Capital Punishment: A Legal Overview Including the Supreme Court Decisions of the 2004-2005 Term

Congressional research reportJul 22, 2005

Ask Donna

What actually matters in this document.

Text

Order Code RL33008

CRS Report for Congress

Received through the CRS Web

Capital Punishment: A Legal Overview

Including the Supreme Court Decisions

of the 2004-2005 Term

July 22, 2005

Paul Starett Wallace, Jr.

Specialist in American Public Law

American Law Division

Congressional Research Service ˜ The Library of Congress

Capital Punishment: A Legal Overview Including The

Supreme Court Decisions Of The 2004-2005 Term

Summary

Executions declined through the 1950s and 1960s and ceased after 1967,

pending definitive Supreme Court decisions. This interval ended only after States

altered their laws in response to the 1972 Supreme Court decision in Furman v.

Georgia, a 5-4 decision deciding that the death penalty, as imposed under existing

law, constituted cruel and unusual punishment in violation of the Eighth and

Fourteenth Amendments of the U.S. Constitution. In Furman, the Court ruled that

the death penalty was arbitrarily and capriciously applied under existing law based

on the unlimited discretion accorded to sentencing authorities in capital trials. In

response, States began to revise their statutes to modify the discretion given to

sentencing authorities. These statutes went untested until the Court decided Gregg

v. Georgia in 1976 in which it found in a 7-2 decision, that the death penalty did not

per se violate the Eighth Amendment. The Gregg decision allowed States to

establish the death penalty under guidelines that excluded the arbitrariness of

sentencing in capital cases. As a result, statutory safeguards were developed to make

sentencing more just and fair. Some of the changes included (1) in death penalty

cases, the determination of guilt or innocence must be decided separately from

hearings in which sentences of life imprisonment or death are decided; (2) the court

must consider aggravating and mitigating circumstances in relationship to the crime

and the defendant; and (3) the death sentence must be subject to review by the

highest State court of appeals to make sure that the penalty is in proportion to the

seriousness or gravity of the offense and is imposed even-handedly under State law.

Like the statutory safeguards, the capital cases decided by the Court in the 2004-5

term also reflect its sentiment that if there is going to be a death penalty, the process

must be fair.

The Supreme Court abolished the practice of executing mentally retarded

persons in Atkins v. Virginia and juveniles who commit a capital crime while under

the age of 18 in Roper v. Simmons. The Court ruled that these executions were

prohibited on Eighth Amendment “cruel and unusual punishment” grounds. The

Court expanded its doctrine on the “ineffective assistance of counsel” in setting

aside the death sentence for the petitioner in Rompilla v. Beard because his lawyers

failed to search files on his past convictions for mitigating evidence in spite of their

conscientious efforts which led them to believe that it would be a waste of time.

However, the Court determined in Bell v. Thompson that the scheduling of an

execution was reasonable and the actions of the Court of Appeals were an abuse of

discretion, although the case was remanded for an ineffective assistance of counsel

hearing by the Court of Appeals while acting upon an honest belief that its previous

ruling had been decided erroneously. Also, the Court’s decision in Miller-El v.

Dretke reflected an affirmation of its condemnation of racial discrimination in the

use of peremptory challenges.

Contents

Constitutionality of the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Aggravating and Mitigating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Juvenile Offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Mentally Retarded Offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rape Offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Death Penalty For One Who Does Not Kill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Counsel–Effectiveness Under The Sixth Amendment . . . . . . . . . . . . . . . . . . . . 15

Racial Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Jury’s Role in Capital Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Habeas Corpus Procedures in Capital Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Retroactive Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

International Law Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Capital Punishment: A Legal Overview

Including The Supreme Court Decisions Of

The 2004-2005 Term

Constitutionality of the Death Penalty

Is the death penalty consistent with the Eighth Amendment’s prohibition against

the imposition of cruel and unusual punishments? The Supreme Court considered

various applications of the death penalty in the 1930s, 40s and 50s.1 In each case,

it upheld the state’s action without addressing the broader issue of the

constitutionality of the death penalty.

In a 5-4 decision in 1972, Furman v. Georgia,2 the Supreme Court invalidated

federal and state capital punishment laws which permitted wide discretion in the

application of the death penalty. With one Justice characterizing the death penalty

laws as “capricious,” 3 the majority ruled that they constituted cruel and unusual

punishment in violation of the Eighth Amendment and the due process guarantees of

Powell v. Alabama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937);

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Trop v. Dulles, 356 U.S. 86,

99-101 (1958) (Chief Justice Earl Warren delivered the opinion of the Court: “The exact

scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court.

But the basic policy reflected in these words is firmly established in the Anglo-American

tradition of criminal justice. The phrase in our Constitution was taken directly from the

English Declaration of Rights of 1688, and the principle it represents can be traced back to

the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than

the dignity of man. While the State has the power to punish, the Amendment stands to

assure that this power be exercised within the limits of civilized standards. Fines,

imprisonment and even execution may be imposed depending upon the enormity of the

crime, but any technique outside the bounds of these traditional penalties is constitutionally

suspect. This Court has had little occasion to give precise content to the Eighth

Amendment, and, in an enlightened democracy such as ours, this is not surprising. But

when the Court was confronted with a punishment of 12 years in irons at hard and painful

labor imposed for the crime of falsifying public records, it did not hesitate to declare that

the penalty was cruel in its excessiveness and unusual in its character. Weems v. United

States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment

are not precise, and that their scope is not static. The Amendment must draw its meaning

from the evolving standards of decency that mark the progress of a maturing society.”)

408 U.S. 238 (1972). The Court’s decision in Furman was a per curiam opinion in which

five justices filed separate opinions supporting the decision and four justices filed separate

dissenting opinions.

408 U.S. at 309 (Stewart, J., concurring).

CRS-2

the Fourteenth Amendment based upon the inherent arbitrariness of their application

particularly in the case of racial minorities and the poor.4

The hundreds of inmates on death row who had been sentenced to die between

1967 and 1972 had their death sentences commuted as a result of Furman,5 but those

numbers began to change again as states enacted revised legislation tailored to satisfy

the Supreme Court’s objections to arbitrary and capricious decisions which permitted

the application of the death sentence. On July 2, 1976, the Supreme Court reviewed

the post-Furman capital punishment statutes of five states6 in a series of five cases.

The revised laws were of two major types: The first type provided for guided

discretion which was upheld by the Supreme Court in three cases.7 The second type

consisted of those statutes which provided for a mandatory death sentence for

Id. at 289-40; Justice Marshall candidly observed that, “studies indicate that while the

higher rate of execution among Negroes is partially due to a higher rate of crime, there is

evidence of racial discrimination. . . . There is also overwhelming evidence that the death

penalty is employed against men and not women . . . It also is evident that the burden of

capital punishment falls upon the poor, the ignorant and the underprivileged members of

society. Id. at 364-66 (Marshall, J, concurring); see also, id. at 256-57 (Douglas, J.,

concurring)(“these discretionary statutes are unconstitutional in their operation. They are

pregnant with discrimination”); id. at 305 (Brennan, J. concurring)(“the punishment of death

is inconsistent with all four principles [by which a punishment is measured to determine if

it is ‘cruel and unusual’]: Death is an unusually severe and degrading punishment; there is

a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is

virtually total; and there is no reason to believe that it serves any penal purpose more

effectively than the less severe punishment of imprisonment”); id. at 310 (Stewart, J.,

concurring)(“my concurring Brothers have demonstrated that, if any basis can be discerned

for the selection of these few to be sentenced to die, it is the constitutionally impermissible

basis of race”); id. at 313 (White, J., concurring)(“the conclusion . . . is that the death

penalty is exacted with great infrequency even for the most atrocious crimes and that there

is no meaningful basis for distinguishing the few cases in which it is imposed from the many

cases in which it is not”).

Id. at 315 (Marshal, J., concurring).

Georgia, Florida, Texas, North Carolina, and Louisiana.

Gregg v. Georgia, 428 U.S. 153 (1976) (the Court decided in a 7-2 decision, that the death

penalty did not violate the Eighth Amendment per se but allowed States to establish the

death penalty under guidelines that eliminated the arbitrariness of sentencing in capital

cases); Jurek v. Texas, 428 U.S. 262 (1976); and Proffitt v. Florida, 428 U.S. 242 (1976).

Ratified by the Supreme Court, the Georgia, Texas, and Florida statutes afforded sentencing

courts the discretion to impose death sentences for specified crimes and provided for

bifurcated trials, involving in the first stage the determination of a defendant’s guilt or

innocence and, in the second, the determination of the sentence after the consideration of

the aggravating and mitigating circumstances. In Georgia and Texas, the final sentencing

decision was decided by the jury, and in Florida by the judge. These state statutes suggest

that the following safeguards would eliminate arbitrariness and make capital sentencing

more equitable: (a) the determination of guilt or innocence will be decided separately from

hearings in which sentences of life imprisonment or death are decided; (b) the court will

consider aggravating and mitigating circumstances in relationship to both the crime and the

defendant/offender; and (c) the death sentence will be subject to review by the state’s

highest court of appeals to ensure that the penalty is in proportion to the gravity of the

offense.

CRS-3

specific crimes, and allowed no judicial or jury discretion beyond the determination

of guilt. These statutes were held to be unconstitutional.8 In sum, what may be

gleaned from these five cases suggest that while the sentencing authority may possess

some discretion, it cannot be the unbridled discretion which was found impermissible

in Furman. The discretion must be limited and directed in order to minimize the

potential for arbitrary and capricious actions.

Aggravating and Mitigating Factors

Capital punishment may only be imposed under procedures that provide

sentencers with those aggravating factors which will support imposition of the

penalty and that require sentencers to take into account any evidence offered in

mitigation for the defendant.

