Capital Punishment: A Legal Overview Including the Supreme Court Decisions of the 2004-2005 Term
CRS Report for Congress
Capital Punishment: A Legal Overview
Including the Supreme Court Decisions
of the 2004-2005 Term
July 22, 2005
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress
Capital Punishment: A Legal Overview Including The
Supreme Court Decisions Of The 2004-2005 Term
Executions declined through the 1950s and 1960s and ceased after 1967,
pending definitive Supreme Court decisions. This interval ended only after States
altered their laws in response to the 1972 Supreme Court decision in Furman v.
Georgia, a 5-4 decision deciding that the death penalty, as imposed under existing
law, constituted cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments of the U.S. Constitution. In Furman, the Court ruled that
the death penalty was arbitrarily and capriciously applied under existing law based
on the unlimited discretion accorded to sentencing authorities in capital trials. In
response, States began to revise their statutes to modify the discretion given to
sentencing authorities. These statutes went untested until the Court decided Gregg
v. Georgia in 1976 in which it found in a 7-2 decision, that the death penalty did not
per se violate the Eighth Amendment. The Gregg decision allowed States to
establish the death penalty under guidelines that excluded the arbitrariness of
sentencing in capital cases. As a result, statutory safeguards were developed to make
sentencing more just and fair. Some of the changes included (1) in death penalty
cases, the determination of guilt or innocence must be decided separately from
hearings in which sentences of life imprisonment or death are decided; (2) the court
must consider aggravating and mitigating circumstances in relationship to the crime
and the defendant; and (3) the death sentence must be subject to review by the
highest State court of appeals to make sure that the penalty is in proportion to the
seriousness or gravity of the offense and is imposed even-handedly under State law.
Like the statutory safeguards, the capital cases decided by the Court in the 2004-5
term also reflect its sentiment that if there is going to be a death penalty, the process
must be fair.
The Supreme Court abolished the practice of executing mentally retarded
persons in Atkins v. Virginia and juveniles who commit a capital crime while under
the age of 18 in Roper v. Simmons. The Court ruled that these executions were
prohibited on Eighth Amendment “cruel and unusual punishment” grounds. The
Court expanded its doctrine on the “ineffective assistance of counsel” in setting
aside the death sentence for the petitioner in Rompilla v. Beard because his lawyers
failed to search files on his past convictions for mitigating evidence in spite of their
conscientious efforts which led them to believe that it would be a waste of time.
However, the Court determined in Bell v. Thompson that the scheduling of an
execution was reasonable and the actions of the Court of Appeals were an abuse of
discretion, although the case was remanded for an ineffective assistance of counsel
hearing by the Court of Appeals while acting upon an honest belief that its previous
ruling had been decided erroneously. Also, the Court’s decision in Miller-El v.
Dretke reflected an affirmation of its condemnation of racial discrimination in the
use of peremptory challenges.
Constitutionality of the Death Penalty..................................1
Aggravating and Mitigating Factors...................................3
Mentally Retarded Offenders.........................................8
Death Penalty For One Who Does Not Kill.............................13
Counsel–Effectiveness Under The Sixth Amendment....................15
Jury’s Role in Capital Sentencing....................................21
Habeas Corpus Procedures in Capital Cases............................25
International Law Considerations....................................29
Capital Punishment: A Legal Overview
Including The Supreme Court Decisions Of
The 2004-2005 Term
Constitutionality of the Death Penalty
Is the death penalty consistent with the Eighth Amendment’s prohibition against
the imposition of cruel and unusual punishments? The Supreme Court considered
various applications of the death penalty in the 1930s, 40s and 50s.1 In each case,
it upheld the state’s action without addressing the broader issue of the
constitutionality of the death penalty.
In a 5-4 decision in 1972, Furman v. Georgia,2 the Supreme Court invalidated
federal and state capital punishment laws which permitted wide discretion in the
application of the death penalty. With one Justice characterizing the death penalty
laws as “capricious,” 3 the majority ruled that they constituted cruel and unusual
punishment in violation of the Eighth Amendment and the due process guarantees of
1 Powell v. Alabama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937);
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Trop v. Dulles, 356 U.S. 86,
99-101 (1958) (Chief Justice Earl Warren delivered the opinion of the Court: “The exact
scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court.
