Amicus Curiae Brief — Ohio Adult Parole Authority v. Woodard

Supreme Court, U.S.

4 -t: Eo

ay ) Oct 9 1997

Ke CLERK

No. 96-1769

IN THE

Supreme Court of the Gnited States

October Term, 1997

OHIO ADULT PAROLE AUTHORITY, er ai.,

Petitioners,

Vv.

EUGENE WOODARD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

Barbara E. Bergman Andrea D. Lyon

Co-Chair, NACDL Amicus Counsel of Record

Committee University of Michigan Law School

1117 Stanford N.E. Michigan Clinical Law Program

Albuquerque, NM 87131 363 Legal Research Bidg.

(505) 277-3304 801 Monroe Street

Ann Arbor, MI 48109-1215

(313) 763-4319

- BEST AVAILABLE COPY

i

QUESTION PRESENTED

Whether, under U.S. Const. Amend. XIV, a person

sentenced to death has an interest in “life” that triggers the

protections of due process at the clemency stage of a capital

proceeding?

iil

TABLE OF CONTENTS

QUESTION PRESENTED .....-- +--+ seeeeeee i

TABLE OF AUTHORITIES .......--- +++ s e055 iii

INTEREST OF AMICUS CURIAE ......---+++55 2

SUMMARY OF ARGUMENT ......-----s-555 2

ARGUMENT .......--- 0c cece ceerteeerees 3

I. A CAPITAL DEFENDANT HAS AN

INTEREST IN “LIFE” THROUGHOUT

THE CAPITAL PROCESS. ......-.--+-: 3

JI. THE “LIBERTY” CASES ON WHICH

PETITIONERS RELY DO NOT

CONTROL THIS “LIFE” CASE.......--. 6

CONCLUSION ... 0... cece ee ee eee eeeee 12

ill

TABLE OF AUTHORITIES

CASES Page

Beck v. Alabama,

ae a er Ree ane 7

Biddle v. Perovich,

ee Sce 5

California v. Ramos,

Ee ee a 7

Connecticut Board of Pardons v. Dumschat,

RT Se a ae ae 2, 6, 10

Evitts v. Lucey,

GE PED ov cccccccccce™ 2, 4, 5, 11

Ford v. Wainwright,

rer ee eS A eg 4,7

Gagnon v. Scarpelli,

ES, Uo a's 4 CUS PERC h% c 9

Gardner v. Florida,

CO eS eae eee ea 7

Greenholtz v. Inmates,

RES ASE ae a nd 8, 9, 10

Gregg v. Georgia,

ed RRS REE RY Sirgen 7,11

iv v

Herrera v. Collins, Washington v. Harper,

; Sis & 7)... Serre ree 5, 11 gS ee a ae

Hewitt v. Helms, Wolff v. McDonnell,

459 U.S. 46D CISES) 2. ccc cece wr tsesenns 9 a

Lockett v. Ohio, Woodard v. Ohio Adult Parole Authority,

r Bis @ 7). Se es ee 7 107 F.3d 1178 (6th Cir. 1997) ..............

Louisiana ex rel. Francis v. Resweber, Woodson v. North Carolina,

329 U.S. 459 (1947) 2... eee ees 4 ENS Sn a a

McGee v. Arizona State Board of Pardons and Paroles,

92 Ariz. 317, 376 P.2d 779 (1962) ........... 5 CONSTITUTIONAL PROVISIONS

Meachum v. Fano, i sr

ro « Rik & \ 7: Se rs 8, 10

ee A SUL AY oc cccccwevcncece passim

Morrissey v. Brewer,

GOB UD. GT GIGTED ov ccc ccc cts isoseesss 9

OTHER AUTHORITIES

Murray v. Giarrantano,

. Ley. Varer yes or rr er 4 Coleen E. Klasmeier, Towards a New Understanding of

Capital Clemency and Procedural Due Process,

notine of | 7 @.U. Lh. Raw. 1907 (IGS) 2... eee

git & YT). Sarees rrr sr 9 |

Michael L. Radelet and Barbara A. Zsembik, Executive

Screws v. United States, Clemency in Post-Furman Capital Cases,

| be fo See. eee 3 27 U. Rich. L. Rev. 289 (1993) .............

