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Application

* Laws that impose the death penalty vary by state and federal jurisdiction.[1] As of 2019:

  • 21 states plus the District of Columbia have abolished the death penalty.
  • 29 states plus the federal government and military retain the death penalty.
  • 4 states with the death penalty—Pennsylvania, Colorado, Oregon, and California—do not carry out executions, by order of each governor.[2] [3] [4] [5]

* The U.S. Supreme Court ruled (7–2) in 1976 that the death penalty is constitutional as long as it is proportional to the crime and is not applied arbitrarily.[6] The two dissenting justices found that the death penalty violates the Constitution’s prohibition of cruel and unusual punishment.[7] [8]

* According to various U.S. Supreme Court rulings of differing majorities, the death sentence can be imposed:

  • in certain cases of murder.[9]
  • if a jury finds an aggravating factor that legally increases the crime’s severity or defendant’s accountability.[10] [11] [12] Such factors can include but are not limited to:
  • in certain cases of:

* According to various U.S. Supreme Court rulings of differing majorities, the death sentence cannot be imposed:

  • in cases of rape or other crimes where the victim did not die.[27] [28]
  • if the perpetrator:
    • was a minor at the time of the crime.[29]
    • is found to be insane.[30] [31] [32]
    • is intellectually disabled.[33]
  • as a mandatory sentence for any crime.[34]

* Since 1976, no prisoners have been executed for a crime other than murder.[35]

* Death penalty trials have two separate phases. During the:

  1. guilt phase, the jury decides whether the defendant is guilty of a crime that meets the requirements for a death penalty sentence.
  2. penalty phase, the jury decides if the guilty defendant should be sentenced to death based on legal guidelines. States vary on whether:
    • the jury or judge makes the final decision between the death penalty or another sentence.
    • the judge can overrule the jury’s recommendation for the death penalty and give a lesser sentence.[36] [37]

* County prosecutors, who are usually elected officials, decide whether to seek the death penalty in eligible cases and whether to offer a lighter sentence in exchange for a guilty plea. Their decisions can be influenced by factors such as personal ideology, public opinion, and resource limitations.[38] [39] [40] [41]

Frequency

* From 1977 to 2017, 8,440 people were sentenced to death in the United States. After peaking in 1994 at 330, the number of new death penalty sentences decreased to 34 in 2017:

Death Penalty Sentences in the United States

[42]

* From 1977 to 2017, a total of 1,465 prisoners were executed in the United States.[43] After peaking in 1999 at 98, the annual number of executions decreased to 23 in 2017:

Death Penalty Executions in the United States

[44]

* In 2017, the portion of the population that was on death row ranged from zero in Wyoming and New York to 38 per one million people in Alabama:

Death Row to Population Ratio by State

[45]

Racial Disparities

* In the U.S. over the past two decades, black people comprised:

  • 13% of the total population.
  • 52% of murder perpetrators in cases where law enforcement identified the race of the culprit.
  • 42% of the death row population.
  • 32% of death penalty executions:
Murder Perpetrators and Death Row Inmates by Race

[46]

Due Process

* From 1977 to 2017, the average time from death penalty sentencing to execution increased from 3 months to 20 years:

Average Time From Death Penalty Sentencing to Execution

[47]

* Long time periods on death row can:

  • give time for death row inmates to challenge their convictions or sentences, including:
    • going through the full appeals process.
    • uncovering new evidence.
    • applying new technologies to existing evidence.[48] [49] [50]
  • erode “public confidence in the criminal justice system.”[51]
  • weaken any “deterrent effect” of the death penalty.[52]
  • create claims that such delays violate the Eighth Amendment’s ban on cruel and unusual punishment.[53] [54]

* The appeals process significantly contributes to the length of time between sentencing and execution.[55] [56] A convict sentenced to death has three routes to appeal the conviction, sentence, or both:

  1. All state death penalty sentences are automatically appealed. This appeal:
    • covers issues from the trial record such as overruled objections and the appropriateness of the sentence.
    • is mandatory in some states regardless of the defendant’s wishes.
    • usually goes directly to the state’s highest court.[57] [58] [59] [60] [61] [62]
  2. A separate appeal can begin in the state court system. This appeal:
    • covers legal issues such as the defense attorney’s effectiveness or withheld evidence.
    • usually begins in the original trial court and can proceed through the state court system to the U.S. Supreme Court.[63] [64] [65] [66]
  3. A third type of appeal can begin in the federal court system. This appeal:
    • covers federal legal issues such as alleged violations of the U.S. Constitution.
    • must be filed within one year of finishing the automatic appeal, unless a separate state appeal is in process.
    • can proceed through the federal court system to the U.S. Supreme Court.[67] [68] [69] [70] [71]

* From 1973 to 2013, about 38% of death row inmates had their conviction or sentence overturned during the appeals process.[72]

* After all court appeals are exhausted, a death row inmate can apply for clemency—a reduced sentence or pardon—from the state’s governor or executive board.[73] [74] [75] For federal death row inmates, the U.S. president alone has the power to pardon or commute sentences.[76] [77]

* Governors and presidents do not have to provide their reasons for granting or rejecting clemency petitions.[78] [79]

* The U.S. Supreme Court has refused to hear cases in which death row inmates asserted that their length of time on death row violated the Eighth Amendment’s ban on “cruel and unusual punishment.”[80] [81] In one such refusal, Justice Clarence Thomas wrote:

It is incongruous to arm capital defendants with an arsenal of “constitutional” claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed.[82]

* Supreme Court Justice Stephen Breyer—who objects to the death penalty in all cases—asserted in 2019 that:

It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.[83] [84]

Costs

* Any person accused of a crime who cannot afford a lawyer has the right to have one provided at the government’s expense. In death penalty cases, this must include the trial and first appeal.[85] [86] [87] [88] [89] In some states, it also includes the entire appeals process and request for a reduced sentence or pardon.[90] [91] [92]

* In 2007, county-level public defender offices in 25 states spent a total of about $30 million providing defense representation in over 900 death penalty cases.[93] This amounts to about $31,900 per defendant ($39,090 in 2019 dollars).[94] [95]

* The average cost to provide defense counsel in North Carolina’s death penalty cases rose from $58,592 during 2002–2006 to $93,231 during 2007–2015. This cost increase was largely offset by a decrease in the portion of cases that prosecutors sought the death penalty. The per case cost increase was due to increases in the:

  • hourly pay rate for attorneys.
  • number of hours attorneys spent on each case. This increase was due to:
    • advances in science (such as DNA testing) leading to higher demand for expert testimony.
    • the increased volume of digital evidence (such as video and audio recordings) that attorneys must review to prepare for trial.[96]

* Rural Texas counties can pay an annual fee to a regional organization that provides a qualified legal team for poor death penalty defendants—an insurance policy against a large portion of death penalty trial costs.[97]

Public Opinion

* According to Gallup polls conducted in 2019:

  • 56% of American adults are in favor of the death penalty, and 42% are not.[98] [99]
  • 60% of American adults think life imprisonment without parole is a better punishment for people convicted of murder than the death penalty, and 36% think the death penalty is better.[100]

* Regarding specific cases, American adults’ opinions of the death penalty varied as follows:

  • In 2001, 81% supported the execution of Timothy McVeigh, and 16% did not. Among people who generally opposed the death penalty:
    • 58% supported McVeigh’s execution.
    • 42% did not support McVeigh’s execution.[101]
  • In 2005, 72% supported the execution of Saddam Hussein, and 25% did not.[102]
  • In 2015, 60% supported the death penalty for the Boston Marathon bomber, and 30% did not.[103]

* In 2015, Nebraska’s state legislature abolished the death penalty over the veto of the governor.[104] In the 2016 election, voters repealed the bill and reinstated the death penalty.[105]

* In California:

  • during 2016, voters:
    • rejected a proposal to abolish the death penalty.
    • approved a proposal to shorten the appeals process in death penalty cases by setting a five-year time limit.[106] [107] [108] [109]
  • during 2019, Democratic Governor Gavin Newsom issued an executive order that indefinitely suspends executions and repeals the state’s lethal injection protocol.[110] [111]

Footnotes

[1] Article: “Death Penalty.” Wex Legal Encyclopedia. Accessed December 2, 2019 at <www.law.cornell.edu>

Congress, as well as any state legislature, may prescribe the death penalty, also known as capital punishment, for capital offenses. The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment’s ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment’s Due Process Clause, the Eighth Amendment applies against the states, as well as the federal government.

[2] Webpage: “States and Capital Punishment.” National Conference of State Legislatures, June 12, 2019. <www.ncsl.org>

Capital punishment is currently authorized in 29 states, by the federal government and the U.S. military. In recent years, New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013) and New Hampshire (2019) have legislatively abolished the death penalty, replacing it with a sentence of life imprisonment with no possibility for parole. The Nebraska Legislature also abolished capital punishment in 2015, but it was reinstated by a statewide vote in 2016.

[3] Webpage: “State by State.” Death Penalty Information Center. Accessed November 15, 2019 at <deathpenaltyinfo.org>

States with the Death Penalty (29)

In addition, the U.S. Government and the U.S. Military retain the death penalty.

Alabama

Arizona

Arkansas

California

Colorado

Florida

Georgia

Idaho

Indiana

Kansas

Kentucky

Louisiana

Mississippi

Missouri

Montana

Nebraska

Nevada

North Carolina

Ohio

Oklahoma

Oregon

Pennsylvania

South Carolina

South Dakota

Tennessee

Texas

Utah

Virginia

Wyoming

States Without the Death Penalty (21)

In addition, the District of Columbia has abolished the death penalty. …

Alaska (1957)

Connecticut (2012)

Delaware (2016)

Hawaii (1957)

Illinois (2011)

Iowa (1965)

Maine (1887)

Maryland (2013)

Massachusetts (1984)

Michigan (1847)

Minnesota (1911)

New Hampshire (2019)

New Jersey (2007)

New Mexico (2009)

New York (2007)

North Dakota (1973)

Rhode Island (1984)

Vermont (1972)

Washington (2018)

West Virginia (1965)

Wisconsin (1853)

Death Penalty States with Gubernatorial Moratoria (4)

California (2019)

Colorado (2013)

Oregon (2011)

Pennsylvania (2015)

[4] Article: “California Governor Announces Moratorium on Executions.” Death Penalty Information Center, March 13, 2019. <deathpenaltyinfo.org>

California Governor Gavin Newsom on March 13, 2019 declared a moratorium on executions in the state with the nation’s largest death row. …

With the governor’s announcement, California joins Colorado, Oregon, and Pennsylvania as states in which governors have imposed moratoria on executions, meaning that more than one-third (34.1%) of all death-row prisoners in the U.S. are now incarcerated in states in which governors have said no executions will occur.

[5] Article: “California Gov. Gavin Newsom Plans to Halt the Death Penalty.” By Doha Madani and others. NBC News, March 12, 2019. <www.nbcnews.com>

“Other states have previously declared moratoriums on the death penalty. Gov. Tom Wolf has done so in Pennsylvania, as did former governors John Hickenlooper in Colorado and John Kitzhaber in Oregon. All three are Democrats.”

[6] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens, White, Rehnquist, Burger, Blackmun. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

We now hold that the punishment of death does not invariably violate the Constitution. …

… A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” Trop v. Dulles, supra, at 100 (plurality opinion). This means, at least, that the punishment not be “excessive.” When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia, supra, at 392–393 (BURGER, C. J., dissenting). See Wilkerson v. Utah, 99 U.S., at 136 ; Weems v. United States, supra, at 381. Second, the punishment must not be grossly out of proportion to the severity of the crime. …

The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule [428 U.S. 153, 177] imposed a mandatory death sentence on all convicted murderers. McGautha v. California, 402 U.S. 183, 197–198 (1971). And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. Id., at 199–200. See Woodson v. North Carolina, post, at 289–292.