Aggravating factors, established either as elements of the capital offense or as

statutory factors to be found by the sentencing judge or jury, must be sufficiently

clear and restricting. According to the Supreme Court’s decision in Zant v. Stephens,

“To avoid capricious and arbitrary decisions, states that use aggravating

circumstances to impose the death penalty. . . must reasonably justify the imposition

of a more severe sentence for the defendant compared to others found guilty of

murder.”9

The aggravating factors may not be so vague as to invite a return to the arbitrary

infliction of the penalty that the Court saw in Furman. In Maynard v. Carwright,10

the Court made clear that not every murder could fall under the “specially heinous,

atrocious or cruel” aggravating circumstance and that the state must construe such

an aggravating circumstance so that there would be some principled way to

distinguish the few cases in which the aggravating circumstance applies from the

many cases in which it does not. The test for whether a particular aggravating factor

passes constitutional muster is whether “the statutory language is itself too vague to

provide any guidance to the sentencer. If so [the question becomes] whether the . .

. courts have further defined the vague terms. . . [so as] to provide some guidance to

the sentencer.”11

In Lockett v. Ohio,12 the Supreme Court required many states to revise their

death penalty statutes by ruling that the sentencing authority in capital cases must

consider every possible mitigating factor to the crime rather than limiting the

Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325

(1976).

462 U.S. 862, 1983); see also, Arave v. Creech, 507 U.S. 463, 474 (1993)(“if the sentencer

fairly could conclude that an aggravating circumstance applies to every defendant eligible

for the death penalty, the circumstance is constitutionally infirm”).

486 U.S. 356, 363 (1988).

Bell v. Cone, 125 S.Ct. 847, 851-52 (2005), citing with approval, Walton v. Arizona, 497

U.S. 639, 654 (1990).

438 U.S. 586 (1978).

CRS-4

mitigating factors that could be considered to a specific list.13 In Smith v. Texas,14 the

Court recently confirmed the principle when it overturned Smith’s death sentence

based upon previous Court precedents requiring judges to include in their jury

instructions that proper and meaningful consideration be given to all mitigating

evidence. Smith argued that jurors weren’t allowed to consider evidence including

that he was 19 at the time of the robbery during which the murder occurred, that he

had a troubled home life, and that he had a low IQ and learning disability; the Texas

court erroneously rejected the claim, saying that it wasn’t relevant because there was

no link between murder and his diminished capacity.

Juvenile Offenders

In 1982, the Supreme Court was asked to decide whether the execution of a

juvenile offender was permissible under the Constitution. Eddings v. Oklahoma15

was the first case the Court agreed to hear based on the age of the offender who was

16 at the time he murdered a police officer. Without deciding on the constitutionality

of the juvenile death penalty, the Court vacated the juvenile’s death sentence on the

basis that the trial had failed to consider additional mitigating circumstances.16

However, the case was significant because the Court decided that the chronological

age of a minor is a relevant mitigating factor that must be considered at sentencing.17

Writing for the majority, Justice Powell stated: “... youth is more than a chronological

fact. It is a time and condition of life when a person may be most susceptible to

influence and to psychological damage. Our history is replete with laws and judicial

recognition that minors, especially in their earlier years, generally are less mature and

responsible than adults.”18

In 1988, the Supreme Court did consider this particular issue in Thompson v.

Oklahoma.19 In a 5-3 decision, the Court vacated the death sentence of the defendant

who at age 15 participated in the brutal murder of his former brother-in-law. Four

justices agreed that the execution of a 15-year-old would be cruel and unusual

438 U.S. 586, 604 (1977)(“[T]he Eighth and Fourteenth Amendments require that the

sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a

mitigating factor, 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”). See also, Eddings v. Oklahoma, 455 U.S. 104, 117 (1982) (there are no restrictions

on the number of mitigating factor that the defense may introduce for consideration by the

judge or jury); Boyde v. California, 494 U.S. 370 (1980).

125 S.Ct. 1432 (2005).

455 U.S. 104 (1982).

Id. at 113-116.

Id. at 115-116.

Id.

487 U.S. 815 (1988).

CRS-5

punishment per se (in, or by itself).20 Applying the test of Eighth Amendment

analysis, Justices Stevens, Brennan, Marshall, and Blackmun were of the opinion that

the execution would constitute cruel and unusual punishment because it was

“inconsistent with our respect for the dignity of men” and it failed to contribute to the

two principal social purposes of the death penalty: retribution and deterrence.21

Justice O’Connor concurred, but noted that Oklahoma’s death penalty statute set no

minimum age at which the death penalty could be imposed.22 Sentencing a 15-yearold under the Oklahoma statute was inconsistent with the standard for special care and

deliberation required in death penalty cases.23

In 1989, in Stanford v. Kentucky24 and Wilkins v. Missouri25 the Supreme Court

held in a 5-4 decision that the Eighth Amendment does not prohibit the death penalty

for crimes committed at age 16 (Wilkins) or 17 (Stanford). While the Thompson

plurality used the three-part analysis to determine if sentencing a juvenile to death

constituted cruel and unusual punishment, the Stanford plurality did not. The

Thompson v. Oklahoma’s standard Eighth Amendment analysis consisted of an

evaluation of: (a) evolving standards of decency; (b) the behavior of juries and

legislators to determine what is abhorrent to the conscience of the community; and (c)

because of the juvenile’s reduced culpability, the punishment is disproportionate to

the severity of the crime and the application of the death penalty to this class of

offenders does not measurably contribute to the purposes underlying the penalty. The

Stanford plurality decision rejected the third element of the three part analysis, to wit,

that the punishment is disproportionate to the severity of the crime and makes no

measurable contribution to its deterrence.26

In Stanford v. Kentucky, the Supreme Court considered the evolving standards

of decency in society as reflected in historical, judicial, and legislative precedents;

current legislation; juries’ and prosecutors’ views; and public, and professional

opinions.27 However, the Court based its determination of evolving standards of

decency on legislative authorization of capital punishment for an individual who

murders at 16 or 17 years of age and it does not, said the Court, offend the Eighth

Amendment’s prohibition against cruel and unusual punishment.28 The Court referred

to contemporary standards of decency in this country and concluded that the Eighth

and Fourteenth Amendments did not proscribe the execution of a juvenile over 15 but

Id. at 832-833.

Id. at 836.

Id. at 857-858.

Id. at 856.

492 U.S. 361 (1989).

492 U.S. 361 (1989) (Stanford v. Kentucky and Wilkins v. Missouri were consolidated).

Thompson v. Oklahoma, 487 U.S. at 833-838.

492 U.S. at 370-380.

Id. at 380.

CRS-6

under 18.29 The Court noted that those states that permitted the death penalty for 16

and 17-year-old offenders indicate that there was no national consensus which was

“sufficient to label a particular punishment cruel and unusual.”30 A plurality of the

Court rejected the suggestion that it (the Court) should bring its own judgment to bear

on the desirability of permitting the death penalty for juveniles.31 The Court also

found that public opinion polls and professional associations were “uncertain

foundations” on which to base constitutional law.32

The dissenting judges argued that the record of state and federal legislation

protecting juveniles because of their inherent immaturity was not relevant in

formulating a national consensus.33

In 1997, Christopher Simmons was tried, convicted, and sentenced to death for

first degree murder for a crime that he committed at age 17. He appealed to the

Missouri Supreme Court, which affirmed the conviction and the sentence.34 On his

initial appeal, Simmons could not argue that his youth prohibited his execution

because the U.S. Supreme Court held in 1989 in Stanford v. Kentucky that there was

no national consensus against the execution of young adults who were 16 or 17-yearsof-age at the time of their crimes and, as a result, executing juveniles was not

considered “cruel and unusual” punishment under the Eighth Amendment.35 Hence,

the Missouri Supreme Court affirmed the Circuit Court of Jefferson County Missouri

on the death sentence.36

In 2002, the U.S. Supreme Court in Atkins v. Virginia reversed Penry v.

Lynaugh37, which held that a national consensus did not exist against the execution of

the mentally retarded.38 In Atkins v. Virginia, the Supreme Court decided that a

consensus had developed in the thirteen years since Penry was decided and that

executing the mentally retarded violates the Eighth Amendment.39 Assuming that the

U.S. Supreme Court’s ruling in Atkins may correspondingly cause a shift in the

Court’s view toward the execution of juvenile offenders, Simmons, in 2003, filed a

writ of habeas corpus, arguing that a national consensus opposing the execution of 16

and 17-year-old offenders had developed since the Court’s decision in Stanford v.

Id. at 372-373.

Id. at 370-371.

Id. at 378.

Id. at 377.

Id. at 393-403.

State v. Simmons, 944 S.W.2d 165, 169 (Mo. 1997).

See Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003)(en banc) (discussing Stanford

v. Kentucky, 492 U.S. 361 (1989).

Id.

492 U.S. 302 (1989).

Atkins v. Virginia, 536 U.S. 304 (2002).

Id. at 321.

CRS-7

Kentucky.40 The Missouri Supreme Court agreed, reasoning that the Supreme Court

would today hold that such executions are prohibited by the Eighth Amendment as

applied to the States through the Fourteenth Amendment.41

The U.S. Supreme Court accepted the Roper v. Simmons42 case for review in

order to decide two issues: (a) whether a lower court may contradict a previous ruling

by the U.S. Supreme Court. Particularly, whether it was permissible for the Missouri

Supreme Court to conclude that the penalty of death for juvenile offenders is a “cruel

and unusual punishment” which violates the Eighth Amendment, and in contradiction

of the Court’s decision in Stanford v. Kentucky and (b) whether a national consensus

now opposes the execution of juvenile offenders younger than 18-years-of-age and

therefore, whether the punishment now violates the Eighth Amendment’s prohibition

against cruel and unusual punishment.

