6. Capital Punishment

The acceptance of capital punishment, or the death penalty, as a sentence for heinous criminal acts has been hotly debated across the nation over the last few decades. On the books in most states, the death penalty has been challenged by many, originally on grounds that it violated the Constitutional prohibition against cruel and unusual punishment, and later on the procedural grounds that there were not enough due process protections for defendants accused of capital crimes. In general, it was held that since the sentence was so severe, the law must impose the strictest standards of proof to sentence a defendant to death. Consequently, many states have gone through periods in which the death penalty was held as legal, then illegal, then revised and held as legal, then illegal again, and then further revised and held as legal once more. This shifting status often brought unbalanced—unjust—sentencing. For instance, in many of these states one of two defendants accused of identical unrelated crimes committed within weeks of each other drew the death sentence while the other did not, merely because the statute under which they were sentenced was ruled unconstitutional in the intervening time.

The Supreme Court has since handed down explicit guidelines defining the legal imposition of the death penalty, allowing states a new opportunity to legislate a legal death penalty statute that is less likely to be ruled unconstitutional in the future. This does not mean that the process is not still open to attack. As of this writing, new cases on the death penalty are currently wending their way through the courts to the Supreme Court.

Thirty-eight states currently have death penalty statutes on the books. In a few states, the statute remains on the books though it has been declared unconstitutional. In some of these cases, the state legislature can either revise or rewrite the death penalty statute if it chooses to make it the law.

There are twelve states that authorize the death penalty for non-homicide crimes. Of note is California, often known for its radical politics, which lists treason as a capital crime. Other common non-homicide capital offenses are kidnapping, hijacking, and other serious crimes that involve hostage-taking or placing a victim in extreme danger.

In the last five years, the method of execution has become the most controversial element of death penalty statutes. Five states have changed their method of execution. While five states, Alabama, Georgia, Kentucky, New York, and Ohio, have changed from electrocution to lethal injection. Georgia, however, is an interesting case. In the last edition of this book it was noted that Georgia had switched from lethal injection to electrocution. In the intervening three years since then, they have switched back to lethal injection. Georgia’s recent changes in laws is an excellent example of the passionate thinking about this very grave aspect of penal law.

Some states have very complicated criminal statutes; therefore, the following tables may contain less information on some states if nothing explicit can be determined from the state statute alone. Occasionally it is necessary to consult lists or sentencing guidelines that are not part of the code to determine these rules.

CAPITAL PUNISHMENT

The lawful infliction of death as a punishment; the death penalty.

Bell v. Cone

The U.S. Supreme Court has made clear that state courts may not impose capital punishment where juries have used vague criteria in making their death penalty determinations. To satisfy the Court's requirements under the Eighth Amendment's Cruel and Unusual Punishment Clause, state courts have had to impose "narrowing constructions" on terms such as "heinous," "atrocious," and "cruel." Such constructions have been applied since the early 1980s, yet legal questions have persisted. In the latest case, Bell v. Cone, __U.S. __, 122 S.Ct. 847, __L.Ed.2d __ (2005), the U.S. Supreme Court ruled that a state appeals court's upholding of a death sentence, which had been based on a jury's finding that the murders were "especially heinous, atrocious or cruel," was not contrary to clearly established Supreme Court precedent.

Gary Cone was convicted of murdering Shipley Todd, 93, and his wife, Cleopatra, 78, in 1980. Cone had repeatedly beaten the elderly couple about the head. Blood had been spattered throughout the house, both victims had apparently resisted, and the deaths were not instantaneous. It was clear that one of the victims had been killed before the other, which suggested that the victims suffered terror and fright during their final minutes of life. Following Cone's conviction, the jury heard evidence during the penalty phase to determine whether Cone should be sentenced to death. The jury found that Cone should receive the death penalty based on four aggravating circumstances, including the fact that the murders were "especially heinous, atrocious, or cruel in that they involved torture or depravity of mind." The Tennessee Supreme Court upheld Cone's conviction and death sentence. As to the "heinous, atrocious, or cruel" aggravating circumstance, the court found ample support in the way Cone had brutally beaten the couple and in the fact the victims had not died instantaneously. The elderly victims had apparently refused to cooperate with Cone as he ransacked their house; in addition, Cone had not raised the issue of self-defense.

Cone filed post-conviction petitions in the state courts, alleging that the "especially heinous, atrocious, or cruel" aggravating circumstance was unconstitutionally vague under the Eighth Amendment. However, the state courts refused to hear these appeals because this issue had not been raised in his original appeal. Cone then filed for a writ of habeas corpus in federal district court , asserting the same constitutional argument. The district court ruled that Cone was procedurally barred from raising this issue because he had not raised it in his state-court direct appeal. Cone appealed this ruling to the U.S. Court of Appeals for the Sixth Circuit, which agreed with his Eighth Amendment claim. The Sixth Circuit concluded that the Tennessee Supreme Court had not applied a "narrowing construction" of the "especially heinous, atrocious, or cruel" aggravating circumstance, which meant that the jury could have imposed the death penalty based on subjective interpretations of these terms.

The Supreme Court, in a unanimous decision, overturned the Sixth Circuit's decision. In a per curiam opinion (i.e., an opinion not signed by any of the justices), the Court found that the state supreme court had properly narrowed the construction of the aggravating circumstance. Under the precedent of Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), federal courts must determine whether the state courts have sufficiently defined the vague terms to give proper guidance to the sentencing juries. The Sixth Circuit had found no evidence that the Tennessee Supreme Court had mentioned a narrowing interpretation or that it had cited a previous Tennessee case that had done so. The U.S. Supreme Court disagreed. The Court noted that it applied a "highly deferential standard" to state court rulings and that it gave state courts the benefit of the doubt in close cases. In this case, the Sixth Circuit was not "free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation." Although the Tennessee Supreme Court had not cited a previous case that dealt with the "especially heinous, atrocious, or cruel" aggravating circumstances, it was clear that the court had implicitly used this decision in analyzing Cone's case.

The Supreme Court found more importance in the fact that the Tennessee Supreme Court had applied a narrower construction of the terms of the aggravating circumstances. The state court's decision had "closely tracked" its previous reasoning for affirming death sentences where it had applied a narrowed construction of the "heinous, atrocious, or cruel" language. The brutality of Cone's crime and the fact that the victims had not died instantly was cited by the state supreme court in the same way as previous decisions narrowing the construction of the terms. Finally, Cone's particular acts were within the meaning of torture as found in the aggravating-circumstances category. Therefore, the state supreme court had applied its narrowed construction constitutionally.

Bell v. Thompson

A key component of the U.S. judicial system is finality: once litigants have exhausted all their appeal rights and have lost, a final judgment must be entered that signifies the end of the case. In the federal system a final judgment is called a mandate and the Federal Rules of Appellate Procedure give clear direction when mandates must be filed by courts. In Bell v. Thompson, __U.S. __, __ S.Ct.__, __ L.Ed.2d __ 2005 WL 1499791 (2005), the Supreme Court ruled that a federal appeals court abused its discretion when it failed to enter a mandate after the Supreme Court denied review of a death penalty habeas corpus petition and then issued a new decision that returned the case to the district court for further consideration.

Gregory Thompson was convicted in Tennessee state court for the 1985 murder of a woman and was sentenced to death. Before trial he was judged mentally competent at the time of the offense and at the time of the examination, but a former girlfriend testified at trial that Thompson's behavior had become erratic after he suffered head injuries suffered from a beating while in the Navy. The Tennessee appeals courts upheld his conviction and death sentence and the U.S. Supreme Court declined to hear his case in 1990. Thompson then pursued postconviction appeals based on a claim of ineffective legal counsel at his trial. He contended that his head injuries had diminished his mental capacity and that evidence of this condition should have been presented by experts at his trial.

The Tennessee state courts denied his appeals and in 1999 he filed a petition for a writ of habeas corpus in federal district court. He based his petition on the same grounds but this time he included an examination by a psychologist who conducted an exhaustive review of Thompson's mental condition. The psychologist concluded that Thompson suffered from a bipolar disorder at the time he committed the 1985 murder. The district court denied Thompson's petition, finding that he had not submitted any significant evidence. It turned out that the psychologist's deposition and report had not been filed with the court due to an oversight by Thompson's attorney. The district court rejected Thompson's request to supplement the record with these pieces of evidence, finding the request untimely. On appeal, Thompson's attorney submitted the deposition and report as part of his request that the Sixth Circuit Court of Appeals hold Thompson's appeal in abeyance until the record was supplemented. The appeals court ultimately rejected Thompson's habeas appeal and the Supreme Court denied him review.

Under Rule 41 of the Federal Rules of Appellate Procedure the Sixth Circuit was required to immediately file a mandate upon receipt of the Supreme Court order denying review. The Sixth Circuit received the order in December 2003 but did not enter the mandate. The state of Tennessee, assuming the decision was final, set an execution date of August 19, 2004, for Thompson and a new appeal was commenced over his competency to be executed. On June 23, 2004, seven months after the Supreme Court denied review, the Sixth Circuit panel issued an amended opinion that directed the case be sent back to the district court to examine Thompson's competency. Judge Richard F. Suhrheinrich, in his opinion, noted that he had on his own accord reviewed the entire record and had come to the conclusion that the psychologist's deposition and record were crucial parts of Thompson's case and should be considered by the district court. The state challenged this unusual action and the Supreme Court agreed to review the decision.

The Court, in a 5-4 decision, overturned the Sixth Circuit decision. Justice Anthony Kennedy based the decision on the appeals courts' abuse of judicial discretion. A major concern was the length of time between the denial of Supreme Court review and the issuance of the amended opinion. This delay "was compounded by the Court of Appeals' failure to issue an order or otherwise give notice to the parties that the court was reconsidering its earlier opinion." The state had worked under the assumption that the decision was final and had set an execution date. This, in turn, led to state and federal proceedings on Thompson's behalf challenging his mental competency to be executed. Justice Kennedy noted that the state and Thompson had good reason to believe the case was final, for a denial of review by the Supreme Court "usually signals the end of litigation" and exceptions to entering a mandate were rare.

Justice Kennedy also challenged the argument that the Sixth Circuit had not reviewed the deposition and report prior to Supreme Court review. He noted that the documents had been sent to the appeals court and that the three-judge panel had found all of Thompson's argument unpersuasive. The missing evidence may have been relevant but Kennedy concluded that it was "not of such character as to warrant the Court of Appeals' extraordinary departure from standard appellate procedures." Moreover, there were "ample grounds" to conclude that this evidence would not have altered the outcome of the district court's decision. Therefore, the Court reversed the Sixth Circuit decision.

Justice Stephen Breyer, in a dissenting opinion joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, argued that the appellate judge had done the right thing to prevent a miscarriage of justice.

Bradshaw v. Stumpf

On June 13, 2005, the U.S. Supreme Court upheld the murder conviction of John David Stumpf, who was sentenced to death in 1984. The Court reversed a decision of a panel of the U.S. Court of Appeals for the Sixth Circuit, which had ordered an Ohio district court to issue a writ of habeas corpus in order to review the conviction. The Supreme Court remanded the case in order for the Sixth Circuit to determine whether the imposition of the death penalty had been warranted.

In May 1984, Stumpf met with Clyde Daniel Wesley and Norman Leroy Edmonds at a bar in Washington, Pennsylvania. Wesley and Edmonds had previously stolen a car in Oklahoma and had weapons and alcohol in their possession in the car. After leaving the bar, the men decided to drive to Ohio, and they continued to drink along the way. At one point during the drive, Wesley shot at the driver of another car. Upon arriving in New Concord, Ohio, the men stopped the car along an interstate highway. Stumpf and Wesley told Edmonds that they needed to make a phone call. They approached the home of Norman and Mary Jane Stout, who lived 100 to 150 yards from the road. Ohio v. Stumpf, 512 N.E.3d 598, 600 (Ohio 1987).

Wesley and Stumpf asked whether they could use the Stouts' telephone. Norman Stout allowed them to do so. After a short time, Wesley and Stumpf pointed pistols at the Stouts and moved them into their bedroom. Wesley proceeded to rob the house while Stumpf kept the Stouts at gunpoint. At one point, Norman Stout approached Stumpf, and Stumpf responded by shooting Stout between the eyes with a .25-caliber Raven automatic pistol. Stout did not die, and he continued to approach Stumpf. Stumpf struck Stout with the butt of the gun and hit him with another shot, rendering Stout unconscious. As Stout regained consciousness, he heard four shots, which killed Mary Jane Stout. Ohio v. Stumpf, 512 N.E.3d 598, 601 (Ohio 1987).

Stumpf and Wesley stole the Stouts' car and fled. Stumpf discarded the pistol that he had used in the robbery and murder. Edmonds, who was still in the car on the highway at the time of the shooting, left after he saw a car leaving the Stouts' house. He made a phone call to his family in Texas and then returned to Pennsylvania. Edmonds, Stumpf, and Wesley reunited in Pennsylvania shortly thereafter. Ohio v. Stumpf, 512 N.E.3d 598, 600 (Ohio 1987).

Edmonds' call to Texas was traced, and authorities arrested him. He told police what he knew. Authorities issued an arrest warrant for Stumpf and Wesley. After learning of the warrant, Stumpf surrendered to authorities. He eventually admitted to robbing the Stouts and to shooting Norman Stout, but he denied killing Mary Jane Stout. Stumpf changed his story several times and later denied that he had fired the Raven pistol. Norman Stout, however, identified Stumpf as the one who had done so. Police determined that seven of the eight shots fired in the house had come from that gun, while an additional shot had come from Wesley's Armi .25-caliber pistol. Ohio v. Stumpf, 512 N.E.3d 598, 601-02 (Ohio 1987).

Wesley was discovered and detained in Texas. He resisted extradition to Ohio. While Wesley was still detained in Texas, Stumpf pleaded guilty to aggravated murder and four other counts. A three-judge panel in Ohio state court unanimously found Stumpf guilty of the charges beyond a reasonable doubt . During the sentencing phase, Stumpf claimed that, although he had shot Norman Stout, it was Wesley who had shot Mary Jane Stout while Stumpf had gone to steal the Stouts' car. Nevertheless, the panel sentenced Stumpf to death. Ohio v. Stumpf, 512 N.E.3d 598, 602 (Ohio 1987).

Stumpf appealed his convictions in Ohio courts. Both an Ohio appellate court and the Supreme Court of Ohio affirmed Stumpf's conviction and death sentence. Specifically, the Ohio Supreme Court affirmed the panel's decision that the aggravating circumstances outweighed any mitigating circumstances , and it held that the death penalty in the case was neither excessive nor disproportionate to the penalty as compared to other similar cases. Ohio v. Stumpf, 512 N.E.3d 598, 610 (Ohio 1987). In 1988, the U.S. Supreme Court denied certiorari to review the state court's findings.

