CAPITAL PUNISHMENT: SUMMARY OF SUPREME COURT DECISIONS DURING THE 1997-98 TERM
CRS Report for Congress
Capital Punishment: Summary of Supreme Court
Decisions During the 1997-98 Term
April 19, 1999
Paul S. Wallace, Jr.
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress
ABSTRACT
Report summarizes five capital punishment cases which were decided during the 1997-98 term
of the Supreme Court. The cases reveal two distinct characteristics: (1) they did not break
any new ground insofar as capital punishment sentencing procedures are concerned and (2)
instead of preeminence at the federal level, the Court gives considerable recognition to the
traditional powers of the state to regulate crime.
Capital Punishment: Summary of Supreme Court Decisions
During the 1997-98 Term
Summary
In 1972, the U.S. Supreme Court found the death penalty as written in various
state laws to be “arbitrary and capricious”. Therefore, the Court found it to be
unconstitutional under the Eighth and Fourteenth Amendments and subsequently,
executions throughout the states were stopped. Shortly after that, states began to
rewrite their capital-crime laws using the new guidelines promulgated by the Court
and capital punishment was resumed in the United States. None of the cases decided
during the last term (1997-98) are likely to be remembered as landmark decisions
which will impact significantly on the current drift of the Court in capital punishment
decisions. It held in Breard v Angelone that the Eighth Amendment did not require
special jury instructions on the concept of mitigation or on the statutorily defined
mitigating factors and that in the context of the case, jurors were unlikely to have
misunderstood their obligation to consider mitigating evidence. In the other decision
on jury instructions, the Court held in Hopkins v. Reeves that instructions on lesser
offenses are constitutionally required only if the state law recognizes them as included
in the capital crime charged. In a decision that was critical of action taken by a federal
court of appeals to cancel a state prisoner’s imminent execution, the Court in
Calderon v. Thompson set an onerous standard for the appeals court to meet before
it voluntarily recalls a mandate denying habeas relief to the prisoner in order to
reassess the merits of the prior decision. In the Breard v. Greene case, the Court,
noting that the procedural rules of the forum state govern the implementation of the
treaty in that state, declined to halt the state’s execution of a foreign national
notwithstanding claims by the prisoner and his country that state officials violated
provisions of the treaty. Lastly, the Court in Ohio Adult Parole Authority v.
Woodard decided that conferring upon the inmate the option of voluntarily
participating in a pre-hearing interview with members of the parole board, without
giving him immunity for his statements at the interview, did not compel the inmate to
speak and, therefore, did not violate his Fifth Amendment privilege against self-
incrimination.
Contents
Background .................................................... 1
Decisions During the 1997-98 Term.................................2
Buchanan v. Angelone....................................3
Hopkins v. Reeves.......................................4
Calderon v. Thompson....................................5
Breard v. Greene........................................6
Ohio Adult Parole Authority v. Woodard......................7
Conclusion .................................................... 8
Capital Punishment: Summary of Supreme Court
Decisions During the 1997-98 Term
Background
In 1972, the Supreme Court in Furman v. Georgia found the death penalty as1
written in various state laws to be “arbitrary and capricious”. The effect of this
decision was to invalidate most of the existing state and federal death penalty
provisions. Prior to 1972, the states generally allowed the jury to be the conscience
of the community as well as the judge in determining whether or not to impose the
death penalty.2
Soon after the Furman decision, states began rewriting their capital-crime laws
using the Supreme Court’s guidelines. With these new and revised death penalty
statutes, the Supreme Court in 1976, in Gregg v. Georgia, decided that capital34
punishment did not invariably violate the constitution. With this new trend, it was not
long before more than two-thirds of the states reacted by enacting new death penalty5
statutes.
In the same period that witnessed the expansion of capital punishment
throughout the states, Congress also legislated new federal capital sentencing
the Court ruled that a statute allowing unbridled discretion in a jury to determine whether to
impose the death penalty amounted to cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments. By invalidating the capital punishment laws of approximately
37 states, the federal government, and the District of Columbia, the ruling had a decisive
effect in as much as executions ceased until January 17, 1977. See W. White, Capital
Punishment’s Future, 91 Mich. L. Rev. 1429, 1429 (1993) and D. Schrader, Capital
Punishment: Summary of Supreme Court Decisions on the Death Penalty, CRS Rep. No. 96-
See D. Schrader, supra note 1, at 1.2
The revised statutes remedied the flaws of Furman by providing a checklist of aggravating3
and mitigating factors which the judge and jury could consider when determining whether the
death sentence was warranted. See P. Ellsworth and L. Ross, Public Opinion and Capital
Punishment: A Close Examination of the Views of Abolitionist and Retentionist, 29 Crime and
Delinquency 116, 118 (1983).