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. …

And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of “life, liberty, or property” without due process of law. …

The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. …

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature [428 U.S. 153, 187] to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe. …

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

[7] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens, White, Rehnquist, Burger, Blackmun. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Dissent: (Brennan):

This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, “moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.4 My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and that therefore the punishment of death, for whatever crime and under all circumstances, is “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. …

… Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.

Dissent: (Marshall): “In Furman v. Georgia, 408 U.S. 238, 314 (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.”

[8] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[9] Ruling: Kennedy v. Louisiana. U.S. Supreme Court, June 25, 2008. Decided 5–4. Majority: Kennedy, Stevens, Ginsburg, Souter, Breyer. Dissenting: Roberts, Alito, Scalia, Thomas. <caselaw.findlaw.com>

Majority:

[T]he Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society,” Trop, 356 U. S., at 101. Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life.

[10] Ruling: Ring v. Arizona. U.S. Supreme Court, June 24, 2002. Decided 7–2. Majority: Ginsburg, Stevens, Scalia, Kennedy, Souter, Thomas. Concurring: Scalia, Kennedy, Breyer. Dissenting: O’Connor, Rehnquist. <caselaw.findlaw.com>

Majority:

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty. …

… Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. …

Based solely on the jury’s verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. … This was so because, in Arizona, a “death sentence may not legally be imposed … unless at least one aggravating factor is found to exist beyond a reasonable doubt.” 200 Ariz., at 279, 25 P. 3d, at 1151 (citing §13-703). The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial guarantee,3 made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.4

The dispositive question, we said, “is one not of form, but of effect.” Id., at 494. If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.

[11] Article: “Aggravating Circumstances.” Wex Legal Encyclopedia. Accessed December 2, 2019 at <www.law.cornell.edu>

Aggravating circumstances refers to factors that increases the severity or culpability of a criminal act. Typically, the presence of an aggravating circumstance will lead to a harsher penalty for a convicted criminal.

Some generally recognized aggravating circumstances include heinousness of the crime, lack of remorse, and prior conviction of another crime. Recognition of particular aggravating circumstances varies by jurisdiction. …

Using Aggravating Circumstances

In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court held that a jury may only use aggravating circumstances to impose a harsher sentence than usual when the jury had found those factors to be true beyond a reasonable doubt. The Cunningham court, however, also stated that prior convictions do not to be proven beyond a reasonable doubt.

Capital Punishment

In Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court wrote that murdering a sheriff while on duty is an aggravating circumstance “sufficient for a death sentence.”

18 U.S.C. § 3592(b)–(d) contains aggravating factors to be considered in death-penalty cases.

[12] Report: “Federal Capital Offenses: An Overview of Substantive and Procedural Law.” By Charles Doyle. Congressional Research Service. Updated February 25, 2016. <crsreports.congress.gov>

Page 2 (of PDF):

Defendants convicted of murder are death-eligible only if they are found at a separate sentencing hearing to have acted with life-threatening intent. Among those who have, capital punishment may be imposed only if the sentencing jury unanimously concludes that the aggravating circumstances that surround the murder and the defendant outweigh the mitigating circumstances to an extent that justifies execution.

The Federal Death Penalty Act provides several specific aggravating factors, such as murder of a law enforcement officer or multiple murders committed at the same time. It also permits consideration of any relevant “non-statutory aggravating factors.” Impact on the victim’s family and future dangerousness of the defendant are perhaps the most commonly invoked non-statutory aggravating factors. The jury must agree on the existence of at least one of the statutory aggravating factors if the defendant is to be sentenced to death.

Pages 35–37:

The Federal Death Penalty Act establishes the same capital sentencing hearing procedures for all capital offenses—murder, treason, espionage, or murder-less drug kingpin offenses. The hearing is conducted only after the defendant has been found guilty of a death-eligible offense.259 It is held before a jury, unless the parties agree otherwise.260

… The finding on aggravating circumstances must be unanimous; the finding on mitigating circumstances need only be espoused by a single juror.267 Capital punishment may only be recommended and imposed, if the jurors all agree that the aggravating factors sufficiently outweigh the mitigating factors to an extent that justifies imposition of the death penalty.268 If they find the death penalty justified, they must recommend it.269 If they recommend the death penalty, the court must impose it.270 If they cannot agree, the defendant must be sentenced to a term of imprisonment, most often to life imprisonment.271

[13] Alabama Code Title 13A, Chapter 5, Article 2: “Criminal Code, Punishments and Sentences, Death Penalty and Life Imprisonment Without Parole.” Accessed December 2, 2019 at <law.justia.com>

Section 13A-5-40

The following are capital offenses: …

(5) Murder of any police officer, sheriff, deputy, state trooper, federal law enforcement officer, or any other state or federal peace officer of any kind, or prison or jail guard, while such officer or guard is on duty, regardless of whether the defendant knew or should have known the victim was an officer or guard on duty, or because of some official or job-related act or performance of such officer or guard.

[14] Texas Penal Code Title 5, Chapter 19: “Criminal Homicide.” Accessed December 2, 2019 at <law.justia.com>

Section 19.02. Murder. …

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual.…

Section 19.03. Capital Murder.

(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and:

(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman….

[15] Florida Statute Title XLVII, Chapter 921, Section 921.141: “Criminal Procedure and Corrections, Sentence.” Accessed December 2, 2019 at <law.justia.com>

Section 921.141:

Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.— …

(2) Findings and Recommended Sentence by the Jury.—This subsection applies only if the defendant has not waived his or her right to a sentencing proceeding by a jury.

(a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least one aggravating factor set forth in subsection (6).

(b) The jury shall return findings identifying each aggravating factor found to exist. A finding that an aggravating factor exists must be unanimous. If the jury:

1. Does not unanimously find at least one aggravating factor, the defendant is ineligible for a sentence of death.

2. Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without the possibility of parole or to death. The recommendation shall be based on a weighing of all of the following:

a. Whether sufficient aggravating factors exist.

b. Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.

c. Based on the considerations in sub-subparagraphs a. and b., whether the defendant should be sentenced to life imprisonment without the possibility of parole or to death.

(6) Aggravating Factors.—Aggravating factors shall be limited to the following: …

(j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.

[16] Alabama Code Title 13A, Chapter 5, Article 2: “Criminal Code, Punishments and Sentences, Death Penalty and Life Imprisonment Without Parole.” Accessed December 2, 2019 at <law.justia.com>

Section 13A-5-40:

The following are capital offenses: …

(10) Murder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct.

[17] Texas Penal Code Title 5, Chapter 19: “Criminal Homicide.” Accessed December 2, 2019 at <law.justia.com>

Section 19.02:

Murder. …

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual.…

Section 19.03:

Capital Murder.

(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and: …

(7) the person murders more than one person:

(A) during the same criminal transaction; or

(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct….

[18] Alabama Code Title 13A, Chapter 5, Article 2: “Criminal Code, Punishments and Sentences, Death Penalty and Life Imprisonment Without Parole.” Accessed December 2, 2019 at <law.justia.com>

Section 13A-5-40:

The following are capital offenses: …

(13) Murder by a defendant who has been convicted of any other murder in the 20 years preceding the crime; provided that the murder which constitutes the capital crime shall be murder as defined in subsection (b) of this section; and provided further that the prior murder conviction referred to shall include murder in any degree as defined at the time and place of the prior conviction.

[19] Florida Statute Title XLVII, Chapter 921, Section 921.141: “Criminal Procedure and Corrections, Sentence.” Accessed December 2, 2019 at <law.justia.com>

Section 921.141:

Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.— …

(2) Findings and Recommended Sentence by the Jury.—This subsection applies only if the defendant has not waived his or her right to a sentencing proceeding by a jury.

(a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least one aggravating factor set forth in subsection (6).

(b) The jury shall return findings identifying each aggravating factor found to exist. A finding that an aggravating factor exists must be unanimous. If the jury:

1. Does not unanimously find at least one aggravating factor, the defendant is ineligible for a sentence of death.

2. Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without the possibility of parole or to death. The recommendation shall be based on a weighing of all of the following:

a. Whether sufficient aggravating factors exist.

b. Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.

c. Based on the considerations in sub-subparagraphs a. and b., whether the defendant should be sentenced to life imprisonment without the possibility of parole or to death.

(6) Aggravating Factors.—Aggravating factors shall be limited to the following:

(a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

[20] Ruling: Gregg v. Georgia. U.S. Supreme Court, July 2, 1976. Decided 7–2. Majority: Stewart, Powell, Stevens, White, Rehnquist, Burger, Blackmun. Concurring: White, Rehnquist, Burger, Blackmun. Dissenting: Brennan, Marshall. <caselaw.findlaw.com>

Majority:

The Georgia statute, as amended after our decision in Furman v. Georgia, 408 U.S. 238 (1972), retains the death penalty for six categories of crime: murder,4 kidnaping for ransom or where [428 U.S. 153, 163] the victim is harmed, armed robbery,5 rape, treason, and aircraft hijacking.6 Ga. Code Ann. 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26-3301 (1972). …

… Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified [428 U.S. 153, 165] in the statute. …

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong.

[21] U.S. Code Title 18, Part I, Chapter 115, Section 2381: “Crimes, Treason, Sedition, and Subversive Activities.” Accessed November 15, 2019 at <www.law.cornell.edu>

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

[22] Ruling: Rosenburg v. United States. U.S. Supreme Court, June 19, 1953. Decided 5–4. Majority: Frankfurter, Clark, Harlan, Whittaker, Stewart. Dissenting: Warren, Black, Douglas, Brennan. <caselaw.findlaw.com>

Per Curiam:†

The question which has been and now is urged as being substantial is whether the provisions of the Atomic Energy Act of 1946, 42 U.S.C. 1810 (b) (2), (3), rendered the District Court powerless to impose the death sentence under the Espionage Act of 1917, 50 U.S.C. 32 (a), 34, under which statute the indictment was laid. …

We think the question is not substantial. We think further proceedings to litigate it are unwarranted. A conspiracy was charged and proved to violate the Espionage Act in wartime. The Atomic Energy Act did not repeal or limit the provisions of the Espionage Act. Accordingly, we vacate the stay entered by Mr. Justice Douglas on June 17, 1953.

NOTE: †A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[23] U.S. Code Title 18, Part I, Chapter 37, Section 794: “Crimes, Espionage and Censorship.” Accessed November 15, 2019 at <www.law.cornell.edu>

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.

[24] Ruling: Kennedy v. Louisiana. U.S. Supreme Court, June 25, 2008. Decided 5–4. Majority: Kennedy, Stevens, Ginsburg, Souter, Breyer. Dissenting: Roberts, Alito, Scalia, Thomas. <caselaw.findlaw.com>

Majority: “Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken.”

[25] U.S. Code Title 18, Part II, Chapter 228, Section 3591: “Crimes and Criminal Procedure, Sentence of Death.” Accessed November 15, 2019 at <www.law.cornell.edu>

(b) A defendant who has been found guilty of—

(1) an offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under the conditions described in subsection (b) of that section which involved not less than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B) …

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.

[26] U.S. Code Title 21, Chapter 13, Subchapter I, Part D, Section 848: “Drug Abuse Prevention and Control, Offenses and Penalties, Continuing Criminal Enterprise.” Accessed November 15, 2019 at <www.law.cornell.edu>

(b) Life Imprisonment for Engaging in Continuing Criminal Enterprise Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a), if—

(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and

(2)

(A) the violation referred to in subsection (c)(1) involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title, or

(B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during any twelve-month period of its existence for the manufacture, importation, or distribution of a substance described in section 841(b)(1)(B) of this title.