Several years after his conviction, Stumpf sought a writ of habeas corpus from the U.S. District Court for the Southern District of Ohio. Stumpf alleged several grounds for relief, including a claim that the Ohio death penalty statute was unconstitutional. The district court denied his petition. Stumpf v. Anderson, No. C-1-96-668, 2001 WL 242585 (S.D. Ohio Feb. 7, 2001).

Stumpf subsequently appealed the district court's decision to the U.S. Court of Appeals for the Sixth Circuit, which reversed the death penalty on several grounds. First, the court found that Stumpf's guilty plea was invalid because Stumpf had been unaware that, in order to be convicted, the specific intent to kill Mary Jane Stout would have been required. The court reviewed a series of exchanges between Stumpf and the judge in his case when he pleaded guilty, and it determined that the exchanges had "all the hallmarks of a serious misunderstanding." Stumpf v. Mitchell, 367 F.3d 594, 606 (6th Cir. 2004). Accordingly, the trial court had failed to inform Stumpf of the elements of the offense for which he pleaded guilty. The Sixth Circuit determined that, had Stumpf been informed of these elements, he would not have entered a guilty plea. Stumpf v. Mitchell, 367 F.3d 594, 610 (6th Cir. 2004).

The court also reviewed the prosecutions of both Stumpf and Wesley in determining whether Stumpf's due process rights had been violated. Prosecutors at Stumpf's trial claimed that Stumpf had shot Mary Jane Stout. However, at Wesley's separate trial, prosecutors maintained the Wesley had been the shooter. The court determined that because the prosecution had used inconsistent and irreconcilable theories to convict both Stumpf and Wesley, the prosecution had violated Stumpf's due process rights. The court remanded the case to the district court, ordering it to issue a writ of habeas corpus in Stumpf's favor. Stumpf v. Mitchell, 367 F.3d 594, 618 (6th Cir. 2004).

Ohio Attorney General Jim Petro filed a petition for writ of certiorari to the U.S. Supreme Court on November 8, 2004. The Court granted the petition on January 7, 2005. In a decision issued on June 13, 2005, the Court reversed the Sixth Circuit's decision. Bradshaw v. Stumpf, __ U.S. __, __ S. Ct. __, __ L. Ed. 2d __, 2005 WL 1383730 (2005)

In a decision by Justice Sandra Day O'Connor, the Court disagreed with the Sixth Circuit that Stumpf had lacked awareness of the elements of the crime for which he was accused. The Court noted that Stumpf's attorneys had explained the elements of the crime to Stumpf and that Stumpf confirmed that his attorneys had informed him of these elements. According to O'Connor, Supreme Court precedent does not require the judge to explain all of the elements of a crime to the defendant. When the defense counsel explains the elements of a crime to the accused, and the accused enters a guilty plea based on this explanation, then the accused has entered a guilty plea with sufficient awareness of the nature of the charges against him or her, the Court has held.

The Court likewise disagreed with the Sixth Circuit's ruling that the prosecutor's use of contradictory theories to convict Stumpf and Wesley had violated Stumpf's due process rights. According to the Court, the precise identity of the shooter was immaterial to Stumpf's conviction for aggravated murder. On the other hand, the Court noted that the use of conflicting theories could have interfered with Stumpf's rights at the sentencing hearing. It thus vacated the Sixth Circuit's ruling on this point and remanded the case to the Sixth Circuit to allow the lower court to determine whether the imposition of the death penalty violated Stumpf's due process rights.

Brown v. Payton

When Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, it sought to streamline post-conviction appeals proceedings and to curtail the time prisoners could use to seek habeas corpus relief. Congress directed that federal courts generally defer to state court judgments on questions of federal constitutional law in criminal cases. AEDPA established a "deference" standard, which mandates that the federal courts, in reviewing state court convictions, defer to a state court ruling on the merits of any habeas claim. A federal court must defer unless the state court adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, or if the state conviction resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Since the passage of AEDPA, the U.S. Supreme Court has been called upon to review the application of these two standards. In Brown v. Payton, __U.S. __, 125 S.Ct. 1432, __ L.Ed.2d __ (2005), the Court held that the U.S. Court of Appeals for the Ninth Circuit had improperly applied both standards in reviewing a death penalty case.

William Payton stood trial in a California court for the 1980 rape and murder of Pamela Montgomery and the attempted murder of a mother and her child. He did not contest his guilt and presented no evidence during that part of the trial. Once the jury had convicted Payton of first-degree murder, it moved into the penalty phase of the trial to determine whether he should be sentenced to death. During that phase, the prosecutor presented evidence showing Payton had stabbed a previous girlfriend and that he had told fellow prisoners while awaiting trial that he had an urge to rape and stab women. Payton's attorney called eight witnesses, who spent most of their time discussing how Payton's behavior had changed during the 21 months he had spent in prison awaiting trial. A number of the witnesses testified that Payton had been very religious, had participated in Bible study classes, and had worked to calm other prisoners down.

Problems arose over the jury instructions and the statements of the prosecutor concerning Payton's postcrime behavior. The defense attorney argued that the judge should issue a specific instruction telling the jury to consider evidence of Payton's character and background. The prosecutor objected, contending that any character and background evidence was irrelevant. The judge opted to use a general instruction that directed jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." During closing arguments, the prosecutor told the jury that the instruction did not mean that they had to consider any of Payton's postcrime behavior. The defense attorney objected, and the judge admonished the jury that the prosecutor's words were merely argument. The judge did not explicitly instruct the jury that the prosecutor's interpretation of the law was wrong. The jury recommended that Payton be sentenced to death.

The California Supreme Court affirmed Payton's conviction and sentences. Payton then pursued post-conviction relief, securing a writ of habeas corpus from a federal district court on the grounds that the general jury instruction misinformed the jury that it could not consider the mitigation evidence. The U.S. Court of Appeals for the Ninth Circuit upheld this decision, holding that the California Supreme Court had unreasonably applied a U.S. Supreme Court precedent in ruling that the jury instruction was not unconstitutionally ambiguous in Payton's case.

The U.S. Supreme Court, in a 5-3 decision (Chief Justice William Rehnquist did not participate due to illness) reversed the Ninth Circuit's decision. Justice Anthony Kennedy, writing for the majority, concluded that the appeals court had not established the necessary grounds under AEDPA to overturn the state court's decision. The U.S. Supreme Court previously addressed the California jury instruction in a case involving precrime mitigating evidence. The California Supreme Court had ruled that this precedent allowed the jury instruction to encompass both precrime and postcrime mitigating evidence. Justice Kennedy thought that the state court did not "act unreasonably in declining to distinguish between precrime and postcrime mitigating evidence." The jury instruction told jurors to consider any circumstance that might excuse the crime. Therefore, it was not unreasonable "to believe that a postcrime character transformation could do so."

Justice Kennedy then turned to whether it was unreasonable for the California Supreme Court to conclude that the prosecutor's improper remarks during closing arguments did not mislead the jury into believing that it should not consider Payton's mitigating evidence. He found that the prosecutor's remarks had not been made in bad faith . In addition, Payton's attorney had already introduced the evidence prior to the closing argument . Although the trial judge should have advised the jury that it could consider the mitigating evidence, Justice Kennedy ruled that the judge's general charge to the jury that it consider all evidence was sufficient. Finally, Kennedy believed that it was not unreasonable for the California court to conclude that the mitigating evidence "was too insubstantial to overcome the arguments for imposing the death penalty."

Justice Stephen Breyer, in a concurring opinion, made clear that he was troubled by the actions at Payton's trial but voted with the majority because the AEDPA mandated such a "deferential test." Justice David Souter,in a dissenting opinion joined by Justices John Paul Stevens and Ruth Bader Ginsburg, argued that the California Supreme Court had improperly and unreasonably applied clear U.S. Supreme Court precedent.

Deck v. Missouri

It has long been the rule in the United States—dating back at least to English common law—that the accused at a capital trial be free of shackles and/or visible signs of restraint during the trial on the merits (the "guilt phase"). In Deck v. Missouri, 544 U.S. __, 125 S.Ct. 2007, __ L.Ed.2d (2005), the U.S. Supreme Court held that the same considerations and reasons (excepting a presumption of innocence) apply to a convicted offender during the "penalty phase of a trial. Accordingly, the Court held that, unless "justified by an essential state interest" that is specific to the defendant on trial, the Fifth and Fourteenth Amendments to the U.S. Constitution forbid the use of visible shackles or restraints during the penalty phase of a capital trial as well.

After Carman Deck robbed and killed an elderly couple, he was convicted of two counts of first-degree murder and four other crimes in a Missouri state court, then sentenced to death. On direct appeal, his convictions and sentences were affirmed. He sought post-conviction relief, and the Missouri Supreme Court remanded the matter for the penalty phase only. At the new sentencing trial, counsel for Deck objected to his appearance in leg shackles, handcuffs, and a belly chain, expressly moving to strike the jury panel "because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is…violent today." Counsel's objections were overruled, and Deck was again sentenced to death.

The Missouri Supreme Court affirmed the sentence and rejected Deck's claims that appearing in shackles violated (among other things) the U.S. Constitution. The court noted there was "no record of the extent of the jury's awareness of the restraints…" and that there was no claim that the restraints impeded Deck from participating in the proceedings or caused him to suffer prejudice. However, the court cited evidence of a risk that Deck, a repeat offender, might flee, in that he might have killed his two victims in order to avoid being returned to custody. Therefore, the Missouri court held, there was ample evidence to support the trial court's exercise of discretion to require shackles. State v. Deck, 136 S.W.3d 481 (Mo. 2004)

The U.S. Supreme Court first reviewed the constitutional underpinnings of the routine use of visible shackles during the guilt phase of a criminal trial. The Court reiterated that the established law permits a state to shackle an accused only when there is a special need. There are three main reasons for this premise.

First, criminal law presumes that defendants are innocent until proven guilty. Visible shackles undermine that presumption and the fairness of the fact-finding process. Instead, the shackles suggest to the jury that the justice system sees a "need to separate a defendant from the community at large." (quoting Holbrook v. Flynn, 475 U.S. 560 at 569, 1986)

Second, the Constitution grants an accused the right to counsel, in order to help him or her to secure a meaningful defense. Visible shackles diminish that right. Shackles can interfere with an accused's ability to communicate with his counsel or to participate in his own defense.

Third, judges must seek to maintain a judicial process that is dignified and reflects the import of the matter at issue. This includes the respectful treatment of the accused. The routine use of shackles undermines these objectives.

The high court made it clear that it found the Missouri court's arguments unconvincing. "The first argument is inconsistent with the record in the case, which makes it clear that the jury was aware of the shackles," wrote Justice Stephen Breyer for the Court. The Missouri court's conclusion that the trial court acted within its discretion foundered on the fact that the record contained no formal or informal findings. The trial judge made no reference to any escape risk or threat to the courtroom security, nor did the trial judge explain why, if shackles were necessary, he did not provide for nonvisible ones, as was apparently done during the guilt phase of Deck's trial.

The Court held that the same justifications disavowing routine use of shackles during the guilt phase (i.e., presumption of innocence, securing a meaningful defense, and maintaining dignified proceedings) apply with like force to the penalty phase. The last two were self-evident. As for the presumption of innocence, while the jury is no longer deciding between guilt and innocence, it is deciding between life and death, which is no less important.

Justice Clarence Thomas wrote a dissenting opinion, joined by Justice Antonin Scalia, in which he characterized the Court's legal obligation as "not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question: Does the Due Process Clause of the Fourteenth Amendment preclude the visible shackling of a defendant." The dissent disagreed with the majority's resurrection of an old rule "the basis for which no longer exists," and its extension of the rule from trial to sentencing. In so doing, wrote Justice Thomas, "[T]he Court pays only superficial heed to the practice of States…and all but ignores the serious security issues facing our courts."

Florida v. Nixon

The U.S. Supreme Court has interpreted the Sixth Amendment to mean that a criminal defendant is entitled not only to legal representation but also to effective counsel. In one line of cases, the Court has ruled that the performance of a defense attorney must be measured by an objective standard of reasonableness, based on the particular facts. In another line of cases, however, the Court has presumed ineffective assistance of counsel . Attorneys who do not meaningfully oppose the prosecution's case are subject to this standard, which results in an overturning of the conviction. In Florida v. Nixon, __U.S. __, __S.Ct. __, __ L.Ed.2d __ (2004), the U.S. Supreme Court held that the Florida Supreme Court had mistakenly applied this presumption of deficient performance in a murder case in which the defense attorney conceded his client's guilt in hopes of sparing him from a death sentence.

Joe Nixon was charged with the kidnapping and murder of a woman who had offered him a ride. Nixon had kidnapped the woman, driven to a secluded spot, tied her to a tree, and then set her on fire. He then proceeded to drive the woman's sports car around the city of Tallahassee and tell his brother and girlfriend what he had done. In addition, he had pawned two rings taken from his victim, which led to a pawnshop receipt that had his driver's license on it. Michael Corin, an assistant public defender, was appointed as Nixon's legal counsel. He attempted to negotiate a plea bargain, but the prosecutor refused to drop his pursuit of a death sentence. Faced with going to trial with a very weak case, Corin conferred with Nixon and recommended that Nixon concede his guilt. The attorney would then try to convince the jury during the penalty phase that Nixon suffered from mental illness. Corin believed such a strategy would preserve his credibility with the jury, instead of denying that Nixon had committed the crimes. Nixon, whom Corin had represented before on criminal charges, had a good relationship with his attorney, but he was unresponsive when Corin asked him to approve the trial strategy. Nixon refused to attend pretrial hearings and gave Corin little, if any, assistance with the preparation of the case.

Faced with this silence, Corin exercised his professional judgment and decided to concede his client's guilt. The trial was a disaster for the defense, as Nixon became disruptive and violent in the courtroom. Finally, Nixon announced that he was not interested in attending the trial and waived his right to be present. Corin acknowledged Nixon's guilt in his opening statement but actively contested the introduction of crime scene photographs that he believed were prejudicial. He also objected to several jury instructions. The jury quickly found Nixon guilty of the kidnapping and murder, which led to the penalty phase. Corin introduced psychiatric evidence that indicated that Nixon had a low IQ, an antisocial personality, a history of psychiatric care, and brain damage. In his closing argument he asserted that these factors, along with his client's youth, demonstrated that the jury had grounds to spare Nixon's life. However, the jury recommended Nixon be sentenced to death. At the close of the trial, the trial judge commended Corin for his performance and supported Corin's concession-of-guilt strategy.

Nixon lost his direct appeals, but he filed for post-conviction relief with the Florida Supreme Court, alleging that Corin's strategy, which Nixon had not approved, demonstrated ineffective assistance of counsel. In addition, Nixon contended that Corin's conduct raised a presumption of prejudice that automatically negated his conviction and death sentence. The state supreme court agreed, ruling that there was no competent evidence that Nixon had "affirmatively and explicitly agreed to counsel's strategy." Nixon's silent behavior did not absolve the need for Corin to obtain his client's consent. Therefore, this failure to obtain consent automatically rendered Corin's performance ineffective.

