sixth Amendment right to counsel had clearly attached, and because the decision to submit to a psychiatric examination is "literally a life or death matter," 451 U.S. at 471, a defendant should not be forced to resolve such an important issue without the "guiding hand of counsel." Id. The Court has reaffirmed, and in fact expanded upon, the protections afforded by Estelle on several occasions. See Satterwhite v. Texas, 486 U.S. 249 (1988) (Court held first that petitioner's Sixth Amendment right to counsel was violated by the admission of testimony of a psychiatrist on the issue of future dangerousness who examined petitioner without his counsel being given notice as to the scope of the examination; constructive notice to counsel by placement of the state's motions and the court's ex parte orders regarding the examination in the court file did not satisfy the Sixth Amendment); Powell v. Texas, 492 U.S. 680 (1989) (per curiam) (State's use of future dangerousness violated the Sixth Amendment where no notice was given to defense counsel that examination by psychiatrist would be for that purpose; defendant did not waive his Sixth Amendment right to notice of the purpose of the examination by introducing psychiatric testimony in support of insanity defense).
Due to the uniqueness of the death penalty, the Supreme Court requires heightened reliability in the decisions made by the jury and judge during the course of a capital trial. See, e.g., Zant v. Stephens, 462 U.S. at 884. In Woodson v. North Carolina, 428 U.S. 280 (1976), the Court explained why the Constitution requires an individualized sentencing determination in a capital case even though there is no parallel requirement in non-capital cases.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. 28 U.S. at 305
In short, death is different. Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) ("Under the Eighth Amendment, the death penalty has been treated differently from all other punishments").
The heightened need for reliability in capital cases has been relied upon by the Court in a variety of contexts as an important rationale for its decisions:
Woodson v. North Carolina
Gardner v. Florida
Lockett v. Ohio
Green v. Georgia
Beck v. Alabama
Bullington v. Missouri
Estelle v. Smith
Caldwell v. Mississippi
Turner v. Murray
Lankford v. Idaho
Riggins v. Nevada
Anyone involved in a capital litigation must have a firm grasp of the Lockett doctrine. In Lockett v. Ohio, 438 U.S. 586 (1978), the Court established that the bedrock Eighth Amendment principle emanates from the "the fundamental respect for humanity underlying the Eighth Amendment. [This regard mandates the] ... consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id. at 304; see also Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976).15 Only through a process which requires the sentencer to "consider, in fixing the ultimate punishment of death[,] the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind," Woodson v. North Carolina, 428 U.S. at 304, can capital defendants be treated "as uniquely individual human beings." Id. The Lockett principle "is the product of a considerable history reflecting the law's effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual. California v. Brown, 479 U.S. at 562 (Blackman, J. dissenting). Or, in Justice O'Connor's terms: "Under lying Lockett and Eddings is the principle that punishment should be directly related to the personal capability of the criminal defendant." Penry v. Lynaugh, 492 U.S. 302, 319 (1989).
Because of the need for individualized treatment, the states have been required to permit the sentencer to consider and, in appropriate cases, base a decision to impose a life sentence upon any relevant mitigating factor, not simply the mitigating factors specified in a statute. Hitchcock v. Dugger, 481 U.S. 393 (1987). As explained in Eddings v. Oklahoma, 455 U.S. at 112.
Lockett followed from the earlier decisions of the Court and from the Court's insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.… By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency.
It is important to note that the definition of "mitigating" is extremely broad. In Lockett, the Court defined a mitigating circumstance as "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S. at 604. While this explanation seems to allow the defendant the freedom to define what is "mitigating," the Court has since given a more objective cast to this explanation. In Skipper v. South Carolina, 476 U.S. 1 (1986), the Court held that evidence of the defendant's good behavior during his pretrial incarceration was "'mitigating' in the sense that [it] might serve 'as a basis for a sentence less than death.'" 476 U.S. at 7 (quoting Lockett v. Ohio, 438 U.S. at 604).16 Thus, any evidence that "might" serve to reduce the urge to punish harshly must be deemed mitigating.