But the basic policy reflected in these words is firmly established in the Anglo-American
tradition of criminal justice. The phrase in our Constitution was taken directly from the
English Declaration of Rights of 1688, and the principle it represents can be traced back to
the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than
the dignity of man. While the State has the power to punish, the Amendment stands to
assure that this power be exercised within the limits of civilized standards. Fines,
imprisonment and even execution may be imposed depending upon the enormity of the
crime, but any technique outside the bounds of these traditional penalties is constitutionally
suspect. This Court has had little occasion to give precise content to the Eighth
Amendment, and, in an enlightened democracy such as ours, this is not surprising. But
when the Court was confronted with a punishment of 12 years in irons at hard and painful
labor imposed for the crime of falsifying public records, it did not hesitate to declare that
the penalty was cruel in its excessiveness and unusual in its character. Weems v. United
States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment
are not precise, and that their scope is not static. The Amendment must draw its meaning
from the evolving standards of decency that mark the progress of a maturing society.”)
2 408 U.S. 238 (1972). The Court’s decision in Furman was a per curiam opinion in which
five justices filed separate opinions supporting the decision and four justices filed separate
3 408 U.S. at 309 (Stewart, J., concurring).
the Fourteenth Amendment based upon the inherent arbitrariness of their application
particularly in the case of racial minorities and the poor.4
The hundreds of inmates on death row who had been sentenced to die between
1967 and 1972 had their death sentences commuted as a result of Furman,5 but those
numbers began to change again as states enacted revised legislation tailored to satisfy
the Supreme Court’s objections to arbitrary and capricious decisions which permitted
the application of the death sentence. On July 2, 1976, the Supreme Court reviewed
the post-Furman capital punishment statutes of five states6 in a series of five cases.
The revised laws were of two major types: The first type provided for guided
discretion which was upheld by the Supreme Court in three cases.7 The second type
consisted of those statutes which provided for a mandatory death sentence for
4 Id. at 289-40; Justice Marshall candidly observed that, “studies indicate that while the
higher rate of execution among Negroes is partially due to a higher rate of crime, there is
evidence of racial discrimination. . . . There is also overwhelming evidence that the death
penalty is employed against men and not women . . . It also is evident that the burden of
capital punishment falls upon the poor, the ignorant and the underprivileged members of
society. Id. at 364-66 (Marshall, J, concurring); see also, id. at 256-57 (Douglas, J.,
concurring)(“these discretionary statutes are unconstitutional in their operation. They are
pregnant with discrimination”); id. at 305 (Brennan, J. concurring)(“the punishment of death
is inconsistent with all four principles [by which a punishment is measured to determine if
it is ‘cruel and unusual’]: Death is an unusually severe and degrading punishment; there is
a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is
virtually total; and there is no reason to believe that it serves any penal purpose more
effectively than the less severe punishment of imprisonment”); id. at 310 (Stewart, J.,
concurring)(“my concurring Brothers have demonstrated that, if any basis can be discerned
for the selection of these few to be sentenced to die, it is the constitutionally impermissible
basis of race”); id. at 313 (White, J., concurring)(“the conclusion . . . is that the death
penalty is exacted with great infrequency even for the most atrocious crimes and that there
is no meaningful basis for distinguishing the few cases in which it is imposed from the many
cases in which it is not”).
5 Id. at 315 (Marshal, J., concurring).
6 Georgia, Florida, Texas, North Carolina, and Louisiana.
7 Gregg v. Georgia, 428 U.S. 153 (1976) (the Court decided in a 7-2 decision, that the death
penalty did not violate the Eighth Amendment per se but allowed States to establish the
death penalty under guidelines that eliminated the arbitrariness of sentencing in capital
cases); Jurek v. Texas, 428 U.S. 262 (1976); and Proffitt v. Florida, 428 U.S. 242 (1976).
Ratified by the Supreme Court, the Georgia, Texas, and Florida statutes afforded sentencing
courts the discretion to impose death sentences for specified crimes and provided for
bifurcated trials, involving in the first stage the determination of a defendant’s guilt or
innocence and, in the second, the determination of the sentence after the consideration of
the aggravating and mitigating circumstances. In Georgia and Texas, the final sentencing
decision was decided by the jury, and in Florida by the judge. These state statutes suggest
that the following safeguards would eliminate arbitrariness and make capital sentencing
more equitable: (a) the determination of guilt or innocence will be decided separately from
hearings in which sentences of life imprisonment or death are decided; (b) the court will
consider aggravating and mitigating circumstances in relationship to both the crime and the
defendant/offender; and (c) the death sentence will be subject to review by the state’s
highest court of appeals to ensure that the penalty is in proportion to the gravity of the
specific crimes, and allowed no judicial or jury discretion beyond the determination
of guilt. These statutes were held to be unconstitutional.8 In sum, what may be
gleaned from these five cases suggest that while the sentencing authority may possess
some discretion, it cannot be the unbridled discretion which was found impermissible
in Furman. The discretion must be limited and directed in order to minimize the
potential for arbitrary and capricious actions.
