Capital Punishment Issues in the U.S. Supreme Court

III.  The 8th Amendment as a Source of Procedural Law

• The Requirement of “Guided Discretion” –To help ensure the proper exercise of capital sentencing discretion, and to avoid the abuses found in Furman, state death penalty statutes must “guide” the discretion of the sentencer (i.e., the jury, unless waived by the defendant) by providing a statutory list of “aggravating circumstances” and also by requiring the sentencer to consider the full range of possible “mitigating circumstances” raised by the defendant or by the evidence. Cases include:
   
  1. Gregg v. Georgia, 428 U.S. 153 (1976) [FindLaw] [Lexis] – Georgia’s “guided discretion” death penalty system, with statutory lists of aggravating circumstances, OK under the 8th Amendment.  See also Proffitt v. Florida, 428 U.S. 242 (1976) [FindLaw] [Lexis]; Jurek v. Texas, 428 U.S. 262 (1976) [FindLaw] [Lexis].
      
  2. Woodson v. North Carolina, 428 U.S. 280 (1976) [FindLaw] [Lexis] – North Carolina’s “mandatory” death penalty system, which removes all discretion from the sentencer, invalid under the 8th Amendment.  See also Roberts v. Louisiana, 428 U.S. 325 (1976) [FindLaw] [Lexis].
      
  3. McCleskey v. Kemp, 481 U.S. 279 (1987) [FindLaw] [Lexis] – Georgia death penalty system upheld against Equal Protection and 8th Amendment claim of racial discrimination based on the race of the victim; U.S. Supreme Court extols the virtue of discretion in capital sentencing (and criminal cases generally), despite the fact that such discretion can lead to abuse.
      
  4. Sumner v. Shuman, 483 U.S. 66 (1987) [FindLaw] [Lexis] – Nevada’s “mandatory” death penalty for murder committed by someone already serving life in prison invalid under the 8th Amendment.
      
  5. Walton v. Arizona, 497 U.S. 639 (1990) [FindLaw] [Lexis] – State can impose the burden of proof on the defendant to prove mitigating circumstances.  NOTE – Walton also held that it was OK, under the 8th Amendment, for a judge rather than a jury to decide the existence of aggravating circumstances; this part of Walton was later overruled by Ring v. Arizona, 536 U.S. 584 (2002) [FindLaw] [Lexis], holding that the defendant has a 6th Amendment right (unless waived) to a jury determination of all factual matters necessary for the imposition of a death sentence.
      
  6. Blystone v. Pennsylvania, 494 U.S. 299 (1990) [FindLaw] [Lexis], and Boyde v. California, 494 U.S. 370 (1990) [FindLaw] [Lexis] – States can require the sentencer to impose the death penalty when the sentencer finds at least one aggravating circumstance but no mitigating circumstance, or when the sentencer finds that the aggravating circumstances outweigh the mitigating circumstances.
      
  7. Tuilaepa v. California, 512 U.S. 967 (1994) [FindLaw] [Lexis] – California death penalty system OK under the 8th Amendment despite the absence of any requirement that the trial judge explain to the jury whether particular factors are aggravating or mitigating.
      
  8. Buchanan v. Angelone, 522 U.S. 269 (1998) [FindLaw] [Lexis] – Defendant, in a capital case, is not entitled to a jury instruction explaining the concept of “mitigating circumstances,” nor is he entitled to a jury instruction directing the jury to consider specific mitigating factors proffered by the defendant.
      
  9. Brown v. Sanders, 546 U.S. 212 (2006) [FindLaw] [Lexis], replacing the prior 8th Amendment “harmless error” rules established by Zant v. Stephens, 462 U.S. 862 (1983) [FindLaw] [Lexis]; Barclay v. Florida, 463 U.S. 939 (1983) [FindLaw] [Lexis]; and Stringer v. Black, 503 U.S. 222 (1992) [FindLaw]  [Lexis] – If one or more aggravating circumstances are held invalid on appeal, the appellate court should reverse the death sentence (because the invalid factor(s) may have affected the sentencer’s weighing process), “unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.”
      
     
• The Information Presented to the Sentencer – The U.S. Supreme Court has placed strict controls on the kinds of information (e.g., aggravating and mitigating circumstances) presented to the sentencer in death penalty cases, and has also strictly regulated jury instructions. Cases include:
   
  1. Godfrey v. Georgia, 446 U.S. 420 (1980) [FindLaw] [Lexis]; Maynard v. Cartwright, 486 U.S. 356 (1988) [FindLaw] [Lexis]; Walton v. Arizona, 497 U.S. 639 (1990) [FindLaw] [Lexis]; Arave v. Creech, 507 U.S. 463 (1993) [FindLaw] [Lexis] – “Catch-all” aggravating circumstances (e.g., the murder was “unusually heinous, atrocious, and cruel”), which could potentially apply to all murders, must be “narrowed” by state courts or legislatures in order to be valid.
      