The U.S. Supreme Court, in a unanimous decision (Chief Justice William Rehnquist did not participate due to illness), overturned the Florida Supreme Court's decision. Justice Ruth Bader Ginsburg, writing for the Court, acknowledged that an attorney has a duty to consult with the client about important decisions. In addition, the Court has long held that an attorney could not plead his client guilty without the client's consent. However, in Nixon's case he did not plead guilty but rather conceded guilt during the trial. The Florida Supreme Court erred in thinking the trial strategy was the equivalent of a guilty plea. Justice Ginsburg noted that during the trial the defense attorney had retained the rights to cross-examine witnesses for the prosecution, to object to the introduction of evidence, and to note any errors by the trial court that could lead to an appeal.

Justice Ginsburg placed great weight on Nixon's passivity and silence leading up to trial. Corin had sought his client's approval for the concession-of-guilt strategy, so Nixon could not argue that he had been misled or surprised. Turning to the line of cases that analyze the actual conduct of an attorney, Ginsburg concluded that Corin had acted reasonably in employing the trial strategy. He had not failed to advocate for Nixon. Therefore, the Court rejected the need for a "blanket rule demanding the defendant's explicit consent."

Medellin v. Dretke

In June 1993, Jose Medellin, a Mexican national, and six other members of the "Blacks and Whites" gang-raped and murdered two young girls in Texas, then bragged about it to family members. One family member called the police, and all gang members were eventually arrested. Medellin was tried and convicted in a Texas state court and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. The convoluted procedural and appellate maze that followed is the essence of the matter that eventually made its way to the U.S. Supreme Court in Medellin v. Dretke, 544 U.S. __, 125 S.Ct. 2088, __ L.Ed.2d __,(2005).

Following the Texas Court of Criminal Appeals decision, Medellin had written a letter to Mexican consular authorities, who began assisting him. He filed a state habeas corpus action, claiming for the first time that Texas had failed to notify him of his right to access to the Mexican Consulate as required by the Vienna Convention. The state trial court rejected the claim, and this decision also was affirmed on appeal to the Texas Court of Criminal Appeals. Medellin then filed a federal habeas corpus petition in the U.S. District Court for the Southern District of Texas. He raised the same claim, but the federal district court also denied the petition.

Meanwhile, the Mexican government initiated proceedings against the United States in the International Court of Justice (ICJ), alleging violations of the Vienna Convention on behalf of more than 50 Mexican nationals facing the death penalty in the United States, including Medellin. Case Concerning Avena and other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. No. 128 (later referred to as the Avena decision). The ICJ determined that the Vienna Convention indeed guaranteed individually enforceable rights of access to the Mexican consulate. Its decision in the Avena case held that the United States must "provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals" to determine whether the violations "caused actual prejudice" without allowing procedural default rules to bar such a review. The ICJ denied Mexico's request that the convictions and sentences be nullified. Both Mexico and the United States voted with the majority in the 14-1 decision; Venezuela was the lone dissenting member.

The ICJ decision, issued in March 2004, occurred while Medellin's application for a certificate of appealability (on the federal habeas claim) to the U.S. Court of Appeals for the Fifth Circuit was still pending. The appellate court subsequently denied the application, based on Medellin's procedural default, in addition to its prior holdings in other cases in which it ruled that the Vienna Convention did not create individually enforceable rights. The Court of Appeals acknowledged the ICJ decision but gave it no effect.

The U.S. Supreme Court granted certiorari on two questions. First: Is a federal court bound by the ICJ's ruling that U.S. courts must reconsider Medellin's claim for relief under the Vienna Convention on Consular Relations, without regard to procedural default? Second: Should a federal court give effect to the ICJ's decision, as a matter of judicial comity and uniform treaty interpretation?

But in May 2005, after hearing oral arguments a few months earlier, the Court dismissed the writ of certiorari as improvidently granted. This, however, was based on several developments that had arisen. First, and most importantly, President George W. Bush had issued a memorandum stating that the United States would meet its international obligations under the Avena judgment by "having State courts give effect to the [ICJ] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision." Next, based on the above, Medellin's attorneys filed a successive state habeas corpus petition, citing both the Avena decision and the President's memorandum as separate bases for relief that were had not been available at the time of the first state habeas action.

Third, the high court cited several threshold issues that could independently preclude federal habeas corpus relief for Medellin, and render the Court's consideration of the questions presented as advisory or academic. For example, the Court noted that even accepting the ICJ's construction of consular access rights, a violation may not be cognizable in a federal habeas corpus proceeding. Second, a federal habeas corpus is only available if a state court adjudication on the merits "was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. 2254(d). Additionally, a habeas corpus petitioner generally cannot enforce a new rule of law . As to appellate review of habeas petitions in general, a certificate of appealability is available only where there is a "substantial showing of the denial of a constitutional right.

Finally, Medellin could seek federal habeas relief only after his claims had been exhausted in state courts. To gain relief under either the President's memorandum or the ICJ decision, Medellin would have to show that he exhausted all available remedies within state courts. Since the Texas courts could provide Medellin with the review that he sought pursuant to the presidential memorandum and ICJ decision, the Court dismissed the writ.

The per curiam decision included a concurring opinion from Justice Douglas Ginsburg, and a four-justice dissent from Justices Sandra Day O'Connor, John Paul Stevens, David Souter, and Stephen Breyer that would have required the Fifth Circuit to address Medellin's international law claims.

Rompilla v. Beard

Late in its 2004-2005 term, the U.S. Supreme Court, by a narrow 5-4 decision, reversed the U.S. Court of Appeals for the Third Circuit and held that a convicted capital defendant was prejudiced by ineffective counsel at sentencing. According to the Court, counsel had failed to investigate mitigating evidence to counter the state's evidence of aggravating factors, and instead relied on statements made by the defendant and members of his family, merely asking for mercy at sentencing. Instead of mercy, Ronald Rompilla was sentenced to death. The strong dissent opined that the majority effectively characterized "two committed criminal defense attorneys as ineffective," and labeled the professional work done by three mental health experts as incompetent.

In Rompilla v. Beard,, 545 U.S. __, 125 S.Ct. __, __ L.Ed.2d. __ (2005), defendant Rompilla was convicted in a Pennsylvania state court of murder and other crimes. Two public defenders had been assigned to represent him in the matter. During sentencing, prosecutors presented evidence of aggravating factors, including that the murder was committed during the commission of another felony ; that it was committed by torture; and that Rompilla had a significant history of felony convictions involving the use or threat of violence.

In mitigation, defense counsel presented five members of Rompilla's family who argued residual doubt and beseeched the jury for mercy. The jurors assigned the greater weight to the aggravating factors and sentenced Rompilla to death. The Supreme Court of Pennsylvania affirmed both conviction and sentence.

New counsel for Rompilla filed post-conviction relief, claiming among other things, ineffective assistance by trial counsel. Rompilla's new attorneys argued that his former counsel failed to present significant mitigating evidence about Rompilla's childhood, mental capacity and health, and history of alcoholism. The state court disagreed and found that Rompilla had adequate legal representation, and the denial of habeas relief was also confirmed by the state high court. In reaching that conclusion, the state considered counsel's performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court held that ineffective assistance of counsel meant deficient performance that resulted in prejudice, with performance being measured against an objective standard of reasonableness under prevailing professional norms.

Rompilla's attorneys next raised inadequate counsel claims in a federal habeas corpus petition. The federal district court agreed with them, holding that the state high court had unreasonably applied Strickland as to the penalty phase of the trial. The federal district court found that Rompilla's trial counsel had not investigated "pretty obvious signs" of Rompilla's troubled childhood and his mental illness and alcoholism. Instead, counsel had relied on Rompilla's own assessment of an unexceptional background. The district court set aside the death sentence.

The Third Circuit, divided in opinion, reversed. The majority found nothing unreasonable in the state court's application of Strickland, in that counsel had interviewed Rompilla and his family members, as well as consulted with three mental health experts. Although the appellate court noted that counsel failed to unearth "useful information" in Rompilla's school, medical, police, and prison records, that failure was justifiable when their other efforts gave them no reason to believe that further research would yield anything helpful. The court found these facts distinguishable from a subsequent Supreme Court case, Wiggins v. Smith, 539 U.S. 510 (2003).

But the majority of the U.S. Supreme Court reversed again, siding with Judge Delores Sloviter's dissenting opinion in the Third Circuit decision. Writing for the narrow majority at the Supreme Court level, Justice Souter opened with,

This case calls for specific application of the standard of reasonable competence required on the part of defense counsel by the Sixth Amendment. We hold that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is 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.

Because the original state high court decision on review had never reached the question of "prejudice" under Strickland, the Supreme Court reviewed this element de novo, and found that counsels' lapse was prejudicial to Rompilla. Had counsel looked at the prior conviction file they knew prosecutors would rely on, they would have discovered a range of mitigation leads that no other source had opened up. The undiscovered mitigating evidence, later found by post-conviction counsel, included organic brain damage and childhood problems probably related to fetal alcohol syndrome. School and juvenile records showed evidence of an abusive home life as well. In the eyes of the majority opinion, this evidence "might well have influenced the jury's appraisal" (quoting Wiggins)of Rompilla's culpability. The likelihood of a different result, if such evidence had gone in, was "sufficient to undermine confidence in the outcome" actually reached at sentencing. (Quoting Strickland, 466 U.S. at 694).

Rompilla's counsel also had argued prejudicial error in the trial court's failure to instruct the jury, under Simmons v. South Carolina, 512 U.S. 154 (1994), that in a capital case, the only alternative to a death sentence was life imprisonment without parole. In Simmons, the Court held that a state could not advance generalized arguments about a capital defendant's future dangerousness without a jury instruction advising that, if given life imprisonment, the defendant would never be eligible for parole. But the Rompilla Court focused on the ineffective counsel argument, expressly noting that no reasonable lawyer would have foregone examination of the file, believing he could do as well by merely asking the defendant or family members what they recalled. Nor would a reasonable attorney equate possible searches for school reports, juvenile records, or evidence of drinking habits, with reviewing a prosecutor's file to see what the prosecutor knows.

Justice Anthony Kennedy wrote a scathing dissent, in which he was joined by Chief Justice Rehnquist and Justices Scalia and Thomas. In addition to the stated disagreement with the majority's conclusion of less than competent counsel and mental health expertise, the dissent added,

Finally, even if the Court could justify its distortion of Strickland,, Rompilla still would not be entitled to relief. The Court is able to conclude otherwise only by ignoring the established principle that it is the defendant, not the State, who has the burden of demonstrating that he was prejudiced by any deficiency in his attorney's performance.

Roper v. Simmons

The U.S. Supreme Court, in an historic decision, ruled that juveniles who are under the age of 18 when they commit capital crimes may not be sentenced to death. The Court, in Roper v. Simmons, __U.S. __, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), used the Eighth Amendment's Cruel and Unusual Punishments Clause to reach its conclusion, finding that "evolving standards of decency," as well as the fact that few nations in the world execute juveniles, mandated its ruling. The decision used much of the same reasoning found in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which a closely divided Court barred the execution of mentally retarded persons.

Christopher Simmons was convicted by a Missouri jury of the premeditated drowning murder of a woman. The crime had been committed during the course of a home burglary . Simmons, who was 17 and a junior in high school at the time he committed the murder, had spoken with his two teenage friends about killing someone during a burglary by tying the victim up and throwing her off a bridge. He also told his accomplices that they could "get away with it" because they were juveniles. Simmons carried out his plan using duct tape to bind the woman's hands and to cover her mouth and eyes. Simmons and one of his friends (the other boy did not participate) placed the woman in her minivan and drove it to a state park, where they walked her out onto a railroad trestle and then pushed her off the bridge into the Meramec River. The victim's body was discovered the next day. The following day, Simmons was arrested for the murder. He quickly confessed and agreed to be videotaped reenacting his actions at the crime scene.

Simmons's attorneys did not contest his client's guilt at trial, seeking instead to prevent Simmons from receiving the death penalty. The prosecution cited a number of aggravating factors that justified the imposition of capital punishment, including the allegation that Simmons's crime was "outrageously and wantonly vile, horrible, and inhuman." Simmons's attorneys introduced evidence that he had had no prior convictions nor any prior criminal charges filed against him. His attorneys used his age as a mitigating factor during closing arguments, contending that as a juvenile he was not "responsible enough" to merit a death sentence. The prosecutor countered that Simmons's age made the savagery of the crime even worse. The jury sided with the prosecutor and recommended that the death penalty be imposed.

The Missouri Supreme Court upheld Simmons's conviction and death sentence but reconsidered the merits of the case in a postconviction proceeding after the U.S. Supreme Court issued its ruling in Atkins v. Virginia, which barred the death penalty for mentally retarded persons. Even though the U.S. Supreme Court had upheld the execution of 16- and 17-year-old juveniles in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Missouri Supreme Court adopted the reasoning of Atkins and ruled that it was unconstitutional to impose the death penalty on juveniles. The state appealed to the U.S. Supreme Court.

The Court, in a 5-4 decision, upheld the state court's decision and announced a national ban on the execution of juveniles. Justice Anthony Kennedy, in his majority opinion, based this conclusion on the Eighth Amendment's prohibition against cruel and unusual punishments. Individuals cannot be subjected to excessive criminal sanctions out of concern for the "dignity of all persons." He noted that the Court had developed a method for reviewing criminal sanctions based on "evolving standards of decency that mark the progress of a maturing society." A prior decision in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) had barred the execution of any offender under the age of 16 at the time of the crime. Kennedy found that the same reasons for barring the execution of those under age 16 also applied to those persons under age 18. These reason included the fact that juveniles are less culpable for their acts and not as "morally reprehensible" because of their youth. In addition, juveniles lack maturity and have an underdeveloped sense of responsibility, they are more susceptible to peer pressure and negative influences, and their character is not as "wellformed" as that of adults. Because of these differences, Justice Kennedy found suspect "any conclusion that a juvenile falls among the worst offenders."

Justice Kennedy also reviewed the popularity of juvenile executions by the states. As in Atkins, the decline that he noted in actual executions signaled an emerging national consensus against the application of the death penalty to juveniles 16 and 17 years of age. Although 19 states had laws permitting the execution of juveniles, only three (Texas, Oklahoma, and Virginia) had executed juveniles since 1994. This also meant that 31 states either barred juvenile executions or did not have the death penalty for any criminal defendant. In addition, he pointed out that only seven other nations had executed juvenile offenders since 1990 and that since then those countries had either abolished capital punishment for juveniles or had disavowed its use. This international evidence reinforced the majority's view that evolving standards of decency required the absolute bar on executing juveniles.