Aggravating and Mitigating Factors
Capital punishment may only be imposed under procedures that provide
sentencers with those aggravating factors which will support imposition of the
penalty and that require sentencers to take into account any evidence offered in
mitigation for the defendant.
Aggravating factors, established either as elements of the capital offense or as
statutory factors to be found by the sentencing judge or jury, must be sufficiently
clear and restricting. According to the Supreme Court’s decision in Zant v. Stephens,
“To avoid capricious and arbitrary decisions, states that use aggravating
circumstances to impose the death penalty. . . must reasonably justify the imposition
of a more severe sentence for the defendant compared to others found guilty of9
The aggravating factors may not be so vague as to invite a return to the arbitrary
infliction of the penalty that the Court saw in Furman. In Maynard v. Carwright,10
the Court made clear that not every murder could fall under the “specially heinous,
atrocious or cruel” aggravating circumstance and that the state must construe such
an aggravating circumstance so that there would be some principled way to
distinguish the few cases in which the aggravating circumstance applies from the
many cases in which it does not. The test for whether a particular aggravating factor
passes constitutional muster is whether “the statutory language is itself too vague to
provide any guidance to the sentencer. If so [the question becomes] whether the . .
. courts have further defined the vague terms. . . [so as] to provide some guidance to11
In Lockett v. Ohio,12 the Supreme Court required many states to revise their
death penalty statutes by ruling that the sentencing authority in capital cases must
consider every possible mitigating factor to the crime rather than limiting the
8 Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325
9 462 U.S. 862, 1983); see also, Arave v. Creech, 507 U.S. 463, 474 (1993)(“if the sentencer
fairly could conclude that an aggravating circumstance applies to every defendant eligible
for the death penalty, the circumstance is constitutionally infirm”).
10 486 U.S. 356, 363 (1988).
11 Bell v. Cone, 125 S.Ct. 847, 851-52 (2005), citing with approval, Walton v. Arizona, 497
U.S. 639, 654 (1990).
12 438 U.S. 586 (1978).
mitigating factors that could be considered to a specific list.13 In Smith v. Texas,14 the
Court recently confirmed the principle when it overturned Smith’s death sentence
based upon previous Court precedents requiring judges to include in their jury
instructions that proper and meaningful consideration be given to all mitigating
evidence. Smith argued that jurors weren’t allowed to consider evidence including
that he was 19 at the time of the robbery during which the murder occurred, that he
had a troubled home life, and that he had a low IQ and learning disability; the Texas
court erroneously rejected the claim, saying that it wasn’t relevant because there was
no link between murder and his diminished capacity.
In 1982, the Supreme Court was asked to decide whether the execution of a
juvenile offender was permissible under the Constitution. Eddings v. Oklahoma15
was the first case the Court agreed to hear based on the age of the offender who was
16 at the time he murdered a police officer. Without deciding on the constitutionality
of the juvenile death penalty, the Court vacated the juvenile’s death sentence on the
basis that the trial had failed to consider additional mitigating circumstances.16
However, the case was significant because the Court decided that the chronological
age of a minor is a relevant mitigating factor that must be considered at sentencing.17
Writing for the majority, Justice Powell stated: “... youth is more than a chronological
fact. It is a time and condition of life when a person may be most susceptible to
influence and to psychological damage. Our history is replete with laws and judicial
recognition that minors, especially in their earlier years, generally are less mature and18
responsible than adults.”
In 1988, the Supreme Court did consider this particular issue in Thompson v.
Oklahoma.19 In a 5-3 decision, the Court vacated the death sentence of the defendant
who at age 15 participated in the brutal murder of his former brother-in-law. Four
justices agreed that the execution of a 15-year-old would be cruel and unusual
13 438 U.S. 586, 604 (1977)(“[T]he Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence less than
death”). See also, Eddings v. Oklahoma, 455 U.S. 104, 117 (1982) (there are no restrictions
on the number of mitigating factor that the defense may introduce for consideration by the
judge or jury); Boyde v. California, 494 U.S. 370 (1980).
