<< City Crime Rankings | Main | This Week at the Supreme Court >>


Justice Stevens' Odd Death Penalty Review

| 15 Comments
US Supreme Court Justice John Paul Stevens (Ret.) is the principal architect of today's constitutional jurisprudence of capital sentencing.  Looking back over the decisions from Gregg v. Georgia, 428 U.S. 153 (1976) to last term, Justice Stevens was on the winning side of more of the major battles than any other justice.  So it is exceedingly odd that he has written this article in the New York Review of Books bashing a body of law that is largely his own creation.

The article is a review of a book by David Garland, titled Peculiar Institution: America's Death Penalty in an Age of Abolition.  From the title alone, we know where Garland is coming from.  He asks why America has the death penalty when Europe has abandoned it.  The short answer is that our government is more democratic than theirs, but Garland manages to spin that in ways that make it sound like democracy is a bad thing.  I'll leave refuting Garland for another day.

For much of the article, Justice Stevens makes the claim that the jurisprudence of the death penalty has moved in the prosecution's favor as a result of changes in the membership of the Supreme Court, and he speculates how Justice Stewart would have voted on various cases decided after he retired.  This is where the review gets most peculiar both for what he says and what he leaves out.  To understand how truly peculiar this is, it is important to have some background on the overall evolution of "the fog of confusion that is [the Supreme Court's] annually improvised Eighth Amendment, 'death is different' jurisprudence," Morgan v. Illinois, 504 U.S. 719, 751 (1992) (Scalia, J., dissenting), and Justice Stevens' role in creating it.
When the Supreme Court threw out the then-existing death penalty laws in Furman v. Georgia, 408 U.S. 238 (1972), opponents thought they had killed the death penalty for good.  See, e.g., M. Meltsner, Cruel and Unusual (1973).  They made a huge mistake trying to ram this change down the throats of the American people via judicial activism, rather than convincing the people on the merits and effecting change democratically.  Opposition actually had achieved a plurality in the 1966 Gallup Poll. However, the backlash against judicial autocracy plus concern over rising crime rates soon boosted support for capital punishment.  By the time of Gregg, Congress and 35 States had voted for reinstatement, see 428 U.S., at 179-180, close to the number needed for a constitutional amendment.

The problem in Furman was that the existing death penalty laws defined a wide variety of crimes as capital but gave juries no guidance from that point as to which cases actually warranted a death sentence.  The resulting pattern was thought to be arbitrary, with an underlying suspicion that it resulted in racial discrimination.  After Furman, some states (and Congress) enacted mandatory sentencing laws in the well-founded belief that this was the type Furman required.  Others enacted guided discretion laws along the lines of the Model Penal Code.  Texas enacted a unique system where the sentence was determined by the jury's answers to three specific questions.

These statutes came to the Court in five cases, and the Court splintered.  Only two justices presumed to tell the people that "evolving standards of decency" negated the view of both the national legislature and the vast majority of the states, forbidding capital punishment altogether.  Another four justices, led by Justice Byron White, said all of the statutes then before the Court passed muster, having eliminated the unfettered discretion that Furman found constitutionally problematic. 

The ultimately controlling opinions were those issued jointly by three justices: Stewart, Powell, and, of course, Stevens.  In their opinion, the mandatory statutes were unconstitutional, see Woodson v. North Carolina, 428 U.S. 280 (1976), but the statutes that allowed consideration of mitigating circumstances were constitutional.  Two of the three statutes approved clearly did not require that the jury be instructed to consider any factor in mitigation the defendant threw against the wall. Quite the contrary, the Florida law approved in Proffitt v. Florida, 428 U.S. 242 (1976) had a defined list of statutory mitigating circumstances to be weighed, and the Texas law approved in Jurek v. Texas, 428 U.S. 262 (1976) based the sentence on the answers to questions including future dangerousness, a question that allows in many mitigating considerations, but surely not all.

What was wrong with mandatory capital sentencing?  The best argument against it is that a law that is mandatory on its face will never be applied that way in practice, unless it is extremely narrow, and the inevitable nullification would take us back to where we were before Furman in terms of arbitrariness.  A much less powerful argument consists of hand-wringing over the importance of the uniqueness of the individual.  Whatever the merits of that argument as a matter of policy or philosophy, it is preposterous to say that anything in the Eighth Amendment imposes that choice on the states.