A corollary Lockett principle is that sentences must be permitted to give "independent mitigating weight," Lockett v. Ohio, 438 U.S. at 605, to all evidence proffered in mitigation. Thus there cannot be any distinction between statutory and nonstatutory mitigating circumstances. See Hitchcock v. Dugger, 481 U.S. 393 (1987).17 Additionally, the jury instructions must be sufficient to provide the jury "with a vehicle for expressing its reasoned moral response to that evidence in rendering its sentencing decision." Penry v. Lynaugh, 492 U.S. 302, 318 (1989). Furthermore, an individual juror must be free to consider a mitigating factor, regardless of whether other members of the jury agree as to its existence. Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S. 433 (1990) ("each juror [must] be permitted to consider and give effect to mitigating evidence"). In other words, it is not enough "simply to allow the defendant to present mitigating evidence to the sentencer," rather there must not be any impediment -- through evidentiary rules,18 jury instructions19 or prosecutorial argument20 -- to the sentencer's full consideration and ability to give effect to mitigating evidence. Penry, 492 U.S. at 327-28.21
The Court has considered a series of cases addressing the question of juror bias in capital cases and the defendant's right to a fair trial guaranteed by the Sixth and Fourteenth Amendments. These cases have focused either on jurors' attitudes toward the death penalty -- i.e. whether they are strongly opposed or in favor of the death penalty -- or racial bias. In deciding these cases, the Court has tried to give guidance with regard to the appropriate scope of voir dire.
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Court held "that a sentence of death cannot be imposed or recommended if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Id. at 522. The Court observed that even someone opposed to the death penalty "can make the discretionary judgment entrusted to him by the State and can thus obey the oath." Id. at 519. A state, however, may exclude those jurors who would automatically vote against the death penalty or those jurors whose attitudes about the death penalty would affect their decision regarding the defendant's guilt. Id. at 522, n.21.
Later, the Court made clear that Witherspoon did not hold that the state could exclude only those jurors who would automatically vote against capital punishment. In Wainwright v. Witt, 469 U.S. 412 (1985), the Court held that the standard for excluding a juror because of his views in opposition to the death penalty is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). The Court treated the question of jurors beliefs with regard to the death penalty as simply a routine inquiry into juror bias governed by Sixth Amendment standards applicable to all cases rather than the Eighth Amendment's prohibition against cruel and unusual punishment. Id. at 423.
The Court also noted that trial judges have historically been charged with determining whether a prospective juror harbors any bias. Id. at 428. If the trial judge, who is best placed to evaluate a juror's credibility, receives the impression that the juror would be unable to follow the law, the judge can remove the juror for cause. Id. at 425-26.22
Just as the state may excuse for cause those jurors whose beliefs against the death penalty would substantially impair their performance of their duties as jurors, a defendant may excuse for cause those jurors whose beliefs in favor of capital punishment would lead them to ignore the court's instructions, not to consider mitigating circumstances, and to vote for the death penalty in every case. Morgan v. Illinois, 504 U.S. 719, 729 (1992). This violates "the requirement of impartiality embodied in the Due Process Clause." Id.
If the defendant has the right to excuse for cause jurors who hold such views, and because the defendant must demonstrate that the juror lacks impartiality, voir dire must be adequate to uncover such bias. Id., 504 U.S. at 733-34.23 It is not enough simply to ask the jurors if they could be fair and follow the law. Id., 504 U.S. at 734-36. The defendant must be able to ascertain whether the prospective jurors find mitigating evidence irrelevant or even not worth their consideration. Id., 504 U.S. at 735.
In Turner v. Murray, 476 U.S. 28 (1986), the Court held that a capital defendant is entitled to voir dire on the question of racial bias. "Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected." Id. at 35. Thus, unless adequate voir dire is conducted, beliefs that blacks are more violence prone or morally inferior could influence how a juror views and weighs aggravating factors. Id. Racist beliefs could also cloud a juror's view of evidence in mitigation. Id. Without adequate voir dire, there is an unacceptable risk "of improper sentencing in a capital case." Id. at 37. The Court, however, stressed that its holding was limited to cases in which the state was seeking the death penalty. In addition, the Court held only that Turner was entitled to a new sentencing phase, not a new trial on guilt-or-innocence. Id.