14 125 S.Ct. 1432 (2005).
15 455 U.S. 104 (1982).
16 Id. at 113-116.
17 Id. at 115-116.
19 487 U.S. 815 (1988).
punishment per se (in, or by itself).20 Applying the test of Eighth Amendment
analysis, Justices Stevens, Brennan, Marshall, and Blackmun were of the opinion that
the execution would constitute cruel and unusual punishment because it was
“inconsistent with our respect for the dignity of men” and it failed to contribute to the
two principal social purposes of the death penalty: retribution and deterrence.21
Justice O’Connor concurred, but noted that Oklahoma’s death penalty statute set no
minimum age at which the death penalty could be imposed.22 Sentencing a 15-year-
old under the Oklahoma statute was inconsistent with the standard for special care and
deliberation required in death penalty cases.23
In 1989, in Stanford v. Kentucky24 and Wilkins v. Missouri25 the Supreme Court
held in a 5-4 decision that the Eighth Amendment does not prohibit the death penalty
for crimes committed at age 16 (Wilkins) or 17 (Stanford). While the Thompson
plurality used the three-part analysis to determine if sentencing a juvenile to death
constituted cruel and unusual punishment, the Stanford plurality did not. The
Thompson v. Oklahoma’s standard Eighth Amendment analysis consisted of an
evaluation of: (a) evolving standards of decency; (b) the behavior of juries and
legislators to determine what is abhorrent to the conscience of the community; and (c)
because of the juvenile’s reduced culpability, the punishment is disproportionate to
the severity of the crime and the application of the death penalty to this class of
offenders does not measurably contribute to the purposes underlying the penalty. The
Stanford plurality decision rejected the third element of the three part analysis, to wit,
that the punishment is disproportionate to the severity of the crime and makes no
measurable contribution to its deterrence.26
In Stanford v. Kentucky, the Supreme Court considered the evolving standards
of decency in society as reflected in historical, judicial, and legislative precedents;
current legislation; juries’ and prosecutors’ views; and public, and professional
opinions.27 However, the Court based its determination of evolving standards of
decency on legislative authorization of capital punishment for an individual who
murders at 16 or 17 years of age and it does not, said the Court, offend the Eighth
Amendment’s prohibition against cruel and unusual punishment.28 The Court referred
to contemporary standards of decency in this country and concluded that the Eighth
and Fourteenth Amendments did not proscribe the execution of a juvenile over 15 but
20 Id. at 832-833.
21 Id. at 836.
22 Id. at 857-858.
23 Id. at 856.
24 492 U.S. 361 (1989).
25 492 U.S. 361 (1989) (Stanford v. Kentucky and Wilkins v. Missouri were consolidated).
26 Thompson v. Oklahoma, 487 U.S. at 833-838.
27 492 U.S. at 370-380.
28 Id. at 380.
under 18.29 The Court noted that those states that permitted the death penalty for 16
and 17-year-old offenders indicate that there was no national consensus which was
“sufficient to label a particular punishment cruel and unusual.”30 A plurality of the
Court rejected the suggestion that it (the Court) should bring its own judgment to bear
on the desirability of permitting the death penalty for juveniles.31 The Court also
found that public opinion polls and professional associations were “uncertain
foundations” on which to base constitutional law.32
The dissenting judges argued that the record of state and federal legislation
protecting juveniles because of their inherent immaturity was not relevant in
formulating a national consensus.33
In 1997, Christopher Simmons was tried, convicted, and sentenced to death for
first degree murder for a crime that he committed at age 17. He appealed to the
Missouri Supreme Court, which affirmed the conviction and the sentence.34 On his
initial appeal, Simmons could not argue that his youth prohibited his execution
because the U.S. Supreme Court held in 1989 in Stanford v. Kentucky that there was
no national consensus against the execution of young adults who were 16 or 17-years-
of-age at the time of their crimes and, as a result, executing juveniles was not
considered “cruel and unusual” punishment under the Eighth Amendment.35 Hence,
the Missouri Supreme Court affirmed the Circuit Court of Jefferson County Missouri
on the death sentence.36
In 2002, the U.S. Supreme Court in Atkins v. Virginia reversed Penry v.