In a 5-4 opinion written by Justice Kennedy, the Court affirmed the holding of

the Missouri Supreme Court that imposition of the juvenile death penalty had

“become truly unusual over the last decade”43 and therefore violates the Constitution.

Similarly to reconsidering the permissibility of executing the retarded in Atkins,

it also reconsidered the permissibility of executing juvenile offenders under the age

of 18 in Roper, looking for guidance to the enactments of the legislatures that had

considered the issue since its holding in Stanford. Up to the time of the decision in

Roper, 20 states did not specifically prohibit the execution of a juvenile offender;44 12

states had rejected the death penalty altogether;45 and 18, by legislation had set the

minimum age at 18.46 In the 15 years between the Stanford v. Kentucky and Roper v.

Simmons decisions, 5 states either by legislation or case law raised or established the

minimum age at 18.47 As a starting point in its decision, the Court considered these

changes in the law, as well as the limited use of the death penalty in those states where

the death penalty still was available for juveniles.48

The Court observed that the trend toward abolishing the death penalty for

juveniles was evidence that society’s current views regarding juveniles as

“categorically less culpable than the average criminal.”49 The Court found three

differences between juveniles and adults that prohibit the classification of juveniles

among the worst offenders: (a) juveniles show a lack of maturity and an undeveloped

112 S.W.3d at 399.

Id. at 400.

125 S. Ct.1183 (2005).

State ex rel. Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003).

125 S. Ct. at 1200.

Id. at 1201.

Id.

Id. at 1189.

Id. at 1190.

Id. at 1185 (536 U.S. at 316 [the words Atkins used respecting the mentally retarded]).

CRS-8

sense of responsibility as compared to adults;50 (b) juveniles are more vulnerable or

susceptible to negative influences and outside pressures, including peer pressure;51 and

traits of juveniles are more transitory.52

Stating in Gregg v. Georgia53 that the two distinct purposes served by the death

penalty are “...retribution and deterrence of capital crimes by prospective offenders,”

the Court noted that neither of these justifications have proven to be adequate for

imposing the penalty on juveniles.54

The Court included another reason for its elimination of the death penalty for

juvenile offenders: “Our determination that the death penalty is disproportionate

punishment for offenders under 18 finds confirmation in the stark reality that the

United States is the only country in the world that continues to give official sanction

to the juvenile death penalty.”55 The Supreme Court acknowledged that the

interpretation of the Eighth Amendment was its responsibility, but it could also look

to the laws of other countries and international authorities for direction and instruction

for that interpretation.56 The Court did look to the laws of other countries and found

“overwhelming weight of international opinion against the juvenile death penalty....”57

Mentally Retarded Offenders

In 1986, the Supreme Court in Ford v. Wainwright58 held that it was unlawful to

execute the mentally insane. However, the Court did not set out or propose any

guidelines or standards for the state legislative bodies to adopt or follow for the

determination of whether one should be adjudged insane. As a result, problems

Id. at 1195.

Id.

428 U.S. 153 (1976).

125 S. Ct. at 1186 (“Whether viewed as an attempt to express the community’s moral

outrage or as an attempt to right the balance for the wrong to the victim, the case for

retribution is not as strong with a minor as with an adult. Retribution is not proportional if

the law’s most severe penalty is imposed on one whose culpability or blameworthiness is

diminished, to a substantial degree, by reason of youth and maturity. As for deterrence, it

is unclear whether the death penalty has a significant or even measurable deterrent effect on

juveniles...”). Id. at 1196.

Id. at 1198.

Id.

Id. at 1200. The Roper v. Simmons decision defines for the first time in this country the

current limits of capital punishment for juveniles by abolishing the practice of executing

those who commit a capital crime while under the age of 18.

477 U.S. 399 (1986).

CRS-9

developed because there was no implementation of a uniform measure to protect the

insane from the death penalty.

On the same day the Court decided Stanford v. Kentucky 59 it also decided Penry

v. Lynaugh,60 a case in which the petitioner, Johnny Penry, had sought to exclude the

mentally insane from the death penalty. The Court decided in Penry that the Eighth

Amendment’s ban on cruel and unusual punishment did not categorically prohibit the

execution of mentally retarded individuals who committed capital offenses.61

However, writing for the majority, Justice O’Connor stated that the Eighth

Amendment does more than just bar the practices that were condemned by the

common law at the time the Bill of Rights was adopted.62 It also bars punishment that

would offend our society’s “evolving standards of decency that mark the progress of

a maturing society” as expressed by “the legislation enacted by the country’s

legislatures” and “the actions of sentencing juries.”63

When Stanford and Penry were decided in 1989, there was only one state,

Georgia, that banned the execution of mentally retarded individuals, one state,

Maryland, that had enacted similar legislation but it was scheduled to take effect on

a later date, and a federal statute64 that contained a similar prohibition.65 Therefore,

said Justice O’Connor, “[w]hile a national consensus against execution of the mentally

retarded may someday emerge...there is insufficient evidence of such a consensus

today.”66 In the meantime, the Court noted that counsel for the defendant should be

able to present, for the court’s consideration, the mental state of the defendant as

mitigating evidence at sentencing for the court to determine whether death is the

appropriate punishment.67

In 2002, the Supreme Court decided the case of Atkins v. Virginia68 and

overturned Penry by ruling that the application of the death penalty to defendants with

mental retardation violated the Eighth Amendment’s prohibition against “cruel and

unusual” punishment.69 The evidence found to be sufficient for the purpose of

identifying the “evolving standards” became a key issue in the case. The evidence

before the Supreme Court in Atkins, thirteen years later, revealed that 16 of the 38

492 U.S. 361 (1989) (Held that the Eighth Amendment did not prohibit the death penalty

for crimes committed by 16 or 17-year-old juveniles).

492 U.S. 302 (1989).

Id. at 335.

Id. at 330.

Id. at 330-331.

Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(l) (1988).

492 U.S. at 334.

Id. at 340.

Id. at 337-338.

536 U.S. 304 (2002).

Id. at 306-307, 321.

CRS-10

states with capital punishment had joined Georgia and Maryland in enacting laws to

exempt the mentally retarded.70 Examining state statutes, the opinions of professional

organizations, and a proportionality analysis, the Court concluded that the evolving

standards of decency, as well as their own considered judgments, forced the

conclusion that the execution of mentally retarded defendants was unconstitutional.71

The Court also decided against executing the mentally retarded based on the

theory that they are disadvantaged at trial because of their mental impairments.72

Calling attention to false confessions, a lowered ability to make a persuasive showing

of mitigating factors, the possibility that they may be less able to assist their counsel

at trial, the fact that they are generally poor witnesses, and a demeanor that may create

the impression of lack of remorse, the Court’s majority concluded that mentally

retarded defendants face a special risk of wrongful execution—particularly when there

is a likelihood for the jury to decide that their retardation enhances the risk of “future

dangerousness”.73

Recognizing that there was no consensus on which offenders are in fact

considered retarded, the majority felt that the task for deciding or making this

determination should be left to the States.74

The minority disagreed with any conclusion that sources other than state

legislatures should be relevant to the consideration of the issue. Chief Justice

Rehnquist wrote a separate dissent “...to call attention to the defects in the Court’s

decision to place weight on foreign laws, the views of professional and religious

organizations, and opinion polls in reaching its conclusion.”75 Believing that the

legislatures are more suited than the courts at deciding the moral consideration of the

people, he also questioned the use of opinion polls, and religious organizations as

things that “...elected representatives of a State’s populace have not

deemed...persuasive enough to prompt legislative action.”76 Justice Scalia supported

the Chief Justice’s conclusion by stating that “...the Prize for the Court’s Most Feeble

Effort to fabricate [a] `national consensus’ must go to its appeal (deservedly relegated

to a footnote) to the views of assorted professional, ... religious organizations,

members of the so-called `world community,’ and ... opinion polls.”77

536 U.S. at 314-315 (Arizona, Arkansas, Colorado, Connecticut, Florida, Indiana, Kansas,

Kentucky, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota,

Tennessee, and Washington).

See generally, id. at 306-321.

Id. at 320-321.

Id.

Id. at 317.

Id. at 322.

Id. at 326.

Id. at 347.

CRS-11

Rape Offenders

Prior to Furman v. Georgia78 and Gregg v. Georgia79, there does not appear to

be any cases regarding the Supreme Court review of the constitutionality of the

imposition of capital punishment for the crime of rape. In 1953, in Rudolph v.

Alabama80 the Court denied a writ of certiorari involving the appeal of a sentence of

death for the rape of the prosecutrix.81 Justices Goldberg, Douglas, and Brennan

dissented on the theory that there was an issue as to whether the Eighth and Fourteenth

Amendments to the Constitution permitted “the imposition of the death penalty on a

convicted rapist who has neither taken nor endangered human life.”82 The dissent

noted the trend in this country and throughout the world against punishing rape by

death.83 The dissent noted the “evolving standards of decency that mark the progress

of our maturing society” and questioned whether a less severe penalty for the crime

of rape would more likely achieve the goals of punishment.84 The dissent also

questioned whether the constitutional proscription against disproportionate

punishment permitted “... the taking of human life to protect a value other than human

life ....”85

It was not until 1977, that the Supreme Court in Coker v. Georgia86 decided the

issue of whether it was constitutional to impose the death penalty for the offense of

rape. Applying the proportionality test, the Court decided that the death penalty is a

grossly disproportionate and excessive punishment for the crime of rape of an adult

woman and, therefore, is forbidden by the Eighth Amendment as cruel and unusual

punishment.87 In order to ascertain whether the capital rape statute met this test, the

Court looked to objective evidence which was based upon public sentiment.88 This

408 U.S. 238 (1972).

428 U.S. 153 (1976).

152 So.2d 662 (Ala. 1963), cert. denied, 375 U.S. 889 (1963).

375 U.S. 889.

Id. at 889.