Vitek v. Jones,

445 U.S. 4D (IGSD) 0. wc cece ce eeecees y

No. 96-1769

IN THE

Supreme Court of the United States

October Term, 1997

OHIO ADULT PAROLE AUTHORITY, et ai.,

Petitioners,

v.

EUGENE WOODARD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

This amicus curiae brief is submitted in support of the

position of the Respondent Eugene Woodard. Written

consents of the parties to the filing of this brief have been

contemporaneously submitted to the Clerk of the Court.”’

“As required by Rule 37.6 of this Court, amicus curiae submits the

following statement: no party authored this brief in whole or in part; and

no person or entity, other than amicus curiae, its members, or its counsel

has made a monetary contribution to the preparation or submission of this

brief.

2

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense Lawyers

(NACDL) is a District of Columbia non-profit organization

whose membership is comprised of more than 9,000 lawyers

and 28,000 affiliate members representing every state.

Members serve in positions bringing them into daily contact

with the criminal justice system in the state and federal courts.

Members of the NACDL regularly represent defendants

charged with capital offenses.

The NACDL is the only national Var organization

working on behalf of public and private defense lawyers. The

American Bar Association recognizes the NACDL as an

affiliated organization and awards it full representation in the

ABA House of Delegates. The NACDL is dedicated to the

preservation and improvement of our adversary system of

justice.

SUMMARY OF ARGUMENT

1. The Fourteenth Amendment prohibits States from

depriving persons of “life, liberty, or property without due

process of law.” Under the Due Process Clause, a capital

defendant enjoys a protected interest in “life” until the moment

of his death. Capital proceedings determine whether the State

will deprive the defendant of that protected “life” interest.

Thus, every part of capital proceedings must comply with the

requirements of due process. When the State chooses to make

the possibility of clemency available in the course of capital

proceedings, it must do so in accordance with due process.

See Evitts v. Lucey, 469 U.S. 387 (1985).

2. The difference in kind between “life” and “liberty”

distinguishes this case from the prisoner cases--such as

Connecticut Board of Pardons v. Dumschat, 452 U.S. 458

(1981)--on which petitioners rely. Those cases rest on the

3

premise that a convicted and incarcerated prisoner has

forfeited all but a residuum of his “liberty.” “Life” is different

than “liberty.” A capital defendant never surrenders his

interest in “life” until his death. He retains that interest

throughout the capital process, including the clemency stage.

ARGUMENT

I. A CAPITAL DEFENDANT HAS AN

INTEREST IN “LIFE” THROUGHOUT THE

CAPITAL PROCESS.

The Fourteenth Amendment guarantees that no State shall

“deprive any person of life, liberty, or property without due

process of law.” U.S. Const. Amend. XIV, cl. 1. A person’s

interest in “life” arises directly under the Due Process Clause

itself; it is not a creature of state law. See Screws v. United

States, 325 U.S. 91, 131 (1945) (Rutledge, J., concurring)

(right to life “comprehends all others”).

A capital defendant--like any other person--has a

constitutionally protected interest in “life” until the moment of

his death. That interest lasts throughout the capital process.

It exists at trial, on appeal, and during habeas corpus

proceedings. It exists even as the person enters the death

chamber and is strapped to the gurney or the chair. It ends

only with death.

This proposition appears to be so thoroughly accepted

that the Court has repeatedly addressed capital defendants’

post-conviction due process claims without questioning

whether they had a protected “life” interest in the first place.

4

See, e.g., Murray v. Giarrantano, 492 U.S. 1 (1989); Ford

v. Wainwright, 477 U.S. 399 (1986) (plurality opinion)”

The Court even applied the Due Process Clause--without

questioning the existence of a protected interest--to determine

whether a second attempt at execution (after the first had

failed) comported with the Constitution. Louisiana ex rel.

Francis v. Resweber, 329 U.S. 459 (1947).

Because a capital defendant has a constitutionally

protected interest in “life” until the moment of his death, all

facets of the process by which the State deprives him of that

interest must comply with the requirements of due process.

Although the States have some flexibility in determining what

specific procedures they will provide before depriving a

person of life, any such procedures must satisfy the Due

Process Clause of the Fourteenth Amendment. “[WJhen a

State opts to act in a field where its action has significant

discretionary elements, it must nonetheless act in accord with

the dictates of the Constitution--and, in particular, in accord

with the Due Process Clause.” Evitts v. Lucey, 469 U.S. 387,

401 (1985) (direct appeal, although not constitutionally

required, must comply with due process).