Justice Sandra Day O'Connor, in a dissenting opinion, contended that the Court had gone too far in barring all juvenile executions. Instead, the propriety of such punishment should be handled on a case-by-case basis. Justice Antonin Scalia, in a biting dissent joined by Chief Justice William Rehnquist and Justice Clarence Thomas, claimed the decision made "a mockery" of constitutional precedent and that it was based "on the flimsiest of grounds." He contended that there was no national consensus to support the majority's conclusion that the states were moving away from executing juveniles. Instead, "The court thus proclaims itself sole arbiter of our nation's moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures."

Smith v. Texas

The U.S. Supreme Court has mandated that criminal defendants convicted of capital crimes must be allowed to present mitigating evidence to the jury during the penalty phase of a trial in order to try to persuade jurors not to impose the death penalty. The Court regularly reviews the fairness of death penalty cases, and at times, overturns a death sentence when court procedures fail to give full weight to the defendant's mitigating evidence. Such was the case in Smith v. Texas, __U.S. __, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004), where the Court threw out a death sentence because the trial judge had issued a jury instruction that made it difficult for the jurors to consider the defendant's mitigating evidence.

A Texas jury convicted LaRoyce Smith of murdering one of his fast-food restaurant co-workers during a robbery attempt at the restaurant. Smith had pistol-whipped and stabbed the woman and then shot her in the back. After completing the guilt phase of the trial, the jurors heard evidence during the penalty phase. For the state to obtain a death penalty recommendation from the jury, the jurors had to decide two special issues: (1) whether Smith had killed the woman deliberately; and (2) whether Smith posed a continuing danger to others. The prosecutor introduced evidence to show that Smith had killed his co-worker deliberately and cruelly. Smith had known his victim yet had stabbed her repeatedly in numerous places on her body. On the second special issue, the prosecutor pointed out that Smith had been convicted of a misdemeanor assault and suggested that Smith had broken several drug laws.

Smith's attorney introduced several pieces of mitigating evidence. The jury heard testimony that Smith had suffered from learning and speech disabilities from an early age, that his IQ was only 78, and that he had attended special-education classes. Despite these impediments, Smith had been a responsible student. In addition, Smith's father was a drug addict who had been involved in criminal activities. Finally, the defense attorney emphasized that Smith was only 19 when he committed the murder, suggesting that Smith was capable of rehabilitation.

The trial judge issued a set of jury instructions following closing arguments, including an oral supplemental "nullification instruction." The jury was directed to consider the mitigating evidence and give it as much weight as it wanted. The instruction also informed the jury that if it believed the prosecution had proved beyond a reasonable doubt the two special issues but also believed from the mitigating evidence that Smith should not be sentenced to death, then the jury must answer "No" to one of the special issues. In effect, the jury could "nullify" a special issue. The jury verdict form did not mention nullification or mitigating evidence. It only asked whether Smith had acted deliberately and whether there was a likelihood that he would commit criminal acts of violence in the future and thus pose a threat to society. The jury was allowed to give only "Yes" and "No" answers. The jury answered "Yes" to both questions, and Smith was sentenced to death.

The Texas Court of Criminal Appeals upheld Smith's conviction and sentence, rejecting Smith's claim that the jury instruction was unconstitutional because the consideration of the special issues did not permit the jury to give effect to his mitigating evidence. Smith then filed for a writ of habeas corpus in the Texas courts, renewing his jury-instruction argument. The appeals court again rejected his claims, and Smith appealed to the U.S. Supreme Court.

The U.S. Supreme Court, in a 7-2 decision, overturned the state appeals court ruling and found that the nullification instruction was invalid. In a per curiam opinion (i.e., an opinion not signed by any of the justices), the Court found that the appeals court had improperly denied the relevance of Smith's mitigating evidence, in particular his low IQ and special-education school placement. The Texas appeals court had concluded that Smith was not severely disabled and that there was no connection between his troubled life and limited mental capacities, and the murder. The Supreme Court held that all of Smith's mitigating evidence was relevant and that the appeals court should have examined the nullification instruction more closely.

The Court was troubled by the nullification instruction because it presumed that jurors would find it "logically and ethically impossible" to follow both sets of instructions. The mitigating evidence did not fit into the two categories described in the special issues, thus making it difficult to give full weight to the mitigating evidence. In addition, jurors who wanted to answer one of the special issues falsely so as to give effect to the mitigating evidence would have had to violate their oath to render a "true verdict." Therefore, the Court ruled that forcing the jury to give a false answer to a special issue in order to avoid a death sentence had been an error. Mitigating evidence should be considered on its own merits in deciding whether to impose the death penalty.

CAPITAL PUNISHMENT

The lawful infliction of death as a punishment; the death penalty.

Report Renews Call for a Nationwide

Moratorium on the Death Penalty

Following a study in eight states, the American Bar Association in 2007 issued a report that called for a nationwide moratorium on capital punishment in the United States, which would last until the states make improvements in their systems. According to the report, most of these states operate with capital defense systems that are underfunded and staffed with lawyers who are unqualified and who lack the resources to provide adequate defenses for death row inmates.

This is not the first time that the ABA has called for a stoppage in executions. Believing that jurisdictions that allow the death penalty operate with neither fairness nor accuracy, the ABA on February 3, 1997 issued a moratorium on capital punishment similar to the one issued in 2007. The ABA has focused primarily on two key points: first, that states ensure that death penalty cases are handled fairly and impartially, in accordance with due process; and second, that the states minimize the risk that innocent persons may be executed.

During the fall of 2001, the ABA established the Death Penalty Moratorium Implementation Project, which has engaged in a number of studies related to capital punishment since its establishment. During the same year, the ABA's Section on Individual Rights and Responsibilities issued a publication entitled Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States. This publication establishes protocols for seven aspects of death penalty administration, including: (1) defense services; (2) procedural restrictions and limitations on state post-conviction and habeas corpus proceedings; (3) clemency proceedings; (4) jury instructions; (5) an independent judiciary; (6) racial and ethnic minorities; and (7) mental retardation and mental illness. The ABA's Death Penalty Moratorium Implementation Project also reviews five additional areas, including preservation and testing of DNA evidence; identification and interrogation procedures; crime laboratories and medical examiners; prosecutors; and the direct appeal process.

In 2004, the ABA established teams of state-based legal experts to review capital punishment systems in eight states. The ABA established these teams in the states of Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee. The teams generally consisted of judges, state legislators, prosecutors, defense attorneys, state bar association leaders, and law professors. Five of these eight teams asked their own state government leaders to temporarily halt executions until the teams could complete their analyses. None of these states did so, however.

These teams prepared independent assessments of the capital punishment systems in these states and determined whether these states complied with criteria that the ABA had established. In many instances, the teams could not find sufficient information to determine whether these states indeed complied. In several other areas, however, the teams found a number of problems that the ABA characterized as serious concerns. After releasing reports covering the various states, the ABA on October 28, 2007 released a report that called for the nationwide moratorium.

The preservation of DNA evidence was cause for concern in several of the states. The ABA recommends that states preserve all biological evidence through the entire legal process and after release from prison or execution. The purpose of this recommendation is to reduce the possibility that evidence that could prove a defendant's innocence could be destroyed. However, fewer than half of the states that were studied complied with this recommendation. A second concern regarding DNA is that states draft DNA testing statutes too narrowly, requiring applicants to comply with strict filing deadlines and other procedures.

The ABA teams were also troubled by actions of law enforcement personnel and policies regarding crime labs. The report concluded that most states do not require law enforcement agencies to record custodial interrogations, which could reduce problems related to false confessions. Crime laboratories also received criticism, as most that were studied failed to utilize state-of-the-art DNA testing techniques. In fact, most of the states in the study had at least one “serious incident” of mistake or fraud occurring in a crime lab. According to the report, many states do not sufficiently fund crime labs, and states in general do not require accreditation of the crime labs or medical examiner offices.

The report found a number of problems with prosecutors and the role of defense counsel in capital cases. The teams determined that states generally do not have policies requiring prosecutors' offices to establish policies on the exercise of prosecutorial discretion. Moreover, states have not adopted policies pertaining to the evaluation of cases “that rely on eyewitness identification, confessions, or the testimony of jailhouse snitches, informants, and other witnesses who receive a benefit.” The report noted that on the defense side, the judiciary remains primarily responsible for appointing defense counsel, and that capital defense attorneys who are appointed by the courts are paid less than $50 per hour, a sum the report described as “woefully inadequate.”

The ABA teams were critical of the procedures used in post-conviction proceedings. Many states make it difficult for defendants to obtain discovery materials after the convictions and also make it difficult for a defendant to obtain an evidentiary hearing during the post-conviction phase. The report was likewise critical of the procedures and policies pertaining to direct appeals in capital punishment cases and in the clemency processes of most of these states. The clemency process is the final stage of review that is available, but in most states, the person making clemency decisions is not required to give reasons for the decisions.

In addition to concerns related to jury instructions, judicial independence, and mental retardation and mental illness, the report cited racial problems related to capital punishment cases. Although all of the states have racial disparities in their capital systems, especially as those statistics relate to the race of the victims, these states have not kept data necessary to analyze or quantify the problems with bias or identify the causes of this bias. The report concluded that these states are doing little, if anything, to rectify problems with racial bias.

The ABA's calls for a halt to executions has not met with uniform support. In 2006, when a 21-member team concluded that Georgia's death penalty system was inadequate, the state refused to do so. A spokesperson for the state's attorney general said, “Our office continues to review the ABA report, but this appears to be a lobbying packet put together in an effort to have the Legislature make changes to the state process.” Other critics focused their attention on the ABA's politics. According to William “Rusty” Hubbarth, the vice-president for legal affairs for Justice for All, a Texas victims' advocacy group, “The ABA has always been a very, very liberal organization. They have spent much more time worrying about the rights of the defendant, rather than the rights of the victims, or the rest of society.”

ABA leaders have stood by their conclusions. “We just do not have confidence in the capital justice system after studying it,” said Stephen Hanlon, chair of the Death Moratorium Project. “In determining who gets the death penalty, all too frequently, it seems to be not the person who has committed the worst crime, but the person who has the worst lawyer.”

Death Penalty Developments

The debate over capital punishment in the United States and in the international community continued unabated in 2007 and 2008. The Supreme Court stayed the execution of 18 inmates and other states placed a moratorium on executions while the Court considered whether death by lethal injection constituted cruel and unusual punishment . In April 2008 the Court upheld the legality of lethal injections and executions resumed. However, only one of the several states that debated eliminating the death penalty—New Jersey—formally abolished it in 2007. On another front the Nebraska Supreme Court ruled that death by electrocution constituted cruel and unusual punishment, becoming the last death-penalty state to use the electric chair as the sole means of execution. Finally, the UNITED NATIONS adopted a non-binding resolution in December 2007 calling for a worldwide moratorium on capital punishment.

After the Supreme Court accepted review in 2007 of Baze v. Rees, which challenged the constitutionality of lethal injections, it received petitions from death-row inmates seeking stays of their executions until the issue could be resolved. The Court granted 18 stays and, by doing so, signaled to all death-penalty states that they should stop executions as well. The states complied and there began a seven-month moratorium on executions. The Supreme Court issued its decision in Baze on April 16, 2008. The Court, in a 7–2 decision, rejected the challenge by two inmates that the three-drug combination used to execute prisoners was unconstitutional. However, the Court could not issue a majority opinion as to the reasons why the method passed constitutional muster. Seven separate justices wrote their own opinions. Within hours of the decision's release 11 states announced that they would immediately resume executions. On May 6 the state of Georgia ended the moratorium by executing William Earl Lynd by lethal injection.

In December 2007 the state of New Jersey repealed its death penalty, becoming the first state to abolish capital punishment since the Supreme Court restored it in 1976. The law replaces the death penalty with life imprisonment without parole. Though advocates of abolition pointed to numerous cases where condemned inmates had been exonerated by DNA evidence, an added reason was that no inmate had been executed since the state reintroduced the death penalty in 1982. In addition, the state could save money by making the change. Keeping an inmate on death row cost the state $73,000 per year, while inmates in the general population cost $40,000 per inmate per year. Repealing the death penalty was expected to save New Jersey as much as $1.3 million per inmate over his lifetime. The eight prisoners on New Jersey's death row had their sentences changed to life imprisonment with no parole.

In February 2008 the Nebraska Supreme Court ruled that under its state constitution the use of the electric chair constituted cruel and unusual punishment. Nebraska had been the last state that mandated electrocution as the sole method of execution. The court concluded that there had never been a thorough and scientific examination on whether electrocution inflicts intense pain on the inmate. Reviewing the evidence of competing expert witnesses, the justices found that there was a strong probability that the prisoner did not lose consciousness and brain function immediately. The court believed the defense experts' testimony that high voltage caused pain in several ways apart from “the electrical burning that is occurring in the body.” It dismissed the trial court's claim of instantaneous and irreversible brain death as a “myth.” The court gave the legislature the opportunity to propose another means of execution. The Nebraska legislature rejected the repeal of capital punishment in March 2008 but did not consider a new means of execution. Nebraska Governor Dave Heineman directed the state attorney general to determine whether the Nebraska Supreme Court ruling should be appealed to the U.S. SUPREME COURT, try to convince the legislature to enact lethal injection as the method of execution, or both.

In December 2007 the General Assembly of the United Nations voted 104 to 54, with 29 abstentions, to adopt a non-binding resolution supporting a moratorium on capital punishment. The vote culminated a 1-year campaign that seeks to identify capital punishment as a human rights issue rather than a criminal law issue. According to Amnesty International, 133 countries have abolished the death penalty in law or practice. In 2006 only 29 countries carried out executions, of which 91 percent took place in China, Iran, Iraq, Pakistan, Sudan, and the United States. The number of executions worldwide declined from 2,148 in 2005 to 1,591 in 2006.

Missouri Law Shields Identity of Executioners

On June 30, 2007, Missouri Governor Matt Blunt signed into law a bill (HB820/SB 258, 94th Gen. Assem., 1st Reg. Sess.) that required the identities of execution team members to remain confidential, and made all records that could identify a team member “privileged,” i.e., neither subject to discovery or subpoena in litigation, nor subject to release in response to requests by the public at large. Although several other states also shielded the identity of team members, Missouri's law was considered the first to impose civil penalties for disclosure in violation of its provisions. It further provided members of the execution team the right to sue for compensatory and punitive damages from anyone who disclosed the member's participation in an execution. However, the new law also established Missouri's lethal injection protocol as an open record.

The law was prompted in part by a St. Louis Post-Dispatch story the previous summer that disclosed the identity of a Missouri doctor who oversaw state executions and whose professional record included revocation of staff privileges at two hospitals and twenty pending malpractice lawsuits against him. Although the doctor was captioned “Dr. Doe” in a related lawsuit, the Post-Dispatch investigated and then identified him by name. The doctor had originally come under scrutiny after admitting that he sometimes altered the amount of anesthetic given to condemned inmates in response to discovery interrogatories in a pending lawsuit.

