Capital Punishment: Selected Opinions of Justice O'Connor

Order Code RS22224

August 17, 2005

CRS Report for Congress

Received through the CRS Web

Capital Punishment: Selected Opinions of

Justice O’Connor

name redacted

Legislative Attorney

American Law Division

Summary

An examination of Justice O’Connor’s opinions on capital punishment reveals a

case-by-case approach showing a general support for the death penalty’s

constitutionality. However, the opinions also reveal a careful review of the

administration of the death penalty by the States. Justice O’Connor’s evolving

skepticism about capital punishment has played a significant role in many key decisions

regarding the death penalty throughout her twenty-four years on the United States

Supreme Court. This report briefly surveys selected decisions of retiring Justice Sandra

Day O’Connor in death penalty cases, an area where her opinions have frequently

determined the outcome. This report will not be updated.

Justice O’Connor provided the swing vote in many key capital punishment cases,

and her pending departure may have a significant impact on the Court’s death penalty

jurisprudence in the coming years. Justice O’Connor’s skepticism about the States’

imposition of capital punishment swayed the Court’s 2002 vote prohibiting the execution

of killers with mental retardation. She has also ruled in favor of defendants alleging

ineffective assistance of counsel.

Categories of Killers Who Cannot Be Executed

In a series of cases, the U.S. Supreme Court has ruled that the Eighth Amendment

bars execution of certain categories of offenders. The test is whether the death penalty

in those categories is cruel and unusual punishment, measured against the “evolving

standards of decency that mark the progress of a maturing society.”1 In Penry v.

1

Penry v. Lynaugh, 492 U.S. 302, 3000-31 (1989). The Court considers whether there is a

national consensus against executions in a particular category by looking at State legislation,

public opinion polls, and the actions of sentencing juries. The Court also asks whether the death

penalty applied to the particular category of offenders serves the goals of deterrence and

retribution. In 2002, Justice O’Connor silently joined the opinion of the Court overruling

Lynaugh and holding that a national consensus existed that the execution of the mentally retarded

(continued...)

Congressional Research Service ˜ The Library of Congress

CRS-2

Lynaugh,2 Justice O’Connor, writing for the majority, found that no national consensus

existed to justify preclusion of the execution of a moderately retarded person.3 Arguably,

this case shows Justice O’Connor’s general support for the constitutionality of the death

penalty. For example, she dissented from the majority’s decision to establish “a

categorical rule forbidding the execution of any offender for any crime committed before

his 18th birthday, no matter how deliberate, wanton, or cruel the offense.”4

However, Justice O’Connor did write and join some opinions that limited a State’s

ability to impose the death penalty on some types of defendants and through certain

means. For example in Nelson v. Campbell,5 writing for the majority, Justice O’Connor

allowed a State prisoner to proceed with a Section 1983 challenge to the constitutionality

of the State’s lethal injection method. In Penry v. Johnson,6 Justice O’Connor wrote the

majority opinion that held that the Constitution requires a criminal jury in a capital case

to be able to give effect to mitigating circumstances of mental retardation and childhood

abuse. Conversely, Justice O’Connor dissented from a narrowly-divided Court’s holding

that the execution of criminals who merely aid and abet a felony resulting in murder by

co-criminals (felony murder) but who do not intend or attempt to kill anyone was

unconstitutional.7

The Court has also ruled, by a one-vote margin, that the Eighth Amendment bars the

death penalty for crimes committed by persons under the age of sixteen because the death

penalty provides little deterrence and is disproportionate to the criminal’s guilt.8 In 1988,

1

(...continued)

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

2

492 U.S. 302 (1989).

3

See, Ford v. Wainwright, 477 U.S. 399, 422 (1986)(banning execution of any prisoner who

cannot comprehend, and is unaware of his or her impending execution and the reason for

it)(Justice O’Connor dissenting).

4

Roper v. Simmons, 125 S.Ct. 1183,1205 (2005).

5

541 U.S. 637 (2004).

6

532 U.S. 782 (2001).

7

Enmund v. Florida, 458 U.S. 782 (1982)(5-4 vote, with Justice O’Connor dissenting)(ruling that

in order to be eligible for the death penalty, a defendant either had to kill, attempt to kill, or

intend to kill); see also, Cabana v. Bullock, 474 U.S. 376 (1986)(reversing death sentence 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); but see, Tison v.

Arizona, 481 U.S. 137 (1987)(easing “intent to kill” qualification and allowing execution of a

criminal for felony murder when he did not inflict the fatal wound and did not intend to kill but

was recklessly indifferent.).

