Evolution of Capital Punishment Process

Deadly Justice, Ch 2 The Capital Punishment Process Quick review of the last few slides from Ch 1 before we get to Ch 2. The big question: do we pass the Gregg test, or flunk the Furman one? January 15, 2025 Baumgartner, POLI 203, Spring 2025 1

Texas: Future dangerousness; Special issues Texas procedure (as of today; earlier version did not specify step 3): After the trial of guilt, the second phase: consideration of special issues 1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and 2) if guilty by the law of parties, they caused the death or, if not, intended to or anticipated that death would occur (State must prove beyond a reasonable doubt). If yes to both (unanimously), then: 3) Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed. (decision of no must be unanimous, leads to death; decision of yes requires 10 votes, leads to life without parole) Baumgartner, POLI 203, Spring 2025 2

Pay careful attention that wording a probability of future dangerousness: what about 0.0001%? That s a positive number. No guidance. But juries are free to interpret Similarly, what if there are several mitigating circumstances, but a really bad aggravating circumstance; how to balance? No guidance. Note the special concern with the law of parties aka felony murder You help to plan the robbery of the 7-11, but your buddy inside kills the clerk. He pleads guilty and gets life You get death. Baumgartner, POLI 203, Spring 2025 3

Something changed from 1972 to 1976 Power of the political backlash may have surprised the justices. An article appeared in the American Economic Review showing support for deterrence, and this was prominent in the US Solicitor General (Robert Bork) s argument before the Court. (This remains disputed, but it was a big part of the 1976 debate.) States claimed to have strong safeguards. The Court accepted two very different approaches (Georgia, Texas), rejected only the mandatory death model. So, perhaps the Court was setting a low bar Baumgartner, POLI 203, Spring 2025 4

States were enthusiastic adopters Death sentences and executions surged from 1976 to about 1995 or so. So, for 20 years, we had greater and greater use until something happened in the mid-1990s, when our punitiveness reached its maximum. After the mid- to late-1990s, punitiveness declined, deaths entences declined. We ll come back to this puzzle many times. Baumgartner, POLI 203, Spring 2025 5

Supreme Court very unpopular in the South Brown (1954) Miranda (1966) Furman (1972) Roe (1974) All this was just a lot for some conservatives. State s rights argument to bring back the death penalty. Baumgartner, POLI 203, Spring 2025 6

Ch 2. The Capital Process Pre-trial First, was it a capital crime? Following Gregg, the states had to enumerate only those crimes specifically eligible for capital punishment, not just any first- degree murder. NC Criminal Code 14-17 lays out 1st v. 2nd degree murder. 1st degree is capital. If you are a defendant in a capital crime, most likely you will be in pre-trial detention. This could take maybe 2-3 years Example from Just Mercy: put the defendant on death row already! (illegal) Common in NC, however, that infamous defendants are housed (as safekeepers ) in Central Prison before trial. No picnic. Baumgartner, POLI 203, Spring 2025 7

Notice of Intent to seek death NC, rule 24 hearing but procedures differ by state. Hearing before a judge where the state declares its intention to seek death, shows eligibility (crime, aggravating circumstances) Defense can argue that the crime is not eligible If Judge approves, the case proceeds as a capital case NC: Additional legal resources made available to the defense Most capital prosecutions are reduced to non-capital, often after a plea. But what a lot of pressure on the individual! Think about multiple defendants and the pressure to testify against the other Baumgartner, POLI 203, Spring 2025 8

Appointment of Counsel NC: Indigent Defense Services, Center for Death Penalty Litigation, trained, certified capital-trial specialists. This reform only from 2001. Before then, the judge could potentially appoint any member of the bar, and pay as little as $5k for the entire case. So this 2001 reform was important. Probably 99.9 percent of all capital defendants use public defenders, or court-appointed. Public defender: a specialist Court appointed: quality can vary from excellent to someone who needs a job and will accept low pay In any case, subject to public budget constraints. Politics make certain that these offices will never be well funded. The question is where is the floor Baumgartner, POLI 203, Spring 2025 9

Do you deserve a lawyer, or Clarence Darrow? USSC very slow to mandate quality. Initially, no difference in standards for capital and non-capital cases. Very wide standard accepted: to win a case of ineffective assistance of counsel, one had to show that the attorney s performance was: outside the wide range of professionally competent assistance and also that the errors made actually had an adverse effect on the defense. So, for the most part, the Court has accepted very low standards Southern Poverty Law Center, Equal Rights Initiative privately funded, not state agencies. NC example is actually a very positive one, but only from 2001. To learn more about this, google Stephen Bright and read anything he has written. Baumgartner, POLI 203, Spring 2025 10

Youre in prison for 2 years awaiting trial for your life; would you take a plea? Plea-bargaining is extremely common First, if you plead guilty, you may get Life. If you testify against others, maybe you can do better than that, get Life with parole eligibility or even a term sentence if you can get reduced to 2nd degree. This is not that uncommon. Sometimes the state might feel it does not have the evidence, but the threat of capital punishment is certainly a powerful bargaining chip. Second, see the next slide, if you go to trial for capital murder, your jury will be death qualified Baumgartner, POLI 203, Spring 2025 11

Death Qualification During jury selection, a questionnaire If you state that you would not be able to sentence a person to die, no matter what the crime, then you will be excused from jury service. (Also excludes people who would impose death every time ) Logic: you must be willing and able to apply the law. Consequence: Many Americans are excluded from their right and duty to serve on a jury. Also, juries exclude many peers, not randomly, but from the ideological left. Who s left: those more deferential to the state Baumgartner, POLI 203, Spring 2025 12