Id.

Id. at 890-891.

Id. at 891.

433 U.S. 584 (1977).

Id. at 598-599. (Coker escaped from a Georgia prison where he was serving time for

murder, rape, kidnaping, and aggravated assault. During the course of his escape, Coker

committed armed robbery, raped a 16-year- woman in the presence of her husband, among

other offenses. Albeit a violent felon, the Court limited its review of Coker’s case to the fact

that the death penalty for rape, regardless of the circumstances under which it was

committed [the instant crime being punished is a rape not involving the taking of life], is a

violation of the Eighth Amendment).

Id. at 592. (The Court applied the proportionality test set out in Gregg v. Georgia, 428

U.S. 153 (1976), by stating that “Under Gregg, a punishment is ‘excessive’ and

unconstitutional if it (1) makes no measurable contribution to acceptable goals of

(continued...)

CRS-12

evidence was based upon the history of legislative attitudes and jury responses as an

objective approach in the process of determining the “country’s present judgment

regarding the acceptability of death as a penalty for rape of an adult woman.”89

While considering the history, the Court noted that “At no time in the last 50

years [has] a majority of the States authorized death as a punishment for rape.”90

Although the Court noted that after its decision in Furman, “thirty-five States

reinstituted the death penalty for at least limited kinds of crimes”91, these actions were

an indication of the acceptance of the death penalty for murder; however, when you

view the legislative responses to Furman in regard to capital rape statutes, a different

view is presented.92 The Court held that these actions by the state legislatures reflect

a rejection of capital punishment for rape which confirmed their finding that death is

a disproportionate penalty for the rape of an adult woman.93

The Court did not just consider public sentiment based upon state legislatures

and sentencing juries but concluded that it must also analyze for itself the question of

the acceptability of the death penalty for the crime of rape under the Eighth

(...continued)

punishment and hence is nothing more than the purposeless and needless imposition of pain

and suffering; or (2) is grossly out of proportion to the severity of the crime.”).

Id. at 593.

Id. The Court noted that “In 1925, 18 States, the District of Columbia and the Federal

Government authorized death as a punishment for rape of an adult female. By 1971 just

prior to the decision in Furman v. Georgia, that number declined, but not substantially, to

16 States plus the Federal Government. Furman then invalidated most of the capital

punishment statutes in this country, including the rape statutes, because, among other

reasons, of the manner in which the death penalty was imposed and utilized under those

laws.” Id.

Id. at 593-594.

Id. at 594. The Court stated: “...if the most marked indication of society’s endorsement

of the death penalty for murder is the legislative response to Furman,...it should also be a

telling datum that the public judgment with respect to rape, as reflected in the statutes

providing the punishment for that crime, has been dramatically different. In reviving death

penalty laws to satisfy Furman’s mandate, none of the States that had not previously

authorized death for rape chose to include rape among capital felonies. Of the 16 States in

which rape had been a capital offense, only three provided the death penalty for rape of an

adult woman in their revised statutes [which included] Georgia, North Carolina, and

Louisiana. In the latter two States, the death penalty was mandatory for those found

guilty....” Id. The Court stated that two of these three states (Louisiana and North Carolina)

had to revise their statutes because they called for mandatory death sentences and death

penalties could not be mandatory [pursuant to Woodson v. North Carolina,428 U.S. 280

(1976) and Roberts v. (Stanislaus) v. Louisiana, 428 U.S. 325 (1976)]. Id. When North

Carolina and Louisiana revised their statutes a second time, the legislature authorized the

death penalty for murder, but excluded rape. Id. The Court also noted that Florida,

Mississippi, and Tennessee “authorized the death penalty in some rape cases, but only where

the victim was a child and the rapist an adult.” Id. at 595.

Id. at 597.

CRS-13

Amendment because its judgment is contemplated by the Constitution.94 Neither did

the Court deny that rape was a serious crime, acknowledging that “[s]hort of

homicide” rape “is the ultimate violation of self.”95 Nonetheless, the Court found that

“in terms of moral depravity and the injury to the person and to the public [rape] does

not compare with murder” because it “by definition does not include the death of or

even the serious injury to another person.”96 “The murderer kills; the rapist, if no

more than that, does not.”97 Notwithstanding the fact that Coker was found to have

committed rape under two aggravating circumstances, the Court said it did not change

its holding that the death sentence is a disproportionate punishment for rape and,

consequently, a violation of the Eighth Amendment.98

Death Penalty For One Who Does Not Kill

Since 1982, the Supreme Court has addressed the “law of parties”99 and its

applicability in capital cases on four occasions. In Enmund v. Florida100, the Court

decided in 1982 that Enmund’s agreement to act as a getaway driver in a robbery that

ended in murder was insufficient to warrant death. Enmund did not kill or intend to

kill and thus his culpability is plainly different from that of the robbers who killed.

The Court wrote, “ We have concluded that imposition of the death penalty in these

circumstances is inconsistent with the Eighth and Fourteenth Amendments.”101 The

Court ruled that in order to be eligible for the death penalty, a defendant either had to

kill, attempt to kill, or intend to kill.102

Id.

Id. at 598.

Id.

Id. at 599.

Generally defined as a state statutory procedure that allows the assignment of cause and

guilt to be transferred to secondary parties in a crime. See Texas Penal Code § 7.02 and

Texas Code of Criminal Procedures Article 37.071(b)(2).

100

458 U.S. 782 (1982).

101

Id. at 788.

102

Id. at 797. See also Cabana v. Bullock, 474 U.S. 376 (1986) (Death sentence reversed

for absence of sufficient factual findings on the nature of the offender’s involvement in the

homicide; the instructions to the jury require finding an intent to commit murder–they

should reflect whether the defendant/respondent killed, attempted to kill, or intended to kill);

citing Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court in Solem v. Helm, 463

U.S. 277, 288 (1983) said it has applied the principle of proportionality to hold capital

punishment excessive in certain circumstances “...when defendant did not take life, attempt

to take life, or intend that a life be taken or that lethal force be used.”

CRS-14

In 1987, the Supreme Court reconsidered Enmund when it accepted Tison v.

Arizona103 for review. In Tison, two brothers were sentenced to death for a quadruple

homicide their father committed after the brothers helped him escape from prison.

Although the brothers did not intend to kill, the Court was of the opinion that their

involvement in the prison break was substantial, and the supply of weapons they took

along suggested that they were ready to kill if necessary. “[T]he reckless disregard for

human life implicit in knowingly engaging in criminal activities known to carry a

grave risk of death represents a highly culpable mental state that may be taken into

account in making a capital sentencing judgment when that conduct causes its

natural...lethal result”104 the Court concluded. “We will not attempt to precisely

delineate the particular types of conduct and states of mind warranting imposition of

the death penalty....Rather, we simply hold that major participation in the

felony...combined with reckless indifference to human life, is sufficient to satisfy the

Enmund culpability requirement.105

Eluding the Court in Bradshaw v. Stumpf,106 was the issue of whether the death

penalty may be imposed when the prosecution argues in successive trials that each of

two accomplices personally killed the victim who had been murdered with a single

shot. Stumpf, among other things, pled guilty, and was sentenced to death for a crime

for which the state later sought the death penalty for his accomplice.107 The state

knew one of the two juries would have to be in error if in separate trials they found

first Stumpf and then his accomplice subject to the death penalty as the lone shooter.

The Sixth Circuit reversed Stumpf’s conviction, finding that the state secured

convictions of both Stumpf and his accomplice for the same crime, using inconsistent

theories and also because his guilty plea was not knowing and voluntary because he

was not aware that specific intent was an element of the crime to which he plead

guilty. While Stumpf admitted to wounding the husband, he denied ever having shot

the man’s wife. Despite this, the jury found Stumpf to be the principal shooter and

sentenced him to death. The U.S. Supreme Court granted certiorari on two

issues—one of which was: does the Due Process Clause require vacating a

defendant’s guilty plea when the state subsequently prosecutes another person in

connection with the crime and allegedly presents evidence at the second defendant’s

trial that is inconsistent with the first defendant’s guilt?108 During the penalty phase

of his trial (he had previously entered a guilty plea), he turned around and argued that

a co-defendant was the shooter at the co-defendant’s trial which version was

103

481 U.S. 137 (1987).

104

Id. at 157-158.

105

Id. at 158.

106

125 S. Ct. 2398 (2005).

107

After Stumpf’s aggravated murder conviction, premised on his role as the shooter, the

state convicted his accomplice in a separate trial, alleging, inconsistently, that the

accomplice was the triggerman.

108

The other issue, upon which the case was ultimately decided was: whether representation

on the record from defendant’s counsel and/or the defendant that defense counsel has

explained the elements of the charge to the defendant, sufficient to show the voluntariness

of the guilty plea under Henderson v. Morgan,426 U.S. 637, 647 (1976)?

