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U.S. Supreme Court to Hear Two Death Penalty Cases on December 7

The U.S. Supreme Court will hear arguments in two death penalty cases on Wednesday, December 7, 2005, including a case to determine the constitutionality of Kansas' death penalty statute and a case that involves the issue of innocence.

In Kansas v. Marsh, No. 04-1170, the justices will consider the constitutionality of Kansas’ death penalty, which requires that a death sentence be imposed when a jury finds that aggravating circumstance and mitigating circumstances have equal weight. The jury in Marsh’s death sentencing hearing was directed according to the statute that if it found the aggravating circumstances and mitigating circumstances to have equal weight, the death penalty would be required. Marsh was sentenced to death. The Justices will review the Kansas court’s decision that there is “no way” the weighing equation is permissible under the Eighth and Fourteenth Amendments. It will also consider two additional questions: 1) Does this Court have jurisdiction to review the judgment of the Kansas Supreme Court under 28 U.S.C. Sec. 1257, as construed by Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)?, and 2) Was the Kansas Supreme Court’s judgment adequately supported by a ground independent of federal law?

Read more about this case.

In the second case, Oregon v. Guzek, No. 04-928, the Justices will consider a defendant’s right to introduce evidence that would cast doubt on his conviction during the sentencing phase of his trial. The Oregon Supreme Court ruled that a capital defendant has a right under the Eighth and Fourteenth Amendments to offer evidence and argument in support of a residual-doubt claim.

Read more about this case.

See U.S. Supreme Court.


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SUPREME COURT Agrees to Hear Cases with Death Penalty Implications

On November 7, the U.S. Supreme Court agreed to hear cases in two areas that could have broad implications for many defendants facing the death penalty.  In Hamdan v. Rumsfeld, No. 05-184, the Court will rule on the constitutionality of the military tribunals established by President Bush following the September 11, 2001 terrorist attacks.  A U.S. District Court had halted the military trial of Salim Ahmed Hamdan, who had been captured in Afghanistan, because the trial violated domestic law and U.S. international treaty obligations.  This decision was overturned by the U.S. Court of Appeals for the District of Columbia Circuit.  Hamdan is charged with conspiracy, murder and terrorism.  Under the current military tribunals, the government may seek the death penalty for certain offenses.  Chief Justice John Roberts has recused himself from the case because he was part of the panel of judges in the prior decision. (N.Y. Times, Nov. 8, 2005).


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LEGAL UPDATES: Mental Retardation, Representation, Lethal Injections

Various courts issued rulings this week regarding issues important to capital punishment law:

The U.S. Supreme Court issued an unsigned opinion holding that it was improper for the U.S. Court of Appeals for the Ninth Circuit to require Arizona to have a jury determine a defendant's mental retardation status. The Court noted that Arizona's legislature had not yet addressed whether this issue should be decided by a judge or a jury. The case is Schriro v. Smith, No. 04-1475 (October 17, 2005). (See Washington Post, Oct. 18, 2005). See Mental Retardation.


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Florida Supreme Court Urges Legislature to Institute Unanimous Juries

In a recent opinion addressing several procedural issues regarding the state's capital punishment law, the Florida Supreme Court urged state legislators to require capital jurors to be unanimous in recommending death sentences or at least in deciding what aggravating factors support a death sentence. "The bottom line is that Florida is now the only state in the country that allows the death penalty to be imposed even though the penalty-phase jury may determine by a mere majority vote both whether aggravators exist and whether to recommend the death penalty. . . . The requirement of a unanimous verdict can only assist the capital sentencing jury in reaching such a reasoned decision," wrote Justice Raoul Cantero for the court.

Cantero also noted that many scholars and courts, including the U.S. Supreme Court, have concluded that unanimous verdicts are important to the death sentencing process. Currently in Florida, only judges can impose death sentences, but they are required by law to give great weight to recommendations from juries. It takes a vote of 7-5 or greater to recommend death in a first-degree murder case. The only alternative is life in prison without parole. (Associated Press, October 12, 2005).  In a 7-2 decision in Ring v. Arizona, the U.S. Supreme Court held that a defendant has the right to have a jury determine beyond a reasonable doubt that at least one aggravating factor exists to make him eligible for the death penalty.

See DPIC's Ring v. Arizona Web page.


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U.S. Supreme Court Hears California Death Penalty Case

In its first death penalty case this term, the U.S. Supreme Court heard arguments in Brown v. Sanders, a California case in which the Justices considered whether Ronald Sanders was wrongly sentenced to die by jurors who relied on invalid aggravating factors. Sanders was sentenced to death in 1982. The jury found four of the "special circumstances" required in California and some other states for a defendant to be eligible for the death penalty. Two of those aggravating factors were later deemed invalid by the California Supreme Court and, in a later appeal, the U.S. Court of Appeals for the 9th Circuit threw out Sanders' death sentence because jurors may have been unfairly swayed by the invalid special circumstances. The Justices must now determine whether the absence of the two invalid aggravating factors would likely have changed Sanders' original sentence.  Justice Stephen Breyer suggested that the Supreme Court might also want to clear up the differences that exist from one state to another in how aggravating factors are used in death penalty sentencing.  "We would not have this crossword puzzle that only five people in the United States understand," he said.  (Associated Press, October 11, 2005).  The U.S. Supreme Court has agreed to hear five death penalty-related cases this term. See U.S. Supreme Court.