The Court held that the Eighth Amendment does not preclude a state from allowing victim impact evidence and statements. Payne v. Tennessee, 501 U.S. 808 (1991).24 According to the Court, "victim impact evidence serves entirely legitimate purposes," for it enables the jury to have before it all information necessary to a determination of punishment. Id., 501 U.S. at 825. Payne, however, recognized the right of the defendant to rebut victim impact evidence. Id.
The state, however, does not have free rein to introduce anything or everything about the victim. For example, Payne suggests that the state can only present "a glimpse of the life" of the victim. Id., 501 U.S. at 822 (citation omitted); see also Id. at 830 (O'Connor, J. concurring). In addition, the Court indicated that victim impact evidence "is not offered to encourage comparative judgments." Id., 501 U.S. at 809. Payne also left undisturbed Booth's prohibition against the victim's family offering its opinion about the crime, the defendant, and the appropriate punishment. Id., 501 U.S. at 830 n.2. Furthermore, the Court recognized that victim impact statements or evidence may potentially render the sentencing proceeding fundamentally unfair. Id., 501 U.S. at 825; Id. at 831 (O'Connor, J., concurring); Id. at 836 (Souter, J., concurring).
Gregg and its companion cases stressed the fact that all of the approved statues required meaningful appellate review. 428 U.S. at 153. The purpose of appellate review is to provide "a means to promote the evenhanded, rational, and consistent imposition of death sentences..." Jurek v. Texas, 428 U.S. at 276. In Parker v. Dugger, the Court re-emphasized "the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally." 498 U.S. 308 (1991). It is a "crucial protection." Id. While the Court has held that comparative proportionality review is not required by the Eighth Amendment, see Pulley v. Harris, 465 U.S. 37 (1984), some form of meaningful appellate review is still required. See also Sochor v. Florida, 504 U.S. 527 (1992).
Specifically, the Court has required "close Appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases." Stringer v. Black, 503 U.S. 222, 230 (1992) (citations omitted). In order for a state appellate court to affirm a death sentence after the sentencer was instructed to consider an invalid factor, the court must "determine what the sentencer would have done absent the factor." Id. at 1137. The analysis may vary depending upon whether the error occurred in a "weighing" or "non-weighing" state.25 In a weighing jurisdiction, in order to affirm a death sentence in a case where the sentencer relied upon an invalid aggravating circumstance, the state court must either independently reweigh aggravating circumstances or conduct harmless error analysis. Clemons, 494 U.S. at 750-51; see also Parker v. Dugger, 498 U.S. 308 (1991) (The state supreme court's affirmance of the death sentence, without affording the petitioner appropriate appellate review, either by re-weighing all the evidence, or including the evidence of non-statutory mitigating factors, deprived the petitioner of his Eighth Amendment right to individualized sentencing); Sochor v. Florida, 504 U.S. 527 (1992) (Florida Supreme Court, having found insufficient evidence to support the separate aggravating factor found by the sentencing judge that the murder was "committed in a cold, calculated and premeditated manner," failed to cure the error when it affirmed the death sentence without either independently re-weighing aggravating against mitigating factors or engaging in harmless error analysis). In a non-weighing state, the appellate court is not obligated to reweigh, but it still must determine the effect of the error. In Tuggle v. Netherland, 516 U.S. 10 (1995) (per curiam), the Court of Appeals concluded, as had the state courts, that the jury's consideration of an invalid aggravating circumstance was not error because the death sentence was still supported by an unchallenged aggravating circumstance. The Court held that "[a]lthough our holding in Zant [v. Stephens, 462 U.S. 862 (1983)] supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of evidence." 516 U.S. at 14. Because neither the state courts nor the Court of Appeals considered whether harmless error analysis was applicable to Tuggle's case, the Court vacated the judgment and remanded the case to the Fourth Circuit.