CRS-15

supported by the testimony of the third co-defendant. Because this issue was not

properly presented to the Court (the defendant instead argued that his guilty plea was

involuntary, which the Court rejected), the case was remanded to the Sixth Circuit for

it to consider the effect of the prosecutor’s inconsistent theories on the death

sentences.109 However, the Court decided that Stumpf was informed of the specific

intent element of the aggravated murder charge and the prosecutorial inconsistencies

between the two trials did not warrant voiding his guilty plea.110

Counsel–Effectiveness Under The Sixth Amendment

Although it has been established that criminal defendants have the right to

assistance of counsel, it was not until 1970 that the Supreme Court defined this right

as “...the right to the effective assistance of counsel.”111 Except for the Court’s

decision regarding the issue of counsel having a conflict of interest112 the Court did

not define “effective” until it decided the case of Strickland v. Washington,113 whereby

the Court articulated a general test for ineffective assistance of counsel in criminal

trials and in capital sentencing proceedings.114 In Burger v. Kemp, 483 U.S. 776, 794795 (1987), the Court held that because the defense counsel’s decision not to develop

and present any mitigating evidence at a capital sentencing proceeding was supported

by his “reasonable professional judgment”, the defendant was not denied effective

assistance of counsel. Relying on the guidelines contained in Strickland, the Court

found no deficiency leading to a breakdown in the adversarial process. In Darden v.

Wainwright, 477 U.S. 168 (1986), the Court said there was no merit to the petitioner’s

109

125 S. Ct. 2398 at 2407-08 (2005).

110

Id. at 2406.

111

McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).

112

See Cuyler v. Sullivan,446 U.S. 335 (1980).

113

466 U.S. 668 (1980).

114

Strickland involved capital sentencing but the Court left open the issue of what standard

would apply in general sentencing, where there is a great deal of discretion which is not

present in capital sentencing, or in the guilt or innocence phase of a capital trial. 466 U.S.

at 686. In this case, defense counsel located four witnesses who were willing and able to

testify on behalf of the petitioner at the penalty phase of the trial. The witnesses were his

brother, two nieces, and his Canadian parole officer. The petitioner, however, was flatly

opposed to their providing any testimony, the only exception being that he would allow his

brother to provide a testimonial foundation for admitting the petitioner’s wood carvings into

evidence. After discussion with the petitioner, defense counsel agreed to abide by his

wishes and informed the court of their decision. The trial court closely questioned petitioner

personally on the matter to ensure that this was the course he wanted to follow. Petitioner

now claims he was denied effective assistance of counsel because the defense counsel failed

to present any mitigating evidence. To establish ineffective assistance of counsel, two

independent showings must be made: first, that counsel’s performance was deficient, and

second, the deficiency prejudiced the defense. This test applies to both the penalty and guilt

phases of the trial.

CRS-16

claim of ineffective assistance of counsel at the sentencing phase of the trial because

the petitioner failed to satisfy the first part of the two-part Strickland test; the record

shows several reasons why counsel reasonably could have chosen to rely on a simple

plea for mercy from petitioner himself, rather than to attempt to introduce mitigating

evidence; a defendant must overcome the presumption that, under the circumstances,

the challenged action of counsel might be considered sound trial strategy. Id. at 184187.

In Lockhart v. Fretwell115 the Court refined the Strickland test to require that not

only would a different trial result be probable because of attorney performance, but

that the trial result which did occur was fundamentally unfair or unreliable.116

In 1999, the Court granted certiorari in Williams v. Taylor117 on the question of

the standard to be applied by federal courts in granting a habeas petition following the

passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)118,

and on the Fourth Circuit’s application of the Strickland standard in a capital case.119

Finding that the Virginia Supreme Court’s decision rejecting Williams’ ineffective

assistance claim was both “contrary to” and an “unreasonable application of” doctrine

well-established in Strickland, the Court believed that Williams was eligible for

habeas relief.

Generally, when “...a defendant alleg[es] a Sixth Amendment violation, [he/she]

must demonstrate `a reasonable probability that, but for counsel’s unprofessional

errors, the results of the proceeding would have been different.’”120 It reaffirmed the

two-pronged Strickland test, holding that the Virginia Supreme Court’s “...decision

turned on its erroneous view that a ‘mere’ difference in outcome is not sufficient to

establish constitutionally ineffective assistance of counsel.”121 The Court explained

in Strickland the two components on which the petitioner, Williams, relies: “First, the

defendant must show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.”122

115

506 U.S. 364 (1992).

116

Id. at 369.

117

526 U.S. 1050 (1999).

118

Pub. L. No. 104-132, 110 Stat. 1218, 1219 (codified as amended at 28 U.S.C. 2254(d)(1)(2)) (Limits appeals for individuals on death row in a number of ways).

119

See William v. Taylor, 529 U.S. 362 (2000).

120

Id at 391. Mickens v. Taylor, 535 U.S. 162 , 166 (2002) (quoting Strickland v.

Washington,466 U.S. 668, 694 (1984)).

121

Id. at 397

122

Id. at 390.

CRS-17

There is an exception to this general rule that the defendant must show probable

effect upon the outcome where the assistance of counsel has been denied entirely or

during a critical stage of the proceeding; such effect will simply be presumed.123 But

only in “circumstances of that magnitude” will the defendant be relieved of the burden

to show that counsel’s inadequate performance undermined the reliability of the

verdict.124 The Court has also held in several cases that “‘circumstances of that

magnitude’ may also arise when the defendant’s attorney actively represented

conflicting interests.”125 However, according to the decision in Mickens v. Taylor,126

an analysis of a conflict of interest will require the same analysis and demonstration

of prejudice that is required under Strickland as opposed to the presumption of

prejudice and the resulting automatic reversal.127

In Florida v. Nixon,128 the Supreme Court through Justice Ginsburg, provided an

analysis of strategies for capital counsel including concession of guilt. The Court in

Nixon held that Counsel’s concession that his client committed murder, made without

the defendant’s express consent, does not automatically rank as prejudicial ineffective

assistance of counsel under United States v. Cronic129; the counsel’s performance must

be evaluated under the Strickland 130 test rather than under the Cronic test. The Court

recognized that some decisions concerning “basic trial rights” must be made by the

defendant and require that “...an attorney must both consult with the defendant and

obtain consent to the recommended course of action.”131 These basic trial rights

include the “‘ultimate authority’ to determine ‘whether to plead guilty, waive a jury,

testify in his or her own behalf, or take an appeal’”.132 For other matters, “[a]n

attorney undoubtedly has a duty to consult with the client regarding ‘important

123

Id. at 166.

124

Id. (quoting United States v. Cronic, 466 U.S. 648, 659, n.26 (1984)).

125

Id.

126

535 U.S. 162 (2002). In Mickens, the defendant had been convicted of capital murder

and sentenced to death. He sought a writ of habeas corpus on the ground that his Sixth

Amendment right to the assistance of counsel had been violated, because one of his trial

attorneys had previously represented the murder victim and the trial court failed to inquire

into the potential conflict. He contended that this failure to inquire required an automatic

reversal of his conviction. The Court disagreed, holding that automatic reversal is only

required where defense counsel is forced to represent codefendants over counsel’s timely

objection, unless the trial court has determined that there is no conflict.

127

Id. at 168.

128

125 S. Ct. 551 (2004).

129

466 U.S. 648, 659 (1984)(under Cronic, the defendant must demonstrate that there was

a complete denial of counsel at a critical stage of the trial whereby counsel fails entirely to

subject the prosecution’s case to meaningful adversarial testing thereby resulting in a denial

of Sixth Amendment rights that makes the adversary process presumptively unreliable).

130

466 U.S. 668, 694 (1984) (under Strickland, the “defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.”)

131

Florida v. Nixon, 125 S. Ct. 551, 560 (2004).

132

Id. at 560.

CRS-18

decisions’, including questions of overarching defense strategy [but this] obligation,

however, does not require counsel to obtain the defendant’s consent to ‘every tactical

decision’...(an attorney has authority to manage most aspects of the defense without

obtaining his client’s approval).”133 Regarding capital cases, the Court recognized

that:

...the gravity of the potential sentence in a capital trial and the proceeding’s twophase structure vitally affect counsel’s strategic calculus. Attorneys representing

capital defendants face daunting challenges in developing trial strategies, not least

because the defendant’s guilt is often clear.

Prosecutors are more likely to seek the death penalty, and to refuse to accept a

plea to a life sentence, when the evidence is overwhelming and the crime

heinous134....In such cases, ‘avoiding execution [may be] the best and only realistic

result possible’” ABA Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases § 10.9.1, Commentary (rev. ed. 2003),

reprinted in 31 Hofstra L. Rev. 913, 1040 (2003).135

In circumstances where guilt is clear “...counsel must strive at the guilt phase to

avoid a counterproductive course” such as presenting “logically inconsistent”

strategies in the guilt-phase defense and sentencing phase.136

To summarize, in capital cases:

[C]ounsel must consider in conjunction both the guilt and penalty phases in

determining how best to proceed. When counsel informs the defendant of the

strategy counsel believes to be in the defendant’s best interest and the defendant

is unresponsive, counsel’s strategic choice is not impeded by any blanket rule

demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given

the evidence bearing on the defendant’s guilt, satisfies the Strickland standard,

that is the end of the matter; no tenable claim of ineffective assistance would

remain.137

In the most recent Supreme Court decision on the issue of “ineffective assistance

of counsel”, the Court in Rompilla v. Beard,138 followed a series of rulings, including

Wiggins v. Smith139 which faulted lawyers for failing to investigate defendants’

records for mitigating evidence which “was the result of inattention, not reasoned

strategic judgment,” and may have made the difference between a life or death

133

Id.

134

Id. at 554.

135

Id. at 562.

136

Id. at 563 (citing, inter alia, Sundby, The Capital Jury and Absolution: The Intersection

of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557, 1589-1591

(1998)).

137

Id.