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Supreme Court Agrees to Consider Third Death Penalty Case Involving Issues of Innocence

The U.S. Supreme Court agreed yesterday to review the case of a death row inmate from South Carolina who was denied the opportunity at trial to present evidence of the possible guilt of another person.  In Holmes v. South Carolina, No. 04-1327, the Court will consider whether the state's rules regarding such evidence deprived Holmes of his due process rights to present a complete defense.  In 2004, the South Carolina Supreme Court had ruled that the state's evidence against Holmes was so strong that he should not be allowed to present evidence that another person had been seen near the scene of the crime and had confessed to the murder that Holmes was charged with.  One judge dissented, saying that Holmes should have been allowed to put on evidence of third-party guilt because Holmes had sufficiently challenged the state's evidence against him.  See the South Carolina decision in State v. Holmes.

In its coming term starting on October 3, the U.S. Supreme Court will also hear House v. Bell, concerning the standard of evidence needed for a new claim of innocence, and Oregon v. Guzek, concerning the right to put on evidence of innocence during the penalty phase of a capital trial.


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The Death Penalty and Supreme Court Justices

SUPREME COURT JUSTICES AND THE DEATH PENALTY

In a number of instances, Supreme Court Justices appear to have been affected by their experience with the death penalty after being appointed to the Court:

Justice Harry Blackmun was appointed to the Court by President Richard Nixon in 1970. He voted to uphold the constitutionality of the death penalty in 1972 and 1976. He later remarked:

blackmun"From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed."
-Callins v. Collins (1994).

 

 

Justice Lewpowellis Powell was also appointed to the Court by President Nixon in 1972. He, too, voted to uphold the constitutionality of the death penalty in 1972 and 1976. He later concluded:

"I have come to think that capital punishment should be abolished." He stated that he would have changed his vote in capital cases, and that the death penalty "serves no useful purpose."
-J. Jeffries, Justice Lewis F. Powell, Jr. 451-52 (1994).

 

 

 

Justice Sandra Day O'Connor was appointed by President Ronald Reagan in 1981. She voted to uphold death sentences on many occasions, including in Strickland v. Washington (1984) that set low standards for capital defense counsel. However, she became convinced of the danger of executing the innocent:

o'connor"If statistics are any indication, the system may well be allowing some innocent defendants to be executed. . . . Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.''
-Speaking to the Minnesota Women Lawyer's Group, July 2, 2001 (Associated Press).

 

 

Justice John Paul Stevens was appointed to the Court by President Gerald Ford in 1975. He voted to uphold the constitutionality of the death penalty in 1976. stevensRecently he stated:

"I think this country would be much better off if we did not have capital punishment. . . . I really think it's a very unfortunate part of our judicial system and I would feel much, much better if more states would really consider whether they think the benefits outweigh the very serious potential injustice, because in these cases the emotions are very, very high on both sides and to have stakes as high as you do in these cases, there is a special potential for error. We cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated."
-Chicago Sun Times, May 12, 2004.

See DPIC's Supreme Court page.

See C-Span's Washington Journal: Discussion of the Supreme Court and the Death Penalty with DPIC Director Richard Dieter and Robert Blecker (Aug. 31, 2005)


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COMMENTARY: The Supreme Court and the Future of the U.S. Death Penalty

Benjamin Wittes, editorial page writer for The Washington Post, discusses the death penalty in light of recent U.S. Supreme Court decisions in the October 2005 issue of The Atlantic Monthly.  He states that the Court has "shifted gears on capital punishment" and predicts that this trend will continue through a series of decisions limiting the death penalty and addressing systemic flaws that continue to surface. Wittes writes:

The Court has without question shifted gears on capital punishment. For years the justices turned a willfully blind eye to the claims of those on death row.
...
But lately the Court has struck a very different tone.
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The attitudinal shift on the part of Kennedy and O'Connor - two of the less rigidly principled justices in recent years - is hardly a surprise. As DNA exonerated growing numbers of prisoners through the 1990s, the public grew more skeptical toward capital punishment in general, realizing that even when juries are sure of a person's guilt, they are sometimes dead wrong. Although polls still show majority support for the death penalty, that support is shrinking. Juries are handing down fewer death sentences. Executions countrywide, after reaching a modern-day high of ninety-eight in 1999, declined to fifty-nine last year. Judges are not immune from the anxieties that have led to these trends. It would actually be surprising if no Supreme Court justice had rethought his or her approach in light of what we now know about capital punishment.
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Despite O'Connor's retirement, the Court's new approach seems likely to impose significant contraints on capital punishment, but ones that will be largely invisible to the public. The Court will probably not be striking down many laws, but the justices will tighten the screws by scrutinizing the individual cases enough to further isolate the death penalty regionally and to raise its political and financial costs.

("The Executioner's Swan Song?", Atlantic Monthly, October 2005). See Supreme Court.


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NEW VOICES: Justice Stevens Harshly Critical of the Death Penalty

Speaking at the American Bar Association's Thurgood Marshall Awards Dinner in Illinois, Supreme Court Justice John Paul Stevens said that the death penalty has "serious flaws."  He recalled the late Justice Marshall in remarking how much the country has learned about the risks in death cases: "Since his retirement, with the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously," Stevens said during the ceremony.  He added that Supreme Court cases have revealed that "a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial."  He also questioned the fairness of the jury selection process in capital cases, which eliminates potential jurors who are opposed to the death penalty.  (Associated Press, August 7, 2005).  Read Justice Stevens' Remarks.  See Innocence and New Voices.


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Supreme Court Grants Last Minute Stay of Execution

The U.S. Supreme Court granted a last minute stay for Robin Lovitt, who was scheduled for execution at 9 PM on Monday (July 11) in Virginia.  The Court did not give a reason for the stay, but Lovitt stated that he would have been able to show his innocence if state officials had not destroyed DNA evidence from his case after his trial.  (See item below posted July 8).  (Associated Press, July 11, 2005).  See also Innocence.


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