(c) “Continuing Criminal Enterprise” Defined For purposes of subsection (a), a person is engaged in a continuing criminal enterprise if—

(1) he violates any provision of this subchapter or subchapter II the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II—

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources. …

(e) Death penalty

(1) In addition to the other penalties set forth in this section—

(A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A)1 of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and

(B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the performance of such officer’s official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.

[27] Ruling: Coker v. Georgia. U.S. Supreme Court, June 29, 1977. Decided 7–2. Majority: White, Stewart, Blackmun, Powell, and Stevens. Concurring: Brennan, Marshall, Powell. Dissenting: Burger, Rehnquist. <caselaw.findlaw.com>

Majority:

We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.4

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.13 The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” Gregg v. Georgia, 428 U.S., at 187, is an excessive penalty for the rapist who, as such, does not take human life.

[28] Ruling: Kennedy v. Louisiana. U.S. Supreme Court, June 25, 2008. Decided 5–4. Majority: Kennedy, Stevens, Ginsburg, Souter, Breyer. Dissenting: Roberts, Alito, Scalia, Thomas. <caselaw.findlaw.com>

Majority:

[T]he Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society,” Trop, 356 U. S., at 101. Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life. …

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken.

[29] Ruling: Roper v. Simmons. U.S. Supreme Court, March 1, 2005. Decided 5–4. Majority: Kennedy, Ginsburg, Souter, Breyer, Stevens. Concurring: Stevens, Ginsburg. Dissenting: Scalia, Rehnquist, Thomas, O’Connor. <caselaw.findlaw.com>

Majority:

A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. …

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” …

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. …

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. …

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.

[30] Ruling: Ford v. Wainwright. U.S. Supreme Court, June 26, 1986. Decided 5–4. Majority: Marshall, Brennan, Blackmun, Stevens, Powell. Concurring: Powell. Dissenting: O’Connor, White, Rehnquist, Burger. <caselaw.findlaw.com>

Majority: “The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane. Petitioner’s allegation of insanity in his habeas corpus petition, if proved, therefore, would bar his execution.”

[31] Webpage: “Mental Illness.” Death Penalty Information Center. Accessed December 2, 2019 at <deathpenaltyinfo.org>

Some defendants are so mentally ill as to lack all understanding of their crime and its consequences and may be considered mentally incompetent. Such individuals may be unfit to stand trial or be found not guilty by reason of insanity. If they are convicted and become incompetent while on death row, they cannot be executed, under earlier Supreme Court precedent. However, most people with mental illness—including many with severe mental illness—are not mentally incompetent.

[32] Webpage: “Description of Mental Illness.” Death Penalty Information Center. Accessed December 2, 2019 at <deathpenaltyinfo.org>

Insanity or mental incompetency is a severe form of mental illness and is addressed separately by the legal system. Condemned prisoners who do not understand what an execution is or lack a rational understanding of why the State wants to execute them are exempt from execution. The Supreme Court first held in Ford v. Wainwright (477 U.S. 399 (1986)) that executing the insane is unconstitutional. It later ruled in Panetti v. Quarterman (551 U. S. 930 (2007)) that a prisoner who understood the legal process can nevertheless be incompetent to be executed if his mental illness prevents him from rationally understanding why he is to be executed. The Court further clarified its incompetency standard in Madison v. Alabama (No. 17-7505 (2019)), ruling that a state cannot execute a prisoner whose mental or medical condition prevents him from rationally understanding why he is to be executed, irrespective of what condition caused his impairment.

[33] Ruling: Atkins v. Virginia. U.S. Supreme Court, June 20, 2002. Decided 6–3. Majority: Stevens, Ginsburg, Souter, Breyer, O’Connor, Kennedy. Dissenting: Scalia, Rehnquist, Thomas. <caselaw.findlaw.com>

Majority:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. …

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976), identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798.

[34] Ruling: Woodson v. North Carolina. U.S. Supreme Court, July 2, 1976. Decided 5–4. Plurality: Stewart, Powell, Stevens. Concurring: Brennan, Marshall. Dissenting: White, Burger, Rehnquist, Blackmun. <caselaw.findlaw.com>

Syllabus:

Judgment of the Court, and opinion of STEWART, POWELL, and STEVENS, JJ., announced by STEWART, J. BRENNAN, J., post, p. 305, and MARSHALL, J., post, p. 306, filed statements concurring in the judgment. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 306. BLACKMUN, [428 U.S. 280, 282] J., filed a dissenting statement, post, p. 307. REHNQUIST, J., filed a dissenting opinion, post, p. 308.

Plurality:

Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE STEWART. …

It is now well established that the Eighth Amendment draws much of its meaning from “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S., at 101 (plurality opinion). As the above discussion makes clear, one of the most significant developments in our society’s treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina’s mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State's power to punish “be exercised within the limits of civilized standards.” Id., at 100. 36 …

A separate deficiency of North Carolina’s mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman’s rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. …

A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied—that death is a punishment different from all other [428 U.S. 280, 304] sanctions in kind rather than degree. … A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense … treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Concurrence: (Brennan): “For the reasons stated in my dissenting opinion in Gregg v. Georgia, ante, p. 227, I concur in the judgment [428 U.S. 280, 306] that sets aside the death sentence imposed under the North Carolina death sentence statute as violative of the Eighth and Fourteenth Amendments.”

Concurrence: (Marshall): “For the reasons stated in my dissenting opinion in Gregg v. Georgia, ante, p. 231, I am of the view that the death penalty is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore concur in the Court's judgment.”

[35] Webpage: “Death Penalty for Offenses Other Than Murder.” Death Penalty Information Center. Accessed November 29, 2019 at <deathpenaltyinfo.org>

The death penalty in the United States is used almost exclusively for the crime of murder. Although state and federal statutes contain various capital crimes other than those involving the death of the victim, only two people were on death row for a non-murder offense (Patrick Kennedy and Richard Davis in Louisiana) when the U.S. Supreme Court addressed this issue in 2008. No one has been executed for such a crime since the death penalty was re-instated in 1976. …

Although no one is on death row for the following crimes, capital offenses exist in state law for various other crimes:

Treason (Arkansas, California, Colorado, Georgia, Illinois*, Louisiana, Mississippi, Missouri, Washington*)

Aggravated kidnapping (Colorado, Idaho, Illinois, Missouri, Montana)

Drug trafficking (Florida, Missouri)

Aircraft hijacking (Georgia, Missouri)

Placing a bomb near a bus terminal (Missouri)

Espionage (New Mexico*)

Aggravated assault by incarcerated, persistent felons, or murderers (Montana)

* These states abolished the death penalty after Kennedy v. Louisiana was decided.

Federal capital statutes for non-murder crimes (no one on death row for such offenses)

Espionage (18 U.S.C. 794)

Treason (18 U.S.C. 2381)

Trafficking in large quantities of drugs (18 U.S.C. 3591(b))

Attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs (18 U.S.C. 3591(b)(2))

[36] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010. Chapter 8: “Penalty Phase.” By O.H. Eaton. Pages 161–251. <www.judges.org>

Pages 161–162:

Capital punishment is a possible penalty for the most serious homicides in 35 states. All 35 states have some sort of post-verdict hearing to determine whether the death penalty should be imposed. These hearings are sometimes referred to as the “penalty phase” or “presentence hearing.” There must be a finding (verdict) of guilt by the court or jury before the death penalty is considered in a capital case. …

The Florida scheme requires that the jury unanimously find a defendant guilty of first degree murder. The same jury (unless the defendant waives a jury) then hears evidence to establish statutory aggravating factors and statutory or non-statutory mitigating circumstances. The aggravating factors must be established beyond a reasonable doubt. The fact finder must be only “reasonably convinced” as to the existence of mitigating factors. If the jury finds one or more aggravating circumstances, and determines these circumstances sufficient to recommend the death penalty, it must determine whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances and, based upon these considerations, recommend whether the defendant should be sentenced to life imprisonment or death. Most states require unanimity. With rare exceptions, the judge must give the jury recommendation “great weight,” but the final decision as to the penalty is made by the judge. …

Georgia Scheme

… After one statutory aggravating factor has been established, the prosecutor may present all relevant evidence of aggravation. The jury must state in its verdict the aggravating factors found beyond a reasonable doubt, and if the death penalty is unanimously recommended, the court must impose the death penalty.

Page 186: “After Ring v. Arizona,927 it is clear there is a constitutional right to a jury for the sentencing phase. Cases that state otherwise are no longer valid.928 The right to jury trial can be waived.”

[37] Ruling: Ring v. Arizona. U.S. Supreme Court, June 24, 2002. Decided 7–2. Majority: Ginsburg, Stevens, Scalia, Kennedy, Souter, Thomas. Concurring: Scalia, Kennedy, Breyer. Dissenting: O’Connor, Rehnquist. <caselaw.findlaw.com>

Majority:

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty. …

… Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. …

Based solely on the jury’s verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. … This was so because, in Arizona, a “death sentence may not legally be imposed … unless at least one aggravating factor is found to exist beyond a reasonable doubt.” 200 Ariz., at 279, 25 P. 3d, at 1151 (citing §13-703). The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial guarantee,3 made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.4

The dispositive question, we said, “is one not of form, but of effect.” Id., at 494. If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.

[38] Article: “Prosecutor.” Encyclopedia Britannica. Last updated October 16, 2019. <www.britannica.com>

Prosecutor, government official charged with bringing defendants in criminal cases to justice in the name of the state. Although responsibilities vary from one jurisdiction to another, many prosecutors are in charge of all phases of a criminal proceeding, from investigation by the police through trial and beyond to all levels of appeal. …

In most U.S. state and local jurisdictions, prosecutors are elected to office. On the federal level, district attorneys are, in effect, members of the executive branch of the government; they are usually replaced when a new administration comes into office. Prosecutors, whether elected or appointed, are often subject to political pressures.

[39] Paper: “A District Attorney’s Decision Whether to Seek the Death Penalty: Toward an Improved Process.” By Jonathan DeMay. Fordham Urban Law Journal, 1999. Pages 767–820. <ir.lawnet.fordham.edu>

Pages 767–768: “In New York State, for example, Bronx County District Attorney Robert Johnson (the “Bronx DA”) steadfastly opposes the utilization of the death penalty. After the enactment of the death penalty in New York,5 the Bronx DA publicly announced that it was not his ‘present intention’ to utilize the death penalty despite its widespread public and political support.”

Page 772: “Prosecutorial discretion encompasses the power to charge or to refrain from charging an individual with a crime; to reduce charges to a lesser offense prior to trial; to not charge prior offenses; to dismiss or request court dismissal after a trial commences; or to recommend a lesser sentence.29

Page 777: “District attorneys are generally elected on a county-wide basis.68 This election structure allows for a wide disparity in utilization of the death penalty from county to county, as district attorneys each determine the criminal justice policies of their respective counties.69

[40] Book: Debating the Death Penalty. Edited by Hugo Bedau and Paul Cassell. Oxford University Press, 2004. Chapter 5: “Truth and Consequences: The Penalty of Death.” By Joshua K. Marquis. Pages 117–151.