138

125 S.Ct. 2456 (2005).

139

539 U.S. 510, 534 (2003).

CRS-19

sentence.140 In Wiggins v. Smith the Court ruled that attorneys in capital cases must

diligently investigate the background of their clients in order to find possible

mitigating evidence that could sway a jury’s or a judge’s sentencing decisions. The

case became significant when the Court concluded that Wiggins’ trial lawyers had

failed to do the work necessary to represent their client effectively. The Court’s

decision made it clear that defense counsel representing a client facing a death

sentence must thoroughly investigate all reasonable avenues of defense, and cannot

excuse inadequate performance merely by claiming they made a “tactical” decision

not to pursue an uninvestigated line of defense.141

Racial Discrimination

In 1972, the death penalty was held in Furman v. Georgia142 to be

unconstitutional due to the arbitrariness and discriminatory impact it had on racial

minorities and the poor. Four years later, new capital punishment laws, which were

suppose to prevent arbitrariness and discrimination, were upheld by the Supreme

Court in 1976.143

Nonetheless, the Supreme Court continued to face questions concerning the

application of the death penalty to racial minorities. In McClesky v. Kemp,144 a

challenge was based on a study that showed Black murderers of White victims were

far more likely to be sentenced to death than Black murderers of Black victims, which

the Court concluded was insufficient to establish evidence of discrimination either in

general or in McClesky’s case.

In Batson v. Kentucky,145 the Supreme Court required courts to give genuine

attention to cleansing the criminal justice process of the taint of racial discrimination

in jury selection. Batson requires trial judges to assess the district attorney’s reasons

for excluding African-Americans from jury service in order to determine whether the

prosecutors intended to discriminate.146

140

125 S. Ct. at 2471(“[the lawyers’] conduct fell below constitutionally required

standards....[`S]trategic choices made after less than complete investigation are reasonable’

only to the extent that `reasonable professional judgments support the limitations on

investigations’”).

141

See also, Cone v. Bell,243 F.3d 961, 975 (6th Cir. 2001)(Cone 1), rev,d, Bell v. Cone, 535

U.S. 685 (2002), on remand, 359 F.3d 785, 799 (6th Cir. 2004)(Cone 2), rev’d per curiam,

Bell v. Cone, 125 S. Ct. 847 (2005)

142

408 U.S. 238 (1972).

143

Gregg v. Georgia, 428 U.S. 153 (1976); Profitt v. Florida, 428 U.S. 242 (1976); Jurek

v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts

v. Louisiana, 428 U.S. 325 (1976).

144

481 U.S. 279, 286-287 (1987).

145

476 U.S. 79 (1986).

146

Id. at 98.

CRS-20

In 2002, Thomas Miller-El asked the Supreme Court to enforce the rule of

Batson prohibiting racial discrimination in the exercise of peremptory challenges in

jury selection. In 2003, the Court held that reasonable jurists could differ on whether

Miller-El had appealable issues and ordered the U.S. Court of Appeals for the Fifth

Circuit to grant a certificate of appealability to further review the case.147 The Court,

in an 8-1 opinion, criticized the Fifth Circuit’s “dismissive and strained interpretation”

of critical facts, ruled that the lower court’s refusal to consider Miller-El’s Batson

claim was based upon a standard of review that was too demanding, and remanded the

case for further consideration.148 On remand, the Fifth Circuit again found that

prosecutors had not intentionally excluded African Americans from Miller-El’s capital

jury.149 On June 28, 2004, the Supreme Court granted certiorari a second time, in

order to address whether the Fifth Circuit again erred in reviewing Miller-El’s claim

that the prosecution purposefully excluded African-Americans from his capital jury

in violation of Batson v. Kentucky.

On June 13, 2005, the Supreme Court in Miller-El v. Dretke150 overturned MillerEl’s death conviction because of the racial bias that tainted the selection of the jury

in the use of peremptory challenges in his murder trial. In both Miller-El and Johnson

v. California151 the Court cited its 1986 ruling in Batson v. Kentucky which barred the

practice of the racial discriminatory use of peremptories.

Justice Souter reviewed the tactics used by the Dallas County prosecutors to

ensure that no African-Americans were on the jury that determined Miller-El’s fate,

who is African-American.152 Prosecutors “shuffled” the jury pool members when too

many African-Americans appeared in the front of the panel and they asked different

questions of White and Black potential jurors, Justice Souter said.153 When asking the

Black jurors about their views on the death penalty, the prosecutors used a far more

graphic description of executions, apparently to make it more likely they would

express disapproval and disqualify themselves.154

In the Johnson case, Justice Stevens wrote for the majority in deciding that the

California Supreme Court had made it too difficult for defendants to make out a prima

facie claim of bias in jury selection.155 Johnson, who is African-American, was

accused of murdering a White child. The prosecutor used three of his 12 peremptory

challenges to strike African-Americans from the jury pool thus causing Johnson’s jury

147

537 U.S. 322 (2003).

148

Id. at 344.

149

361 F.3d 849 (5th Cir. 2004).

150

125 S. Ct. 2317 (2005).

151

125 S. Ct. 2410 (2005).

152

125 S. Ct. at 2325.

153

Id. at 2321.

154

Id. at 2419.

155

125 S. Ct. at 2419.

CRS-21

to be all White.156 On appeal, Johnson raised the Batson claims and his conviction

was set aside. The conviction was later reinstated by the California Supreme Court,

which said Johnson was required to provide “strong evidence” that racial factors were

“more likely than not” the reasons for the challenges in order to begin a Batson

inquiry.157 The California Supreme Court also said that Batson gave states the right

to set their own standards for evaluating claims of jury selection bias.158 Justice

Stevens said the “overriding interest in eradicating discrimination” requires state

courts to adopt standards that make it easier for Batson claims to be tested–rather than

being excluded at the outset.159

Jury’s Role in Capital Sentencing

The Supreme Court has considered cases addressing the issue 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 on either the juror’s attitude

regarding the death penalty, i.e. whether they are strongly opposed or in favor of the

death penalty, or racially biased.

In Witherspoon v. Illinois,160 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.”161

The Court noted 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....”162

However, a state may exclude those jurors whose attitudes about the death penalty

would affect their decision regarding the defendant’s guilt.163

Later, the Court qualified Witherspoon by stating that it did not hold that the state

could exclude only those jurors who would automatically vote against capital

punishment.164 In Wainwright, the Court held that the standard for excluding a juror

because of his/her 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

156

Id. at 2414.

157

Id. at 2416.

158

Id. at 2415.

159

Id. at 2418.

160

391 U.S. 510 (1968).

161

Id. at 522.

162

Id. at 519.

163

Id. at 522, n. 21.

164

Wainwright v. Witt, 469 U.S. 412 (1985).

CRS-22

accordance with his instructions and his oath.’”165 The Court viewed 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.166 Here as

well as elsewhere, the Court said “the quest is for jurors who will conscientiously

apply the law and find the facts.”167

The Court also indicated that trial judges have historically been charged with

determining whether a prospective juror harbors any bias.168 If the trial judge, who is

in a position to evaluate a juror’s credibility, receives a definite impression that the

juror would be unable to faithfully and impartially apply the law, the judge can

remove the juror for cause.169

While it appears that jurors are selected or rejected based on their views of the

death penalty, the Court recognized that jurors who vote to convict may nevertheless

entertain “residual doubts” about the defendant’s guilt that would “bend them to

decide against the death penalty.”170 Nonetheless, if a prospective juror could

reasonably determine guilt or innocence but could not impose the death penalty, that

person may be excluded from the jury.171 Whereas, if the prospective juror could

reasonably determine guilt or innocence and impose the death sentence, according to

Lockhart v. McCree, they could meet the qualifications for the jury.172

The Supreme Court has held that juries should be informed about the alternatives

to a death sentence. In Simmons v. South Carolina,173 the Court held that when a

defendant’s “future dangerousness” is at issue, the jury must be accurately informed

whether there is any possibility of parole under the alternative lifetime sentence.174 In

Shafer v. South Carolina,175 the Court reaffirmed its Simmons due process rule but

indicated that it is limited.176 If the prosecution does not present evidence about the

165

Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

166

Id. at 423.

167

Id.

168

Id. at 428.

169

Id. at 425-426.

170

Lockhart v. McCree, 476 U.S. 162, 181 (1986) (quoting Grigsby v. Mabry, 758 F.2d 226,

248 (8th Cir. 1985)).

171

See, Lockhart , 476 U.S. 162 (1986)

172

Id. at 183.

173

512 U.S. 154 (1994).

174

Id. at 169.

175

532 U.S. 36 (2001).

176

Id. at 51.

CRS-23

defendant’s future dangerousness, the trial court may bar the jury from considering

whether there would be any chance of parole while serving a life sentence.177

The Constitution bars prosecutors and trial judges from misleading juries178 or

from unfairly influencing their decision on capital punishment. Thus in Dawson v.

Delaware,179 the Court vacated Dawson’s death sentence because the state introduced

evidence of his association with the Aryan Brotherhood against him during the

punishment phase of his capital murder trial. Whether such evidence is relevant must

be determined by a context sensitive balancing test. The Court said that the evidence

in Dawson left the belief that the state had introduced the evidence not because of its

relevance to the proceedings, but rather simply “because the jury would find these

beliefs morally reprehensible.”180 For the same reason, it initially concluded that

victim impact statements were unconstitutional and in violation of the Eighth

Amendment,181 a view it adjusted shortly thereafter when it held that victim impact

evidence violates the Constitution only if it is so unduly prejudicial that it renders the

proceedings fundamentally unfair.182 And the same sentiment prevailed when the

Court reversed the death sentence of a convicted murderer who was shackled in leg

irons and handcuffed to a chain around his waist when he faced a Missouri jury during

his sentencing hearing.183 Justice Breyer, writing for the majority, stated that

shackling almost always implies that authorities consider the offender a danger to the

community, a factor juries weigh in considering whether to impose the death

penalty.184

In addition the Court has made clear that a defendant has a constitutional right

to a jury determination of any facts critical to a finding of guilt or to imposition of the

death penalty. In Walton v. Arizona,185 Walton challenged Arizona’s death penalty

statute claiming that Arizona’s sentencing scheme violated the Sixth Amendment

right to a jury trial. Under Arizona law, the judge was allowed without a jury, to find

aggravating factors necessary to sentence the defendant to death instead of life

177

Id. In Rompilla v. Beard, 125 S. Ct. 961 (2005), the Supreme Court granted certiorari

in the case of a Pennsylvania death row inmate who, inter alia, argued that jurors should

have been instructed that life without parole was an option in his sentence. Rompilla cited

Simmons as support for his argument in his brief. The U.S. Court of Appeals for the Third

Circuit ruled against him. On appeal to the Supreme Court, the Court said: “ [b]ecause we

reverse on ineffective-assistance grounds, we have no occasion to consider

Rompilla’s...claim, under Simmons v. South Carolina, 512 U.S. 154 (1994)....It is enough

to say that any retrial of [his] sentence will be governed by the Simmons line of cases.”