Lynaugh37, which held that a national consensus did not exist against the execution of
the mentally retarded.38 In Atkins v. Virginia, the Supreme Court decided that a
consensus had developed in the thirteen years since Penry was decided and that
executing the mentally retarded violates the Eighth Amendment.39 Assuming that the
U.S. Supreme Court’s ruling in Atkins may correspondingly cause a shift in the
Court’s view toward the execution of juvenile offenders, Simmons, in 2003, filed a
writ of habeas corpus, arguing that a national consensus opposing the execution of 16
and 17-year-old offenders had developed since the Court’s decision in Stanford v.
29 Id. at 372-373.
30 Id. at 370-371.
31 Id. at 378.
32 Id. at 377.
33 Id. at 393-403.
34 State v. Simmons, 944 S.W.2d 165, 169 (Mo. 1997).
35 See Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003)(en banc) (discussing Stanford
v. Kentucky, 492 U.S. 361 (1989).
37 492 U.S. 302 (1989).
38 Atkins v. Virginia, 536 U.S. 304 (2002).
39 Id. at 321.
Kentucky.40 The Missouri Supreme Court agreed, reasoning that the Supreme Court
would today hold that such executions are prohibited by the Eighth Amendment as
applied to the States through the Fourteenth Amendment.41
The U.S. Supreme Court accepted the Roper v. Simmons42 case for review in
order to decide two issues: (a) whether a lower court may contradict a previous ruling
by the U.S. Supreme Court. Particularly, whether it was permissible for the Missouri
Supreme Court to conclude that the penalty of death for juvenile offenders is a “cruel
and unusual punishment” which violates the Eighth Amendment, and in contradiction
of the Court’s decision in Stanford v. Kentucky and (b) whether a national consensus
now opposes the execution of juvenile offenders younger than 18-years-of-age and
therefore, whether the punishment now violates the Eighth Amendment’s prohibition
against cruel and unusual punishment.
In a 5-4 opinion written by Justice Kennedy, the Court affirmed the holding of
the Missouri Supreme Court that imposition of the juvenile death penalty had
“become truly unusual over the last decade”43 and therefore violates the Constitution.
Similarly to reconsidering the permissibility of executing the retarded in Atkins,
it also reconsidered the permissibility of executing juvenile offenders under the age
of 18 in Roper, looking for guidance to the enactments of the legislatures that had
considered the issue since its holding in Stanford. Up to the time of the decision in
Roper, 20 states did not specifically prohibit the execution of a juvenile offender;44 12
states had rejected the death penalty altogether;45 and 18, by legislation had set the
minimum age at 18.46 In the 15 years between the Stanford v. Kentucky and Roper v.
Simmons decisions, 5 states either by legislation or case law raised or established the
minimum age at 18.47 As a starting point in its decision, the Court considered these
changes in the law, as well as the limited use of the death penalty in those states where
the death penalty still was available for juveniles.48
The Court observed that the trend toward abolishing the death penalty for
juveniles was evidence that society’s current views regarding juveniles as
“categorically less culpable than the average criminal.”49 The Court found three
differences between juveniles and adults that prohibit the classification of juveniles
among the worst offenders: (a) juveniles show a lack of maturity and an undeveloped
40 112 S.W.3d at 399.
41 Id. at 400.
42 125 S. Ct.1183 (2005).
43 State ex rel. Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003).
44 125 S. Ct. at 1200.
45 Id. at 1201.
47 Id. at 1189.
48 Id. at 1190.
49 Id. at 1185 (536 U.S. at 316 [the words Atkins used respecting the mentally retarded]).
sense of responsibility as compared to adults;50 (b) juveniles are more vulnerable or
susceptible to negative influences and outside pressures, including peer pressure;51 and
(c) the character of juveniles is not as well formed as that of adults, and the personality
traits of juveniles are more transitory.52
Stating in Gregg v. Georgia53 that the two distinct purposes served by the death
penalty are “...retribution and deterrence of capital crimes by prospective offenders,”
the Court noted that neither of these justifications have proven to be adequate for
imposing the penalty on juveniles.54
The Court included another reason for its elimination of the death penalty for
juvenile offenders: “Our determination that the death penalty is disproportionate
punishment for offenders under 18 finds confirmation in the stark reality that the
United States is the only country in the world that continues to give official sanction
to the juvenile death penalty.”55 The Supreme Court acknowledged that the
interpretation of the Eighth Amendment was its responsibility, but it could also look
to the laws of other countries and international authorities for direction and instruction
for that interpretation.56 The Court did look to the laws of other countries and found
“overwhelming weight of international opinion against the juvenile death penalty....”57
Mentally Retarded Offenders
In 1986, the Supreme Court in Ford v. Wainwright58 held that it was unlawful to
execute the mentally insane. However, the Court did not set out or propose any
guidelines or standards for the state legislative bodies to adopt or follow for the
determination of whether one should be adjudged insane. As a result, problems
50 Id. at 1195.
53 428 U.S. 153 (1976).