Following the St. Louis Post-Dispatch story, three St. Louis-area state legislators who were members of a committee that oversaw the Department of Corrections were interviewed by the newspaper. The committee had the authority to investigate the department as well as compel testimony from officials. The legislators advised that they intended to raise questions within the committee, but the chairman advised that an official inquiry was unlikely, citing the limited information against the male nurse, including the absence of any disciplinary action taken against him by the state board of nursing.

This conflict between the public's right to oversee how government implements capital punishment, and the need to protect the identity of members of an execution team resulted in a judicial compromise in Taylor v. Crawford, 05-4173-CV (W.D. Mo. 2006). In that case, in response to discovery requests (interrogatories), the court ordered that the state disclose “the qualifications of any medical personnel who have participated in executions, without disclosing their identities or any confidential information.” (The State had argued that disclosure of individual identities would be inappropriate because of security concerns for them as well as for the prison.)

The new Missouri law went into effect on August 28, 2007. However, that did not stop five death row inmates from filing papers in January 2008 to learn about their would-be executioners. The petition was part of an ongoing lawsuit challenging not only the shielding of personal information of the execution team members, but also the state's lethal injection protocol in general. Clemons v. Crawford, No. 573636-4015 (W.D. Ct. Missouri).

The petition, filed by attorneys in federal district court in Kansas City, Missouri, cited yet another Post-Dispatch revelation that a male nurse on the execution team had been on criminal probation for an incident of stalking. The petition alleged that such circumstances raised questions about the state's screening procedures as well as the nurse's “temperament and suitability” to be on the execution team. The petition further alleged that, in light of Missouri's new law protecting such disclosure, the petitioners'/inmates' right to such information in a federal lawsuit superceded state law. It argued that the inmates should not have to rely on the new media to learn about executioners' backgrounds.

Responsive pleadings by attorneys in the Missouri Attorney General's office (which represented the Department of Corrections) nonetheless invoked Missouri's 2007 law as substantively barring all requested disclosures. The responsive pleadings also argued that the requested information was subject to attorney-client privilege . But lawyers for the convicted killers represented in the suit, Reginald Clemons, Richard Clay, Jeffrey Ferguson, Roderick Nunley, and Michael Taylor, stated they were willing to accept anonymous depositions, keeping the names of the executioners out of court records.

In March 2008, the district court granted part of the inmates' motion to compel evidence, allowing the inmates to submit written interrogatories to two Department of Corrections executioners, regarding their background and training. It denied the request for live depositions. It also ordered the release of documents involving the recently revised lethal injection protocol. In May 2008, the court granted Defendants' (the Department of Corrections, et al) Motion for Reconsideration of the court's previous (March) order compelling discovery. It also ordered the scheduling of dispositive motions, in light of the U.S. Supreme Court's April 2008 decision that rejected a similar Kentucky-based challenge to lethal injection as an execution method. Baze v. Rees, No. 07-5439. The death penalty was effectively on moratorium in all states pending the high court's decision. Following the release of that decision, part of the Missouri case became moot, but the challenge regarding release of information pertaining to the executioners remained. The district court noted that the requested documents might shed light on the Department of Correction's “mental state” regarding the revised protocol provisions.

State v. Mata

The means of executing individual for their crimes has changed over the past four centuries, as succeeding generations come to believe certain methods are inhumane, and, in the case of the United States, cruel and unusual punishments. In the late nineteenth century in the U.S., hanging was the preferred method of execution. However, with the introduction of electricity, advocates of the new technology claimed that death by electrocution in an “electric chair” was more humane than breaking a person's neck. In In 1890 the U.S. Supreme Court allowed the state of New York to use the electric chair, which led many states to adopt this method. In the Twentieth Century electrocution and death by poisonous gas were the most popular means of capital punishment until the 1990s, when death by lethal injection became the dominant method. By 2008 only the state of Nebraska mandated the use of the electric chair as the sole method of execution, but the Nebraska Supreme Court, in State v. Mata, 745 N.W.2d 229 (Neb. 2008), ruled that under its state constitution electrocution was cruel and unusual punishment . Seven states still allow inmates to choose the electric chair over lethal injection.

Raymond Mata, Jr. was convicted of murder in 2000 and sentenced for death. Mata appealed both his conviction and the means the state would use to execute him. The Nebraska Supreme Court upheld Mata's conviction but in a lengthy opinion ruled that the time had come to end the use of the electric chair. In a 6 to 1 decision the court held that “electrocution inflicts intense pain and agonizing suffering.” Justice William Connolly, writing for the majority, noted that Mata was not challenging the constitutionality of the death penalty but whether the method of execution mandated by state law was constitutional. Nebraska, like all other states, has adopted the U.S. Constitution's provision against inflicting cruel and unusual punishment.

Justice Connolly acknowledged that the Nebraska Supreme Court had previously ruled that electrocution was not cruel and unusual punishment. However, the court now had the opportunity, for the first time, “to review a factual record showing electrocution's physiological effects on a prisoner.” Likewise, the U.S. Supreme Court's 1890 decision was not based on objective evidence but state courts' “factual assumptions” based on “untested science.” This new factual record, coupled with the reality that only Nebraska used electricity as the sole means of execution, directed the court's analysis.

In reviewing previous U.S. Supreme Court rulings on electrocution, the court identified three shortcomings in this jurisprudence : (1) limited knowledge about electrocution's effects on the human body; (2) the states' desire to find a more human way of execution than hanging; and, (3) the Court's view, when electrocution was first introduced, that the Eighth Amendment's bar on cruel and unusual punishment was not intended as a restraint on the states' determinations of punishment. As to the last point, the Supreme Court has now applied the Eighth Amendment to the states through the Fourteenth Amendment.

Justice Connolly stated that the “baseline criticism in a challenge to a punishment is whether it imposes torture or a lingering death that is unnecessary to the mere extinguishment of life.” Because it is impossible to know with certainty that electrocution causes unnecessary pain, courts must deal with probabilities. Evidence introduced at trial by the state and the defendant dealt with the probable effects of electricity on the human body. The state argued that prisoners lose brain function and consciousness instantaneously, thereby making them incapable of feeling unnecessary pain. Defense experts, however, persuasively showed that this was not the case and that there was no medical evidence of mass damage to the brain. In fact, there as evidence that 20 percent of the prisoners electrocuted in Nebraska between 1920 and 1977 were still breathing or alive after the initial application of current. Moreover, the court believed the defense experts' testimony that high voltage caused pain in several ways apart from “the electrical burning that is occurring in the body.” Justice Connolly dismissed the trial court's claim of instantaneous and irreversible brain death as a “myth.”

Having ruled electrocution unconstitutional, the court stayed Mata's death sentence. It gave the state legislature the opportunity to propose a new method of execution and be prepared to demonstrate that is is constitutionally acceptable. In March 2008 the Nebraska legislature defeated a bill that would have repealed capital punishment but it had yet to take up the issue of what would replace the electric chair as the method of execution.

New York Senate Passes Bill to Reinstate Death Penalty

In early 2008, the New York State Senate introduced and passed bills to reactivate the death penalty in that state. No executions had been effected in that state since 2004, based primarily on two developments. First, New York's general death penalty statute had been declared unconstitutional by the state Court of Appeals in 2004 (regarding a problematic jury instruction). Second, while various legislative attempts to rewrite the state law had been made, those efforts were interrupted by a U.S. Supreme Court stay on executions in October 2007, pending its further determination in Baze v. Rees, No. 07-5439 (2008), which challenged certain lethal injection procedures as cruel and unusual punishment . The Court's stay effectively created a de facto moratorium on all pending state executions nationwide. As of September 2007, a vast majority of states (at least 36 of 50) and the federal government had death penalty statutes/laws in effect.

Meanwhile, in October 2007, the New York State Court of Appeals, in People v. Taylor, refused to make an exception to its 2004 ruling (in People v. LaValle, 817 NE2d 341) that New York State's death penalty statute was unconstitutional. The state law was struck by the court because of a flawed jury instruction that appeared to advise capital jurors that if they did not choose the death penalty, the judge would sentence the defendant to life with the possibility of parole in 20 to 25 years. It was successfully argued that this law effectively coerced jurors into meting out death sentences rather than risking the chance that convicted killers might be freed on parole in the future.

Following the April 2008 U.S. Supreme Court's decision in Baze, (ruling that the subject lethal injection was constitutional and valid), state prosecutors around the country sought to move forward with executions for death row inmates that had been stayed for several months pending the Court's decision.

Also following the Baze, decision, the New York State Senate passed S. 6414 in May 2008 (previously S. 319), reinstating the death penalty in New York for the intentional murder of a police or peace officer or any employee of the Department of Correction Services. Joining it was a correlative bill, S. 4632, a general death penalty law that was actually passed in June 2007 to replace the existing one (struck in October), but put on hold pending the Supreme Court's ruling in Baze.

This time around, the new legislation in both New York bills was carefully drafted to address the concerns that had caused the previous statutory provision to fail. The new wording in both bills made certain that if a jury were deadlocked and unable to agree on a death penalty sentence, a sentence of life without parole would be imposed, and juries would know this prior to their sentencing deliberations. Further, the general death penalty bill, S. 4632, required that juries be given a third option when sentencing convicted killers, a sentence of life in prison with the possibility of parole. As of June 2008, both bills had been passed in the state senate and sent to the state's legislative assembly.

Despite media coverage implying an aversion to the death penalty by New York juries, the state senate, in a June 20, 2007 press release, noted that the majority of New Yorkers consistently supported the death penalty. In that press release, State Senate Majority Leader Joseph L. Bruno recognized the death penalty as a strong deterrent to crime. “When the death penalty was reinstituted, the number of murders and violent crimes in New York decreased dramatically,” he stated. Also noted in the press release was a 2003 study by Emerson University in Boston that concluded an average of eighteen murders were deterred for each execution. The press release also cited a 2006 study by the University of Houston which showed that a moratorium on executions in the state of Illinois in 2000 led to 150 additional homicides over the following four years.

But the non-profit organization, New Yorkers Against the Death Penalty (NYADP)argued the opposite. It claimed that over ten years, the death penalty in New York wasted $200 million in taxpayer dollars, was not imposed fairly or reliably, and created risk of innocent persons being executed. It also stated that New York had more than 50 death-eligible federal cases awaiting disposition by the U.S. Attorney General's office, potentially more than any other state. In arguing that New Yorkers were hesitant to impose death penalties, NYADP noted that records compiled by the Federal Death Penalty Resource Counsel Project showed that federal prosecutors in New York State had asked juries to impose death sentences 19 times since 1988, but in only one case did a jury sentence the defendant to execution.

As of June 2008, the newly-worded general death penalty bill, now identified as state assembly No. AO8157, was still pending final vote.

Different Results for the Mentally Ill in Tennessee and South Carolina

Theoretically, mentally-deficient capital criminals have been protected from death penalty sentences for sometime. In 1986, the U.S. Supreme Court ruled as unconstitutional the execution of an insane person. Ford v. Wainwright, 477 US 399. More recently, the high court also ruled as unconstitutional the execution of a mentally retarded person. Atkins v. Virginia, 536 US 304 (2002).

Between these two extremes lies the sentencing of persons who are neither insane nor retarded but nonetheless seriously mentally ill, and for whom there is no constitutional bar against execution. In March 2008, the Tennessee Court of Criminal Appeals reversed the death sentence of Richard Taylor and remanded for a new trial, in lieu of which Taylor agreed to enter a guilty plea in return for life imprisonment. In June 2008, the State of South Carolina executed David Hill. Both men suffered from extreme mental illness.

For Taylor, the case was more clear-cut. The record on appeal indicated that Taylor, at the age of 21, was serving a sentence in 1981 'for joy-riding and robbery convictions when he stabbed a prison guard at the Turney Center Correctional Center in Tennessee. Eyewitnesses described him as raving, with wild eyes and a facial expression “like a wild horse,” and trembling and shaking. The prison guard died. An already-incarcerated Taylor was then tried and convicted for killing the prison guard and sentenced to death. Prison records showed that during his incarceration, Taylor had previously tried to kill himself by swallowing glass.

During his 18 years on death row, Taylor's attorneys (from the Office of the Tennessee Post-Conviction Defender and the AMERICAN CIVIL LIBERTIES UNION, ACLU) continued to appeal his sentence, arguing that his mental illness had affected every step of his case, from offense through trial. In summary, they argued that he had a long, documented history of severe mental illness, was denied psychiatric treatment at various times during his incarceration, and had not received his anti-psychotic medication for the two months preceding the crime (the attack on a prison guard) that resulted in his death sentence.

Although Taylor was granted a new trial in 2003, he was permitted to represent himself, despite a prison record replete with notations of his severe mental illness. He was again convicted and sentenced to death. It was this conviction and death sentence that was overturned in the March 2008 decision of the Tennessee Court of Criminal Appeals. The appellate court found numerous substantive errors requiring reversal, five of which were cited in its decision. Tennessee v. Taylor, No. M2005-01941-CCA-R3-DD, March 7, 2008.

The court, in reversing and remanding the case, stated,

Upon review, we conclude the trial court failed to consider the full panoply of evidence relevant to whether the Defendant knowingly and voluntarily waived his right to counsel. He is thus entitled to a new trial. Additionally, the Defendant's constitutional right to counsel was denied at a competency hearing, the trial court erred in failing to hold a competency hearing during trial, and the trial court erred in failing to appoint advisory counsel. These errors also entitle the Defendant to a new trial. We also conclude that the trial court erred when it instructed the jury at the sentencing phase, and the Defendant is entitled to a new sentencing hearing. In accordance with the foregoing reasoning and authorities, we vacate the Defendant's conviction and sentence of death and remand for a new trial.

But in South Carolina, the state Supreme Court, in upholding the decision of a trial court, found death row prisoner David Hill “competent” to waive his right to further appellate review and other post-conviction relief, and found his waiver to be knowing and voluntary. South Carolina v. Hill, No. 26477, April 28, 2008. Hill and his wife had their three children removed from them by the state department of social services because of concern about the parents' abuse of prescription drugs. Hill was convicted of three counts of murder after he walked into a county social services office and shot three employees dead. A massive manhunt followed, and Hill was found the following morning, lying on railroad tracks directly behind the building where the murders took place. He had a [presumably self-inflicted] bullet hole through the roof of his mouth and an exit wound through the top of his skull. He recovered from his wounds and later admitted to the killings.

The South Carolina Supreme Court affirmed his convictions and death sentence. State v. Hill, 361 S.C. 297 (2004); cert. denied, 544 U.S. 1020 (2005). Then in May 2007, Hill sent a letter to the State Solicitor requesting assistance to “drop the rest of my appeals and have an execution date set.” On June 21, 2007, counsel for Hill submitted an affidavit indicating that Hill had changed his mind and did not wish to drop his appeals. A little more than three weeks later, Hill again advised the court that he wished to withdraw his pending post-conviction relief application and any remaining appeals. The trial court ordered a competency evaluation and thorough examination of Hill. Following a hearing, the trial court found Hill competent to waive his appeals and also found that his decision was made knowingly and voluntarily. On April 28, 2008, the South Carolina Supreme Court, upon full review of the trial court's record in addition to another thorough examination of Hill during oral arguments before the Court, affirmed the trial court's findings that Hill was competent to waive his rights, and did so knowingly and voluntarily. Hill was executed on June 6, 2008.