Rompilla v. Beard, 125 S. Ct. 2456, 2461, n.1 (2005).

178

Caldwell v. Mississippi, 472 U.S. 320 (1985).

179

503 U.S. 159, 165-67 (1992).

180

Id. at 167.

181

Booth v. Maryland, 482 U.S. 496, 508-9 (1987).

182

Payne v. Tennessee, 501 U.S. 808, 824-26 (1991).

183

Deck v. Missouri, 125 S.Ct. 2007 (2005).

184

Id. at 2014.

185

497 U.S. 639 (1990).

CRS-24

imprisonment. The Supreme Court held that Arizona’s sentencing scheme was

compatible with the Sixth Amendment right to a jury trial in capital cases because

aggravating factors were sentencing considerations and not elements of the crime.186

However, in a non-death penalty case in Apprendi v. New Jersey,187 Apprendi

challenged his enhanced sentence for possession of a firearm because the sentencing

judge, and not a jury, found that his crime had been motivated by racial hatred—an

element of the crime. The Supreme Court held that if a defendant’s sentence can be

increased based on a finding of fact (including an aggravating factor), that fact must

be found by a jury, beyond a reasonable doubt, in order to be consistent with the Sixth

Amendment.188

In Ring v. Arizona,189 the Court addressed the conflict between the Walton and

Apprendi decisions. In Ring, the Court decided that it was unconstitutional for a judge

to find additional facts that would increase a defendant’s sentence when those facts

186

Id. at 648-649. See also, Lockett v. Ohio, 438 U.S. 586 (1977) (Sentencing authorities

must have the discretion to consider every possible mitigating factor, rather than being

limited to a specific list of factors to consider). See also Bell v. Ohio, 438 U.S. 637 (1978);

Godfrey v. Georgia, 446 U.S. 420 (1980) (sent back for retrial several cases on grounds of

too broad and vague an application of the provision stipulating the death penalty if the

offense was “outrageously or wantonly vile, horrible, or inhumane, in that it involved

torture, depravity of mind, or an aggravated battery to the victim”); Beck v. Alabama, 447

U.S. 625 (1980) (struck a portion of Alabama’s death penalty statute that blocked juries

convicting defendants of an included lesser offense rather than the capital crime itself; juries

were required to either convict a defendant of the capital crime or to acquit him); Adam v.

Texas, 448 U.S. 38 (1980) (prospective jurors cannot be excluded from jury service in

capital trials because they would be “affected” by the possibility of a capital sentence);

Hopper v. Evans, 456 U.S. 605 (1982) (upheld the death sentence of a defendant convicted

under the Alabama statute which was partially struck down in Beck v. Alabama; the Court

held that, since a lesser offense was not an issue, the law’s failure to allow for it did not

prejudice the case; i.e., the conviction of a capital prisoner tried under a partially flawed

statute need not be reversed unless it was actually touched by the imperfection); Blystone

v. Pennsylvania, 494 U.S. 299 (1990) (mandatory imposition of the death sentence if the

jury unanimously finds at least one aggravating circumstance and no mitigating

circumstances or aggravating circumstances outweigh the mitigating circumstances); Harris

v. Alabama, 513 U.S. 504 (1995) (judge may impose death sentence over jury

recommendation of life imprisonment); Loving v. United States,517 U.S. 748 (1996)

(aggravating factors are necessary under the Eighth Amendment for validity of the military

capital punishment scheme; based upon being found guilty of three aggravating factors by

the military court, Loving’s sentence of death was lawful and the judgment of the Court of

Appeals of the Armed Forces was affirmed); Summer v. Shuman, 517 U.S. 748 (1987) (held

categorically that mandatory death sentences are unconstitutional; a sentencer cannot make

a judgment based on the facts of the particular case without all of the relevant mitigating

evidence).

187

530 U.S. 466 (2000).

188

Id. at 476.

189

536 U.S. 584 (2002).

CRS-25

include elements of the crime.190 The Court said that a defendant is entitled to a jury

determination of any fact on which the law conditions an increase in his/her maximum

punishment, overruling Walton in relevant part.191

Habeas Corpus Procedures in Capital Cases

The writ of habeas corpus is the procedure by which a federal court inquires into

the illegal detention and, potentially, issues an order directing state authorities to

release the petitioner.192 The Supreme Court has described the function of the writ as

a process “[T]o provide a prompt and efficacious remedy for whatever society deems

to be intolerable restraints. Its root principle is that in a civilized society, government

must always be accountable to the judiciary for a man’s imprisonment: if the

imprisonment cannot be shown to conform with the fundamental requirements of law,

the individual is entitled to his immediate release.”193

On April 24, 1996, President Clinton signed into law the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA).194 Title I of the AEDPA makes

significant changes in the statutes governing federal habeas corpus practice for state

prisoners and enacts a new set of statutes to govern federal habeas corpus practice in

capital cases.195 The Court summarized the effect of Title I of the AEDPA as follows:

Title I of the act stands more or less independent of the act’s other titles in

providing for the revision of federal habeas practice and does two main things.

First, in §§ 101-106, it amends § 2244 and §§2253-2255 of chapter 153 of Title

28 of the United States Code, governing all habeas corpus proceedings in the

federal courts. 110 Stat. 1217-1221. Then, for habeas proceedings against a State

in capital cases, § 107 creates an entirely new chapter 154 with special rules

favorable to the state party, but applicable only if the State meets certain

conditions, including provisions for appointment of post-conviction counsel in

state proceedings. 110 Stat. 1221-1226. In § 107(c), the act provides that

“Chapter 154...shall apply to cases pending on or after the date of enactment of

this act.” 110 Stat. 1226.196

190

Id. at 608-609.

191

Id.

192

J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 2.2 at 15 (3d

ed. 1998). A habeas-like procedure is available to federal prisoners under 28 U.S.C. §2255.

193

Fay v. Noia, 372 U.S. 391, 401-402 (1963).

194

Pub. L. 104-132, 110 Stat. 1214 (1996).

195

28 U.S.C. §§2244-2266.

196

Lindh v. Murphy, 521 U.S. 320, 326-327 (1997) (holding that the AEDPA does not apply

to habeas petitions pending at the time of enactment).

CRS-26

Shortly after passage of the AEDPA, it was challenged and upheld in Felker v.

Turpin197 in several key provisions. Among the most significant reforms in the act are

new tighter filing deadlines, limitations on successive petitions, restrictions on

evidentiary hearings, heightened exhaustion and deference standards and specific

capital case standards.198 Since apparently no state has opted to take advantage of

AEDPA’s special capital procedures (28 U.S.C. ch. 154),199 the AEDPA general

habeas provisions apply to both capital and noncapital cases.

In a case driven by the AEDPA’s statute of limitations, the Court in Bell v.

Thompson200 decided that a three-judge panel of the U.S. Court of Appeals for the

Sixth Circuit erred by withdrawing its decision in a habeas case months after its

original ruling was considered final by the issuance of its original mandate. Initially,

a three-judge panel issued a split decision denying Thompson’s Sixth Amendment

ineffective assistance of counsel claim. The same three judges later unanimously

announced their decision to consider whether this prior ruling was mistaken in view

of available evidence that Thompson was suffering from schizophrenia at the time of

the offense. After reconsidering the case, the Sixth Circuit corrected its earlier

decision and remanded the case to the district court for further proceedings,

concluding that trial counsel had failed to conduct a reasonable investigation of

197

518 U.S. 651 (1996) (barriers to federal relief on successive petitions placed on state

prisoners by the AEDPA do not violate constitutional rights or improperly infringe on the

jurisdiction of the Supreme Court; the Court retains jurisdiction under 28 U.S.C.§§ 2241 and

2254 to hear habeas petitions filed as original matters).

198

Nelson v. Campbell, 541 U.S. 637 (2004) (42 U.S.C. §1983 was the appropriate vehicle

for petitioner’s Eighth Amendment claim seeking a temporary stay of execution and

permanent injunction against use of a procedure wherein a 2-inch incision would be made

into his arm or leg in order to give access to his veins for lethal injection; the claim was not

the functional equivalent of a “second successive” habeas petition subject to the limitations

imposed by the AEDPA); Rhines v. Weber, 125 S. Ct. 1528 (2005) (Although the AEDPA

requires that habeas claims be “exhausted” in order to be considered by a federal court, the

U.S. Supreme Court held that the district court had the discretion to stay the petition to

allow Rhines to present his unexhausted claims to the state court and then return to federal

court for review if the petitioner has good cause for his failure to exhaust his potentially

meritorious claims); Brown v. Payton, 125 S. Ct. 1432 (2005) (the Court reversed the U.S.