Petitioners insist that recognition of a protected interest in “life” at the

clemency stage of capital proceedings will require wholesale revision of

post-conviction death penalty practice, including a possible overruling of

Giarrantano. Brief for Petitioners at 21-22. But petitioners’ “floodgates”

arguments confuse the threshold question of whether a capital defendant

retains a protected interest at the clemency stage with the question of the

process due. The nature of the process due to the defendant depends in

part on the stage of the proceedings. Those protections reach their apex

at trial and may diminish thereafter. Recognition that some process is due

at the clemency stage will not require the Court to overrule or call into

question Giarrantano or any other case concerning the protections due

capital defendants.

5

Clemency proceedings form an integral part of the

process by which States--includirg Ohio--administer the death

penalty. “Today, all 36 States that authorize capital

punishment have constitutional or statutory provisions for

clemency,” and “[e]xecutive clemency . . . provides] the ‘fail

safe’ in our criminal justice system.” Herrera v. Collins, 506

U.S. 390, 414-15 (1993). As the Court noted in Herrera,

clemency proceedings provide the principal means by which

claims of “actual innocence” can be reviewed after conviction

and direct appeal and before execution. See id. at 415-17.

Because the States have chosen to make clemency an

integral part of the process by which they seek to deprive

capital defendants of “life,” clemency proceedings must

“accord with the Due Process Clause.” Evitts, 469 U.S. at

401; see McGee v. Arizona State Board of Pardons and

Paroles, 92 Ariz. 317, 319-20, 376 P.2d 779, 781 (1962);

Coleen E. Klasmeier, Towards a New Understanding of

Capital Clemency and Procedural Due Process, 75 B.U.L.

Rev. 1507, 1531-39 (1995).

This case does not require the Court to determine what

process is due a capital defendant at the clemency stage; the

court of appeals left that issue to the district court in the first

instance. Woodard v. Ohio Adult Parole Authority, 107 F.3d

1178, 1188, 1193-94 (6th Cir. 1997). It is important to note,

however, that procedures designed to produce accurate

factfinding can play a critical role in the clemency

determination. The modern exercise of clemency is not the

inherently mysterious “act of grace” that petitioners describe

(Brief for Petitioners at 2-4, 22-24). Cf. Biddle v. Perovich,

274 U.S. 480, 486 (1927) (Presidential pardon “in our days is

not a private act of grace from an individual happening to

possess power. It is part of the Constitutional scheme.”).

Recent empirical studies demonstrate that the decision to grant

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clemency can turn on essentially factual determinations, such

as the possibility that the defendant is actually innocent, the

defendant’s mental condition, and the relative culpability and

punishment of the defendant and those with whom he

participated in the crime. See Michael L. Radelet and

Barbara A. Zsembik, Executive Clemency in Post-Furman

Capital Cases, 27 U. Rich. L. Rev. 289, 299-303 (1993).

Procedural protections will enhance the accuracy of these

determinations and thus ensure the effectiveness of the “fail

safe” stage of the capital process. ‘

Il. THE “LIBERTY” CASES ON WHICH

PETITIONERS RELY DO NOT CONTROL

THIS “LIFE” CASE.

Petitioners’ brief refers repeatedly to “life or liberty,” as

if those two interests were interchangeable for purposes of the

Fourteenth Amendment Due Process Clause. E.g., Brief for

Petitioners at 9, 13, 16, 18, 20. Having obscured the critical

distinction between “life” and “liberty,” petitioners then rely

on a series of “liberty” cases--particularly Connecticut Board

of Pardons v. Dumschat, 452 U.S. 458 (1981)--to argue that

respondent has no protected interest. But this case concerns

“life,” not “liberty.” In light of the critical differences

between these interests, Dumschat does not control here.

The Framers of the Fourteenth Amendment Due Process

Clause--like their predecessors who drafted the same clause in

the Fifth Amendment--established a hierarchy of protected

interests. “Life” comes first, followed by “liberty” and

“property.” “Life” stands ahead of “liberty” for intuitively

obvious reasons. Life is absolute; once taken, it is gone

forever, and it cannot be taken or retained in part. Liberty is

a matter of degree; liberty deprived can be restored, and

liberty can be taken or retained by increments. A person’s

7

interest in “life” exists undiminished until death. A person’s

- interest in “liberty” can wax and wane over time.