Pages 118–119:

[I]t falls to the district attorney to decide which cases fit the special criteria for capital murder. …

… [I]t’s often easier for a prosecutor to plea bargain a capital case—because juries are most likely not to impose the death penalty, because the costs of the cases are astronomical, and because the odds are so high of a conviction or sentence being reversed. But some prosecutors believe it unethical even to consider offering or taking a plea when the death penalty is sought, reasoning that it is the jury and not the prosecutor who should decide the defendant’s sentence. I’ve never asked for the death penalty except when I was prepared sincerely to urge 12 individuals to vote for death. By the same token, I’ve agreed to seek a life sentence without parole because of the sheer costs—emotional for the victims and financial for the system—of a capital case.

Page 139: “A more recent study commissioned by the Virginia General Assembly concluded that suburban Virginia prosecutors were more likely to seek a death sentence than their urban counterparts—in part, no doubt, because (as the Baltimore example showed) prosecutors reflect the values of their constituency.”

[41] Webpage: “Death Penalty Facts.” Indiana Public Defender Council. Last updated June 3, 2019. <www.in.gov>

Page 4:

The prosecution is not required to seek the death penalty in every case in which an aggravating circumstance might exist and the defendant is eligible for death. The determination whether to seek the death penalty against a particular defendant on a particular murder charge is left to the discretion of the prosecuting attorney for each Indiana county.

Similarly, not every case in which the death penalty is sought proceeds to trial. As with other cases, prosecuting attorneys are given discretion to enter into plea negotiations, offering the defendant a sentence less than death in exchange for a guilty plea. Of 72 completed capital cases filed since 2000, only 15, or 20%, went to trial. Of those, only 14, resulted in a death sentence. The majority of capital cases are resolved by plea agreement to a sentence of Life Without Parole or less.

[42] Calculated with data from:

a) Report: “Capital Punishment, 2016 – Statistical Brief.” By Elizabeth Davis and Tracy L. Snell. Department of Justice, Bureau of Justice Statistics, April 30, 2018. <www.bjs.gov>

Page 14: “Appendix Table 5: Numbers for Figure 2: Admissions to and Removals From Sentence of Death, 1973–2016.”

b) Report: “Capital Punishment, 2017: Selected Findings.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

Page 3: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race, 2016 and 2017.”

NOTE: An Excel file containing the data and calculations is available upon request.

[43] Calculated with the dataset: “Prisoners Executed Under Civil Authority in the United States, By Year, Region, and Jurisdiction, 1977–2017.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

NOTE: An Excel file containing the data and calculations is available upon request.

[44] Dataset: “Prisoners Executed Under Civil Authority in the United States, By Year, Region, and Jurisdiction, 1977–2017.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

NOTE: An Excel file containing the data is available upon request.

[45] Calculated with data from:

a) Report: “Capital Punishment, 2017: Selected Findings.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

Page 1 (of PDF): “Thirty-four states and the federal government authorized the death penalty at year-end 2017; two of these states (New York and Wyoming) had no prisoners under sentence of death during the year.”

Page 3: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race, 2016 and 2017.”

b) Dataset: “Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for the United States, States, and Counties: April 1, 2010 to July 1, 2017: 2017 Population Estimates.” U.S. Census Bureau, June 2018. <factfinder.census.gov>

NOTE: An Excel file containing the data is available upon request.

[46] Calculated with data from:

a) Dataset: “Resident Population Estimates of the United States by Sex, Race, and Hispanic Origin: April 1, 1990 to July 1, 1999, with Short-Term Projection to November 1, 2000.” U.S. Census Bureau, January 2, 2001. <www.census.gov>

b) Dataset: “Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for the United States, States, and Counties: April 1, 2010 to July 1, 2017: 2017 Population Estimates.” U.S. Census Bureau, June 2018. <factfinder.census.gov>

c) Report: “Crime in the United States.” Federal Bureau of Investigation.

1998: Page 16: “Table 2.6: Murder Offenders by Age, Sex, and Race, 1998.”

1999: “Table 2.6: Offenders by Age, Sex, and Race, 1999.”

2000: Page 17: “Table 2.6: Murder Offenders by Age, Sex, and Race, 2000.”

2001, 2002: “Table 2.6: Murder Offenders by Age, Sex, and Race.”

2003, 2004: “Table 2.5: Murder Offenders by Age, Sex, and Race.”

2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012: “Expanded Homicide Data Table 3: Murder Offenders by Age, Sex, and Race.”

2013, 2014, 2015: “Expanded Homicide Data Table 3: Murder Offenders by Age, Sex, Race, and Ethnicity.”

2016: “Expanded Homicide Data Table 2: Murder Offenders by Age, Sex, Race, and Ethnicity, 2016.”

2017: “Expanded Homicide Data Table 3: Murder Offenders by Age, Sex, Race, and Ethnicity, 2017.”

d) Report: “Capital Punishment, 2016.” By Elizabeth Davis and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics. <www.bjs.gov>

Page 16: “Numbers for Figure 4: Number of Prisoners Under Sentence of Death, by Race, 1968–2016”

e) Report: “Capital Punishment.” U.S. Department of Justice, Bureau of Justice Statistics.

1998, 1999, 2000, 2001: Page 6: “Table 5. Prisoners Under Sentence of Death, By Region, State, and Race.”

2002, 2003, 2004, 2005: Page 5: “Table 4. Prisoners Under Sentence of Death, By Region, State, and Race.”

2006, 2007: “Table 4. Prisoners Under Sentence of Death, By Region, State, and Race.”

2008, 2009, 2010, 2011, 2012: Page 8: “Table 4. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

2013: Page 9: “Table 4. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

2016: Page 4: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

2017: Page 3: “Table 2. Prisoners Under Sentence of Death, By Region, Jurisdiction, and Race.”

NOTES:

  • Data for executions by race that follow the methodology for other years were not available for 2014 and 2015.
  • An Excel file containing the data and calculations is available upon request.

[47] Calculated with data from the report: “Capital Punishment, 2017: Selected Findings.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, July 23, 2019. <www.bjs.gov>

Page 4: “Table 3. Average Time Between Sentencing and Execution, 1977–2017.”

NOTE: An Excel file containing the data and calculations is available upon request.

[48] Webpage: “Time on Death Row.” Death Penalty Information Center. Accessed December 12, 2019 at <deathpenaltyinfo.org>

[I]n the wake of the Supreme Court-mandated suspension of the death penalty in 1972 and its declaration in 1976 that meaningful appellate review was a prerequisite to any constitutionally acceptable scheme of capital punishment, numerous reforms have been introduced in an attempt to create a less arbitrary system. This has resulted in lengthier appeals, as mandatory sentencing reviews have become the norm, and continual changes in laws and technology have necessitated reexamination of individual sentences.

[49] Webpage: “The National Registry of Exonerations: Alfred Brown.” University of California Irvine, University of Michigan Law School, and Michigan State University College of Law, June 10, 2015. Last updated 6/26/19. <www.law.umich.edu>

On October 8, 2005, the jury convicted Brown of capital murder. Days later, the jury voted to sentence Brown to death. …

In 2013, Lynn Hardaway, the head of the Harris County District Attorney’s post-conviction writs unit, informed Brown’s lawyers that homicide detective Breck McDaniel was cleaning out his garage when he found records from the case. In the records was a telephone log showing that a call was made from Dockery’s home telephone to her workplace at 10:08 a.m.—just as Brown had said from the beginning. The documents in the garage also included a subpoena from Rizzo, the trial prosecutor, to the phone company, demonstrating that the District Attorney’s Office had the critical phone record at the time of trial but did not turn it to the defense.

Harris County District Attorney Mike Anderson joined the defense in the filing of a state petition for a writ of habeas corpus. The trial court recommended the writ be granted. In November 2014, the Texas Court of Criminal Appeals granted the writ, vacated Brown’s conviction and ordered a new trial. …

“We re-interviewed all the witnesses. We looked at all the evidence and we’re coming up short,” [then-District Attorney Devon] Anderson said. “We cannot prove this case beyond a reasonable doubt, therefore the law demands that I dismiss this case and release Mr. Brown.”

Hours later, Brown was released.

[50] Webpage: “The National Registry of Exonerations: Kirk Bloodsworth.” University of California Irvine, University of Michigan Law School, and Michigan State University College of Law. Last updated April 18, 2014. <www.law.umich.edu>

Kirk Noble Bloodsworth, a former Marine discus champion, was proven innocent by DNA in 1993 of the rape and murder of nine-year-old Dawn Hamilton—a crime for which he was sentenced to death in Baltimore County, Maryland, in 1985. …

The Maryland Court of Appeals overturned Bloodsworth’s conviction in 1986 after finding that the prosecution had illegally withheld potentially exculpatory evidence from the defense, Bloodsworth v. State. However, Bloodsworth was retried, again convicted, and sentenced to two life terms. That conviction and sentence was affirmed on appeal in 1988.

In 1992, however, the prosecution agreed to testing of biological material preserved from the crime with a then-emerging DNA technology known as PCR (polymerase chain reaction). The tests, performed by Edward T. Blake, of Forensic Science Associates, in Richmond, California, incontrovertibly established Bloodsworth’s innocence. After the FBI confirmed the results, Bloodsworth was released June 28, 1993. He was the first U.S. death row prisoner to be cleared by DNA. In December 1994, Maryland Governor William Donald Schaefer granted Bloodsworth a full pardon based on innocence.

[51] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. National Criminal Justice Reference Service, January 2007. <www.ncjrs.gov>

Pages 14–15:

Decreases Public Confidence in the Criminal Justice System.

Multiple posttrial reviews of death sentences over a period of many years create a sense of lack of finality in death penalty cases. They contribute to an impression among the general public that justice is not being served. This is especially likely with highly publicized crimes and trials that have captured popular attention. (Of course, media reports of miscarriages of justice also erode public confidence in the criminal justice system.)

Where it takes many years to carry out a death sentence, there is a risk that the public will come to believe that the sentence will never be applied. As noted above, forty-three percent of those sentenced to death are still in prison. In some states, death sentences are imposed but rarely or never effectuated. In 1994, the Ohio Supreme Court observed that it had affirmed eighty-seven death penalties and not one had been carried out.18 “That fact,” the justices warned, “creates doubt about the ability of the justice system to carry out the death penalty and, perhaps even more importantly, a perception that the entire criminal justice system is not working.”19

[52] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. National Criminal Justice Reference Service, January 2007. <www.ncjrs.gov>

Page 15:

Weakens the Deterrent Benefits of Capital Punishment.

The extent to which the death penalty deters crime is a matter of great controversy and is not addressed by this study (Bailey and Peterson 1994; Donohue and Wolfers 2005). We simply assert here that if capital punishment has a deterrent effect over and above life imprisonment, a lengthy implementation process weakens that effect. Deterrence is based on an association of the crime with its attendant punishment, and the passage of time has long been thought to diminish that association.24 Delays in carrying out death sentences would undermine the deterrent effect of the death penalty by creating in the minds of potential offenders uncertainty about its imposition.

[53] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. National Criminal Justice Reference Service, January 2007. <www.ncjrs.gov>

Page 17:

The length of the capital appeals process itself has become a ground for litigation, potentially adding more time to postconviction review. In four different, though unsuccessful, certiorari petitions to the United States Supreme Court, one or two of the justices suggested that prolonged imprisonment under sentence of death could constitute “cruel and unusual punishment” in violation of the Eighth Amendment.28

[54] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[55] Webpage: “Time on Death Row.” Death Penalty Information Center. Accessed December 12, 2019 at <deathpenaltyinfo.org>

[I]n the wake of the Supreme Court-mandated suspension of the death penalty in 1972 and its declaration in 1976 that meaningful appellate review was a prerequisite to any constitutionally acceptable scheme of capital punishment, numerous reforms have been introduced in an attempt to create a less arbitrary system. This has resulted in lengthier appeals, as mandatory sentencing reviews have become the norm, and continual changes in laws and technology have necessitated reexamination of individual sentences.