In addition, the Court has acknowledged that, in some ways, it functions as a court of last resort in capital cases. In Kyles v. Whitley, 514 U.S. 419 (1995), for example, the Court reaffirmed that its "duty to search for constitutional error with painstaking care is never more exacting that it is in a capital case." 514 U.S. at 422 (quoting Burger v. Kemp, 483 U.S. 776 (1987)). In his concurring opinion, Justice Stevens, joined by Justices Ginsburg and Breyer, noted that due to the "current popularity of capital punishment," the Supreme Court's "duty to administer justice occasionally requires busy judges to engage in a detailed review of the particular facts of a case, even though our labors may not provide posterity with newly minted rule of law." Id. 514 U.S. at 455. In other words, even if a capital case does not present a "cert-worthy" issue, the Court may grant review to correct an incorrect lower court decision. See, e.g., Kyles, supra (finding that Court of Appeals erroneously determined that state's failure to disclose exculpatory information did not violate Brady); Yates v. Evatt, 500 U.S. 391 (1991) (Court granted certiorari to review state supreme court's determination that unconstitutional, burden-shifting presumption of malice was harmless).
The Eighth Amendment places substantive limitations on the state's use of the death penalty. There are some persons, or classes of persons, whom the state cannot execute, and there are some crimes for which the death penalty is not a possible punishment.
In determining whether a particular punishment falls within the Eighth Amendment's prohibition against "cruel and unusual punishments," the Supreme Court has employed two methods of analysis. The first is to determine whether the Framers of the Constitution intended to prohibit a particular form of punishment when they adopted the cruel and unusual punishments clause. Under this analysis, the purpose of the clause is to protect American citizens from punishments which were considered unnecessarily cruel, torturous, or barbarous by English law at the time the Eighth Amendment was adopted. Solem v. Helm, 463 U.S. 277, 285-86 (1983); id. at 312-13 (Burger C.J., joined by White, Rehnquist, and O'Connor, J.J., dissenting ). Accordingly, whether the Framers intended the Eighth Amendment to preclude a particular punishment depends in turn upon the view taken by the common law toward the punishment. See generally Ford v. Wainwright, 477 U.S. 399 (1986).
The second method of analysis rests on the premise that the Framers "intended the Eighth Amendment to go beyond the scope of its English counterpart... ," Solem v. Helm, 463 U.S. at 286, and "'draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'" Gregg v. Georgia, 428 U.S. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). The analysis of a particular punishment, in light of "the evolving standards of decency," involves two inquiries. First, the Court assesses contemporary standards of decency by focusing upon "objective indicia that reflect the public attitude toward a given sanction," Gregg v. Georgia, 428 U.S. at 173, including "the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made." Enmund v. Florida, 458 U.S. 782, 788 (1982). Second, "informed by [these] objective factors to the maximum possible extent," Coker v. Georgia, 433 U.S. 584, 592 (1977), the Court "bring[s] its own judgment to bear on the matter," Enmund v. Florida, 458 U.S. at 788-89, in order to determine whether the sanction "comports with the basic concept of human dignity at the core of the Amendment." Gregg v. Georgia, 428 U.S. at 182.
While the "basic concept of human dignity" is an expansive and somewhat subjective concept,26 the Court has consistently identified two principles for its application. While these principles are certainly not the only tools that can be used to show that a punishment violates human dignity, they are instructive. The first is that to "accord with 'the dignity of man,'" a punishment "[can]not be 'excessive.'" Gregg v. Georgia, 428 U.S. at 173. This means that the state must have "penological justification" for inflicting a punishment. Id. at 183. With respect to the death penalty, the execution of an individual offender must, therefore, serve at least one of "two principal social purposes: retribution and deterrence of capital crimes by prospective offenders." Id.
Unless the death penalty when applied to one in [petitioner's] position measurably contributes to one or both of these goals, it is 'nothing more than the purposeless and needless infliction of suffering'....Enmund v. Florida, 458 U.S. at 798 (quoting Coker v. Georgia, 433 U.S. at 592) (emphasis supplied).
The second principle grows out of the first. The concept of human dignity cannot allow "the infliction of unnecessary pain in the execution of the death sentence." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (emphasis supplied). While infliction of "the necessary suffering involved in any method employed to extinguish life humanely" is permissible, id., the infliction of "unnecessary" suffering is intolerable.