8

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

age at which the death penalty could be imposed. She noted that sentencing a 15-year-old under

the Oklahoma statute was inconsistent with the standard for special care and deliberation required

in death penalty cases. 487 U.S. at 856-58.

CRS-3

a plurality held that the national consensus required that rule.9 The following year, a 5-4

majority (including Justice O’Connor) upheld the death penalty for crimes committed at

ages sixteen or seventeen.10

Habeas Corpus11

Justice O’Connor’s case-by-case approach is also evident in her habeas-related

opinions in capital cases. On occasion, she joined in opinions upholding the rights of

habeas petitioners.12 For example in Tennard v. Dretke,13 writing for the majority, Justice

O’Connor found that a habeas petitioner was entitled to a certificate of appealablity on his

claim that the State’s capital sentencing scheme did not give him constitutionally adequate

means to present evidence of his low IQ during the penalty phase of the capital case.

However, she also authored and joined several important decisions that, taken together,

arguably, construed her Teague v. Lane14 retroactivity rule in a way that benefits the State

and disadvantages the habeas petitioner.15

9

Thompson v. Oklahoma, 487 U.S. 815 (1988).

10

Stanford v. Kentucky, 492 U.S. 361 (1989). This case was subsequently overturned by Roper

v. Simmons, 125 S.Ct. 1183 (2005) with Justice O’Connor dissenting.

11

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.

12

See e.g., Bradshaw v. Stumpf, 125 S.Ct. 2398 (2005)(remanding case to the Sixth Circuit for

it to consider the effect of the prosecutor’s inconsistent theories on the death sentence.); Tennard

v. Dretke, 542 U.S. 274 (2004); Nelson v. Campbell, 541 U.S. 637 (2004)(finding that 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 two-inch

incision would be made into his arm or leg 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 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)(Pub.

L. 104-132, 110 Stat. 1214 (1996)).

13

542 U.S. 274 (2004).

14

489 U.S. 288 (1989)(holding that a novel interpretation of the Constitution (a “new rule”)

generally cannot be applied retroactively against the States during federal habeas review of State

convictions since State courts could not be expected to defer to those rules not in existence when

their consideration became final.). 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 311-12. Although Teague

was not a capital case, its principles apply in capital cases. Penry v. Lynaugh, 492 U.S. 302, 314

(1989)(extending the application of the Teague “new rule” principle to capital punishment cases).

15

See e.g., Shriro v. Summerlin, 542 U.S. 348 (2004)(finding that the rule relating to the right to

jury determination of facts required for the imposition of capital punishment is not a watershed

rule and therefore need not be applied retroactively); O’Dell v. Netherland, 521 U.S. at 167

(recognizing capital defendant’s right to inform the jury of a life without parole sentencing

alternative is not a watershed decision); Beard v. Banks, 542 U.S. 406 (2004)(providing guidance

on the two Teague exceptions); Tyler v. Cain, 533 U.S. 56 (2001); Lockhart v. Fretwell, 506 U.S.

(continued...)

CRS-4

Ineffective Assistance of Counsel

Justice O’Connor tended to take a skeptical approach to defendants’ claims of

ineffective assistance of counsel. She authored the Court’s opinion in Strickland v.

Washington,16 which established the current standard for ineffective assistance of counsel.

Writing for the majority, Justice O’Connor stated:

An error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgement of a criminal proceeding if the error had no effect on the

judgement . . . Judicial scrutiny of counsel’s performance must be highly deferential.

It is all too tempting for a defendant to second-guess counsel’s assistance after a

conviction or adverse sentence, and it is all too easy for a court examining counsel’s

defense after it has proved unsuccessful, to conclude that a particular act or omission

of counsel was unreasonable. A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstance of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel’s conduct falls

within the wise range of reasonable professional assistance; that is, the defendant must

overcome the presumption that under the circumstances, the challenged action might

be considered sound trial strategy.17

When applying the Strickland standard to the facts of subsequent cases, Justice

O’Connor did not find ineffective assistance of counsel as often as other Court members.

For example, in Coleman v. Thompson,18 Justice O’Connor wrote the Court’s opinion not

finding ineffective assistance of counsel in a case where the lawyer for a death-sentenced

murderer missed the deadline for filing a state habeas appeal by a couple of days. The

question facing the Justices was whether this error in State court should cost Coleman the

right to present his constitutional claim in Federal Court. In the Court’s opinion, because

Coleman was not constitutionally entitled to a lawyer for his appeal in the first place, he

also could not complain that the lawyer he had, in fact, retained was incompetent.19

However, she did cast the deciding vote to uphold an ineffective assistance claim based

15

(...continued)

364 (1993)(concurrence).