This Court has repeatedly recognized the difference in

kind between “life” and “liberty.” In case after case, the Court

and its members have distinguished between the death

penalty--the deprivation of ‘“life’--and sentences of

imprisonment--the deprivation of “liberty.” See, e.g.,

Woodson v. North Carolina, 428 U.S. 280, 305 (1976)

(plurality opinion) (“Death, in its finality, differs more from

life imprisonment than a 100-year prison term differs from

one of only a year or two.”); id. at 323 (Rehnquist, J.,

dissenting)(death is different because “it is irreversible; an

executed defendant cannot be brought back to life,” and

because “it is indeed an ultimate penalty, which ends a human

life rather than simply requiring that a living human being be

confined for a given period of time in a penal institution”)”’

Although decided principally under the Eighth Amendment,

the Court’s death penalty decisions highlight the distinction

* See also, e.g., California v. Ramos, 463 U.S. 992, 998-99 (1983)

(“[T]he qualitative difference of death from all other punishments requires

a correspondingly greater degree of scrutiny of the capital sentencing

determination.”); Ford v. Wainwright, 477 U.S. 399, 414 (1986) (plurality

opinion) (referring to the “heightened concern for fairness and accuracy

that has characterized our review of the process requisite to the taking of

a human life"); Beck v. Alabama, 447 U.S. 625, 637-38 (1980)

(constitutional difference between death and lesser punishments); Lockett

v. Ohio, 438 U.S. 586, 605 (1978) (Burger, C.J.) (death profoundly

different from all other penalties); Gardner v. Florida, 430 U.S. 349, 357-

58 (1977) (plurality opinion) (“[F]ive Members of the Court have now

expressly recognized that death is a different kind of punishment from any

other which may be imposed in this country.”); Gregg v. Georgia, 428

U.S. 153, 188 (1976) (plurality opinion) (Court recognized in Furman that

“the penalty of death is different in kind from any other punishment

imposed under our system of criminal justice”).

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that the Fourteenth Amendment draws between the interest in

“life” and the interest in “liberty.”

The “liberty” cases on which petitioners rely underscore

this distinction. Those cases--all of which involve the rights

of incarcerated prisoners sentenced to a term of

imprisonment--rest on the premise that a person’s “liberty”

can vary; it can be taken in whole or in part and similarly

restored. In Wolff v. McDonnell, 418 U.S. 539 (1974)--the

first case in this line--the Court held that incarcerated

prisoners retain an interest in liberty that the Fourteenth

Amendment Due Process Clause protects. See id. at 556-57.

The Court recognized, however, that prisoners’ interest in

liberty may be “subject to restrictions imposed by the nature

of the regime to which they have been lawfully committed.”

Id. at 556.

The Court turned again to the nature of a prisoner’s

“liberty” interest in Meachum v. Fano, 427 U.S. 215 (1976),

involving an intrastate transfer from one prison to another.

The Court found that the transfer did not implicate the

prisoner’s residual interest in “liberty.” It declared that,

“given a valid conviction, the criminal defendant has been

constitutionally deprived of his liberty to the extent that the

State may confine him and subject him to the rules of its

prison system so long as the conditions of confinement do not

otherwise violate the Constitution. .. . The conviction has

sufficiently extinguished the defendant’s liberty interest to

empower the State to confine him in any of its prisons.” Id.

at 224 (emphasis in original).

The Court further delineated a prisoner’s “liberty” interest

in Greenholtz v. Inmates, 442 U.S. 1 (1979), involving a

challenge to Nebraska’s method of determining suitability for

parole. Distinguishing cases holding that parolees and

probationers have a “liberty” interest in their conditional

9

freedom,* the Court found a “crucial distinction between

being deprived of a liberty one has, as in parole, and being

denied a conditional liberty one desires.” Jd. at 9. Because

the inmates were “confined and thus subject to all of the

necessary restraints that inhere in a prison,” the Court found

that the Due Process Clause itself did not confer a “liberty”

interest in the possibility of parole. Jd. at 10-11. The Court

concluded, however, that mandatory language in the Nebraska

parole statutes created an “expectancy of release . . . entitled

to some measure of constitutional protection.” Jd. at 12; see

also Hewitt v. Helms, 459 U.S. 460, 468-72 (1983) (finding

that mandatory directives in state administrative segregation

regulations created protected “liberty” interest).

