New Legal Research Declares ​“Heightened Standards” of Due Process in Capital Cases an ​“Illusion”

In a new law review arti­cle, Professor Anna VanCleave of the University of Connecticut School of Law argues that the ​“height­ened stan­dards” of due process pro­tec­tion for cap­i­tal defen­dants, required under the Eighth Amendment, are in prac­tice no more than ​“a veneer of legit­i­ma­cy and pro­ce­dur­al cau­tion” that fail to vin­di­cate defen­dants’ rights. Professor VanCleave found that in the absence of clear guid­ance from the Supreme Court as to the actu­al mean­ing of ​“height­ened stan­dards,” low­er courts apply the same stan­dards used in non-cap­i­tal crim­i­nal cas­es or even relax rules in favor of the State.

Professor VanCleave posits that the ​“height­ened stan­dards” prin­ci­ple was ​“set up to fail” based on its ori­gins in incon­sis­tent jurispru­dence. The Supreme Court held that due process required greater pro­tec­tions in cap­i­tal cas­es, includ­ing the appoint­ment of coun­sel, for the first time in Powell v. Alabama (1932), the infa­mous ​“Scottsboro Boys” case involv­ing the wrong­ful con­vic­tion of nine Black youth for the rape of two white women. Since then, the Court con­sis­tent­ly not­ed that ​“death is dif­fer­ent,” find­ing, for instance, in Lockett v. Ohio (1978) that the ​“qual­i­ta­tive dif­fer­ence between death and oth­er penal­ties calls for a greater degree of reli­a­bil­i­ty when the death sen­tence is imposed.” However, the Court has also held that the due process right in all crim­i­nal cas­es is nar­row, reject­ing the use of a robust three-pronged test it devel­oped under the Due Process Clause of the Fourteenth Amendment for civ­il cas­es. Instead, the Court main­tains that a rule of crim­i­nal pro­ce­dure will only be struck down if it ​“offends some prin­ci­ple of jus­tice so root­ed in the tra­di­tions and con­science of our peo­ple as to be ranked as fun­da­men­tal.” To resolve the ten­sion between a nar­row right over­all and an expand­ed right in cap­i­tal cas­es, the Court held that height­ened stan­dards in cap­i­tal cas­es arose from the Eighth Amendment when it rein­stat­ed the death penal­ty after a four-year pause in 1976. The Eighth Amendment pro­hibits cru­el and unusu­al pun­ish­ments but con­tains no lan­guage about pro­ce­dur­al review of crim­i­nal cas­es, cap­i­tal or oth­er­wise. Professor VanCleave found that the Court ​“offered no blue­print for how low­er courts should apply height­ened stan­dards or how appel­late courts should deter­mine whether height­ened stan­dards had, in fact, been applied.” 

Reviewing low­er court deci­sions, Professor VanCleave found that ​“courts that invoke height­ened stan­dards fre­quent­ly do so while clear­ly apply­ing the exact same legal test that would apply in non­cap­i­tal cas­es.” She attrib­ut­es this incon­gruity to the lim­its of the nar­row ​“fun­da­men­tal” test. The Court has found at least fifty sep­a­rate pro­ce­dur­al pro­tec­tions to be ​“fun­da­men­tal” in crim­i­nal cas­es and devel­oped an ana­lyt­i­cal doc­trine for each, while fail­ing to pro­vide a spe­cif­ic uni­fy­ing test for crim­i­nal cas­es over­all. As a result, Professor VanCleave argues, courts review­ing a cap­i­tal case must ana­lyze dozens of poten­tial pro­ce­dur­al rules with end­less fac­tu­al vari­a­tions and decide how each spe­cif­ic rule should receive ​“height­ened scruti­ny” because death is involved. She found that most courts took the eas­i­er path of not­ing that ​“death is dif­fer­ent” at the begin­ning of an opin­ion, apply­ing the rules already elu­ci­dat­ed by the Supreme Court in non-cap­i­tal cas­es, and men­tion­ing the ​“height­ened stan­dards” in con­clu­sion with­out ever explain­ing how those rules had been applied more strict­ly for the capital case.

Professor VanCleave fur­ther found that ​“the require­ment of height­ened reli­a­bil­i­ty often not only adds lit­tle or no mean­ing­ful process but can actu­al­ly under­mine cer­tain spe­cif­ic rights of cap­i­tal defen­dants.” For instance, courts have used the notion that cap­i­tal cas­es receive height­ened scruti­ny to jus­ti­fy relaxed stan­dards for the State when intro­duc­ing penal­ty phase evi­dence. In Lezmond Mitchell​’s case, Professor VanCleave describes how pros­e­cu­tors were per­mit­ted to argue that ​“his sta­tus as a Navajo was a rea­son to impose a death sen­tence because the mur­der of oth­er Navajo mem­bers rep­re­sent­ed a betray­al of his reli­gious and cul­tur­al tra­di­tions.” In fact, Navajo lead­ers open­ly called for Mr. Mitchell’s sen­tence to be com­mut­ed to life with­out parole. Mr. Mitchell chal­lenged the evi­den­tiary rules as uncon­sti­tu­tion­al, but the Ninth Circuit reject­ed his argu­ment, hold­ing that ​“the Supreme Court has…made clear that in order to achieve ​‘such height­ened reli­a­bil­i­ty,’ more evi­dence, not less, should be admit­ted on the pres­ence of aggra­vat­ing and mit­i­gat­ing fac­tors.” Mr. Mitchell was exe­cut­ed by the fed­er­al gov­ern­ment on August 26, 2020.

Professor VanCleave con­cludes that the ​“height­ened stan­dards” prin­ci­ple is ​“too gener­ic,” cre­at­ing ​“a false con­fi­dence in the pro­ce­dur­al rig­or of cap­i­tal pros­e­cu­tions.” Instead of a ​“mean­ing­ful, sys­tem­at­ic def­i­n­i­tion,” cap­i­tal defen­dants must rely on ​“a series of ad hoc deci­sions that pro­hib­it or require a few spe­cif­ic pro­ce­dures, but no larg­er scheme of reg­u­la­tion, and no guid­ance on how to fill the gaps of pro­ce­dur­al reg­u­la­tion not specif­i­cal­ly addressed by the Supreme Court.” She argues that the stan­dard will only have teeth if it clar­i­fies how spe­cif­ic pro­ce­dures apply dif­fer­ent­ly or draw more scruti­ny in cap­i­tal cas­es; oth­er­wise, she sug­gests, the death penal­ty falls short of the promise of legit­i­ma­cy offered by the Court in 1976. She quotes schol­ar Robert Cover, writ­ing in 1986: ​“The Court con­tin­ued to say that death was per­mis­si­ble if you get it right. And almost all the indi­vid­ual cas­es con­tin­ued to con­firm that the state could not get it right.”