No First Amendment Right to View Executions

In January 2008, U.S. District Court Judge Susan Webber Wright of the Eastern District of Arkansas dismissed a lawsuit that had been filed in July 2007, demanding that witnesses be allowed to see and hear all phases and stages of the lethal injection process for capital defendants. Judge Wright ruled there was no First Amendment right of access to executions. The suit had been filed by the American Civil Liberties Union (ACLU) on behalf of the Northwest Chapter of the Society of Professional Journalists, the Arkansas Times, a weekly newspaper, and Max Brantley, its editor. ACLU, et al, v. Larry Norris, No. 5:07-CV-195 (E.D. Ark. 2008).

The lawsuit had argued that witnesses should be able to view everything from the time a condemned inmate enters the execution chamber until he/she is pronounced deceased, including “strapping the condemned down and the insertion of needles.” It premised this right as being grounded in the First Amendment, akin to a Freedom of Information (FOIA) Act request. The lawsuit's articulated reason was that such access would help educate the public about how the state effects an execution, and would let witnesses see if anything goes wrong.

But the State Department of corrections and its director, Larry Norris, responded that the state was merely following state law, which provided that state executions were private and not public proceedings. Under state law, curtains were generally opened once an inmate was already strapped to a gurney and closed once the inmate was pronounced dead. Department spokesperson Dina Tyler stated to the Associated Press that keeping the curtain closed while an inmate entered the chamber allowed the condemned person some dignity. In its legal response, the department of corrections had countered, “Whether Arkansas should keep the curtain open from the time a condemned prisoner enters the execution chamber is a question of policy for the Arkansas General Assembly and state officials and not a question governed by the First Amendment.”

The district court agreed. In its 10-page decision, the court noted that “The Supreme Court has never recognized a First Amendment right of access to executions.” District Judge Wright also noted that the high court had previously held that, while conditions in jails and prisons were matters of great public concern and importance, access to penal institutions was a question of policy for a legislative body. The judge noted that executions had “moved from the public square to inside prison walls.” An execution, noted the opinion, “bears little resemblance to a criminal judicial proceeding, where public participation plays an indispensable functional role in the process itself, and where public access enables citizens to judge whether our system of criminal justice is fair.”

The district court further held that in this case, the prison director “has the responsibility to determine the substances to be administered and the procedures to be used in any execution.” The law already provided for the director or an assistant to be present, as well as “a number of respectable citizens numbering not fewer than six … nor more than twelve … whose presence is necessary to verify that the execution was conducted in the manner required by law.” The court also noted that state law additionally provided for the inmate's attorney and spiritual adviser to attend as well, along with any other spectators designated by the director, with a maximum overall attendance limited to 30 persons.

After release of the court's opinion, plaintiff editor Max Brantley told the Associated Press, “Even if constitutionally we don't have a right to be there at every step of that process, public accountability demands that we should be.” He added that he and the other parties would confer with legal counsel to decide whether to appeal the ruling.

The ACLU had filed similar suits in other states previously, also citing First Amendment violations by state departments of corrections. In 1999, the Oregon Supreme Court struck as invalid certain state rules that barred execution witnesses from viewing the insertion of needles. As of early 2008, only the Ninth Circuit Court of Appeals has held (in a 2002 decision, California First Amendment Coalition v. Woodford) that the First Amendment provided a right of access to view executions from the beginning of the process. Following that remanded decision, in 2003, the California Department of Corrections ended its legal battle and decided to permit media personnel to witness the executions in full. Only states within the Ninth Circuit (including California and Oregon) were bound by that decision. Arkansas is under the jurisdiction of the Eighth Circuit Court of Appeals.

CAPITAL PUNISHMENT

CAPITAL PUNISHMENT , the standard penalty for crime in all ancient civilizations.

In the Bible

Many of the crimes for which any biblical punishment is prescribed carry the death penalty. The three methods of executing criminals found in the Bible are stoning, burning, and hanging.

stoning

Stoning was the instinctive, violent expression of popular wrath (Ex. 17:4, 8:22; Num. 14:10; i Sam. 30:6; i Kings 12:18; ii Chron. 10:18), and is often expressly prescribed as a mode of execution (Lev. 20:2, 27, 24:16; Num. 15:35; Deut. 13:11, 17:5, 21:21, 22:21, et al.). As the survival of vindicta publica, it was and remained characterized by the active participation of the whole populace (Lev. 24:16; Num. 15:35; Deut. 17:7; et al.) – all the people had to pelt the guilty one with stones until he died. Stonings were presumably the standard form of judicial execution in biblical times (Lev. 24:23; Num. 15:36; i Kings 21:13; ii Chron. 24:21).

burning

Burning is mentioned as a pre-Sinaitic punishment (Gen. 38:24). As a mode of judicial execution it is prescribed in respect of two offenses only (Lev. 20:14, 21:9), but it seems to have been used to aggravate the punishment of stoning, the corpse being burned after execution (Josh. 7:25). It is also reported as a non-Jewish (Babylonian) punishment (Dan. 3:6). There is no biblical record to indicate whether and how judicial executions were ever carried out by burning.

hanging

Hanging is reported in the Bible only as either a mode of execution of non-Jews who presumably acted in accordance with their own laws (e.g., Egyptians: Gen. 40:22; ii Sam. 21:6–12: Philistines; and Persians: Esth. 7:9), or as a non-Jewish law imported to or to be applied in Israel (Ezra 6:11), or as an extra-legal or extra-judicial measure (Josh. 8:29). However, biblical law prescribes hanging after execution: every person found guilty of a capital offense and put to death had to be impaled on a stake (Deut. 21:22); but the body had to be taken down the same day and buried before nightfall, "for an impaled body is an affront to God" (ibid., 23).

Talmudic Law

Talmudic law distinguished four methods of judicial execution (arba mitot bet din): stoning, burning, slaying, and strangling. In no area can the genius of the talmudic law reformers better be demonstrated than in that of capital punishment. Two general theories were propounded which, though dated from a period too late to have ever stood the test of practical application (see below), reflect old traditions and well-established ways of thinking: namely, first, that "love your neighbor as yourself" (Lev. 19:17) was to be interpreted as applying even to the condemned criminal – you love him by giving him the most humane ("the most beautiful") death possible (Sanh. 45a, 52a; Pes. 75a; Ket. 37a); secondly, that judicial execution should resemble the taking of life by God: as the body remains externally unchanged when God takes the life, so in judicial executions the body should not be destroyed or mutilated (Sanh. 52a; Sifra 7:9).

stoning

Stoning was not only confined to the 18 offenses for which the Bible had expressly prescribed it (Maim., Yad, Sanhedrin 15:10), but instead of having all the people kill the convicted person by pelting stones at him a "stoning place" was designed from which he was to be pushed down to death (Sanh. 6:4). This must not be too high, so that the body should not be mutilated falling down (Rashi, Sanh. 45a), and not too low, so that death would be instantaneous. One of the hermeneutical reasons given for this change of the law was the scriptural rule that "the hands of the witnesses shall be first upon him to put him to death" (Deut. 17:7); it is true that "the hand of all the people [should be on him] afterward" (ibid.), but it is the hand of the witness which is to put him to death. A mode of "stoning" had therefore to be devised in which the witness would not only be assured of the first chance to lay hands on the convicted person, but also of the certainty of thereby putting him to death (Sanh. 6:4). Talmudic jurists may have been influenced by Roman law (Saxum Tarpeium of the Twelve Tables 8:13f., 8:23) or by Syrian or Greek laws (cf. ii Macc. 6:10), or perhaps by a single biblical precedent with prisoners of war (ii Chron. 25:12) – what they attained was a more humane substitute for the biblical stoning, by which the danger of mutilation was considerably reduced and death accelerated. Maimonides justifies the talmudic method with the reflection that it really made no difference whether stones were thrown at one or one was thrown on the stones (Maimonides, Comment. to Sanh. 6:4). A great penal reform was achieved with the exclusion, contrary to biblical command, of the general public from the execution of death sentences and the elimination therefrom of all traces of vindicta publica. The participation of witnesses – and perhaps also the blood avenger – was not eliminated because they were regarded as a lesser evil in comparison with professional executioners.

burning

Burning remained confined to the *adultery of a priest's daughter and to certain forms of *incest (Sanh. 9:1; Maim. Yad, Sanhedrin 15:11). Here again the question arose of how to execute by burning without destroying the body: an old tradition has it that when Aaron's sons were consumed by divine fire (Lev. 10:2) only their souls were burnt, their bodies remaining intact (Sanh. 52a); in accordance with this, a mode of burning which would leave the body intact had to be devised. The man to be burnt was to be immersed in mud up to his knees (so that he should not fall); two kerchiefs were then to be bound round his neck, each to be held in the hands of one witness and drawn in opposite directions until he opened his mouth, and then a burning wick was to be thrown into his mouth "which would go down into his bowels" (Sanh. 7:2). As will be seen, this mode of execution is almost identical with that of strangling, it being reasonable to suppose that the wick will no longer burn when it arrives in the bowels, but suffocation will already have supervened. Maimonides substitutes hot lead or zinc for the comparatively harmless mishnaic wick (Sanh. 15:3), taking the wick to be a metallic substance, but insisting that as little pain as possible should be inflicted (Comment. to Sanh. 7:2). There is no record that this method of burning was ever actually practiced. There is a report that a priest's daughter was burnt for adultery by being bound with bundles of grapevine which were then ignited (Sanh. ibid.). The explanation there given was that this may have been the method employed by a Sadducean court, leading some scholars to conclude that that had been the original biblical mode of burning, the Sadducees rejecting later oral law modifications. The same older method of burning is reported to have been adopted by a later Babylonian scholar, Ḥama b. Tobiah, who was rebuked for it (Sanh. 52b). That burnings may also have taken place at the stake appears from midrashic sources (cf Gen. R. 65:22; Mid. Ps. 11:7). Josephus reports that Herod ordered men who had incited others to desecrate the Temple to be burnt alive and their accomplices to be killed by the sword (Wars, 1:655).

slaying

Slaying by the sword was the mode of executing murderers and the inhabitants of the subverted town (Sanh. 9:1). As for the subverted town, it is the biblical prescript that its inhabitants be "put to the sword" (Deut. 13:16); and as for murderers, a slave murdered by his master must be "avenged" (Ex. 21:20), and as God is said to "avenge" by the sword (Lev. 26:25), the murderer of the slave, and a fortiori of the free man, is to be executed by the sword (Sanh. 52b). Slaying consisted in decapitating with a sword, "in the way practiced by the [Roman] government" (Sanh. 7:3). There ensued a discussion, which continued for centuries (cf. Tos. to Sanh. 52b), whether this would not contravene the injunction, "neither shall ye walk in their statutes" (Lev. 18:3). One scholar thought it would be less cruel or mutilating, and less Roman-like, to have the convict lay his head on a block and decapitate him with a hatchet, but the majority held that to be worse (Sanh. 7:3). While there was no particular mode of execution for murder prescribed in the Bible, it is probable that originally such executions were by way of *talion: in the same manner in which the victim had been murdered, his murderer would be executed (cf. Philo, Spec., 3:83ff.; Jub. 5:31; Jos., Ant., 4:279). If that be so the talmudic reform would equalize the law and have death made instantaneous in all cases. There are no reports of murderers having been judicially executed by the sword, but kings are reported to have used this mode of execution, not necessarily for murderers (cf. Jos., Ant., 14:450, 464; Acts 12:2). It became the law that the king, who may order the execution of rebels and of offenders against his majesty even without judicial conviction, always executes with the sword (Maim., Yad, Melakhim 3:8, Sanhedrin 14:2). Indeed, God, too, kills by the sword (Num. 14:16; Lam. 2:21).

strangling

Strangling is the residuary capital punishment; where no other mode of execution is prescribed, the death penalty is carried out by strangulation (Sanh. 52b, 84b, 89a), supposed not only to be the most humane but also the least mutilating (Sanh. 52b). The mishnaic procedure resembles that for burning. The convicted man is immersed in mud up to his knees, two kerchiefs are bound round his neck and then drawn in opposite directions by the two witnesses until he suffocates (Sanh. 7:3). Strangling is applied in six capital offenses (Sanh. 11:1; Yad Sanh. 15:13). There is no report of this mode of execution ever having been carried out. (For strangulations by hanging, see *Extraordinary Remedies.) Post mortem hangings were restricted by talmudic law, some holding that only executions by way of stoning should be followed by a post mortem hanging, and the majority view being that these hangings should be limited to the two offenses of blasphemy and idolatry only (tj, Sanh. 6:4, 45b).

Though in strict law the competence to inflict capital punishment ceased with the destruction of the Temple (Sanh. 52b, Ket. 30a; cf. Sanh. 41a, 40 years earlier), Jewish courts continued, wherever they had the power (e.g., in Muslim Spain), to pass and execute death sentences – not even necessarily for capital offenses as defined in the law, but also for offenses considered, in the circumstances prevailing at the time, as particularly dangerous or obnoxious (e.g., *informers: Yad, Ḥovel u-Mazzik 8:11), or even for such offenses alone as distinguished from those originally punishable under the law (cf. Resp.Rosh 17:1). In order not to give the appearance of exercising sanhedrical jurisdiction, they would also normally refrain from using any of the four legal modes of execution (Resp. Maharam of Lublin, 138); but isolated instances are found of stoning (Zikhron Yehudah, 75), slaying (ibid., 58; Resp. Rosh. 17:2), and strangling (Zekan Aharon 95), along with such newly devised or imitated modes of execution as starvation in a subterranean pit (Resp. Rosh 32:4), drowning, bleeding, or delivering into the hands of official executioners (S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud, no. 48). In most cases, however, the execution of death sentences was probably left to the discretion of the persons who were authorized or assigned by the court to carry them out (cf. Resp. Rema, 11).

[Haim Hermann Cohn]

In Practice in the Talmud

It is of extreme difficulty to determine whether the modes of capital punishment given above, and based on the detailed discussion, mainly in the tractate Sanhedrin, reflect actual practice, or whether they were academic discussions, as, for instance, are the detailed discussions on the sacrifices. Thus the law of the "stubborn and rebellious son" covers five mishnayot (Sanh. 8:1–5) and four folios of the Babylonian Talmud (68b–72a), and it is laid down that he is put to death by stoning and then hanged (ibid., 46a). Yet it is stated that "It never happened and it never will happen" and that the law was given merely "that you may study it and receive reward" (for the pure study; Tosef., Sanh. 11:6; Sanh. 71a), though on the other hand in the talmudic passage R. Jonathan protests "I saw him and sat on his grave." The same statement is made in the case of the death penalty for communal apostasy (Tosef., Sanh. 14:1) and the same reason given for its study.