These cases established the broad outline that stands to this day.  Only guided discretion will do.  Consideration of mitigating circumstances is required.  That latter requirement would grow far beyond its original conception and cause much mischief.  If Justice White had gotten one more vote for his view, that mischief could have been avoided.  Justice Stevens won this battle, and his view rather than Justice White's was permanently stamped on American capital sentencing law.

Just two years after the Gregg-Proffitt-Jurek trilogy had apparently authorized the state to decide which circumstances would be considered mitigating, so long as it considered some circumstances, a plurality of the Supreme Court did a 175-degree turn in Lockett v. Ohio, 438 U.S. 586 (1978).

The statute in Lockett was a minor variation on the mandatory statutes struck down two years earlier.  The death penalty was mandatory unless one of three narrow and unusual exceptions applied.  Sandra Lockett was the getaway car driver in a robbery in which another participant killed the victim.  The simplest solution would have been to decide that this statute was not really different from the mandatory ones struck down down in Woodson.  A second approach would have been to categorically exempt minor accomplices swept up in the felony murder rule, a position adopted by Justice White in this case and later by the Court in Enmund v. Florida, 458 U.S. 782 (1982).  Justice Blackmun also concurred in the judgment on a similar ground.

What the plurality did instead was announce out of blue sky a rule of breathtaking scope, seemingly contradicting its holdings in Proffitt and Jurek.  Despite precedents approving two statutes that plainly direct the jury to specific mitigating circumstances, the plurality announced, "we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case,11 not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."  In one fell swoop, the people of the several states were suddenly stripped of the power they had always had, and still have in noncapital cases, to decide what factors would be considered mitigating and which would not.

The expansive Lockett rule cannot be justified under the original principle by which Furman had constitutionalized capital sentencing in the first place.  Consideration of a few circumstances so powerful that they would lead to arbitrary nullification if not expressly considered (minor accomplice status, youth, retardation) could come under the Furman umbrella.  However, idiosyncratic consideration of circumstances that a few jurors consider mitigating but most do not contributes to arbitrariness rather than combating it.  One murderer may get off with a life sentence if he happens to draw some jurors who think "antisocial personality disorder" (i.e., being a sociopath) is mitigating, while others get a deserved death sentence from jurors who understand that this is nothing but a clinical-sounding label for incorrigible criminals and is aggravating, if anything.  (Yes, people really claim sociopathy as mitigating. See Graham v. Collins, 506 U.S. 461, 500 (1993) (Thomas, J., concurring).)

The tension between Lockett and Jurek was not fully resolved for many years.  Penry v. Lynaugh, 492 U.S. 302 (1989) gave Lockett a broad reading, but Johnson v. Texas, 509 U.S. 350 (1993) said Lockett and Penry could not be read so broadly as to overrrule Jurek.  Eventually, though, the everything-including-the-kitchen-sink interpretation won out.  Defendant must be allowed to put forward everything under the "character and record" umbrella, the jury must be instructed to consider it all, and each individual juror must be allowed to decide independently if the proffered factor is actually mitigating.  See Mills v. Maryland, 486 U.S. 367 (1988). 

Most destructively of all, trial counsel can be attacked as ineffective if he does not turn over every conceivable rock in search of mitigation, and there is always something that habeas counsel can say trial counsel should have found and introduced.  This is the Gilda Radner method of perpetual litigation.  It's always something.  If it's not one thing, it's another thing.

All of this is the result of Lockett's broad pronouncement, made without a shred of basis in the text or history of the Eighth Amendment. 

Both the original announcement of the Lockett rule and its expansion in the years since were acts of pure judicial activism.  The rule was grafted onto the Constitution not because the people put it there but because the judges thought it was a good idea.  And Justice Stevens was on board with this every step of the way.