See D. Schrader, supra note 1, at 1.5
procedures to overcome the constitutional infirmities and added substantially to the
list of federal crimes subject to the death penalty.6
As a result of a series of Supreme Court cases, a standard was developed which7
approved procedures which minimized the heretofore subjective standards by
removing the arbitrariness and capriciousness as much as possibly. The8
preponderance of these cases approved procedures requiring:
(1) that the sentencing authority, jury or judge, be given standards to govern
its exercise of discretion and be given the opportunity to evaluate both the
circumstances of the offense and the character and propensities of the accused
(that is, “individualized capital sentencing”), and (2) that special forms of
appellate review be provided not only of the conviction but also of the sentence,
to ascertain that the sentence was in fact fairly imposed. The desired result is a
principled way to distinguish cases in which the death penalty is deemed warranted9
from other cases in which it is not.
Decisions During the 1997-98 Term
While the five decisions of the 1997-98 Term are not likely to be remembered
as landmark, they do appear to have two distinct characteristics: (1) they did not
break any new ground in so far as capital punishment sentencing procedures are
concerned and (2) the Court gives considerable recognition to the conventional
powers of the state to regulate crime.
In two cases the Court rejected the defense arguments for specific jury10
instructions. In two others, the Court dealt with last-minute efforts to avoid1112
executions and in the fifth, the Court considered the constitutional implications of
clemency proceedings but did not give a clear answer as to whether due process
principles apply.
Id. at 2. See, C. Doyle, Crime Control Act of 1994: Capital Punishment Provisions6
Summarized, CRS Rep. No. 94-721 A.
See, Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 3257
(1976); Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 153 (1976);
and Jurek v. Texas, 428 U.S. 262 (1976).
These procedures would appear to help ensure that death penalty cases are administered8
fairly and impartially in accordance with due process and to minimize the risk that innocent
persons may be executed.
D. Schrader, supra,note 1, at 2.9
Buchanan v. Angelone, 522 U.S. 269 (1998); Hopkins v. Reeves, 118 S.Ct. 1895 (1998).10
Calderon v. Thompson, 118 S.Ct. 1489 (1998); Breard v. Greene, 118 S.Ct. 1352 (1998).11
Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244 (1998).12
Buchanan v. Angelone. The petitioner Buchanan was convicted of capital13
murders of his father, stepmother, and two brothers. Evidence was presented during
the sentencing phase of the trial regarding the petitioner’s troubled family life. The
jury received instructions stating that before the death penalty could be imposed, the
state first had to prove beyond a reasonable doubt the existence of the aggravating
factor--the vileness of the crime--it sought to prove. The instruction added that if the
jury found the vileness condition met, “then you may fix the punishment of the
Defendant at death or if you believe from all the evidence that the death penalty is not14
justified, then you shall fix the punishment of the Defendant at life imprisonment.”
The trial court refused the petitioner’s request to give additional instructions listing
four statutory mitigating factors and explaining that if the jury found any to exist,
“then that is a fact which mitigates against imposing the death penalty, and you shall
consider that fact in deciding whether to impose a sentence of death or life
imprisonment.” The court also declined to instruct the jury that, besides other15
mitigating factors, it should “consider the circumstances surrounding the offense, the
history and background of [Buchanan] and any other facts in mitigation of the16
offense.” The jury returned a death sentence.
The petitioner contended that the trial court violated his Eighth and Fourteenth
Amendment rights to be free from the arbitrary and capricious imposition of the death
penalty by failing to provide the jury with express guidance on the concept of
mitigation and to instruct the jury on particular statutorily defined mitigating factors.17
The Fourth Circuit Court of Appeals rejected the petitioner’s argument and it
was affirmed by the Supreme Court. The Court distinguished between the “eligibility”
(multiple murders) and “selection” (vileness) phases of the capital sentencing
process. It is only in regard to the “eligibility” phase, in which the class of death-18
eligible defendants is narrowed, that there is a constitutional necessity for channeling
and limiting the jury’s discretion so that the penalty is a proportionate punishment and
therefore not arbitrary and capricious. In contrast, based upon the Court’s prior19
decisions on the “selection” phase-- the phase at issue here--where there is a “... need
for a broad inquiry into all relevant mitigating evidence to allow an individualized20
determination.”
The Court said “[its] consistent concern has been that restrictions on the jury’s
sentencing determination not preclude the jury from being able to give effect to
Id., at 272-73.14
Id., at 273.15
Id.16
Id., at 275.17
Id.18
Id., at 275-76. 19
Id., at 276.20
mitigating evidence.” The instructions given in this case did not foreclose the jury’s21
consideration of any mitigating evidence, and the direction to base its decision on “all
the evidence” afforded the jurors an opportunity to consider mitigating evidence.