  2. Payne v. Tennessee, 501 U.S. 808 (1991) [FindLaw] [Lexis], overruling in part Booth v. Maryland, 482 U.S. 496 (1987) [FindLaw] [Lexis] –States may allow “victim impact” testimony in capital cases, describing the victim and the impact of the crime on the victim’s survivors; however, under Booth, such testimony cannot include the opinion of the survivors that the defendant should receive the death penalty (this portion of Booth was not overruled by Payne). Note: Three Justices recently dissented to the denial of certiorari. in a case raising the question of how victim impact evidence can be presented. In Kelly v. California, 129 S.Ct. 564 (2008) (cert. denied), Justice Stevens argued that presentation of a video “montage” of the victim’s life narrated by her mother and with Enya music in the background went too far. The lower court opinion had found some elements objectionable (like the Enya music and an end scene with horse back riders riding off into the mountains) but no reversible error. People v. Kelly, 171 P.3d 548 (Cal. 2007) [FindLaw] (reviewing cases examining limits on presentation of VIE in death penalty cases).
      
  3. Lockett v. Ohio, 438 U.S. 586 (1978) [FindLaw] [Lexis]; Eddings v. Oklahoma, 455 U.S. 104 (1982) [FindLaw] [Lexis]; Skipper v. South Carolina, 476 U.S. 1 (1986) [FindLaw] [Lexis] – States cannot limit the defendant’s presentation, at the sentencing phase of a capital trial, of “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.” But see Justice Scalia’s opinion in Walton, supra, calling for reconsideration of Lockett.
      
  4. Smith v. Texas, 543 U.S. 37 (2004) [FindLaw] [Lexis]; Penry v. Johnson, 532 U.S. 782 (2001) [FindLaw] [Lexis]; Penry v. Lynaugh, 492 U.S. 302 (1989) [FindLaw] [Lexis] – State death penalty systems must allow the sentencer to give full consideration to all mitigating circumstances.
      
  5. Mills v. Maryland, 486 U.S. 367 (1988) [FindLaw] [Lexis]; McKoy v. North Carolina, 494 U.S. 433 (1990) [FindLaw] [Lexis] – States cannot require jury unanimity with respect to the existence or weight of particular mitigating circumstances. PENDING: In Smith v. Spisak, No. 08-724 (oral arguments held October 13, 2009), the U.S. Supreme Court will review whether the 6th Circuit properly found “Mills error” on habeas review.
      
  6. California v. Brown, 479 U.S. 538 (1987) [FindLaw] [Lexis] – States can require the trial judge to give an “anti-sympathy” jury instruction, so long as it does not prevent the jury from giving full consideration to all mitigating circumstances.
      
  7. Beck v. Alabama, 447 U.S. 625 (1980) [FindLaw] [Lexis] – In a capital case, the defendant is entitled to a jury instruction on all possible lesser-included offenses.
      
  8. California v. Ramos, 463 U.S. 992 (1983) [FindLaw] [Lexis] – A capital jury can be instructed about the possibility that a defendant sentenced to life in prison without possibility of parole might nevertheless have his sentence commuted.
      
  9. Kelly v. South Carolina, 534 U.S. 246 (2002) [FindLaw] [Lexis]; Shafer v. South Carolina, 532 U.S. 36 (2001) [FindLaw] [Lexis]; Ramdass v. Angelone, 530 U.S. 156 (2000) [FindLaw] [Lexis]; Simmons v. South Carolina, 512 U.S. 154 (1994) [FindLaw] [Lexis] – If “future dangerousness” is an issue under state law in a capital case, and if the alternative sentence is life in prison without possibility of parole, the jury must be instructed about the LWOP alternative. NOTE – These cases were decided under due process, not the 8th Amendment, although their application is clearly limited to capital cases only.
      
  10. Jones v. United States, 527 U.S. 373 (1999) [FindLaw] [Lexis] – Capital defendant is not entitled, under the 8th Amendment, to a jury instruction explaining the consequences of a jury deadlock.
       
  11. Oregon v. Guzek, 126 S. Ct. 1226 (2006) [FindLaw] [Lexis]; Franklin v. Lynaugh, 487 U.S. 164 (1988) [FindLaw] [Lexis] – State is not required, under the 8th Amendment, to allow the defendant at the sentencing phase of a capital trial to introduce evidence tending to show his innocence of the crime, at least where he could ask the jury at sentencing to reconsider the evidence presented at the guilt-innocence phase.
       
      
• The Sentencer’s Sense of Personal Responsibility for the Decision – The U.S. Supreme Court has insisted that the sentencer in a capital case not be misled into believing that the ultimate responsibility for the choice of punishment lies elsewhere. Cases include:
   
  1. Caldwell v. Mississippi, 472 U.S. 320 (1985) [FindLaw] [Lexis] – The prosecutor cannot make a closing argument, at a capital sentencing hearing, that would erroneously diminish the jury’s sense of personal responsibility for the capital sentencing decision; the prosecutor may not mislead the jury into believing that its sentencing decision is not really final because the appellate courts will ultimately determine the proper sentence, where state law actually requires such appellate courts to defer to the jury’s sentencing decision.
      
  2. Spaziano v. Florida, 468 U.S. 447 (1984) [FindLaw] [Lexis] – Florida’s death penalty system, which divides the capital sentencing responsibility between the trial judge and the jury, and which allows the trial judge to impose a death sentence despite the jury’s recommendation of a life sentence, OK under the 8th Amendment.
      

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