Much more pertinent, however, is a passage of the Talmud which explicitly compares the study of, and the discussion on the various death penalties with that on the sacrifices. The halakhah was established in the case of the death penalty for an adulterous woman. R. Joseph asked, "Is there need to establish a halakhah for the messianic age (the Sanhedrin no longer having jurisdiction in capital offenses)?" Abaye answered, "If so, we should not study the laws of sacrifices, as they also apply to the messianic age. But we say 'Study and receive reward'" (Sanh. 51b). Similarly, the passage in Mishnah Makkot 1:10: "A Sanhedrin that puts a man to death once in seven years is called a murderous one. R. Eleazar ben Azariah says 'Or even once in 70 years.' R. Tarfon and R. Akiva said, 'If we had been in the Sanhedrin no death sentence would ever have been passed'; Rabban Simeon b. Gamaliel said: 'If so, they would have multiplied murderers in Israel.'" Instructive though this is, it is merely an academic discussion, the right of imposing capital punishment having been taken from the Sanhedrin by the Romans a century before, "40 years before the Destruction of the Temple" (Sanh. 41a; tj, Sanh. 1:18a). The rabbis agreed that with the destruction of the Temple the Sanhedrin was precluded from inflicting capital punishment (see above).

The Talmud actually asks whether the statement of Eleazar b. Azariah was one of censure or reflected the fact of the rarity of death sentences, and leaves the question undecided, as it does for the question as to how R. Tarfon and R. Akiva would have prevented the death verdict being passed (but see Makk. 7a).

That the discussions are largely academic is reflected in the language of the Mishnah. Of capital punishment by the sword it is stated that "they used to decapitate him, as the [Roman] government does [at the present time]" (cf. Tosef., Sanh. 9:10) and R. Judah proposes another method. It goes on to state how "they used to" fulfill the method of death by strangulation (ibid., 7:3). No less significant is the fact that R. Akiva himself, who would have abolished capital punishment, enters into the halakhic discussion on it as fully as his colleagues (cf. ibid., 11:7, 12:2).

All that one can do is to assemble the available evidence. That the Sanhedrin had the power of inflicting the death sentence and that they exercised it is historically attested. Herod was arraigned before it on a capital charge, although he was enabled to escape and avoid the penalty (Jos., Ant., 14:168–70). Judah b. Tabbai admitted that he had wrongly sentenced a perjured witness to death (tj, Sanh. 6:4, 23a–Tosef., Sanh. 6:6). The son of his colleague, Simeon b. Shetaḥ, was also wrongly condemned to death through false witness, and when the witnesses confessed their perjury the condemned man refused to take advantage of it lest his father, the head of the Sanhedrin, be accused of favoritism, and he went to his death, though innocent (tj, loc. cit.). It is also clear from an incident vividly described by Simeon b. Shetaḥ that the laws of evidence were strictly adhered to (Tosef., Sanh. 8:3). One anonymous case is cited in the same context. "It happened that a man was being led to his execution. They said to him, 'Say, "May my death be an atonement for all my sins.'" He replied 'May my death be an atonement for all my sins, except for this one (for which I have been sentenced to death). If I am guilty of it, may my death not be an atonement, and the Bet Din and all Israel shall be guiltless'" (the version in the Babylonian Talmud adds "but may the witnesses never be forgiven""). When the matter was reported to the sages, their eyes filled with tears, but they said, "It is impossible to reverse the decision, since the matter is endless; [he must be executed] but his blood is on the necks of the witnesses" (tj Sanh. 6:5, 23a).

Nevertheless, in none of those cases is the manner of execution given and the remarkable fact emerges that in the two cases cited where the mode of execution is explicitly stated the verdicts were extra-judicial. One was the action of Simeon b. Shetaḥ in sentencing 80 women in Ashkelon to hanging for witchcraft (Sanh. 6:4, cf. Sanh. 46a. Derembourg suggests that Simeon b. Shetaḥ is a mistake for the Hasmonean), while of the other it is stated: "It once happened that during the Greek period a man was sentenced to death by stoning for riding a horse on the Sabbath. Not that he was liable to death, but because the special circumstances of the time demanded it" (Sanh. 46a).

What is perhaps the most cogent evidence that the talmudic discussions on the death sentence did not reflect the actual practice is provided by a third instance. In Sanhedrin 7:2 R. Eleazar b. Zadok gave evidence of an actual case of death by burning which differed diametrically from that given by the Mishnah. The answer was given that "the Sanhedrin at that time was not competent." In the Tosefta (9:11) and the Jerusalem Talmud (7:2, 24b) Eleazar b. Zadok vividly describes the circumstances under which he witnessed it. "I was a child and was being carried on my father's shoulders and I saw it," to which his colleagues replied "You were then a child, and the evidence of a child is inadmissible." That the incident happened is therefore definite; the rabbis in the two replies were concerned with establishing their theoretical view of the law even when it conflicted with the actual practice of the past. There are no recorded cases of execution by strangulation or the sword. It would seem therefore that discussions on the various modes of execution and the details of their implementation were made to "study and receive the reward therefore," i.e., academic. As is evident from the above quoted mishnah in Makkot, the whole tendency of the rabbis was toward the complete abolition of the death penalty.

[Louis Isaac Rabinowitz]

In the State of Israel

The death penalty was in force in Israel for offenses under the Nazis and Nazi Collaborators (Punishment) Law, 5710 – 1951 and under the Penal Law, 5737 – 1977, for treason and assisting the enemy in times of actual warfare (Sections 97, 98, 99). In addition, a military tribunal may impose the death sentence upon a soldier for offenses of treason committed in times of actual warfare (Military Justice Law, 5715 – 1955, Section 43) and military courts in the administered territories are empowered to impose the death penalty for certain offenses, though such rulings must be unanimous and can only be given by a panel of justices all of whom have at least the rank of lieutenant colonel. The death penalty has only been carried out in one instance (in 1962) following the conviction of Adolf *Eichmann for crimes under the Nazis and Nazi Collaborators (Punishment) Law, 5710 – 1951. The death penalty for offenses under this law was also imposed in the *Demjanjuk case (in 1988) but was not carried out following his acquittal in the Supreme Court. The proliferation of brutal terrorist acts, and the imposition of life sentences instead of capital punishment, led the military courts to state (cf. Ram 3009/89 Army Pros. v. Ahmed Gibril Ottrrzan Takrzrru) that though the death penalty may be a more appropriate punishment, they were bound "to uphold principles of the State of Israel, the moral concepts of Jewish tradition, in which a Sanhedrin that passed a death sentence was considered to be a 'a bloody Sanhedrin.'" This refers to the statement in the Mishnah (Mak. 1:10; Mak. 7a) that a Sanhedrin that kills (gives the death penalty) once in seven years (R. Eleazer b. Azariah said: once in 70 years) is called "bloody" (ḥovlanit, the term "ḥovel" generally implying a type of injury in which there is blood).

This position of Jewish Law and the related developments over the generations were often the basis for Supreme Court deliberations in cases in which a person was murdered but the findings and evidence connecting the suspected murderer to the commission of the offense were circumstantial only. There were cases in which despite the quantity and probity of the findings, there was no direct evidence to prove that it was the suspect who actually committed the act. In assessing the position in Jewish Law regarding the possibility of relying on circumstantial evidence the Court discussed the various techniques adopted in Jewish Law over the generations in the attempt to relax the strict evidentiary requirements prescribed by the original Jewish Law, which placed an onerous burden on the Jewish courts in their attempts to deal with murderers and dangerous criminals.

In the judgment in Nagar (ca 543/79 Nagar v. State of Israel 35 (1) pd 113), the Supreme Court addressed the question of whether the suspects could be convicted of murder even though the court had no direct evidence of their having committed the offense, and given that the body itself had not been found. The Supreme Court (Justice M. Elon) referred to a previous Supreme Court ruling (Cr.A. 112/69 Muhamad Halil 23 (1) pd 733) which examined the disparity between the position adopted by Jewish Law regarding the offense of murder and the position adopted by modern systems of law, having reference to the far-reaching statements of the tannaim R. Tarfon and R. Akiva, who said:"Had we been in the Sanhedrin [during the period when it possessed capital jurisdiction] no man would ever have been killed" (Mish., Mak., 7:1). Further on, the judgment cites statements made by certain amoraim, explaining how the judge can disqualify any testimony on murder and render any piece of evidence circumstantial, thereby precluding its admissibility: "Did you note whether he (the victim) was suffering from some fatal condition or was in good health?" R. Ashi said: "Even if the reply is that he was in good health, there may have been a lesion where the sword struck [from which he would have died in any event]."

On this basis, further on in the decision, Justice Silberg concluded that a modern legal system cannot endorse the position in Jewish Law, which is prepared to rely on remote eventualities, on the basis of which it exempts dangerous criminals from punishment "since there is a need for judicial action to punish dangerous criminals, it is necessary to disregard 'remote possibilities,' i.e., exceptional, unlikely eventualities, even though this may possibly cause a miscarriage of justice. In other words, the legislature was aware of this danger, but found it to be necessary, for in its absence, the needs of the law would never be met (p. 741 of judgment).

In the Nagar judgment (pp. 163–71) Justice Elon discussed the various developments in Jewish Law with respect to this sensitive and fundamental issue. First of all, the aforementioned view of R. Akiva and R. Tarfon was a minority view, which merited the ironic demurrer of the tanna. R. Simeon b. Gamaliel that "they too would have multiplied the number of murderers in Israel." An absolute moratorium on enforcement of judgments against murderers would lead to the loss of the court's deterrent power, and thus lead to the increase of bloodshed (see Rashi ad loc. tb, Mak. 7a).

In fact, in its original format, Jewish Law was stringent in its requirements for direct evidence, and in this context Maimonides makes the following illuminating observations on the strict evidentiary requirements of Jewish Law (Sefer ha-Mitzvot, Negative Commandments, 290), "that even if A pursues B with intent to kill and B takes refuge in a house, and the pursuer follows him, and we enter the house after them and find B in his last gasp and his enemy, A, standing over him with a knife in his hand, and both of them are covered with blood, the Sanhedrin may not find the pursuer A liable for capital punishment, since there are no direct witnesses who actually saw the murder…" The reason given by Maimonides is that if the court was permitted to convict a suspect of a criminal offense not on the basis of the unequivocal testimony of witnesses who actually witnessed the act, then the court might soon find itself convicting in criminal offenses on the basis of a "the judge's speculative evaluation of the evidence." Maimonides concludes his comments with the observation that "it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death (a statement that later on became a wellknown maxim, see G. Williams, The Proof of Guilt (1963) 186ff.).

Towards the end of the tannaitic period, a principle in Jewish criminal law was enunciated though it had actually been in practice for many years. The acceptance of this principle accommodated a substantive change in Jewish criminal law, both with respect to sanctions and also with respect to evidence and procedure:

It was taught: R. Eliezer b. Jacob said: I have heard that the court may impose flogging and punishment not prescribed in the Torah – not for the purpose of transgressing the law of the Torah, but in order to make a fence around the Torah.

Justice Elon pointed out that on the basis of this fundamental provision, which enabled the courts to deviate from the original law of the Torah in criminal and evidentiary law, in accordance with the needs of the time and the place, both the courts and the communal leaders, utilizing their authority to enact communal regulations (see *Takkanot), adopted detailed legislation in the area of penal law. Formally speaking this legislation was referred to as "exigencies of the hour," but in effect it became part of the substantive Jewish Law. Jewish courts all over the Jewish Diaspora used this authority at various times, even to the extent of imposing capital punishment, without the Court of Twenty Three, and without complying with the strict evidentiary requirements of the original Jewish Law (see Jewish Law, 515–19).

Rabbenu Asher, upon his arrival in Spain at the beginning of the 14^th century, states that he was surprised to discover that the Jewish courts in Spain had arrogated to themselves capital jurisdiction and were even imposing capital punishment. In one of his responsa he writes:

…You surprised me greatly by your inquiries about capital jurisdiction. For in all the countries of which I have heard, there is no capital jurisdiction, except here in Spain. And I was astonished to discover upon my arrival that the courts adjudicate capital matters in the absence of a Sanhedrin, and they informed me that they had governmental authorization, and the community used its jurisdiction to save… and I permitted them to persist in their custom, but I never gave my consent to an execution… (Responsum, Rosh, 17:8).

However, despite the reservations expressed by the Asheri regarding capital punishment, in the particular question put to him concerning a Jew who blasphemed the name of God in public, he was prepared to abide by the questioner's position, writing that "It is fitting that the name of Heaven be sanctified by the elimination of this evildoer. And do as you deem appropriate … because I know that your intention is to sanctify the Divine name, and you will be successful in fulfilling God's will."

In contrast with the Asheri's almost forced acknowledgment of the capital jurisdiction exercised by Jewish courts in Spain, his son, R. Judah b. Asher (Spain, North Africa, end of 14^th century) praised and thanked the non-Jewish authorities for allowing the Jewish courts to exercise capital jurisdiction:

It is well known that from the day the Sanhedrin was exiled from the Chamber of Hewn Stone, jurisdiction over criminal cases [under the law of the Torah] has been abrogated for Jews, and the only purpose for the law today is to protect the current generation against wrongdoing. Blessed be the Almighty, who has inclined the hearts of the rulers of the land to give to the Jews the authority to judge and wipe out evildoers. Without this, the Jews could not survive in this country. Moreover, many Jews who would have been executed by non-Jewish judges have been saved by the Jewish judges. And the law we apply in criminal matters is not in full conformity with the Torah (Resp. Zikhron Yehudah, 58).

Most of the cases in which capital punishment was imposed were for convictions of murder. Hence we find a responsum of R. Isaac b. Sheshet Barfet (Spain and N. Africa, end of 14^th century) when asked regarding a person accused of murder, and the nature of the evidence on the matter:

You know that the law applicable to criminal cases in these times when the government has granted criminal jurisdiction to Jewish courts is not the strict law [i.e., biblical], for jurisdiction over criminal cases [under the law of the Torah] has been abrogated. However, in order to "create a safeguard," the courts, when the exigencies of the time demand it, impose flogging and punishment not prescribed in the Torah.

And if the death penalty – although not prescribed by the Torah – was carried out for other offenses because of the exigencies of the time, then it goes without saying that it applies in cases of murder, concerning which our Sages were most stringent…. In any event, in order to "create a safeguard," since one of them was killed, if you decide that the death penalty is called for because a crime has been committed heinously, violently, and deliberately (it appears that they lay in wait for him [the victim] at night and during the day, and they openly brandished weapons against him in the presence of the communal leaders), then you may [impose the death penalty] … even when there are no eyewitnesses, if there are convincing proofs and valid grounds (Resp. Ribash, 251; see also Resp. Zikhron Yehudah, 58).