[56] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. National Criminal Justice Reference Service, January 2007. <www.ncjrs.gov>

Page 10: “Most of this lengthy post-conviction time allocation is, of course, devoted to the

capital appeals process. That process has three stages: 1. Direct Appeal, which is the

focus of this study, 2. State Postconviction Review, and 3. Federal Habeas Corpus.”

[57] Webpage: “The Justice System.” U.S. Department of Justice, Bureau of Justice Statistics. Accessed December 9, 2019 at <www.bjs.gov>

“After the trial a defendant may request appellate review of the conviction or sentence. In some cases, appeals of convictions are a matter of right; all States with the death penalty provide for automatic appeal of cases involving a death sentence.”

[58] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

The direct appeal is an automatic appeal given to everyone sentenced to death. The appeal is made to the state’s highest court in which someone can seek an appeal from a conviction and death sentence. In some states, this appeal is mandatory but in others, it is optional for the defendant.

The direct appeal is limited to issues from the trial. Typically, the prosecutor and the defense file briefs and oral arguments are held before a panel of judges. After reviewing the case, the judges can affirm the conviction and sentence, reverse the conviction, or reverse the death sentence.

[59] Ruling: Robertson v. Florida. Supreme Court of Florida, July 10, 2014. Decided 4–3. Majority: LaBarga, Pariente, Lewis, Perry. Concurring: Pariente, LaBarga, Perry. Dissenting: Quince, Canady, Polston. <caselaw.findlaw.com>

Per Curiam†:

First, article V, section 3(b)(1), of the Florida Constitution states that this Court “[s]hall hear appeals from final judgments of trial courts imposing the death penalty.” The Legislature has mandated in section 921.141(4), Florida Statutes (2013), in pertinent part, that “[t]he judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida.” Thus, our mandatory review of both the validity of the judgment and the propriety of the death sentence is “automatic” and does not depend upon the acquiescence of the death-sentenced defendant. …

… The only way for this Court to ensure that a death sentence is not arbitrarily or capriciously imposed is to provide meaningful appellate review of each death sentence. …

Our long-established precedent has given life to these constitutional and statutory safeguards against an unconstitutional capital sentencing scheme, even in cases where the defendant expresses a desire to be executed. In Klokoc v. State, 589 So. 2d 219, 221-22 (Fla. 1991), we denied the defendant’s request to dismiss the direct appeal, stating that this Court required the benefit of an adversary proceeding to provide a meaningful review of both the judgment and the sentence.

NOTE: †A per curiam decision is “issued in the name of the Court” without identifying a specific judge as the author. [Entry: “per curiam.” Wex Legal Dictionary. Accessed November 21, 2019 at <www.law.cornell.edu>]

[60] Report: “Capital Punishment, 2004.” By Thomas P. Bonczar and Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, November 2005. Revised 2/1/06. <www.bjs.gov>

Page 3:

Of the 38 States with capital statutes at yearend, 37 provided for review of all death sentences regardless of the defendant’s wishes. In South Carolina the defendant had the right to waive sentence review if he or she was deemed competent by the court (State v. Torrence, 473 S.E. 3d 703 (S.C. 1996)). Federal death penalty procedures did not provide for automatic review after a sentence of death had been imposed.

The State’s highest appellate court usually conducted the review. If either the conviction or sentence was vacated, the case could be remanded to the trial court for additional proceedings or retrial. …

While most of the 37 States authorized automatic review of both the conviction and sentence, Idaho, Montana, Oklahoma, South Dakota, and Tennessee required review of the sentence only. In Idaho review of the conviction had to be filed through appeal or forfeited. In Indiana and Kentucky a defendant could waive review of the conviction.

In Virginia a defendant could waive an appeal of trial court error but could not waive review of the death sentence for arbitrariness and proportionality.

[61] “A Guide to Victim’s Rights and Services in the Capital Appeals Process.” Office of Attorney General Ashley Moody, Division of Victim Services and Criminal Justice Programs. Accessed December 13, 2019 at <myfloridalegal.com>

Page 2 (of PDF):

The primary distinction is that capital cases are automatically appealed directly to the Florida Supreme Court. The first step in the process is called the direct appeal. A defendant must file a notice of appeal within 30 days of the conviction and sentence. This notice is followed by a written document that explains the reasons why the conviction or sentence is improper. The defendant or the defendant’s attorney must cite some legal error or similar basis for the appeal and may not simply re-argue the evidence in hopes of getting a different verdict. Only the transcript of the trial court proceedings and other official court records of the case can be used by the defendant as the basis for an appeal.

[62] Report: “Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study.” By Barry Latzer and James N.G. Cauthen. National Criminal Justice Reference Service, January 2007. <www.ncjrs.gov>

Page 10: “Thirty-five of the death penalty states provide for direct appeal of a capital conviction to the state court of last resort (‘COLR’).”

[63] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

State Post-Conviction

This is the second stage of the appellate process. Petitions are first filed with the original trial judge, then appealed to any intermediate courts (when applicable), and then finally to the state’s highest court. At this stage, the defendant may raise issues surrounding the conviction and sentence that are outside of the record. The defendant can raise issues such as ineffective assistance of counsel, juror misconduct, newly-discovered evidence and Brady violations (A Brady violation occurs when the state withholds evidence that could help the defense’s case).

[64] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010. Chapter 9: “Post-Conviction Proceedings in Capital Cases.” By Kevin M. Emas. Pages 253–295. <www.judges.org>

Pages 254–255:

A post-conviction motion may only be used to raise a collateral challenge to the validity of the judgment or sentence. For this reason, it is improper to include in a post-conviction motion a claim that was or could have been raised on direct appeal. The courts have consistently held that postconviction relief is not a substitute for an appeal.1225 The right to file a postconviction motion was not intended as a second opportunity to argue alleged trial errors. Nor was it intended to provide a forum for reargument of the issue of guilt or innocence. These issues will have already been settled by the time the motion is filed. Rather, a post-conviction motion serves the limited purpose of providing the defendant with a remedy in the event there has been a substantive deprivation of federal or state constitutional rights in the proceeding that produced the judgement or sentence under attack.1226

[65] Webpage: “Tennessee Appeals Process.” Tennessee Attorney General. Accessed December 9, 2019 at <www.tn.gov>

Within one year of the final order in a case, a defendant may file a petition for post-conviction relief in the county trial court. …

If post-conviction relief is denied, a defendant may appeal to the Court of Criminal Appeals. [I]f the defendant loses in the Court of Criminal Appeals, he or she may seek permission to appeal to the Tennessee Supreme Court. Review is granted or denied at the discretion of the Supreme Court in both capital and non-capital cases.

[66] “A Guide to Victim’s Rights and Services in the Capital Appeals Process.” Office of Attorney General Ashley Moody, Division of Victim Services and Criminal Justice Programs. Accessed December 13, 2019 at <myfloridalegal.com>

Page 4 (of PDF):

In collateral attacks, the defendants argue that their rights, as guaranteed by the United States and Florida Constitutions, were violated. These arguments often are directed at the competence of their attorneys or at the State for allegedly withholding favorable evidence from the defense at trial. Although the pattern may vary, these attacks customarily begin at the trial court level and work their way to the Florida Supreme Court, the local Federal trial courts, the U.S. Eleventh Circuit Court of Appeal (based in Atlanta), or even to the United States Supreme Court.

These collateral attacks are known as either motions for post-conviction relief or petitions for writ of habeas corpus. The state and federal collateral review process can be extremely time-consuming, as each court seeks to determine whether the defendant has presented any constitutional basis for relief either from the conviction or sentence.
 

[67] Webpage: “Appellate Courts and Cases – Journalist’s Guide.” Administrative Office of the United States Courts. Accessed December 13, 2019 at <www.uscourts.gov>

Federal appellate courts also hear habeas corpus appeals involving death penalties issued by state courts, as well as by federal courts.

The substantive and procedural requirements for seeking federal habeas relief are largely governed by the Antiterrorism and Effective Death Penalty Act (AEDPA) and federal court decisions interpreting the AEDPA. Despite significant legal barriers to obtaining federal habeas review under the AEDPA, prisoners sentenced to death at the state and federal levels almost always seek federal habeas corpus relief.

In these proceedings, a state prisoner (under 28 U.S.C. § 2254) or a federal prisoner (under 28 U.S.C. § 2255) asks a federal court to vacate or set aside his or her death sentence, alleging errors under the law.

[68] Webpage: “Tennessee Appeals Process.” Tennessee Attorney General. Accessed December 9, 2019 at <www.tn.gov>

Upon completion of all available state appeals, a defendant may file a petition for writ of habeas corpus in the federal district court. The primary function of the writ of habeas corpus is not to determine guilt or innocence but to petition for release from unlawful imprisonment. A defendant is entitled to federal habeas corpus relief only by showing a violation of a federal constitutional right.

If federal habeas corpus relief is denied in the district court, a defendant may ask the United States Court of Appeals for the Sixth Circuit to grant an appeal. If the district court decision is affirmed in the Court of Appeals, the defendant may petition the United States Supreme Court to review the case. However, review by the United States Supreme Court is rarely granted. In capital cases, once the habeas action is closed, the Attorney General’s Office will file a motion asking the Tennessee Supreme Court to set an execution date.

[69] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

Federal habeas corpus is the final stage of the appeals process, and is limited to federal issues raised on appeal in the State courts. …

A petition to the U.S. District Court is the first step in federal post-conviction review. The decision is made by a judge reviewing briefs filed by the prosecution and the defense. The judge may also grant a hearing on new evidence. The judge can dismiss the petition, overturn the conviction, or overturn the sentence.

Permission to appeal to the U.S. Court of Appeals is not automatic and must be granted by the U.S. District Court or the Court of Appeals. The appeal is limited to issues raised in the U.S. District Court. …

The U.S. Supreme Court is the last resort for defendants appealing their death sentence. The Court, however, only reviews a handful of death penalty cases a year. When a writ of certiorari is denied by the U.S. Supreme Court, the defendant has exhausted his appeals.

[70] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010. Chapter 10: “Federal Habeas Corpus.” By Penny J. White. Pages 297–316. <www.judges.org>

Page 298: “A prisoner in state custody1447 is authorized by federal statute, 28 U.S.C. § 2254, to file an ‘application’ for a writ of habeas corpus on the ground that the custody is ‘in violation of the Constitution or laws or treaties of the United States.’1448

[71] Report: “Federal Habeas Corpus: A Brief Legal Overview.” By Charles Doyle. Congressional Research Service, April 26, 2006. Updated 1/8/10. <www.everycrsreport.com>

Pages 12–13:

The AEDPA [Antiterrorism and Effective Death Penalty Act] establishes a one-year deadline within which state and federal prisoners must file their habeas petitions, 20 U.S.C. 2244(d), 2255. The period of limitations begins with the latest of:

• the date of final completion of direct state review procedures;58

• the date of removal of a government impediment preventing the prisoner from filing for habeas relief;

• the date of Supreme Court recognition of the underlying federal right and of the right’s retroactive application;59 or

• the date of uncovering previously undiscoverable evidence upon which the habeas claim is predicated.