Now along comes Justice Stevens, denouncing the Court's decision in a significant but far less important case, Payne v. Tennessee, 501 U.S. 808 (1991), as judicial activism.  This charge is breathtaking in its audacity.  Whatever one thinks of Payne, it is not judicial activism in any meaningful sense of that term, and for a major participant in the Lockett debacle to be levying that charge is pure chutzpah.

In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court declared that the Constitution of the United States forbids states from allowing the relatives of the murder victim to testify in a capital case about the impact the crime has had on them.  As with Lockett, one could debate whether such statements are good policy, but to assert that the Constitution takes this decision away from the people is absurd.  Booth was part of the micromanagement of capital sentencing that the Court engaged in during this period.  A majority of the justices apparently believed that the Eighth Amendment gave them a commission to strike down any aspect of capital sentencing policy they thought was unwise.  The real harm from Booth, though, came through its interaction with Lockett.  While the defense could humanize the defendant and tell the story of his life as viewed through a polarized lens, the family of the victim had to sit in silence as if she were nothing but an abstraction.  This imbalance provoked outrage among the families of victims, and rightly so.  To say that the overruling of Booth was a movement away from "rationalizing," as Stevens approvingly quotes Garland saying, is absurd.  The one-sidedness of the Lockett/Booth regime was as irrational as it was unfair. If the jury must consider the full range of every kind of mitigation proffered by the defendant, it should at the very least consider the full range of harm caused by him.

In addition, calling Payne "judicial activism" smacks of the Humpty Dumpty school of word definition.  Some people, to be sure, use that term to refer to any judicial decision they disagree with.  Used properly, though, it refers to the judiciary usurping to itself decisions that actually belong to the democratic process in order to impose their views on an unwilling populace.  Payne did nothing of the sort.  Payne does not require any state to admit victim impact evidence against its will.  The decision merely removes a barrier against such admission, returning to the people the authority to decide the issue.  Booth, not Payne, is the activist decision.

Justice Stevens is outraged over the "departure from the ideal that the Court, notwithstanding changes in its membership, upholds its prior decisions."  That is an exceedingly odd statement to make in the context of capital punishment, where the Court has overruled many of its precedents, either expressly or implicitly.  Furman effectively overruled McGautha v. California, 402 U.S. 183 (1971), decided only one year earlier.  The Lockett line effectively overruled Jurek.   Ring v. Arizona, 536 U.S. 584 (2002) overruled Walton v. Arizona, 497 U.S. 639 (1990), in which the Court considered and rejected the claim that juries and not judges had to find the aggravating circumstances.  That decision had been massively relied on by multiple states, but the Court swept it aside.  Where was Justice Stevens' concern with upholding prior decisions when he joined in undermining Jurek and overruling Walton?  Is precedent sacrosanct when if favors the murderer and a nuisance to be brushed aside when it favors the victims?

Justice Stevens goes on to denounce the opinion in McCleskey v. Kemp, 481 U.S. 279 (1987), in which the Court declined to allow a statistics-based claim of a correlation between sentences and race of the victim to overturn a death sentence.  Justice Stevens seems to be unaware of some basic facts in this area.  The District Court in the McCleskey case held that the Baldus study did not prove what Baldus claimed. 

The best models which Baldus was able to devise which account to any significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either [the charging or sentencing] decisions in the State of Georgia.
580 F. Supp. 338, 368 (ND Ga 1984) (italics omitted).
When New Jersey and Kentucky rejected McCleskey and allowed such claims under state law, the case was not proved in either state.  While studies sometimes show a correlation between race of the victim and sentences (and sometimes not), those correlations that are found often disappear into the statistical grass when other legitimate factors are added to the model.  These issues are discussed in my article, Smoke and Mirrors on Race and the Death Penalty, 4 Engage (2) 42-45 (Oct. 2003).  What the body of literature as a whole actually shows is that no clear case of racial discrimination can be established from the statistics, yet Justice Stevens seems to be oblivious to this.

In the end, Justice Stevens justifies opposition to the death penalty with a claim that it serves no purpose or insufficient purposes, a claim we have heard for many years.  Yet a large part of the basis for this claim is, quoting Garland, that the appellate "delays do not just undermine the death penalty's deterrent effect; they also spoil its capacity for satisfying retribution."