In Vitek v. Jones, 445 U.S. 480 (1980), involving a

transfer from prison to a mental hospital, the Court again

recognized that incarcerated prisoners retain a residuum of

“liberty” under the Fourteenth Amendment Due Process

Clause. Because transfer to a mental hospital was “not within

the range of conditions of confinement to which a prison

sentence subjects an individual,” the transfer implicated that

part of the prisoner’s interest in “liberty” which had survived

his conviction and incarceration. See id. at 493-94; see also

Washington v. Harper, 494 U.S. 210, 221-22 (1990)

(involuntary administration of psychotropic drugs implicates

prisoner’s residual “liberty” interest).”

* See Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli,

411 U.S. 778 (1973).

” The Court’s recent decision in Sandin v. Conner, 515 U.S. 472 (1995),

reaffirms Vitek’s analysis of a prisoner's residual liberty interest under the

Due Process Clause. Sandin appears to have abandoned the holding in

Greenholtz and Helms that mandatory language in state regulations could

give rise to a liberty interest beyond that provided by the Due Process

Clause itself. See id. at 477-84.

10

Dumschat, on which petitioners principally rely, falls

squarely within this line of “liberty” cases. The prisoner in

that case repeatedly sought a commutation of his life sentence.

The Connecticut Board of Pardons denied his applications

without explanation. He sued, claiming (1) that the Board’s

action implicated a protected “liberty” interest, and (2) that

due process required the Board to explain its denial of his

applications. Relying on Meachum and Greenholtz, this Court

found that the prisoner had no “liberty” interest at stake,

because his conviction had “‘constitutionally deprived [him]

of his liberty." Dumschat, 452 U.S. at 464 (quoting

Greenholtz, 442 U.S. at 7).

The analysis in Dumschat and the other prisoner “liberty”

cases does not apply to deprivations of a person’s interest in

“life.” The “liberty” cases turn on the fact that, through their

convictions and the execution of their sentences of

incarceration, the prisoners had already lost all but a residual

interest in “liberty” for the duration of their sentences. The

question in each case was whether the state procedure at issue

implicated that residual interest.

“Life” is different. Conviction and incarceration may

largely extinguish a prisoner’s “liberty,” but they cannot

extinguish his “life” as long as he lives. A prisoner awaiting

execution on death row may have lost all but a residual

interest in “liberty,” but he has not lost any part of his interest

in “life.” Thus, as he sits in prison today, Eugene Woodard

has only the barest surviving interest in “liberty”; Dumschat

makes that clear. But Woodard has the same, indivisible

interest in “life” that he has always had, and he will retain that

interest until the day he dies. Nothing in Duwmschat or any of

the other prisoner “liberty” cases on which petitioners rely is

to the contrary. To the extent anything in the “liberty” cases

has relevance here, it is the Court’s distinction in Greenholtz

11

between “being deprived of a liberty one has . . . and being

denied a conditional liberty one desires.” 442 U.S. at 9.

Ohio seeks to deprive Woodard of the life he “has,” not some

“conditional [life he] desires.”

*“* * *

In Herrera, this Court underscored the critical

significance of the clemency stage in the capital process. The

Court acknowledged that “our judicial system, like the human

beings who administer it, is fallible”; it characterized

clemency as the “fail safe” in that “fallible” system; and it

noted that “the traditional remedy for claims of innocence

based on new evidence, discovered too late in the day to file

a new trial motion, has been executive clemency.” 506 U.S.

at 415, 417; see also Gregg v. Georgia, 428 U.S. 153, 199

n.50 (1976) (plurality opinion) (capital process without

clemency would be “totally alien to our notions of criminal

justice”). In light of the essential role clemency plays in the

process by which capital defendants may be deprived of “life,”

States must conduct the clemency stage “in accord with the

Due Process Clause.” Evitts, 469 U.S. at 401.

12

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

ANDREA D. LYON

Counsel of Record

University of Michigan Law School

Michigan Clinical Law Program

363 Legal Research Bldg.

801 Monroe Street

Ann Arbor, MI 48109-1215

(313) 763-4319

BARBARA BERGMAN

Co-Chair, NACDL Amicus Committee

1117 Stanford N.E.

Albuquerque, NM 87131

(505) 277-3304

October 9, 1997