54 125 S. Ct. at 1186 (“Whether viewed as an attempt to express the community’s moral
outrage or as an attempt to right the balance for the wrong to the victim, the case for
retribution is not as strong with a minor as with an adult. Retribution is not proportional if
the law’s most severe penalty is imposed on one whose culpability or blameworthiness is
diminished, to a substantial degree, by reason of youth and maturity. As for deterrence, it
is unclear whether the death penalty has a significant or even measurable deterrent effect on
juveniles...”). Id. at 1196.
55 Id. at 1198.
57 Id. at 1200. The Roper v. Simmons decision defines for the first time in this country the
current limits of capital punishment for juveniles by abolishing the practice of executing
those who commit a capital crime while under the age of 18.
58 477 U.S. 399 (1986).
developed because there was no implementation of a uniform measure to protect the
insane from the death penalty.
On the same day the Court decided Stanford v. Kentucky 59 it also decided Penry
v. Lynaugh,60 a case in which the petitioner, Johnny Penry, had sought to exclude the
mentally insane from the death penalty. The Court decided in Penry that the Eighth
Amendment’s ban on cruel and unusual punishment did not categorically prohibit the
execution of mentally retarded individuals who committed capital offenses.61
However, writing for the majority, Justice O’Connor stated that the Eighth
Amendment does more than just bar the practices that were condemned by the
common law at the time the Bill of Rights was adopted.62 It also bars punishment that
would offend our society’s “evolving standards of decency that mark the progress of
a maturing society” as expressed by “the legislation enacted by the country’s
legislatures” and “the actions of sentencing juries.”63
When Stanford and Penry were decided in 1989, there was only one state,
Georgia, that banned the execution of mentally retarded individuals, one state,
Maryland, that had enacted similar legislation but it was scheduled to take effect on
a later date, and a federal statute64 that contained a similar prohibition.65 Therefore,
said Justice O’Connor, “[w]hile a national consensus against execution of the mentally
retarded may someday emerge...there is insufficient evidence of such a consensus
today.”66 In the meantime, the Court noted that counsel for the defendant should be
able to present, for the court’s consideration, the mental state of the defendant as
mitigating evidence at sentencing for the court to determine whether death is the
In 2002, the Supreme Court decided the case of Atkins v. Virginia68 and
overturned Penry by ruling that the application of the death penalty to defendants with
mental retardation violated the Eighth Amendment’s prohibition against “cruel and
unusual” punishment.69 The evidence found to be sufficient for the purpose of
identifying the “evolving standards” became a key issue in the case. The evidence
before the Supreme Court in Atkins, thirteen years later, revealed that 16 of the 38
59 492 U.S. 361 (1989) (Held that the Eighth Amendment did not prohibit the death penalty
for crimes committed by 16 or 17-year-old juveniles).
60 492 U.S. 302 (1989).
61 Id. at 335.
62 Id. at 330.
63 Id. at 330-331.
64 Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(l) (1988).
65 492 U.S. at 334.
66 Id. at 340.
67 Id. at 337-338.
68 536 U.S. 304 (2002).