Lets do that last one again to make sure Death qualification You can t serve on a capital jury if you don t support the death penalty Lots of litigation about this issue, end result is you can have qualms, hesitance, take it seriously, but if you say you could never vote for death, you cannot be on the jury Even the guilt phase of the trial has a death-qualified jury You can t even sit on the guilt phase. Idea is that we need the same jury for both phases. You could imagine doing it another way, but we don t. Baumgartner, POLI 203, Spring 2025 13

Jury selection (cont.): Peremptory Challenges and Batson v. Kentucky In addition to the questionnaire which might ask if you know the defendant, have already heard a lot about the case, can be impartial, and which might lead you to be excused for cause , each side can also remove potential jurors for no cause at all. Peremptory challenge: remove 12 people from the jury for no reason. Normal trials, 6. Capital trials: 12. Both the state and the defense can do this. Jury bleaching make the jury whiter ( bleach it) by using these no-cause removals for black juries Baumgartner, POLI 203, Spring 2025 14

Wait a minute, isnt that illegal??? Batson v. Kentucky (1986): Yes it s illegal, but any non-racial reason has been found acceptable by the USSC. This was recently litigated in the case of Flowers v. Mississippi, where the new Justice, Brett Kavanaugh wrote a 7-2 decision in favor of the inmate in June 2019. Racial Justice Act litigation in NC also targeted this issue of jury bleaching and led to powerful evidence about how widespread it is. Justice Thurgood Marshall called for the complete elimination of peremptory challenges, but this was never taken up at the federal level. Arizona just did it in 2021, first state ever. Baumgartner, POLI 203, Spring 2025 15

The bifurcated trial First: Trial of guilt Result: guilty, not guilty, guilty of a lesser crime If guilty of a lessor crime or not guilty, that s the end If guilty of a capital offense: Second: Penalty phase Immediately following the finding of guilt Same jury, judge, attorneys on both sides Georgia model: weight the aggravators and mitigators Texas model: assess the special issues , esp. future dangerousness Baumgartner, POLI 203, Spring 2025 16

How many aggravators = a mitigator? No guidance. States can list the aggravators. See appendix A, on the book website, for a list of aggravators. Kill a child, a police officer, things like that. These tend to be explicit, though they can be vague ( especially cruel and heinous is a common one, including in NC) There may not be any list of mitigators. These could be things like child abuse, mental illness, mental state at the time of the crime, but there is no list, nor can their be one. The USSC has ruled that the jury may exercise its mercy for any reason at all. McGautha v. California (1971): really no guidance at all about how to make this life and death decision. Let that sink in. Baumgartner, POLI 203, Spring 2025 17

Post-conviction appeals Part I. Direct Appeal (Automatic) No one can be executed before a full review through the state system, AS WELL AS federal review Automatic appeals through the state appellate system (depends on state) up to the state Supreme Court (or equivalent) Direct appeals to federal district court, only after state review is complete (If direct appeals are unsuccessful, execution can potentially follow.) Part II, Habeas Corpus appeals, not guaranteed but still available based on an argument that there was a constitutional flaw in the trial. These are unlimited, but you can t raise the same one twice, and in 1996 the Anti- terrorism and Effective Death Penalty Act limited them severely. State Federal 70 percent of death sentences are reversed on appeal (many are then reimposed, and re-litigated on appeal; 70 percent of THOSE are reversed.) Baumgartner, POLI 203, Spring 2025 18

Proportionality review State supreme court, on direct review, must assess whether the death sentence is proportionate to the crime. Social science standard: evaluate all the crimes, see if people with similar crimes got similar punishment. Legal standard: see if there are any other cases where someone got death for a relatively similar crime. We ll come back to this, but it s a huge area of failure. There are so many homicides, many of them terrible, but for many reasons the killers do not get death. Those who do get death may or may not be guilty of the most heinous crimes. There are so many heinous crimes! The court did mandate proportionality review in Gregg, however. Baumgartner, POLI 203, Spring 2025 19

Process (cont) Death warrant: Governor (or attorney general) sets a date for the execution Stay: it s delayed for more appeals. (Most death warrants are not carried out; is that torture?) Clemency: Governor reduces the sentence to life (was once common before WW2, now very rare) Exoneration: one or another of the appeals is successful, and you are not re-tried; you go free! Note, there is no demonstration of innocence, and often not even an apology (DPIC currently lists 186 people exonerated; https://deathpenaltyinfo.org/policy-issues/innocence- database) National Registry of Exonerations lists thousands, including lesser crimes: https://www.law.umich.edu/special/exoneration/Pages/about.aspx Pardon: you re still guilty, but sentence eliminated (never done for capital crimes). Pardon of innocence: you ve been found innocent or have been exonerated, and the governor issues you this as an affirmative finding of your innocence, otherwise impossible in the judicial system. Official / prosecutorial immunity: very hard to hold a judge, DA, or other accountable if an exoneration case is based on misconduct. Waiving the right to appeal: Suicide by government (see Dylann Roof); about 10 percent of all executions have been volunteers ) Baumgartner, POLI 203, Spring 2025 20

Death Is Different The Court has ruled that the new death penalty had to have special safeguards, not available where the penalty is lesser Result: a massive mess, huge delays, 70 percent of cases overturned, huge costs, more rights to the defense, and very few executions get carried out. Danger / risk of executing an innocent, which no one wants. So efforts to streamline have not been successful, even when tried. For example, the 1996 AEDPA was designed to jumpstart the system, but did not. In NC, the 2012 Restoring Proper Justice Act had a similar intent, but has not done so as yet. So, as we evaluate, we have to evaluate the complicated, messy system we have, not the one we think we might like to have. Baumgartner, POLI 203, Spring 2025 21