The period is tolled during the pendency of state collateral review,60 that is, “during the interval between (1) the time a lower state court reaches an adverse decision, and (2) the day the prisoner timely files an appeal.”61

[72] Calculated with data from the report: “Capital Punishment, 2013 – Statistical Tables.” By Tracy L. Snell. U.S. Department of Justice, Bureau of Justice Statistics, December 2014. <www.bjs.gov>

Page 20: “Table 17: Prisoners sentenced to death and the outcome of the sentence, by jurisdiction, 1973–2013 … U.S. total … Total, sentenced to death, 1973–2013 [=] 8,466 … Sentence/conviction overturned [=] 3,194”

CALCULATION: 3,194 sentences or convictions overturned / 8,466 death sentences = 38%

[73] Presiding Over a Capital Case: A Benchbook for Judges. Edited by Robin E. Wosje, William J. Brunson, and Daphne A. Burns. National Judicial College, 2010. Chapter 9: “Post-Conviction Proceedings in Capital Cases.” By Kevin M. Emas. Pages 253–295. <www.judges.org>

Page 255:

Clemency is an exclusive function of the executive branch of government. Therefore, the courts lack jurisdiction to interfere with the proper exercise of discretion to grant a petition for executive clemency. Judicial power over executive clemency is limited to claims that the clemency statute is unconstitutional on its face or that the executive officers failed to apply the statute according to state and federal constitutional requirements.

[74] Webpage: “Death Penalty Appeals Process.” Capital Punishment In Context. Accessed November 27, 2019 at <capitalpunishmentincontext.org>

When a writ of certiorari is denied by the U.S. Supreme Court, the defendant has exhausted his appeals. The only relief available to the defendant is executive clemency. …

Executive clemency is the power held by a governor or other body to grant relief to a person facing execution. The governor may postpone an execution in order to allow time for further review or may commute a defendant’s death sentence to a lesser sentence, such as of life without parole.

[75] Webpage: “Tennessee Appeals Process.” Tennessee Attorney General. Accessed December 9, 2019 at <www.tn.gov>

In capital cases, an inmate will likely file an application seeking executive clemency. Clemency is an act of the governor reducing a death sentence to life imprisonment or granting a full or conditional pardon. The authority to grant or deny clemency rests solely with the governor. Under the Tennessee Constitution, the governor may grant full or conditional pardons, reprieves of execution, and commutation of sentences.

[76] Webpage: “Frequently Asked Questions.” U.S. Department of Justice, Office of the Pardon Attorney. Updated November 7, 2019. <www.justice.gov>

In the federal system, commutation of sentence and pardon are different forms of executive clemency, which is a broad term that applies to the President’s constitutional power to exercise leniency toward persons who have committed federal crimes.

A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction. … To be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts. …

Is the decision on every clemency application made by the President?

Yes. Except for situations in which an application must be closed administratively because an applicant withdraws the application from consideration, repeatedly fails to respond to a request by the Pardon Attorney for required information, dies during processing of the application, or is released from prison during the processing of a commutation application that seeks only the reduction of his prison sentence, every clemency application submitted to the Pardon Attorney follows the process described above and is decided by the President. …

The President’s clemency power under the Constitution is limited to federal offenses. As a matter of policy, the President does not make recommendations or otherwise seek to intervene in state clemency matters. Whether to grant clemency to a state offender is a matter within the sole authority of state officials to decide. Accordingly, the Office of the Pardon attorney is unable to process a clemency petition for a state offense.

[77] Constitution of the United States. Signed September 17, 1787. Enacted June 21, 1788. <justfacts.com>

Article II, Section 2, Clause 1 (<www.justfacts.com>):

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

[78] Article: “Executive Clemency: The Lethal Absence of Hope.” By Jonathan Harris and Lothlorien Redmond. American University Criminal Law Brief, 2007. Pages 2–15. <digitalcommons.wcl.american.edu>

Page 8:

As a general matter, the clemency processes adopted by the fifty states are consistent … with the traditional meaning of clemency as described by the Supreme Court: a discretionary process, where the governor may review the broadest spectrum of information and circumstances, is not required to expound upon his or her reason for granting or withholding clemency, and where a grant of clemency may take different forms including the grant of a reprieve, stay, commutation of a sentence of death, or full pardon.

This general statement holds essentially true even though we must, of course, recognize that each state has its own system of clemency, and that any general discussion about clemency necessarily oversimplifies the fact that there are really fifty-two different state clemency schemes and that these schemes are applied differently in different cases.

Page 10: “The exercise of the clemency power is, and has always been, a discretionary act of the executive founded in notions of grace, mercy and humanity. While some may believe this to be at odds with our highly procedural judicial system, clemency is—by its inherent nature—a uniquely unbound act residing both alongside and apart from the criminal justice process.”

[79] Webpage: “Frequently Asked Questions.” U.S. Department of Justice, Office of the Pardon Attorney. Updated November 7, 2019. <www.justice.gov>

As a general matter, Presidents in recent times have rarely announced their reasons for granting or denying clemency, although the President may choose to do so in a given case. Consistent with long-standing policy, if the President does not issue a public statement concerning his action in a clemency matter, no explanation is provided by the Department of Justice. Moreover, deliberative communications pertaining to agency and presidential decision-making are confidential and not available under existing case law interpreting the Freedom of Information Act and Privacy Act.

[80] Book: Official Reports of the Supreme Court (Volume 528, U.S. Part I). U.S. Supreme Court, 2000.

Page 990: “No. 98-9741. Knight, aka Muhammad v. Florida. Sup. Ct. Fla.; and

No. 99-5291. Moore v. Nebraska. Sup. Ct. Neb. Certiorari denied.”

[81] Eighth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[82] Opinion: Knight v. Florida and Moore v. Nebraska. Justice Clarence Thomas. U.S. Supreme Court, November 8, 1999. <www.law.cornell.edu>

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.1

Consistency would seem to demand that those who accept our death penalty jurisprudence as a given also accept the lengthy delay between sentencing and execution as a necessary consequence. See Coleman v. Balkcom, 451 U. S. 949, 952 (1981) (Stevens, J., concurring in denial of certiorari) (“However critical one may be of … protracted post-trial procedures, it seems inevitable that there must be a significant period of incarceration on death row during the interval between sentencing and execution”). It is incongruous to arm capital defendants with an arsenal of “constitutional” claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed. …

Ironically, the neoteric Eighth Amendment claim proposed by Justice Breyer would further prolong collateral review by giving virtually every capital prisoner yet another ground on which to challenge and delay his execution. … The claim might, in addition, provide reviewing courts a perverse incentive to give short shrift to a capital defendant’s legitimate claims so as to avoid violating the Eighth Amendment right suggested by Justice Breyer.

[83] Ruling: Bucklew v. Precythe. U.S. Supreme Court, April 1, 2019. Decided 5–4. Majority: Gorsuch, Robert, Thomas, Alito, Kavanaugh. Concurring: Thomas, Kavanaugh. Dissenting: Breyer, Ginsburg, Sotomayor, Kagan. <caselaw.findlaw.com>

Dissent: (Breyer):

Today’s majority appears to believe that because “[t]he Constitution allows capital punishment,” ante, at 8, the Constitution must allow capital punishment to occur quickly. In reaching that conclusion the majority echoes an argument expressed by the Court in Glossip, namely, that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” 576 U. S., at ___ (slip op., at 4) (emphasis added; alterations and internal quotation marks omitted).

These conclusions do not follow. It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.

… And I simply conclude here that the law entitles Bucklew to an opportunity to prove his claim at trial. I note, however, that this case adds to the mounting evidence that we can either have a death penalty that avoids excessive delays and “arguably serves legitimate penological purposes,” or we can have a death penalty that “seeks reliability and fairness in the death penalty’s application” and avoids the infliction of cruel and unusual punishments. Id., at ___ (slip op., at 32). It may well be that we “cannot have both.” Ibid.

[84] Ruling: Glossip v. Gross. U.S. Supreme Court, June 29, 2015. Decided 5–4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Concurring: Scalia, Thomas. Dissenting: Breyer, Ginsburg, Sotomayor, Kagan. <www.supremecourt.gov>

Dissent: (Breyer):

[R]ather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution. …

… Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. …

In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death penalty violates the Eighth Amendment.

[85] Sixth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

[86] Fifth Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[87] Fourteenth Amendment to the Constitution of the United States. Ratified July 9, 1868. <justfacts.com>

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[88] Ruling: Gideon v. Wainwright. U.S. Supreme Court, March 18, 1963. Decided 9–0. Majority: Black, Warren, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg. Concurring: Clark, Harlan. <supreme.justia.com>

Majority:

Not only … precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

[89] Ruling: Douglas v. California. U.S. Supreme Court, March 18, 1963. Decided 6–3. Majority: Warren, Black, Douglas, Brennan, White, Goldberg. Dissenting: Clark, Harlan, Stewart. <caselaw.findlaw.com>

Majority:

We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal. Penal Code 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction (see Cal. Const., Art. VI, 4c; Cal. Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion. …

… The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between “possibly good and obviously bad cases,” but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking [372 U.S. 353, 358] that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.

[90] Webpage: “Trial Versus Appellate Versus Postconviction Work.” University of Michigan Law School. Accessed December 13, 2019 at <www.law.umich.edu>

Once a defendant is convicted and has exhausted her direct appeals, the postconviction process begins. The Supreme Court has never held that indigent defendants have a constitutional right to the assistance of counsel after their first appeal, but some states have public defender offices or independent organizations with postconviction sections. And most jurisdictions have statutory rights to postconviction counsel in capital cases and in some non-capital cases as well. Postconviction processes vary dramatically by state.

[91] Paper: “Indigent Defense Systems in the United States.” By Robert L. Spangenberg and Maria L. Beeman. Duke University School of Law, Law and Contemporary Problems, 1995. Pages 31–49. <scholarship.law.duke.edu>

Page 38:

The distinction between a “state commission” state and a state with a statewide public defender system can be subtle. Oklahoma, for example, has a state commission and a state public defender program. The Office of Indigent Defense Services (“OIDS”) divides case responsibility among four centralized, staffed units: capital trials, capital cases on direct appeal, capital post-conviction cases, and noncapital direct appeals for the entire state.

[92] Report: “LBO [Legislative Budget Office] Analysis of Executive Budget Proposal: Ohio Public Defender Commission.” By Joseph Rogers. Legislative Budget Office of the Legislative Service Commission, April 2019. <www.lsc.ohio.gov>

Page 5:

Death Penalty Representation

This is a program with the purpose of providing competent legal counsel to indigent persons under the sentence of death (Ohio’s death row inmates on direct appeal, state post-conviction, federal habeas corpus, and clemency appeals), as well as legal assistance, criminal investigation and mitigation, and trial services to private appointed attorneys in such cases. This program also supports training seminars on death penalty law to help ensure that the state bar meets requirements imposed under Ohio Supreme Court Superintendence Rule 20. This program has nine staff attorneys, and three supervisors. The staff attorneys work on capital appeals, post-conviction, and habeas corpus cases. These attorneys not only provide counsel during the review of death penalty cases through the state courts, but also as those cases go through the federal habeas corpus litigation process, which is complex and time consuming.

Pages 10–11:

Federal Representation (ALI 019608) … FY 2019 Estimate [=] $38,315 …

This line item contributes to the funding of State Legal Defense Services, specifically the Death Penalty Division, which provides, coordinates, and supervises post-trial legal representation to indigent defendants in federal courts on federal habeas corpus proceedings where the defendant is appealing the imposition of a death sentence by a state trial court.5

It is supported by money appropriated from the Federal Representation Fund (Fund 3S80), which consists of payments collected from a federal court when it has appointed the State Public Defender to provide legal representation to an indigent defendant in a federal trial or in a federal habeas corpus proceeding, primarily matters involving the death penalty. Nearly 97% of the appropriated amount in each fiscal year is allocated for personal services (wages, salaries, fringe benefits, and payroll checkoff charges), and the remainder is for supplies and maintenance.