The Court has applied these principles, with increasing reluctance, to several categories of offenders/offenses:
Coker v. Georgia
Enmund v. Florida
Ford v. Wainwright
Thompson v. Oklahoma
Penry v. Lynaugh
Herrera v. Collins
1. For a history of the litigation culminating in Furman, see Meltsner, Cruel and Unusual .
2. Prior to Furman, most jurisdictions utilized "unitary" proceedings in capital cases. In other words, the jury determined the defendant's guilt-or-innocence in conjunction with the question whether the defendant should be sentenced to death. The issues were not bifurcated.
3. See Proffit v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 242 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976).
4. Compare McGantha v. California, 402 U.S. 183 (1971).
5. The state is not, however, limited at the sentencing phase to presenting evidence relevant to statutory aggravating circumstances. States may (but do not have to) permit the sentencer to consider non-statutory aggravating circumstances. Barclay v. Florida, 463 U.S. 939 (1983). However, for the defendant to be death-eligible, the state must demonstrate the existence of a statutory aggravating circumstance. Sawyer v. Whitley, 505 U.S. 333 (1992).
6. The Court has held that a state may conduct the required "narrowing function" at either the guilt-or-innocence phase of the proceedings (e.g., through its definition of capital murder) or at the sentencing phase with the creation of aggravating circumstances. See Lowenfield v. Phelps, 484 U.S. 231 (1988).
7. Many of the aggravating circumstances invalidated by the Court have involved similar type factors. See, e.g., Richmond v. Lewis, 506 U.S. 40 (1992) (Arizona's "heinous, cruel or depraved" aggravating circumstance did not satisfy Eighth Amendment); Shell v. Mississippi, 498 U.S. 1 (1990) (summary reversal) (Mississippi's "especially heinous, atrocious or cruel" aggravating factor was not constitutionally adequate); Godfrey v. Georgia, 446 U.S. 420 (1980) (aggravating circumstance that offense was "outrageously vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" was unconstitutionally overbroad and vague).
8. See also Tuilaepa v. California, 512 U.S. 967 (1994) (Court concluded that California death penalty special circumstances, which require sentencer to consider circumstances of the crime, defendant's prior criminal history, and defendant's age, were not unconstitutionally vague even though jury was not told whether presence or absence of these circumstances was aggravating or mitigating).
9. Similarly, the defendant's assertion of his innocence and insistence upon a trial may be turned by the prosecution into an aggravating circumstance focusing upon the defendant's "lack of cooperation" or, in extreme situations, "obstruction" of justice. See, e.g., State v. Cockerham, 294 S.C. 380, 365 S.E.2d 22 (1988).
10. But see Poland v. Arizona, 476 U.S. 147 (1986) (Court held that jury's failure to find aggravating circumstance at first trial did not preclude state from relying on aggravating circumstance at resentencing proceeding).
11. See, e.g., Presnell v. Georgia, 439 U.S. 14 (1978) (State court's affirmance of death judgment based upon evidence in the record which would support a finding of aggravation not made by the jury, violates due process). Skipper v. South Carolina, 476 U.S. 1 (1986) (due process entitles capital defendant to introduce evidence of good conduct in custody to rebut prosecutor's reliance on future dangerousness in prison as aggravation); Lankford v. Idaho, 500 U.S. 110 (1991) (A trial judge's imposition of the death penalty upon a defendant in a case in which: the prosecution formally advised the court and the defense that it would not recommend the death penalty; the sentencing hearing focused solely on the possible prison terms that might be imposed; and, the judge gave no prior indication that he was considering imposing the death penalty did not afford the defendant adequate notice that he might be sentenced to death and therefore violated due process).
12. In Beck, the defendant was tried for the capital crime of "intentional killing in the course of a robbery." Id. at 631. At trial, the defendant adduced evidence that supported a jury charge on the lesser-included offense of felony murder, a non-capital crime in Alabama. The trial judge refused to grant the requested instruction because Alabama law did not allow a judge to give a jury instruction on a lesser-included offense in capital cases.