And who is responsible for those delays?  Many people, but the one individual who bears a greater share of the blame than any other is John Paul Stevens.  If the Court had stopped constitutionalizing capital sentencing with the broad outline in 1976, if it had refrained from the micromanagement exemplified by Lockett and its progeny, if it had upheld the guided discretion framework in general and left the details to the states and the people, capital punishment today would be much surer, swifter, fairer, and less expensive.  It would have a stronger deterrent effect and more effectively provide retribution.  Review of capital cases could be focused on issues related to actual guilt or innocence in the handful of cases where guilt is subject to question.  Instead, we spend 20 years litigating issues having nothing to do with guilt in cases with no doubt of guilt of murders that are clearly aggravated well above the mean.

So, Dr. Frankenstein does not like his monster.  Neither do I.  The way to fix it is to overrule more of the misguided precedents Justice Stevens helped make, starting with Lockett.

15 Comments

Bravo, Kent. Excellent, excellent post, on my favorite subject.

I'll look forward to your refuting Garland.

Justice Stevens was a thoroughly execrable Justice. And now he seems to be a thoroughly execrable human being. His arrogance is truly breathtaking.

Kent,

Have you considered submitting this to Engage? It would be a crime, so to speak, if it does not get very wide publication.

A superb critique.

Ken, thanks.

My much more pedestrian review:

Justice John Paul Stevens' Hysteria: The Death Penalty
Dudley Sharp

Justice Stevens strong bias against the death penalty and his lack of voiced concern for murder victims is well known (1).

Very few of the 112 Supreme Court Justices concluded that the death penalty is unconstitutional, as Justice Stevens has.

A solid case for racial bias, systemically, with the US death penalty, post Furman, is difficult to make (2), contrary to Justice Stevens' position.

Justice Stevens continues the ignorance of not studying the underlying data within McCleskey v Kemp (the Georgia) case. He should, if he cares about the facts and the truth (3).

Of course death penalty cases are prone to conviction. Prosecutors must be more sure of these cases than for any others, prior to pursuing a trial. And that should be what we all want. Justice Stevens, it is the responsible thing to do, for all cases, which must be proven beyond a reasonable doubt.

Justice Stevens makes an odd complaint, that it taints the jury when prosecutors exclude jurors opposed to the death penalty. Judge, the only way to have a qualified jury, in all cases, is if all jurors can award all sentencing options which are available under law in the subject case.

Justice Stevens, as all of us, are concerned about the risk of executing an innocent. The Justice reverses the reality.

Possibly, 25 of the 8100 death sentences given since 1973 may be actual innocents, or 0.3% of those so convicted. They have all been released (4).

Innocents are more at risk without the death penalty. (5)

Unintended error cannot, per se, render anything unjust. Any innocent convicted, sentenced and/or executed is unjust, but cannot render the death penalty unjust.

In the history of the US, it is very difficult to reach a consensus as to even one confirmed case of an innocent executed. (6) Has it happened? Reason concludes yes.

However, the evidence that murderers harm and murder, again, is overwhelming and universally conceded. In addition, The death penalty offers more protection for innocents than lesser sanctions. (5)

The death penalty is an enhanced protector of innocents and more innocents will die without the death penalty.

All human endeavors will entail error. The best that humans can do is work to minimize such error.

In the context of all human endeavors, either private or governmental, that do put innocents at risk, is there one which has a better track record than the US death penalty, when considering actual innocent deaths? Likely not.

In the context of criminal justice, the evidence suggests that we have lost nearly 100, 000 innocents to murder, since 1973, by parolees, probationers and early releasees, who murdered after such release while under government supervision (7).

The proof of an innocent executed since 1973? There is none.