16

466 U.S. 668 (1984).

17

Id. at 689-91.

18

501 U.S. 722 (1991).

19

Justice O’Connor wrote: “This is a case about federalism. It concerns the respect that federal

courts owe the States and the States’ procedural rules when reviewing the claims of state

prisoners in federal habeas corpus” claims. Id. at 726. This decision was based on an earlier

ruling, Murray v. Giarratano, 492 U.S. 1 (1989) in which Justice O’Connor cast the decisive fifth

vote. Justice O’Connor has also joined in additional decisions regarding ineffective assistance

of counsel. See also, Bell v. Thompson, 125 S.Ct. 2825 (2005)(finding that failure to consult

defendant’s legal, military, medical and prison records for evidence of mental illness is not

ineffective assistance of counsel); Florida v. Nixon, 125 S.Ct. 551 (2004)(finding that failure to

obtain defendant’s consent to pleading guilty at guilt phase of capital trial does not automatically

render performance deficient); Roe v. Flores-Ortega, 528 U.S. 470 (2000)(finding that failure

to file notice of appeal is not ineffective assistance of counsel.).

CRS-5

on trial counsel’s failure to examine records of the defendant’s prior conviction for rape

and assault at the sentencing phase of the defendant’s capital murder trial.20 In Wiggins

v. Smith,21 Justice O’Connor, writing for the Court remarked that “[a]ny reasonably

competent attorney would have realized that pursuing such leads was necessary to making

an informed choice about possible defenses, particularly given the apparent absence of

aggravating factors from Wiggins’ background.”22 Because the trial attorney failed to

conduct even a minimally adequate mitigation investigation into Wiggins’ past, the jury

was robbed of the opportunity to review Wiggins’ social history. As such, the Court

concluded that it was quite reasonable to assume that the jury would have reached a

different sentence had they knew of such evidence.23

In Rompilla v. Beard,24 the Court held that even when a capital defendant’s family

members and the defendant himself have suggested that no mitigating evidence is

available, the defendant’s counsel is still bound to make reasonable efforts to obtain and

review material that counsel knows the prosecution will probably rely on as evidence of

aggravation at the sentencing phase of trial. The Court found that the defense counsel’s

failure to examine the file on the defendant’s prior conviction for rape and assault at the

sentencing phase of a capital murder trial fell below the level of reasonable performance.

In addition, the Court concluded that such failure was prejudicial to the defendant,

warranting habeas relief on grounds of ineffective assistance of counsel.

Justice O’Connor wrote a separate concurrence in which she explained the three

circumstances that made trial counsel’s failure to examine Rompilla’s prior conviction

file unreasonable. The first circumstance was Rompilla’s attorneys’ knowledge “that their

client’s prior conviction would be at the very heart of the prosecution’s case.”25 Second

was the destructive impact that the prosecutor’s planned use of the prior convictions

threatened to have on “one of the defense’s primary mitigation arguments.”26 The final

circumstance was that “the attorneys’ decision not to obtain Rompilla’s prior conviction

file was not the result of an informed tactical decision about how the lawyers’ time would

best be spent.”27

Jury’s Role in Capital Sentencing

In Simmons v. South Carolina,28 Justice O’Connor, writing for the majority 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.

20

See, Wiggins v. Smith, 539 U.S. 510 (2003).

21

539 U.S. 510 (2003).

22

Id. at 511.

23

Id. at 538.

24

125 S.Ct. 2456 (2005).

25

Id. at 2470.

26

Id.

27

Id.

28

512 U.S. 154 (1994)

CRS-6

In addition, the 14th Amendment’s Due Process Clause bars prosecutors and trial judges

from misleading juries.29 In a series of 5-4 decisions, Justice O’Connor joined the

Court’s more conservative bloc in refusing to extend the Simmons rule. For example, in

Calderon v. Coleman,30 the Court held that even if a jury instruction failed to meet

constitutional standards, the defendant must carry the burden of proving that a properly

informed jury would have voted for a life sentence instead of the death penalty. Also, in

Ramdass v. Angelone,31 the Court found that a jury need not be informed that the

defendant probably would not be eligible for parole if he receives a life sentence.

29

Caldwell v. Mississippi, 472 U.S. 320 (1985)(finding that it is constitutionally impermissible

to mislead a jury as to its role in determining a death sentence).

30

525 U.S. 141 (1998).

31

530 U.S. 156 (2000).

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

copyright on any CRS report we have republished.