In an additional responsum the Ribash ruled that for the same reason it is also possible to rely on the confession of a litigant, supplemented by circumstantial evidence (similarly to the provision in the law of evidence practiced in the State of Israel, which allows the conviction of the accused on the basis of a confession given outside the court, with the addition of "something extra"):

…Jewish courts [at this time] impose flogging and punishment not prescribed by the law, for capital jurisdiction was abrogated, but in accordance with the needs of the time, and even without unequivocal testimony, so long as there are clear grounds to show that he [the accused] committed the offense. In such a case, it is the practice to accept the defendant's confession even in a capital case, even where there is no clear proof, in order that what he says, together with some measure of corroboration, may shed light on what happened (ibid., 234).

Not every part of the Jewish diaspora enjoyed such wide autonomous criminal jurisdiction, and even within a given location, the extent of juridical authority fluctuated over time. As we have seen, the Spanish Jewish center enjoyed broad criminal jurisdiction – even including power to inflict capital punishment – for an extended period. Similarly we find that such jurisdiction also existed in a later period in the Jewish community of Poland. For example, in a responsum of R. Meir of Lublin, a leading Polish halakhic authority in the 16^th century, he rules that the courts even have the power to impose capital punishment, by virtue of the principle of "imposing punishment not prescribed in the Torah," in order to create a barrier. Even so, on many occasions, the Jewish courts in Poland preferred that the actual sentence be carried out by the non-Jewish authorities (Resp. Maharam of Lublin, 136; Resp. Eitan ha-Ezraḥi, 43–44).

These principles were succinctly set forth in the codificatory literature, "Even though there is no jurisdiction outside the Land of Israel for capital punishment, flogging, or fines, if the court deems that it is an exigency of the time, in as much as the crime is rampant among the people, it may impose the death penalty, monetary fines, or other punishments" (Tur, Ḥm, ch. 2, and Sh. Ar. ibid.). Apparently, the reason for the brevity of these codes in their exposition of criminal law lies in the limited criminal jurisdiction of Jewish communities of that time, in contrast to their extensive civil and administrative jurisdiction, and the great detail in which these fields were regulated in the codificatory literature of that period. Another factor may have been that criminal activity was not widespread in the Jewish communities of that time, even though here too there were "high" periods and "low" periods" (p.170 of judgment).

The Court summed up its comments in the Nagar case by emphasizing that even though it was necessary to exercise capital jurisdiction and convict on the basis of circumstantial evidence, in contravention of the provisions of the original Jewish Law, it "constantly emphasized that although clear and direct testimony may not always be available, the evidence must be such that the judges 'believe it to be the truth'" (Resp. Rashba, attributed to Naḥmanides, 279) and that the charge must "proved to be well grounded"; and that "the sole intention is to pursue justice and truth and there is no other motive" (Resp. Zikhron Yehudah, 79). The judgment also cites (ibid., 166) the comments of Maimonides, who warned the court to be doubly careful in its exercise of this special jurisdiction, so that the human image and dignity would not be violated more than was necessary: "All these matters are carried out in accordance with what the judge deems necessary under the exigencies of that time, and his acts should always be for the sake of heaven and he should not take a frivolous attitude to human dignity" (Maim. Yad. Hil. Sanhedrin, 24:10).

[Menachem Elon (2^nd ed.)]

bibliography:

S. Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews (1891), 256f. (index), s.v.; S. Gronemann, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 13 (1899), 415–50; A. Buechler, in: mgwj, 50 (1906), 539–62, 664–706; D. de Sola Pool, Capital Punishment among the Jews (1916); V. Aptowitzer, in: jqr, 15 (1924/25), 55–118; S. Katz, Die Strafe im talmudischen Recht (1936), 44–52; et, 2 (1949), 163f.; 10 (1961), 587–92; S. Ch. Cook, in: Ha-Torah ve-ha-Medinah, 3 (1950/51), 163f.; J.M. Tikoczinsky, ibid., 4 (1951/52), 33–44; B. Rabinowitz-Teomim, ibid., 45–81; S. Israeli, ibid., 82–89; Ch. Z. Reines, in: Sinai, 39 (1955/56), 162–8; J.M. Ginzberg, Mishpatim le-Yisrael (1956), 381 (index), s.v.Mitat Beit Din; G.J. Blidstein, in: Judaism, 14 (1965), 159–71; E.M. Good, in: Stanford Law Review, 19 (1966/67), 947–77; H. Freedman, in: The Bridge (Sydney), 3 (1967), no. 2, p. 4–8; H. Cohen, in: ilr, 5 (1970), 62–63. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:11–12, 97, 185 n. 86, 259, 283, 306, 422f., 435, 500, 648, 791f., 808; 2:842, 845, 1103; 3:1353, 1382, 1616; idem, Jewish Law (1994), i:10f., 109. 207 n. 86, 303f., 334f., 365f., 515f.; 2:531, 609, 802, 970f., 990; 3:1030. 1033f., 1326; 4:1615, 1646, 1926; idem, Jewish Law (Cases and Materials) (1999), 200ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah 2 1986), 332, 337, 343; B. Lifshitz and E.Shohetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarfat ve-Italyah (1997), 230; S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922); Ginsburg, Mishpatim le-Israel (1956) Y. Bazak, Harigat Nefashot ve-Dineiha be-Safrut ha-Shut, Divrei ha-Kongres ha-Olami ha-Ḥamishi le-Mada'ei ha-Yahadut, 3 (1969), 37.

Capital Punishment

The death penalty, the most severe sanction or punishment a government entity can impose on an individual for a crime, has existed in some form throughout recorded history. The first known official codification of the death penalty was in eighteenth century B.C.E. in the Code of King Hammurabi of Babylon, where twenty-five crimes could result in the ultimate sanction by the state. From then until the twenty-first century the variants of capital punishment throughout the world have included crucifixion, drowning, beating to death, stoning, burning alive, impalement, hanging, firing squads, electrocution, and lethal injection. The death penalty has been abolished in Western Europe and Japan, but its persistence in the United States has incited heated debate over its efficacy and inherent justness.

The Purposes and Effectiveness of Capital Punishment

The major rationalizations for capital punishment are retribution, deterrence, incapacitation, and rehabilitation. Obviously, the last bears no relation to the death penalty. Retribution, which argues that the state has the right to impose a level of pain and punishment equal to or greater than the pain suffered by the victim, seeks to justify the death penalty on principle rather than efficacy in reducing crime. The notion of deterrence does make this claim imply a utilitarian purpose. There are two forms of deterrence: general and specific. The latter focuses on the individual offender, who, it is claimed, is deterred from committing future crimes by punishing him/her for previous criminal activity. The former seeks to prevent such crimes from occurring in the first place. In the case of the death penalty, the well-publicized knowledge that the state punishes some crimes by death presumably deters potential criminals. Many criminologists argue that the goal of incapacitation—removing an offender from society—can be achieved equally effectively through a life sentence without the possibility of parole (LWOP).

The results of the more than 200 studies done on capital punishment are either inconclusive or adverse to the claim that it is an effective deterrent to murder. The typical research design compares murder rates in state that have and use the death penalty with (1) those that either have not used it, although the law permits its use and (2) states that have abolished it. In general, these studies tend to show no difference in homicide rates for comparable states that with and without capital punishment. Nor is there evidence that homicide rates decline or increase as states decide to reinstate or abolish the death penalty.

Why has the death penalty been an ineffective deterrent in the United States? First, capital punishment is applied with neither certainty nor swiftness, the two key characteristics of an effective deterrent. When the death penalty is imposed, it often takes many years for the sentence to be carried out, and in some cases the sentence is not upheld. In the United States in 1999, 271 prisoners were admitted to death row, while more than 15,000 murders were reported to police. In the same year, 88 persons had their sentences overturned.

The idea of deterrence presupposes rationality and premeditation on the part of the murderer. In most murders, such factors take a backseat to nonrational influences such as rage, alcohol or drug abuse, or psychological disorder, none of which are susceptible of deterrence by death sentence. For these reasons, the most persistent and persuasive arguments for the death penalty rely on notions of just retribution and revenge by the state on behalf of the citizenry.

Opponents of the death penalty point not only to its lack of deterrent effect but also raise other key arguments. First, from a moral perspective, the abolitionists believe state executions signal that violence is an acceptable means of resolving conflicts and thus actually contribute to a climate of increased violence. Second, opponents point to the unfair and discriminatory application of the death penalty, noting the disproportionate numbers of poor people and people of color on death row, many of them having lacked vigorous and effective legal counsel. Moreover, advances in DNA analysis have exonerated enough prisoners on death row to give pause to many lawmakers who point to the ever-present possibility that the state might, for lack of adequate probative or exculpatory evidence, take the life of an innocent person. This concern has led to several U.S. states to implement a moratorium on the death penalty until it can be shown to be applied fairly to all such cases.

International Trends

Comprehensive data on the use of the death penalty for all countries is difficult to collect and verify. Most of the data presented here come from two organizations opposed to capital punishment: Amnesty International and the Death Penalty Information Center. Yet the trend is clear; more and more countries are either abolishing or placing further restrictions and limitations on capital punishment.

As of 2001, 108 countries have abolished the death penalty in law or in practice, up from 62 in 1980. Of that 108, 75 have abolished it for all crimes while another thirteen have done so for "ordinary crimes." Another 20 have the authority to carry out this sanction but have not done so. Of those that have retained its use, the death penalty is used with regularity in the Islamic nations, in most of Asia, many parts of Africa, and the United States. The United States, Kyrgyzstan (the former Soviet republic), and Japan are believed to be the only other countries where the mentally retarded are put to death.

By far, the world's leader in the use of the death penalty is China. In 1998 China reported more than 1,000 executions, which represented two-thirds of all executions worldwide (see Table 1). The other leading counties were the Congo, the United States, Iran, and Egypt. These

five countries accounted for more than 80 percent of all executions.

The use of executions in China is even greater than these numbers would suggest. According to Amnesty International, from 1990 to 2000, China has executed 19,446 people, which compares to the 563 the United States put to death over the same period. In 1996 alone, more than 4,000 persons were put to death by China as part of its "strike hard" campaign against crime. This policy results in mass application of the death penalty for persons convicted of both crimes of violence and property crimes. For example, on June 30, 2001, four tax cheats were executed for bilking the government out of nearly $10 million in tax rebates.

The divergence between the United States and Europe on this issue is quite striking. Prior to the 1970s, capital punishment was common in both the United States and Europe, while declining throughout the West after World War II. During the 1970s, however, the death penalty disappeared from Western Europe and it was repealed in Eastern Europe in the postcommunist regimes that emerged beginning in the late 1980s. For example, from 1987 to 1992, East Germany, Czechoslovakia, Hungary, and Romania eradicated the death penalty, and all twelve of the Central European nations that retained the death penalty during the Soviet era have since abolished it. The Ukraine abolished its death penalty in 2000, and Russia suspended executions in mid-1999.

U.S. Trends

The death penalty has been a controversial part of the U.S. social and legal orders since the country's founding in the late eighteenth century. Initially persons were regularly put to death by the state for a wide array of criminal acts that included murder, witchcraft, and even adultery. And up until the 1830s, most executions were held in public. Public executions continued until 1936, when 20,000 citizens observed a public execution in Owensboro, Kentucky.

Prior to the 1960s, executions were relatively frequent in the United States, averaging about 100 per year during the early postwar period and slowly dwindling to fewer than ten per year in the mid-1960s. In 1967, executions were suspended by the U.S. Supreme Court in a series of landmark decisions that, among other things, found the application of the death penalty to be "arbitrary and capricious" and inhumane. Shortly thereafter, states reformed their death penalty statutes to meet the concerns of the Court. Subsequent Court rulings

in 1976—Gregg v. Georgia, Proffit v. Florida, and Jurek v. Texas —allowed the resumption of capital punishment. As shown in Figure 1, executions resumed shortly thereafter. By the late 1990s the totals were close to those of the early 1950s.

In 2001 there were approximately 3,500 prisoners under the sentence of death in the United States. Of this number, 55 percent were white and 43 percent were black. All have been convicted of murder; 2 percent received the death sentence as juveniles. Fifty women were on death row as of 2001. Fifteen states, along with the federal government, ban the execution of prisoners who are mentally retarded, but twenty-three do not. The most common form of execution is now lethal injection, which is used in thirty-four states.

The Death Penalty by Geography

Although the federal courts have played a significant role in death penalty reforms, it is also true that until the 2001 execution of Timothy McVeigh, death sentences and executions since Gregg v. Georgia have been solely carried out by state courts. Moreover, there is considerable variation among the states in the use of the death penalty that seems to have little to do with crime rates.

As of 2000, thirty-eight states had death penalty statutes, although only twenty-nine actually executed prisoners; of those, only a handful account for most of the executions. According to the Bureau of Justice Statistics, as of 1999, there had been 4,457 persons executed since 1930. States that have conducted the most frequent number tend to be southern states, led by Texas (496) and Georgia (389).

Conversely, Michigan was the first state to abolish the death penalty for all crimes except treason, more than a century before France and England enacted such a reform. Seven states that provide a death sentence in their statutes have not conducted any executions for more than twenty-five years. South Dakota and New Hampshire have not had executions in more than half a century. New Jersey legislated a death penalty statute in 1980 but has not applied it thus far.

As shown in Table 2, the southern states have consistently and increasingly accounted for the vast majority of U.S. executions since the 1950s. In 2000 seventy-six of the eighty-five U.S. executions were in the South, even though that region accounts for about one-third of the population and about 40 percent of the American states that authorize a death penalty. Two-thirds of all American executions in 2000 were conducted in three of the thirty-eight states that authorize executions (Texas, Oklahoma, and Virginia).

The Issue of Race and Class

A major topic revolving around the death penalty is the extent of racial and class bias in its implementation. As noted above, only very few persons convicted of murder actually receive the death penalty. This raises the important question of how decisions are reached by prosecutors to pursue punishment by death penalty. According to a recent U.S. Department of Justice study, in nearly 80 percent of the cases in which the prosecutor sought the death penalty, the defendant was a member of a minority group, and nearly 40 percent of the death penalty cases originate in nine of the states. Another study found that the race of the victim and the race of the offender were associated with death penalty sentences.

See also: Death System; Homicide, Epidemiology of;

Bibliography

Baldus, David, Charles Pulaski, and George Woodworth. "Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience." Journal of Criminal Law and Criminology 74 (1983):661–685.

Bohm, Robert M. "Capital Punishment in Two Judicial Circuits in Georgia." Law and Human Behavior 18 (1994):335.

Clear, Todd R., and George F. Cole. American Corrections, 5th edition. Palo Alto, CA: Wadsworth, 2000.

U.S. Department of Justice. Bureau of Justice Assistance. Capital Punishment 1999. Washington, DC: U.S. Government Printing Office, 2000.

U.S. Department of Justice. Federal Bureau of Investigation. Uniform Crime Reports, 1999. Washington, DC: U.S. Department of Justice, 2000.

JAMES AUSTIN