Court of Appeals for the Ninth Circuit that the AEDPA required the Ninth Circuit to uphold

Payton’s death sentence; the California Supreme Court had ruled that the jury deciding upon

a possible death sentence need not be told explicitly that it must consider favorable postcrime evidence as a mitigating factor; the Ninth Circuit had set aside Payton’s death

sentence on the basis of the judge’s instructions, holding that the California Supreme

Court’s ruling to the contrary was an unreasonable application of established law; however,

the U.S. Supreme Court ruled that California’s ruling was not an unreasonable application

of established law and therefore the AEDPA dictated that it’s decision must stand).

199

Newton, A Primer on Post-Conviction Habeas Corpus Review, 29 CHAMPION 16, 19

(June, 2005). See also 28 U.S.C. ch. 154 - Special Habeas Corpus Procedures in Capital

Cases regarding appointment of Counsel, limits on stays of execution, time requirements and

tolling rules, State review procedures and limitation periods for determinimg motions. For

a summary of the AEDPA, see CRS Report #96-499A “Antiterrorism and Effective Death

Penalty Act of 1996,” Summary by (name redacted), Senior Specialist.

200

125 S. Ct. 2825 (2005).

CRS-27

Thompson’s social history, failed to present powerful, readily available mitigating

evidence, and failed to pursue known leads that might have helped in preparing the

case for purposes of mitigation. The State of Tennessee challenged the Sixth Circuit’s

power to withdraw its prior decision, especially since Thompson’s case had

progressed to the extent that it had in reliance on the Sixth Circuit’s first opinion.

What is at issue is the authority of a federal appeals court, on the basis of newly

discovered evidence that is favorable to the defense, to change its earlier decision and

order a case reopened as the State is preparing to carry out a death sentence.

The Supreme Court, divided (5-4), did not touch Thompson’s death sentence but

decided that the Sixth Circuit’s decision remanding the case for an ineffective

assistance of counsel hearing was an abuse of discretion. Writing for the majority,

Justice Kennedy concluded that the scheduling of Thompson’s execution was

reasonable and the Sixth Circuit’s actions were an extraordinary departure from

standard procedure. While it was recognized that the Sixth Circuit panel was acting

on honest intentions, the State maintained that, legally, the court was not allowed to

change its mind. The Court noted that with the policies embodied in the Antiterrorism

and Effective Death Penalty Act of 1996 in cases arising from federal habeas corpus

review of a state conviction, the court’s discretion under Rule 41 must be exercised

“in a way that is consistent with the ‘State’s interest in the finality of convictions that

have survived direct review within the state court system’”201

Retroactive Applications

The “...threshold question in every habeas case....” is whether the petitioner’s

claim is defeated by the nonretroactivity of the rule he/she seeks to apply to his/her

petition.202 For federal courts, this question is governed by the rule of Teague v.

Lane.203

201

Id. at 2837 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).

202

Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

203

489 U.S. 288 (1989) (In Teague, the Supreme Court held, “In general,...a case announces

a new rule when it breaks new ground or imposes a new obligation on the States or the

Federal Government....To put it differently, a case announces a new rule if the result was

not dictated by precedent existing at the time the defendant’s conviction became final.” Id.

at 301. Teague allows for retroactivity for two types of new rules as exceptions to the bar:

“(1) new rules that place certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe, and (2) rules that define procedure

implicit in the concept of ordered liberty.” Id. at 307. A new rule qualifies for the latter

exception (and applies retroactively) if it is a watershed rule that implicates the fundamental

fairness and accuracy of the criminal proceeding. Id. at 311-312.

CRS-28

The Supreme Court addressed the rule of retroactivity in a capital sentencing

context in Beard v. Banks.204 In Mills v. Maryland,205 the Court held invalid a capital

sentencing scheme that required juries to disregard mitigating factors that they had not

found unanimously. In Beard, the Court held that the Mills rule does not apply

retroactively. In its analysis, the Court considered whether the rule was dictated by

existing precedent relative to whether the unlawfulness of Mills’ sentence would be

apparent to “all reasonable jurist.” After tracing the jurisprudential roots of the Mills

decision, the Court concluded that reasonable jurists could have differed as to whether

the prior cases compelled the results in Mills. As confirmation, the Court noted that

the Mills case (and a later released case) had dissents.

The Beard Court also provided guidance on the two Teague exceptions. The first

exception is reserved for “primary, individual conduct beyond the power of the

criminal law-making authority to proscribe.”206 This, Beard observes as would

Schriro v. Summerlin207 thereafter, is matter appropriately considered retroactive by

its substantive nature rather than an exception to the procedural Teague rule.208

Elsewhere, the Court has suggested that this exception covers things like “the

execution of mentally retarded...regardless of the procedure followed.”209 “In

providing guidance as to what might fall within [the watershed] exception,” the Court

has repeatedly referred to the rule of Gideon v. Wainwright,210 and only to this rule.211

In contrast to Gideon’s solitary standing, the Court has identified more than a few

decisions concerning procedural rights that may not claim “watershed” status for

Teague purposes.212

204

124 S. Ct. 2504 (2004). Although Teague was not a capital case, its principles apply in

capital cases, Penry v. Lynaugh, 492 U.S. 302, 314 (1989).

205

486 U.S. 367 (1988).

206

Teague v. Lane, 488 U.S. at 307.

207

124 S. Ct. 2519 (2004).

208

Beard v. Banks, 124 S. Ct. at 2513, n.7; Summerlin, 124 S. Ct. at 2522, n.4.

209

Penry v. Lynaugh, 492 U.S. 302, 330 (1989).

210

372 U.S. 335 (1963) (right to counsel).

211

Beard v. Banks, 124 S. Ct. at 2514, citing Saffle v. Parks, 494 U.S. 484, 495 (1990). See

also, Gray v. Netherland, 518 U.S. 152, 171 (1996).

212

Beard v. Banks, 124 S. Ct. at 2515 (“However laudable the Mills rule [relating to capital

punishment schemes precluding jury consideration of mitigating factors not found

unanimously] might be, it has none of the primacy and centrality of the rule adopted in

Gideon. The Mills rule applies fairly narrowly and works no fundamental shift in our

understanding of the bedrock procedural elements essential to fundamental fairness”);

Schriro v. Summerlin, 124 S. Ct. at 2524 (the Ring rule relating to the right to jury

determination of facts required for the imposing of capital punishment is not a watershed

rule); O’Dell v. Netherland, 521 U.S. at 167 (decision recognizing capital defendant’s right

to inform the jury of a life without parole sentencing alternative is not a watershed decision);

Lambrix v. Singletary, 520 U.S. 518, 539-540 (1997) (decision precluding either capital

judge or jury from considering invalid aggravating factors is not a watershed decision);

Saffle v. Parks, 494 U.S. at 495 (proposed rule making invalid any anti-sympathy jury

(continued...)

CRS-29

One of the hallmarks of new Supreme Court decisions is that until their

announcement many of the lower courts are likely to have ruled erroneously on the

issue. The question becomes when may defendants convicted or sentenced on the

basis of these errors claim the benefit of the new decision and have their convictions

or sentences overturned.213 Generally new decisions of the Supreme Court will apply

“retroactively”214 to defendants currently on trial or on direct appeal.215 Also, a

defendant may take advantage, of a new Court rule in a few other limited situations,

for example, decisions which construe a criminal statute to exclude certain acts or

conduct.216 New decisions of the Court sometimes apply “retroactively” to those on

collateral review, and rarely apply “retroactively” to those petitioners on second or

successive collateral reviews.217

International Law Considerations

The Supreme Court granted certiorari in Medellin v. Dretke to determine what

effect U.S. Courts should give to a ruling by the International Court of Justice at the

Hague (ICJ). On May 23, 2005, the Court dismissed its writ of certiorari as

injudiciously granted primarily because President Bush intervened and ordered state

courts to abide by the ICJ ruling.218 The Court noted that there was a likelihood that

Medellin would be back before the Supreme Court once the case runs its course in the

212

(...continued)

instruction would not be a watershed rule).

213

For a general overview, see CRS Report RL32613, Standards For Retroactive

Application Based Upon Groundbreaking Supreme Court Decisions in Criminal Law,

September 28, 2004.

214

Retroactivity deals with new decisions, or changes in the law. Occasionally, a court will

issue a decision which overrules a number of other decisions. Sometimes, these decisions

may provide relief for a defendant who has already been convicted. Generally, the courts

have held that new rules of procedure will not be applied retroactively. Hence, unless the

case is on direct appeal at the time of the decision is rendered, the defendant cannot take

advantage of it.

215

In a direct appeal, the court is limited to reviewing the record from the trial court. It will

not consider evidence which was not submitted. In habeas corpus the same limitations are

not present, and the court may consider additional evidence. In direct appeal, almost any

violation of the law may be addressed. This can include violations of statutes and rules. In

contrast, habeas corpus is generally limited to constitutional claims. As a result, the

violation of statutes or rules cannot generally be a basis for relief in a habeas proceeding.

216

Bousley v. United States, 523 U.S. 614, 620-21 (1998).

217

Schriro v. Summerlin, 124 S. Ct. 2519, 2522 (2004).

218

125 S. Ct. 2088 (2005) (the World Court [the International Court of Justice] ordered new

hearings in U.S. courts for Ernesto Medellin and 50 other Mexican nationals because, at the

time of their arrests, local police had not informed them of their rights to seek help from

Mexican consulates, in violation of the Vienna Convention on Consular Relations. Medellin

was sentenced to death for participating in the murder and rape of two girls in 1993).

CRS-30

Texas court and the losing party appeals.219 The case is significant because of its

implications for the World Court and U.S. foreign relations and the ongoing Supreme

Court debate over the relevance and effect of international law on the Court’s

decisions.

219

Id. at 2090 n.1.

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.