NEW VOICES: Federal Appeals Court Judge of the Fifth Circuit Expresses Legal and Moral Problems with the Death PenaltyPosted: October 23, 2006
Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit was the main speaker at the "Red Mass" on October 4 at the Catholic cathedral in Corpus Christi, Texas. The Red Mass is an annual liturgy held for members of the legal profession near the beginning of the judicial term. Its traditions extend back to 13th century Europe. Judge King spoke about the death penalty, both from her perspective as a judge and as a Catholic. In both areas, she raised strong concerns about the application of the death penalty in the U.S.
A recent law review article by Prof. Michael Mannheimer of the Salmon P. Chase College of Law argues that the federal penalty may violate the Eighth Amendment's proscription against cruel and unusual punishments when it is used in states that do not have the death penalty. Prof. Mannheimer explores the strain of the Eighth Amendment's history that is specifically concerned with limiting the federal government's power to interfere with the norms of individual states.
Dennis Counterman was freed from a Pennsylvania courtroom on October 18, 2006 after serving many years on the state's death row. Counterman had been convicted and sentenced to death in 1990 for allegedly setting a fire in his own house that resulted in the death of his three children. That conviction was overturned in 2001 because prosecutors had withheld evidence from the defense indicating that the oldest child had a history of fire-setting.
In a recent speech to law students from Furman University, William W. Wilkins, the Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, expressed doubts about the value of the death penalty given its high costs and probable lack of deterrence. He also noted that the existence of the death penalty in the U.S. makes it very difficult to extradite suspects from foreign countries who oppose capital punishment.
The Common Sense Foundation of North Carolina released a study on October 11, 2006 that found that at least 37 people now on death row had trial lawyers who would not have met today’s minimum standards of qualification. Nearly a third of the cases where sufficient data was available fell into this substandard category.
On October 13, the U.S. Supreme Court agreed to hear two capital cases from Texas in which the defendant was sentenced to death after the jury was given instructions that the Court has since found unconstitutional. Unlike in most states where the jury considers a range of aggravating and mitigating circumstances about the crime and the defendant before choosing a sentence of life or death, in Texas the jury was (the law has since been modified) given a series of yes-or-no questions about the crime and the future dangerousness of the defendant. In prior cases, the Supreme Court has said that such a mechanism does not allow full consideration of a person's mental disabilities, which should be counted as a mitigating factor. In the cases recently accepted, the trial judges instructed the jury that they could simply answer "no" to one of the factual questions if they did not want to sentence the person to death, even though the proper answer based on the facts should be "yes." In both of the new cases taken by the Court, the defendants were sentenced to death using this "nullification" instruction, and their appeals were denied by the U.S. Court of Appeals for the 5th Circuit.
The U.S. Supreme Court agreed to hear an appeal from Texas death row inmate LaRoyce Smith even though they had reviewed his case once before. On October 6, 2006, the Court granted certiorari to decide whether the Texas Court of Criminal Appeals had applied the wrong standard after the Supreme Court had sent Smith's case back to them earlier.
The dispute does not involve Smith's 1991 conviction for the murder of a Taco Bell manager in Dallas. Rather the Supreme Court held (7-2) in 2004 that Texas' jury instructions did not allow the jury sufficient latitude to consider Smith's low IQ and other mitigating evidence. But instead of giving Smith a new sentencing hearing, the Court of Criminal Appeals ruled in March that the fault in the jury instructions was negligible because it did not cause "egregious harm" to Smith's right to a fair trial, and thus upheld Smith's death sentence. Texas has changed the way the jury is instructed in capital cases, but the change was not in effect for Smith's sentencing.
Edward Johnson is a former FBI Agent who currently oversees investigative work for the Union County (NJ) Prosecutor's Office. He recently expressed his personal opinions about the state's death penalty. He concluded that in New Jersey public opinion may now have moved to the point where the death penalty will be abolished. He noted, in part:
At a joint press conference held by the European Commission (EC) and the Council of Europe, Vice-President Franco Frattini of the EC stated that "the administration of State killing via the judicial system serves no useful purpose in preventing crime but can have a brutalising effect on societies that inflict it".
Their press release marking this occasion noted that considerable progress has been made towards abolishing the death penalty:
There [has] been constant progress towards worldwide abolition. There are at present 128 countries that are abolitionist in law and practice. Over 40 countries have abolished the death penalty for all crimes since 1990. They include countries in Africa (recent examples include Liberia, Côte d'Ivoire), the Americas (Canada, Paraguay, Mexico), Asia and the Pacific (Philippines, Bhutan, Samoa) and Europe and Central Asia (Armenia, Bosnia-Herzegovina, Cyprus, Serbia and Montenegro, Turkey, Turkmenistan). In 2005, countries having abolished death penalty were 86, while in 1977, only 16 countries were abolitionist.
As part of DPIC’s ongoing mission to serve the public with analysis and information on issues concerning capital punishment, we have developed a resource center for students. This page will assist students wishing to do explore issues surrounding the death penalty. There are ideas for debates and research papers as well as links to connect students with academic resources on capital punishment. The new link answers frequently asked questions, such as DPIC’s stance on the death penalty and how to cite information from the DPIC Web site.