Furthermore, the majority concluded, the volume of mitigating evidence presented
and with the instructions that they had to weigh it ensured that in terms of the
constitutional test set forth in Boyde v. California, there was no “reasonable22
likelihood” that the jurors understood the contested instructions to preclude
consideration of relevant mitigating evidence. Notwithstanding, “we have never23
gone further and held that the state must affirmatively structure in a particular way the
manner in which juries consider mitigating evidence.” And indeed, the Court said,24
“our decisions suggest that complete jury discretion is constitutionally permissible.”25
Hopkins v. Reeves. In the second capital case on jury instructions the majority26
held that a state trial court is not constitutionally required to give instructions on
offenses that, under state law, are not considered lesser included offenses with respect
to the charged crime.27
The respondent was charged in Nebraska with felony murder for killing two
women who were sexually assaulted and stabbed to death. Under Nebraska law,
felony murder is a form of first degree murder and renders a defendant eligible for the28
death penalty. The respondent/defendant sought jury instructions on second-degree
murder and manslaughter, but the trial court denied the request on the basis that the
Nebraska Supreme Court has consistently held that those offenses are not lesser
included offenses of felony murder. The jury convicted the respondent of the capital2930
crime, and a three-judge sentencing panel sentenced him to death. On habeas
corpus review, the Court of Appeals for the Eighth Circuit decided that the case was31
analogous to Beck v. Alabama and that the trial court erred by denying the jury the
Id.21
Id.24
Id.25
Id., at 1897.27
Id., at 1898.28
Id., at 1898-99.29
Id.30
defendant of a capital crime and imposing a death sentence, or acquitting him outright.
Although Alabama law recognized the existence of a non-capital, lesser included offense, it
forbade juries from being instructed on it.
third option of convicting the defendant on a recognized lesser included offense and
therefore the state denied the respondent due process.32
The majority described Beck as holding “... that a State may not erect a capital-
specific, artificial barrier to the provision of instructions on offenses that actually are
lesser included offenses under state law.” This case is distinguishable from Beck in33
two critical respects, the majority said. The Alabama statute at issue in Beck
“...prohibited instructions on offenses that state law clearly recognized as lesser34
included offenses of the charged crime, and it did so only in capital cases.” In this
case, “... by contrast, the Nebraska trial court did not deny respondent instructions on
any existing lesser included offense of felony murder; it merely declined to give
instructions on crimes that are not lesser included offenses.” 35
The Court said that the rule announced by the Court of Appeals “... limited state
sovereignty more severely than the rule in Beck.” “The Court of Appeals ...36
required in effect that States create lesser included offenses to all capital crimes by
requiring that an instruction be given on some other offense--what could be called a
‘lesser related’--when no lesser included offense exists.” “Such a requirement is not37
only unprecedented, but also unworkable,” said the majority.38
Calderon v. Thompson. A common strategy to avoid the bar on successive39
federal habeas appeals has been to ask the appeals courts that have already upheld the
death sentence to “recall the mandate” (reopen the case) and review new evidence
or procedural flaws from prior hearings. In the Calderon case, the Court was very
critical of the action the Court of Appeals for the Ninth Circuit took to stop the
pending execution of a California State prisoner. The majority held that only with
“clear and convincing evidence” of a defendant’s innocence could it sui sponte recall
a mandate denying habeas relief to a state prisoner in order to reassess the merits of
Id., at 1899.32
Id., at 1901.33
Id., at 1900.34
Id.35
Id., at 1901.36
Id .37
Id.38
the prior decision. Reversing the Ninth Circuit’s ruling, the Supreme Court said that40
it’s decision was tantamount to a grave abuse of discretion.41
In defining the proper standard, the Court placed emphasis on the concept of42
respect for states’ interest in the finality of convictions. The Court said “real
finality” is necessary so the state can “execute its moral judgment in the case” and so
the victims can “move forward knowing the moral judgment will be carried out.”43
“[T]he State’s interests in finality are all but paramount” when, after a long process
of state and federal review concluding in the denial of relief, a federal court recalls its
mandate for the purpose of revisiting the merits. The miscarriage of justice standard44
is appropriate and is consistent with the central concerns of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), which set limits on successive federal45
habeas applications.