(1) The "Moderate Republican" Death Penalty Values of Justice Stevens: Do tormented victims matter?
Lester Jackson Ph.D., http://homicidesurvivors.com/2010/05/15/the-moderate-republican-death-penalty-values-of-justice-stevens.aspx

(2) Death Penalty Sentencing: No Systemic Bias"
http://prodpinnc.blogspot.com/2009/07/death-penalty-sentencing-no-systemic.html

(3) a) "The Math Behind Race, Crime and Sentencing Statistics"
John Allen Paulos, Los Angeles Times, 7/12/98
http://articles.latimes.com/1998/jul/12/opinion/op-2965

b) "The Odds of Execution" within "How numbers are tricking you"
Arnold Barnett, MIT Technology Review October, 1994
http://reocities.com/CapitolHill/4834/barnett.htm

c) A complete review of Joseph Katz' deconstruction of the Baldus database is available upon request.

(4) The 130 (now 138) death row 'innocents' scam"
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx

(5) a) "The Death Penalty: More Protection for Innocents"
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx

b) "Opponents of the Death Penalty Have Blood on their Hands", Dennis Prager, November 29, 2005
http://townhall.com/columnists/DennisPrager/2005/11/29/opponents_in_capital_punishment_have_blood_on_their_hands

(6) "The Innocent Executed: Deception & Death Penalty Opponents"
http://homicidesurvivors.com/2009/10/08/the-innocent-executed-deception--death-penalty-opponents--draft.aspx

(7) "Prisons are a Bargain, by any measure", by John J. DiIulio, Jr., New York Times, January 16, 1996
http://www.brookings.edu/opinions/1996/0116crime_john-j--diiulio--jr.aspx

I hate to spoil the love in, but I've got a few criticisms, which you can take or leave. While your critique of Stevens' position on McCleskey is good, I think your second to last paragraph is weak in two ways.

Firstly for assuming there are a 'handful' of cases in which innocence is an issue. Maybe some comment on the death penalty information center's innocence list would be appropriate here. From prior posts, I know you think you can refute it, but if so say it, otherwise your point can be too easily rebutted.

Secondly, you need to have more evidence that death penalty cases are aggravated 'well above the mean'. For example, Arizona allows the death penalty for felony murderers and has an aggravating factor which makes a defendant death eligible if he's on probation for any offense, even a non-violent one. I don't think that poses an example of an offense that is particularly highly aggravated. Numerous defendants have been convicted of murder and sentenced to death in which they were a non-triggerman and happened to be present at the scene. Again, that's a horrific crime for which they should be locked up for a long time, but I don't see it as particuarly egregious. In order for your argument to work you need to define what the 'mean' these cases are above is or offer some more argument on this point.

Finally, a more general point is that the Lockett issues frequently litigated are far from irrelevant to the scheme of 'guided discretion that you endorse earlier in the post. By making sure that juries can give effect to mitigating evidence and that aggravating factors are properly found, the Court is making sure that the jury's discretion is channelled in a meaningful way.

Kent, I'll leave it to you to provide a full review of Garland's book, by which I mean a full rebuttal.

However, I rebutted him in July, for an essay he wrote, his essay, as an early promotion of his book.

Here ya go.

It is difficult to say if Prof . Garland is just sloppy or if, like many in academia, he is happy to peddle bias in service of a goal, here, an end to execution.
("Five myths about the death penalty", By David Garland, July 18, 2010, www.washingtonpost.com/wp-dyn/content/article/2010/07/16/AR2010071602717.html)

Lets' look at Garland's myths:

1) Garland fails to mention that it is the judges that make the imposition of the death penalty all but impossible in some jurisdictions. Dictatorial judges in New Jersey never allowed an execution. There, the death penalty was repealed. Pennsylvania judges never allow executions other than those whereby the inmates waive appeals. If you appeal a death sentence in Pa, you have a life sentence, even if your death sentence is not overturned. Similar abusive judicial behavior is legendary in California.

The death penalty in Virginia? Inmates are executed in 5-7 years after sentencing, 65% of those sentenced to death have been executed and only 15% of death row cases are overturned on appeal. The national averages for those are 11 years, 13% and 37%, respectively.

The difference is in the judges.

Victim survivors in death penalty cases are knowingly and unnecessarily tortured by such irresponsible and callous judges, as in NJ, Pa and Ca and others, nationwide.

Garland gives the false hope that by replacing the death penalty with a life sentence that we can avoid these problems.

All states are, now, looking at ways to release lifers, early, for overcrowding and cost issues.