13. In Schad v. Arizona, 501 U.S. 624 (1991), the Court reiterated its "fundamental concern in Beck ... that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. Id. at 646. The Court stated: "[t]he goal of the Beck rule, in other words, is to eliminate the distortion of the fact-finding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence." Id. at 2505. The jury in Schad was not faced with just such a situation because it had a third, non-capital option available to it. Id. at 647.
14. But see Barefoot v. Estelle, 463 U.S. 880 (1983) (allowing the admission of psychiatric testimony regarding future dangerousness even though such testimony is inherently unreliable); Pulley v. Harris, 465 U.S. 37 (1984) (refusing to require proportionality review on appeal of death sentence); Strickland v. Washington, 466 U.S. 668 (1984) (refusing to require higher standards for counsel's performance in death cases); Spaziano v. Florida, 468 U.S. 447 (1984) (permitting judge override of jury sentencing determination); Baldwin v. Alabama, 472 U.S. 372 (1985) (refusing to condemn a sentencing scheme in which the jury was required to recommend death upon conviction of certain aggravated crimes but the judge thereafter sentenced on the basis of her own "independent" consideration of the evidence); Lockhart v. McCree, 476 U.S. 162 (1986) (approval of present practice of "death-qualification" of jurors despite substantial evidence that the resulting jury is biased in favor of the prosecution); Darden v. Wainwright, 477 U.S. 168 (1986) (approving conviction and sentence despite prosecutor's concededly improper closing argument, which reflected an emotional and personal reaction to the case and contained references to the defendant as an "animal" who should have been kept on a leash); Payne v. Tennessee, 501 U.S. 808, (1991) (State may admit victim-impact evidence at sentencing phase).
15. As Justice O'Connor noted in her concurring opinion in California v. Brown, supra, evidence about the defendant's background and character is relevant because of the belief, held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable that defendants who have no such excuse. 479 U.S. at 545.
16. The Court stated:
Although it is true that any [favorable] inferences [drawn from the defendant's good behavior in jail] would not relate specifically to petitioner's culpability for the crime he committed, . . . there is no question but that such inferences would be 'mitigating' in the sense that they might serve 'as a basis for a sentence less than death.' 476 U.S. at 7.
17. In Delo v. Lashley, 507 U.S. 272, 113 S.Ct 1222, 1224 (1993) (per curiam), the Court implicitly acknowledged that it would violate the Eighth Amendment for a state trial court to refuse to submit to the jury a statutory mitigating circumstance which was supported by record evidence.
18. Green v. Georgia, 442 U.S. 95 (1979) (State cannot inflexibly apply its hearsay rule to exclude from penalty phase reliable hearsay evidence relevant to capital defendant's relevant culpability).
19. Hitchcock, supra.
20. Penry, 492 U.S. at 326.
21. However, in Walton v. Arizona, supra, the Court held that it did not violate the Eighth Amendment for a state to assign the burden of establishing the existence of a mitigating circumstance to the defendant.
22. Because a determination of juror bias "involves credibility findings whose basis cannot be easily discerned from an appellate record," the trial judge's findings are accorded a presumption of correctness pursuant to 28 U.S.C. § 2254(e). Witt, 469 U.S. at 429.
23. See also Lockhart v. McCree, 476 U.S. 162, 170, n.7 (1986) (state must be given the opportunity to identify through voir dire jurors' views about the death penalty).
24. Payne overruled in part Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989).
25. In some jurisdictions, the sentencer is instructed to determine whether aggravating circumstances outweigh mitigating circumstances in determining whether death is the appropriate punishment. In other states, the sentencer is only told to consider both aggravating and mitigating circumstances in determining punishment. See Clemons v. Mississippi, 494 U.S. 738, 745 (1990).
26. The Court has, however, cautioned that "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual judges; judgment should be informed by objective factors to the maximum extent possible." Coker v. Georgia, 433 U.S. at 592.
27. However, it should be noted that Penry and Stanford leave a small door open to challenge a particular juvenile's or mentally retarded person's death sentence on the ground that it is disproportionate under the Eighth Amendment. The Court acknowledged that a societal consensus may yet develop indicating that the Eighth Amendment does not permit the execution of this class of offenders.