Breard v. Greene. Following affirmance of a conviction for rape and capital46
murder, and denial of state habeas corpus petition, the defendant, who was a foreign
national, filed a federal habeas petition. The district court dismissed the petition and
the defendant appealed. In a separate proceeding, the Republic of Paraguay through
its ambassador and consul general bought suit for a declaratory judgement, alleging
that Virginia officials had violated the Vienna Convention by failing to notify the
Paraguayan consulate of the defendant’s arrest. The petition was dismissed by the
district court and it was affirmed by the Court of Appeals. Shortly, before the
Id., at 1492. In 1983, a California jury convicted the habeas petitioner of rape and murder40
and also found the “special circumstances” of murder during the commission of the rape, thus
making the petitioner eligible for death. At the jury’s unanimous recommendation, the
petitioner was sentenced to death. In 1995, after affirmance of the conviction and three
unsuccessful petitions for state post-conviction relief, a federal district court granted habeas
relief from the rape conviction and the death sentence, citing what it deemed to be ineffective
assistance by trial counsel. A Ninth Circuit Court of Appeals panel reversed in 1996 and
denied rehearing in 1997; at the same time the Court of Appeals also stated that no active
judge of the court had requested a vote on the petitioner’s suggestion for rehearing en banc.
After the appellate court issued its mandate denying relief, the state set an execution
date. A motion by the petitioner to recall the mandate was denied; a couple of days later,
however, with the execution date less than a week away, the full Ninth Circuit voted to
consider en banc whether to recall the mandate. Shortly after that, the court, by a divided
vote, recalled the mandate and reinstated the district court’s partial grant of the writ.
Explaining why its actions came so late, the majority said misunderstandings within the court
had prevented an earlier call for an en banc rehearing, and that after the problem was
discovered, it put off the vote until the state courts finished with a fourth state habeas action.
The court also stated that the recall was necessary to prevent a miscarriage of justice.
Id., at 1506.41
Id., at 1498.42
Id., at 1501.43
Id., at 1502.44
Id.45
scheduled execution, Paraguay obtained a ruling from the International Court of
Justice to the effect that the United States should seek to delay the execution.47
In a per curiam opinion issued on the day of the execution, the Court’s majority
declined to intervene. The Court agreed with the lower courts that the prisoner had
procedurally defaulted by bringing the claim too late, and Paraguay’s suit was barred
by the Eleventh Amendment The Court also rejected the argument that the Vienna48
Convention claim “trumps” the procedural default rule. By international law and the
treaty’s own terms, said the Court, “... absent a clear and express statement to the
contrary, the procedural rules of the forum State govern the implementation of the
treaty in that State.49
Ohio Adult Parole Authority v. Woodard. The state inmate, under sentence50
of death for aggravated murder committed in the course of a car jacking, filed suit
under 42 U.S.C. § 1983, alleging that Ohio’s clemency process violated his
Fourteenth Amendment due process privilege and his Fifth Amendment right to
remain silent. His due process claims went to the timeliness of the notice he received
regarding the clemency hearing prior to execution, the adequacy of the opportunity
he had to prepare his clemency application, limitations on participation by his
attorney, and the procedures governing the conduct of the hearing.51
The Court was unable to reach a decision about what Fourteenth Amendment
Due Process Clause standard applies to clemency proceedings for prisoners who are
facing death sentences. The case was resolved by the agreement of eight justices52
that the Ohio death-row inmate was not denied due process by any applicable
standard. The Court ruled that giving the inmate the option of voluntarily53
participating in a pre-hearing interview with members of the parole board , without
giving him immunity for his statements at the interview, did not compel the inmate to
speak and, therefore, did not violate his Fifth Amendment privilege against self-
incrimination. 54
Id., at 1354 (1998).47
Id., at 1354.48
Id.49
Id., at 1248.51
Id., at 1246.52
Id., 1246-47.53
Id., at 1246.54
Conclusion
None of the cases decided during the 1997-98 term are likely to be remembered
as landmark decisions which will impact significantly on the current drift of the Court
in capital punishment decisions. This may be due in part to a tendency of the Court
to avoid deciding major constitutional issues which test the powers of the states. This
notion is based upon two distinct characteristics of the five decisions : (1) they did not
break any new ground in so far as capital punishment sentencing procedures are
concerned and (2) instead of preeminence at the federal level, the Court gives
considerable recognition to the traditional powers of the state to regulate crime.
Applying the rational of Calderon v. Thompson, as an example, there have been very
few cases which have been accepted for review by the Court which address lingering
issues surrounding the 1996 Antiterrorism and Effective Death Penalty Act which
sharply limits the federal appeals by death row inmates by raising the standards for
overturning state decisions. Consequently, one might argue that the rulings on death
penalty appeals which were decided during the last term are procedural wins for the
states which may be due in part to Congress’ response to complaints about the length,
costly, and seemingly endless federal appeals by state death row inmates by
authorizing a new fast-track procedure.