Instead of the abusive performance of judges in so many death penalty jurisdictions, cases, abuse which should be stopped, those murder victim survivors would then be served a recurring theme of releasing those lifer murderers of their loved ones.

The same legal challenges that have been used for years to restrict death penalty applications, are now being repeated in challenging life sentences. Pro death penalty opponents have been stating that pending course for years and it is now in full swing. Murderers serving life sentences can appeal for life.

2 and 3. Yes, fortunately, American democracy is stronger. Even in Europe, the collection of countries whose governments are most opposed to the death penalty, the majority of their populations do support the death penalty for some crimes (1). Those governments could care less.

It may be the case that a majority of citizens in every country support executions for some crimes, based upon the proposition that such sanction is a morally just and proportionate sanction for the crime(s) committed, the foundation of support for all criminal sanctions.

The insult here is that Garland believes that governments ban the death penalty because they know better, that they are wiser than those whom they govern, similar in fashion to the dictatorial judges who confound the law, as reviewed. In fact, it is simply a product of Garland's bias, with no evidence to support it and a false sense of parental superiority guiding it.

4. Predictably, Garland says "it stretches credulity to think that the death penalty, as administered in the United States today, can be an effective means for deterring murder".

Note, that Garland's hedge is "effective", which he can define in any manner he wishes.

Of course the death penalty deters. All prospects of any negative outcome deter some. There is no exception.

Let's say that only 0.5% of murderers are deterred every year because of deterrence. It is a very small percentage of murders deterred, but huge in terms of lives saved, about 90 innocents saved per year, on average, since 1977, noting an 18,000 murders/yr. average during that time.

Is that effective, enough, for Garland? Probably not. For many against the death penalty, it wouldn't matter if a thousand lives were spared per execution because of deterrence, they would still seek its end.

Of the recent (since 2000) 25 studies finding for deterrence, there is a range of deterrence detected, between 3 and 28 lives spared per execution (2), with an average of about 30 executions per year, since 1977, which equates to about 90-900 innocents spared per year because of deterrence.

Garland states that "66 percent have their death sentences overturned on appeal or post-conviction review. He needs to fact check. It is 37%. (3)

Garland states that "a smaller number -- 139 -- have been exonerated in the past 30 years". Fact checking is definitely not Garland's thing. The 139 exonerated is well known fraud and easily uncovered by anyone who cared to fact check. (4)

5. Of course the death penalty works. Everyone who has been executed has remained dead.

Garland states: "An Indiana study last month showed that capital sentences cost 10 times more than life in prison without parole."

Not surprisingly, Garland didn't fact check that story either. It is about 12% more expensive not the 1000% (10 times) that Garland found. (5)

Garland closes: "Getting past the myths and looking at how the death penalty actually operates is one place to start. "

How would he know?

1) "Death Penalty Support Remains Very High: USA & The World"
http://prodpinnc.blogspot.com/2009/07/death-penalty-polls-support-remains.html

2) 25 recent studies finding for deterrence, Criminal Justice Legal Foundation
http://www.cjlf.org/deathpenalty/DPDeterrence.htm

3) "A Broken Study: A Review of 'A Broken System' "
http://prodpinnc.blogspot.com/2009/10/broken-study-review-of-broken-system.html

4) "The 130 (now 139) death row 'innocents' scam"
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx

5) Garland was referencing a review that didn't look at all the costs and stated that it didn't include all the costs. With one exception, this one appears to.

See Bachground Information, page 2, Fiscal Impact Statement, Legislative Services Agency,
http://www.in.gov/legislative/bills/2008/PDF/FISCAL/HB1074.004.pdf

Costs per case
$758, 243 for death penalty
$657, 028 for LWOP

However, this excludes the credit of savings for plea bargain to LWOP, which I suspect saves at least $20, 000 per case, solely attributed to having the death penalty.

That would bring the differential down to about $80,000 - the death penalty and LWOP cost amounts are already present valued. or

$738, ooo for death penalty (inclusive of LWOP plea credit cost savings, solely attributable to having the death penalty)
$657, 000 for LWOP

The death penalty is 12% more than LWOP.