[93] Report: “County-Based and Local Public Defender Offices, 2007.” By Donald J. Farole, Jr. and Lynn Langton. U.S. Department of Justice, Bureau of Justice Statistics, September 2010. <www.bjs.gov>

Page 8:

In 2007, 25 of the 27 states with county-based public defender offices had death penalty statutes. (The District of Columbia, Michigan, and West Virginia did not have the death penalty in 2007.) Public defender offices in states with a death penalty statute received more than 1,200 death penalty eligible cases, spending nearly $30 million to provide capital case representation (table 8). … Public defender offices represented 932 indigent defendants in cases in which the prosecutor filed for the death penalty. …

Table 8. Capital case representation among offices in states with death penalty statutes, by office caseload, 2007 … All offices … Death penalty eligible cases … Representation expendituresa [=] $29,751,000 … Number of death penalty casesb [=] 932 … a Rounded to the nearest thousand dollars. b Death penalty eligible cases in which the prosecutor filed for the death penalty, potentially including cases that were received prior to 2007.

[94] Calculated with data from the report: “County-Based and Local Public Defender Offices, 2007.” By Donald J. Farole, Jr. and Lynn Langton. U.S. Department of Justice, Bureau of Justice Statistics, September 2010. <www.bjs.gov>

Page 8:

Public defender offices represented 932 indigent defendants in cases in which the prosecutor filed for the death penalty. …

Table 8. Capital case representation among offices in states with death penalty statutes, by office caseload, 2007 … All offices … Death penalty eligible cases … Representation expendituresa [=] $29,751,000 … Number of death penalty casesb [=] 932 … a Rounded to the nearest thousand dollars. b Death penalty eligible cases in which the prosecutor filed for the death penalty, potentially including cases that were received prior to 2007.

CALCULATION: $29,751,000 total expenditures / 932 defendants = $31,921.67

[95] Webpage: “CPI Inflation Calculator.” Bureau of Labor Statistics. Accessed December 16, 2019 at <data.bls.gov>

“$31,921.67 in December 2007 has the same buying power as $39,090.96 in November 2019”

[96] Report: “FY15 Capital Trial Case Study: Potentially Capital Case Costs at the Trial Level.” North Carolina Office of Indigent Defense Services, November 2015. <www.ncids.org>

Pages 1–2:

Overall, annual attorney expenditures in potentially capital cases have remained stable between FY [fiscal year] 07 and FY15 ($11.0 million and $10.9 million respectively). However, the average case cost has risen at a relatively consistent

rate for both proceeded capital and proceeded non-capital cases.

Average Cost Proceeded Capital … FY02–FY06 [=] $58,592 … FY 07–FY15 YTD [year to date] [=] $93,231 …

Although average case cost has increased, overall expenditures have remained stable as a result of a significant reduction in the percentage of potentially capital cases that prosecutors have elected to proceed capitally, from a high of 28.1% in FY08 to a low of 11.0% in FY13.

Two primary factors have contributed to the increase in case costs: 1) a temporary 11.8% increase in the PAC [private appointed counsel] hourly rate for capital trial work, which was reduced in FY11, and 2) a 19% increase in the average number of attorney hours worked per case.

Hourly Rate Increase: The average cost of a case rose due to the increase in the attorney hourly rate beginning in FY07, peaked in FY12, and has been steadily declining since due to the subsequent rate reductions that occurred in FY11.

Increase in Average Attorney Hours per Case: The study identified a number of factors driving the increase in attorney hours per case, including changes to forensic technologies, the need to ensure the accuracy of testing procedures and reporting by the State Crime Lab, an increase in the use of digital evidence in prosecutions that has increased the volume and complexity of discovery attorneys need to review, and an increase in the length of time cases are taking to dispose, partly due to the increased demand for forensic testing that has caused backlogs at the State Crime Lab.

While a number of factors are driving the increase in the average number of attorney hours per case, two factors appear to be particularly significant:

Enhanced Forensic Technologies and Errors in Forensic Analysis: Enhanced forensic technologies, such as innovations in DNA testing, have significantly increased the prosecutorial demand for lab testing, which in turn has required defense counsel to perform forensic examinations of case evidence and to enlist the expertise of forensic experts. Cases that involve the application of one or more forensic science are often more complicated and require additional attorney time. Moreover, backlogs at the State Crime Lab and the exposure of serious errors in forensic testing procedures and reporting have required defense counsel to scrutinize forensic evidence more carefully and to challenge problematic procedures.

• In FY02, fewer than 1 in 20 potentially capital cases required a forensic expert. By FY15, just under 1 in 5 required one or more forensic experts.

• Today, forensic evidence that warrants the assistance of one or more forensic experts adds between $10,425 to $18,745 to the cost of a potentially capital case in additional attorney time.

• Cases that warrant a forensic expert’s assistance have, on average, at least three times the number of expert types per case regardless of the capital status of the case.

Increase in Digital Evidence: The shift to digital media and the corresponding increased availability of video, audio, and DVD recordings, including multiple iterations of many of the recordings, has increased the volume and complexity of evidence in cases. While digital evidence has many benefits, it has also led to increased attorney time to review the material to fully investigate the facts of a case.

Page 4: “In January 2011, IDS [Office of Indigent Services] adopted a two-tiered payment structure in potentially capital cases, which lowered the attorney hourly rate for potentially capital cases from $95 to $85 when the case is declared non-capital or for cases in which a year has passed without the case being declared capital by the prosecution.”

[97] Report: “Indigent Defense Spending and Cost Containment in Texas.” By Dottie Carmichael and others. Prepared by Public Policy Research Institute at Texas A&M University for Texas Indigent Defense Commission, December 2018. <www.tidc.texas.gov>

Pages 55–56:

Capital death cases present an unpredictable and costly challenge for rural Texas jurisdictions. When an indigent defendant is accused of a capital murder felony, small and mid-sized counties, which may have indigent defense operating budgets in the tens of thousands of dollars, are responsible for legal defense costs that can stretch upwards of $1 million.99 Moreover, qualified capital defense professionals may be unavailable for hundreds of miles. To help address these dual problems, in 2008 TIDC [Texas Indigent Defense Commission] established the Regional Public Defender Office for Capital Cases (RPDO).

Today every Texas county with fewer than 300,000 residents can pay an annual formula-based premium in return for “murder insurance” (see Figure X for participating counties). In the case that an indigent defendant is accused of a capital murder felony, subscribing jurisdictions are spared the financial shock of an unexpected high-cost capital defense representation, and criminal justice stakeholders can rest assured people facing capital death charges will receive a meaningful defense that conforms to requirements of the US Constitution, Texas State Bar guidelines, and other professional standards of defense. …

TIDC worked with Lubbock County to create the statewide, opt-in Regional Public Defender Office for Capital Cases (RPDO).

• Provides comprehensive, standards-based capital defense representation

• Like an insurance policy against budget spikes from costly capital litigation …

Though funding and geography have historically limited the ability of rural jurisdictions to provide high-quality defense services in capital death cases, those choosing to contract with the RPDO are automatically in full conformance with the State Bar of Texas’ Capital Defense guidelines.102 For a predictable annual fee, these counties can provide death penalty defendants with a full team of highly qualified caseload-controlled attorneys and defense team members specializing in death-penalty law.103

Importantly, RPDO attorneys are financially and operationally independent of the courts, making it possible to implement the defense without judicial interference. In member counties, judges have neither the ability nor the financial incentive to constrain compensation of attorneys, investigators, or mitigation specialists. In contrast, 60% of other court-appointed capital death attorneys surveyed in the 2013 report said that compensation limits imposed by courts make it difficult for private practice lawyers to staff non-attorney capital team members.

Waivers of death penalty counsel or indictment delays are also used in non-member counties to delay assignment of a two-attorney defense team required by law for more than five months on average. RPDO-member counties, on the other hand, appoint a capital–qualified defense team within days and do so in a larger proportion of cases. The study also showed that RPDO investigators and mitigation specialists provide a higher level of service, beginning work within two weeks of being appointed and meeting with the client at least every two weeks thereafter. Only about one-third of capital defendants with private assigned attorneys received a similar level of support. …

Most of the cost-savings achieved in RPDO cases are the result of a legal strategy favoring pleas: In the 2013 study sample, 73% of RPDO cases were pled compared to just 21% of non-RPDO cases. Capital cases resolved in a jury trial stand an 80 percent chance of ending in a death sentence. Yet, by investing two to three times more of the defense budget in mitigation work, the RPDO team can to develop a powerful defense narrative that is often capable of convincing prosecutors to abandon a capital death trial and reach a negotiated disposition instead.104

With pleas less expensive than trials, the study found estimated costs105 for an RPDO case ($55,198) to be about 25% less than a similar case defended by private assigned counsel ($73,571).106 Since plea agreements typically include a waiver of the right to appeal, future costs to both counties and the state are dramatically constrained as well. Since inception in 2008, the RPDO has closed 138 cases with only 8 cases—just 6%—disposed in death-eligible trials.107

Above the membership fee, counties pay only the costs of expert witnesses. However, because the facts of the case and defense theory are determined so promptly, the study found RPDO attorneys spend about $1,500 less on experts in a non-capital trials108 and about $30,000 less in capital re-trials.109

Page 23: “The DA’s [district attorney’s] decision whether to seek the death penalty remains the driving factor underlying the use of experts in potentially capital cases. … Proceeded non-capital cases have no expert costs 67% of the time, compared to just 24% in proceeded capital cases.”

Page 28:

First, the DA’s decision whether to seek the death penalty is the paramount factor driving capital case costs, regardless of whether the case ends in a trial, plea, or dismissal. Cases in which the defendant faced the death penalty cost at least 4 times more than cases in which the defendant faced life without parole. Between FY07 and FY15 YTD [year to date], the average cost of a proceeded capital case was $93,231 compared to $21,022 for a proceeded noncapital case.

[98] Dataset: “Death Penalty.” Gallup. Accessed December 21, 2019 at <news.gallup.com>

“Are you in favor of the death penalty for a person convicted of murder? … 2019 Oct 1–13 … Favor [=] 56% … Not in favor [=] 42% … No opinion [=] 2%”

[99] Article: “Americans Now Support Life in Prison Over Death Penalty.” By Jeffrey M. Jones. Gallup, November 25, 2019. <news.gallup.com>

Even as Americans have shifted to viewing life imprisonment without parole as preferable to execution, a majority still favor use of the death penalty, according to Gallup's long-term death penalty trend question, which was updated in an Oct. 1–13 poll. That question, first asked in 1936, simply asks Americans if they are “in favor of the death penalty for a person convicted of murder,” without providing an alternative option. Currently, 56% of U.S. adults say they are in favor of the death penalty for convicted murderers in response to this question.

Results for the long-term death penalty question are based on Gallup poll telephone interviews conducted Oct. 1–13, 2019, with a random sample of 1,526 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia.

For results based on the total samples of national adults, the margin of sampling error is ±3 percentage points at the 95% confidence level.

[100] Article: “Americans Now Support Life in Prison Over Death Penalty.” By Jeffrey M. Jones. Gallup, November 25, 2019. <news.gallup.com>-penalty.aspx

If you could choose between the following two approaches, which do you think is the better penalty for murder—[Rotated: the death penalty (or) life imprisonment, with absolutely no possibility of parole]? … 2019 … Death penalty [=] 36% … Life imprisonment [=] 60% …

Even as Americans have shifted to viewing life imprisonment without parole as preferable to execution, a majority still favor use of the death penalty, according to Gallup's long-term death penalty trend question, which was updated in an Oct. 1–13 poll. That question, first asked in 1936, simply asks Americans if they are “in favor of the death penalty for a person convicted of murder,” without providing an alternative option. Currently, 56% of U.S. adults say they are in favor of the death penalty for convicted murderers in response to this question. …

Results for the life imprisonment versus death penalty question are based on Gallup poll telephone interviews conducted Oct. 14–31, 2019, with a random sample of 1,506 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. … For results based on the total samples of national adults, the margin of sampling error is ±3 percentage points at the 95% confidence level.

[101] Article: “Vast Majority of Americans Think McVeigh Should Be Executed.” By Jeffrey M. Jones. Gallup, May 2, 2001. <news.gallu>p.com/poll/1567/vast-majority-americans-think-mcveigh-should-executed.aspx

In two weeks, Timothy McVeigh is scheduled to be executed for the deaths of 168 people in the April 1995 bombing attack on the Alfred P. Murrah Federal Building in Oklahoma City. A CNN/USA Today/Gallup poll, conducted April 20–22, shows that the vast majority of Americans—including a majority of those who generally oppose the death penalty—believe McVeigh should be executed. …

According to the poll, 81% of Americans believe McVeigh should be executed, while 16% think he should not. A majority of people who say they generally oppose the death penalty, 58%, believes McVeigh should be executed, while 42% do not. The latest Gallup poll figures show that 67% of Americans favor the death penalty in general, while 25% are opposed. Death penalty opponents who favor McVeigh’s execution tend to be younger (below the age of 50), have a conservative or moderate rather than a liberal ideology, or live in the eastern or western parts of the country. …

The results … are based on telephone interviews with a randomly selected national sample of 1,015 adults, 18 years and older, conducted April 20-22, 2001. For results based on this sample, one can say with 95 percent confidence that the maximum error attributable to sampling and other random effects is plus or minus 3 percentage points.

[102] Article: “Hussein Trial to Resume Under Tight Scrutiny.” By Mark Gillespie. Gallup, November 28, 2005. <news.gallup.com>Under-Tight-Security.aspx

A new CNN/USA Today/Gallup poll, conducted Nov. 11–13, shows that nearly three out of four Americans (72%) would favor the death penalty for Hussein, should he be found guilty, while 25% would oppose such a sentence. This is similar to the results from a June poll, in which 71% of Americans favored the death penalty for Hussein, while 24% opposed it. By way of comparison, 64% of Americans in Gallup’s Oct. 13–16 poll favored the death penalty for American defendants convicted of murder.

The charges against Hussein stem from mass executions carried out in 1982 in the Iraqi town of Dujail. More than 140 people were sentenced to death and still more imprisoned and tortured following an assassination attempt on Hussein. The trial could be the first of several for Hussein. …

These results are based on telephone interviews with a randomly selected national sample of 1,006 adults, aged 18 and older, conducted Nov. 11–13, 2005. For results based on this sample, one can say with 95% confidence that the maximum error attributable to sampling and other random effects is ±3 percentage points. For results based on the 491 national adults in the Form A half-sample … the maximum margins of sampling error are ±5 percentage points.

[103] Article: “Americans Weigh in on Death Penalty for Marathon Bomber.” By Sarah Dutton and others. CBS News, April 15, 2015. <www.cbsnews.com>

As the U.S. marks the two year anniversary of the Boston Marathon bombings, 60 percent of Americans polled favor the death penalty for Dzhokhar Tsarnaev.

Last week, a jury convicted Tsarnaev on 30 federal charges related to the bombings and the subsequent manhunt. When asked about this particular case, 30 percent of people polled said they oppose the death penalty. …

This poll was conducted by telephone April 8–12, 2015 among a random sample of 1,012 adults nationwide. Data collection was conducted on behalf of CBS News by SSRS of Media, PA. Phone numbers were dialed from samples of both standard land-line and cell phones. The error due to sampling for results based on the entire sample could be plus or minus three percentage points. The error for subgroups may be higher. Interviews were conducted in English and Spanish. This poll release conforms to the Standards of Disclosure of the National Council on Public Polls.

[104] Webpage: “LB268 – Eliminate the Death Penalty and Change and Eliminate Provisions Relating to Sentencing.” Nebraska State Legislature. Accessed December 18, 2019 at <nebraskalegislature.gov>

“May 27, 2015 Passed notwithstanding objections of Governor 30–19–0”

[105] Article: “Nebraska and California Voters Decide to Keep the Death Penalty.” By Mark Berman. Washington Post, November 9, 2016. <www.washingtonpost.com>

In Nebraska, voters opted to repeal a bill that was set to abolish the death penalty last year. A referendum Tuesday saw 60 percent of voters opting to scrap that bill, restoring the death penalty there.

After lawmakers in Nebraska voted to abolish capital punishment there, [Governor] Ricketts vetoed it, prompting the legislature to take another vote and override him.

[106] Webpage: “History of Capital Punishment in California.” California Department of Corrections and Rehabilitation. Accessed December 16, 2019 at <www.cdcr.ca.gov>

Proposition 34, the Death Penalty Initiative Statute, was a ballot measure to repeal the death penalty as the maximum punishment for people found guilty of murder. On November 6, 2012, 52 percent of California voters voted against it. If the state’s voters had approved it, the initiative would have replaced the death penalty with life imprisonment without the possibility of parole and the 728 people on death row at the time would have had their sentences converted to life without parole. …

Two competing initiatives appeared on the November 8, 2016, ballot. Proposition 62, the Repeal of the Death Penalty Initiative, would have repealed the death penalty and would have effectively commuted the sentences of condemned inmates from the death penalty with life imprisonment without parole. The measure also had a requirement that condemned inmates work and would have increased the portion of their wages for victim restitution from 20 to 60 percent. A “yes” vote supported repealing the death penalty; a “no” vote opposed the measure. Proposition 62 was defeated with 53.1 percent voting “no” and 46.8 percent voting “yes.”

Proposition 66, the Death Penalty Reform and Savings Act, was also on the November 8, 2016, ballot in California and was approved by the voters. On Dec. 16, 2016, the Secretary of State certified the election results for Proposition 66: 51.1 percent of California voters voted for it and 48.9 percent voted against it.

This initiative keeps the death penalty in place, generally requires habeas corpus petitions to be filed in the court which imposed the sentence, sets time limits on legal challenges, and changes the process for appointing attorneys to represent condemned inmates.

[107] Webpage: “Proposition 62.” California State Legislature, Legislative Analyst’s Office, November 8, 2016. <lao.ca.gov>

“A YES vote on this measure means: No offenders could be sentenced to death by the state for first degree murder. The most serious penalty available would be a prison term of life without the possibility of parole. Offenders who are currently under a sentence of death would be resentenced to life without the possibility of parole.”

[108] Webpage: “Proposition 66.” California State Legislature, Legislative Analyst’s Office, November 8, 2016. <lao.ca.gov>

A YES vote on this measure means: Court procedures for legal challenges to death sentences would be subject to various changes, such as time limits on those challenges and revised rules to increase the number of available attorneys for those challenges. Condemned inmates could be housed at any state prison. …

The vast majority of the 748 condemned inmates are at various stages of the direct appeal or habeas corpus petition process. These legal challenges—measured from when the individual receives a death sentence to when the individual has completed all state and federal legal challenge proceedings—can take a couple of decades to complete in California due to various factors. For example, condemned inmates can spend significant amounts of time waiting for the California Supreme Court to appoint attorneys to represent them. As of April 2016, 49 individuals were waiting for attorneys to be appointed for their direct appeals and 360 individuals were waiting for attorneys to be appointed for their habeas corpus petitions. In addition, condemned inmates can spend a significant amount of time waiting for their cases to be heard by the courts. As of April 2016, an estimated 337 direct appeals and 263 state habeas corpus petitions were pending in the California Supreme Court. …

This measure seeks to shorten the time that the legal challenges to death sentences take. Specifically, it (1) requires that habeas corpus petitions first be heard in the trial courts, (2) places time limits on legal challenges to death sentences, (3) changes the process for appointing attorneys to represent condemned inmates, and (4) makes various other changes. …

… The measure requires that the direct appeal and the habeas corpus petition process be completed within five years of the death sentence. The measure also requires the Judicial Council to revise its rules to help ensure that direct appeals and habeas corpus petitions are completed within this time frame. The five-year requirement would apply to new legal challenges, as well as those currently pending in court. For challenges currently pending, the measure requires that they be completed within five years from when Judicial Council adopts revised rules. …

… The measure requires that attorneys appointed to represent condemned inmates in habeas corpus petitions file the petition with the trial courts within one year of their appointment. The trial court generally would then have one year to make a decision on the petition. If a petition is not filed within this time period, the trial court must dismiss the petition unless it determines that the defendant is likely either innocent or not eligible for the death sentence.

… In order to help meet the above time frames, the measure places other limits on legal challenges to death sentences. For example, the measure does not allow additional habeas corpus petitions to be filed after the first petition is filed, except in those cases where the court finds that the defendant is likely either innocent or not eligible for the death sentence. …

In addition, the measure changes how attorneys are appointed for direct appeals under certain circumstances. Currently, the California Supreme Court appoints attorneys from a list of qualified attorneys it maintains. Under the measure, certain attorneys could also be appointed from the lists of attorneys maintained by the Courts of Appeal for non-death penalty cases. Specifically, those attorneys who (1) are qualified for appointment to the most serious non-death penalty appeals and (2) meet the qualifications adopted by the Judicial Council for appointment to death penalty cases would be required to accept appointment to direct appeals if they want to remain on the Courts of Appeal’s appointment lists.

[109] Article: “Nebraska and California Voters Decide to Keep the Death Penalty.” By Mark Berman. Washington Post, November 9, 2016. <www.washingtonpost.com>

Voters in California opted to reject a proposal that would have abolished the death penalty, voting against it by a margin of 53.9 percent to 46.1 percent.

Meanwhile, California voters also decided by a very narrow margin to pass a measure that would effectively speed up the pace of executions. This proposal won with 50.9 percent of the vote, winning passage with a little more than 151,000 votes out of more than 8.2 million cast.

The measure that passed would mandate earlier appointment of appellate attorneys for death-row inmates and set earlier deadlines for when appeals must be filed and decided.

[110] “Executive Order N-09-19.” By Gavin Newsom. Executive Department, State of California, March 13, 2019. <www.gov.ca.gov>

It Is Hereby Ordered That:

1. An executive moratorium on the death penalty shall be instituted in the form of a reprieve for all people sentenced to death in California. This moratorium does not provide for the release of any person from prison or otherwise alter any current conviction or sentence.

2. California’s lethal injection protocol shall be repealed.

3. The Death Chamber at San Quentin shall be immediately closed in light of the foregoing.

It Is Further Ordered that as soon as hereafter possible, this Order shall be filed with the Office of the Secretary of State and that widespread publicity and notice shall be given to this Order.

[111] Article: “California Death Penalty Suspended; 737 Inmates Get Stay of Execution.” By Tim Arango. New York Times, March 12, 2019. <www.nytimes.com>

Gov. Gavin Newsom announced a moratorium on capital punishment on Wednesday, granting a temporary reprieve for the 737 inmates on the state’s death row, the largest in the Western Hemisphere. …

Mr. Newsom, a longtime opponent of capital punishment, cited its high cost, racial disparities in its application and wrongful convictions, and questioned whether society has the right to take a life. …

An executive order Mr. Newsom signed on Wednesday does three things: grants reprieves to the inmates currently on death row—they will still be under a death sentence, but not at risk of execution; closes the execution chamber at San Quentin prison; and withdraws the state’s lethal injection protocol, the formally approved procedure for carrying out executions.

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