"Numerous defendants have been convicted of murder and sentenced to death in which they were a non-triggerman and happened to be present at the scene. Again, that's a horrific crime for which they should be locked up for a long time, but I don't see it as particuarly egregious."

I love the "happened to be present" locution. If your arguments are so strong, why do you have to resort to sophistry.

I don't believe I was using sophistry. That is the basis on which the Arizona Supreme Court has largely relied on to distinguish between those accomplices who are eligible for the death penalty and those who were not - the argument is that the defendant, by being present at the scene, knows or should have known that the defendant is suffering. This in turn satisfies the cruelty limb of the State's 'especially cruel, heinous and depraved aggravator', which is often used as the only aggravator in a case like this. Observing a murder and doing nothing is a morally indefensible action, but does it really raise the moral culpability of the offender to the point that they deserve death?

This point is especially relevant to kent's argument, if states were allowed to have mandatory death sentences then defendants like this could never escape the death penalty. I don't see how 'narrowing' the class of death-eligible offenders through such dubious aggravators serves the requirement of Furman. If you are going to allow States a largely free hand in crafting aggravating factors which don't actually do anything (as the Supreme Court did in, for example, Lowenfeld v Phelps, 484 US 231 (1988), Walton v. Arizona, 497 U.S. 639 (1990) and Tuliapea v. California, 512 U.S. 967 (1994)) and potentially include all murderers, then there has to be some method by which juries can distinguish the worst offenders - that function is now served by the mitigating evidence that can be introduced.

In any case, this is an opposing view. I think kent is wrong, but I also believe his argument on this point is something on which reasonable people can disagree.

I think you were. The idea that an accomplice just happens to be there is self-contradictory and an exercise in sophistry.

And then there's this:

"Observing a murder and doing nothing is a morally indefensible action, but does it really raise the moral culpability of the offender to the point that they deserve death?"

Accomplices don't merely "observe". They either participated in the killing or were involved in a heinous crime which resulted in death.

Why do you insist on soft-selling what these people do?

By the way, the general trend in the law is to make accomplices as guilty as principals.

Personally, I think that the presumptive penalty for murder ought to be death. I think that it's very clear that the states should have the right to do that under the Constitution, and arrogant Justices like Stevens have deprived the people of this right. He is to be reviled, not celebrated.

Well I would argue that being 'involved in a heinous crime' is a rather nebulous description that can include participating in the initial stages of a murder and then merely observing the actual killing. Examples include State v Tison and State v Miles, and that's only the Arizona cases I'm familiar with.

But I get the impression that you disagree not only with Woodson and Lockett but with Furman as well. In other words, you think that states should be free to allow a jury (or a judge?) unfettered discretion to decide upon the appropriate sentence following a murder conviction and that the Eighth Amendment doesn't require any sort of guided discretion or objective standards which the jury should use to make their decision. If so I don't think we share enough common ground to make any further discussion worthwhile.

Suit yourself bhaal. The fact remains that "happened to be there" as a description for someone who participated in the initial stages of a murder is a deliberate minimalization of the culpability of the actor. And the use of "merely" is interesting too. Amazing how people who claim to be acknowledge the heinousness of a crime that falls short of death engage in this semantic word-play to try to win an argument. It's pathetic. You don't like the death penalty--fine. I'd have a lot more respect for your arguments if you didn't sprinkle these casual euphemisms in them. I realize it's hard. You hate capital punishment so much and that colors your ability to make an argument. But perhaps you ought to rethink why you get so worked up about the execution of a murderer.

I'd like to reiterate that an accomplice is not someone who just "happens to be there." In order to be guilty as an accomplice, at least in every jurisdiction I'm familiar with, the accomplice must participate in the crime in some material way with knowledge that his/her participation will further the commission of the crime in some material way. In fact, my jurisdiction's accomplice statute specifically states that "mere presence at the scene of the crime" is insufficient for accomplice liability.

If there are any defendants who received the death penalty where the evidence proved only that they just "happened to be there," I'd be interested in hearing about that case. I suspect that no such case exists.

Thanks, notablogger, for the additional clarification. I appreciate the assist.

Leave a comment