69 Id. at 306-307, 321.
states with capital punishment had joined Georgia and Maryland in enacting laws to
exempt the mentally retarded.70 Examining state statutes, the opinions of professional
organizations, and a proportionality analysis, the Court concluded that the evolving
standards of decency, as well as their own considered judgments, forced the
conclusion that the execution of mentally retarded defendants was unconstitutional.71
The Court also decided against executing the mentally retarded based on the
theory that they are disadvantaged at trial because of their mental impairments.72
Calling attention to false confessions, a lowered ability to make a persuasive showing
of mitigating factors, the possibility that they may be less able to assist their counsel
at trial, the fact that they are generally poor witnesses, and a demeanor that may create
the impression of lack of remorse, the Court’s majority concluded that mentally
retarded defendants face a special risk of wrongful execution—particularly when there
is a likelihood for the jury to decide that their retardation enhances the risk of “future
Recognizing that there was no consensus on which offenders are in fact
considered retarded, the majority felt that the task for deciding or making this
determination should be left to the States.74
The minority disagreed with any conclusion that sources other than state
legislatures should be relevant to the consideration of the issue. Chief Justice
Rehnquist wrote a separate dissent “...to call attention to the defects in the Court’s
decision to place weight on foreign laws, the views of professional and religious
organizations, and opinion polls in reaching its conclusion.”75 Believing that the
legislatures are more suited than the courts at deciding the moral consideration of the
people, he also questioned the use of opinion polls, and religious organizations as
things that “...elected representatives of a State’s populace have not
deemed...persuasive enough to prompt legislative action.”76 Justice Scalia supported
the Chief Justice’s conclusion by stating that “...the Prize for the Court’s Most Feeble
Effort to fabricate [a] `national consensus’ must go to its appeal (deservedly relegated
to a footnote) to the views of assorted professional, ... religious organizations,
members of the so-called `world community,’ and ... opinion polls.”77
70 536 U.S. at 314-315 (Arizona, Arkansas, Colorado, Connecticut, Florida, Indiana, Kansas,
Kentucky, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota,
Tennessee, and Washington).
71 See generally, id. at 306-321.
72 Id. at 320-321.
74 Id. at 317.
75 Id. at 322.
76 Id. at 326.
77 Id. at 347.
Prior to Furman v. Georgia78 and Gregg v. Georgia79, there does not appear to
be any cases regarding the Supreme Court review of the constitutionality of the
imposition of capital punishment for the crime of rape. In 1953, in Rudolph v.80
Alabama the Court denied a writ of certiorari involving the appeal of a sentence of
death for the rape of the prosecutrix.81 Justices Goldberg, Douglas, and Brennan
dissented on the theory that there was an issue as to whether the Eighth and Fourteenth
Amendments to the Constitution permitted “the imposition of the death penalty on a
convicted rapist who has neither taken nor endangered human life.”82 The dissent
noted the trend in this country and throughout the world against punishing rape by
death.83 The dissent noted the “evolving standards of decency that mark the progress
of our maturing society” and questioned whether a less severe penalty for the crime
of rape would more likely achieve the goals of punishment.84 The dissent also
questioned whether the constitutional proscription against disproportionate
punishment permitted “... the taking of human life to protect a value other than human
It was not until 1977, that the Supreme Court in Coker v. Georgia86 decided the
issue of whether it was constitutional to impose the death penalty for the offense of
rape. Applying the proportionality test, the Court decided that the death penalty is a
grossly disproportionate and excessive punishment for the crime of rape of an adult
woman and, therefore, is forbidden by the Eighth Amendment as cruel and unusual
punishment.87 In order to ascertain whether the capital rape statute met this test, the
Court looked to objective evidence which was based upon public sentiment.88 This
78 408 U.S. 238 (1972).
79 428 U.S. 153 (1976).
80 152 So.2d 662 (Ala. 1963), cert. denied, 375 U.S. 889 (1963).
81 375 U.S. 889.
82 Id. at 889.
84 Id. at 890-891.
85 Id. at 891.
86 433 U.S. 584 (1977).
87 Id. at 598-599. (Coker escaped from a Georgia prison where he was serving time for
murder, rape, kidnaping, and aggravated assault. During the course of his escape, Coker
committed armed robbery, raped a 16-year- woman in the presence of her husband, among
other offenses. Albeit a violent felon, the Court limited its review of Coker’s case to the fact
that the death penalty for rape, regardless of the circumstances under which it was
committed [the instant crime being punished is a rape not involving the taking of life], is a
violation of the Eighth Amendment).
88 Id. at 592. (The Court applied the proportionality test set out in Gregg v. Georgia, 428
U.S. 153 (1976), by stating that “Under Gregg, a punishment is ‘excessive’ and
unconstitutional if it (1) makes no measurable contribution to acceptable goals of
evidence was based upon the history of legislative attitudes and jury responses as an
objective approach in the process of determining the “country’s present judgment
regarding the acceptability of death as a penalty for rape of an adult woman.”89
While considering the history, the Court noted that “At no time in the last 50
years [has] a majority of the States authorized death as a punishment for rape.”90
Although the Court noted that after its decision in Furman, “thirty-five States
reinstituted the death penalty for at least limited kinds of crimes”91, these actions were
an indication of the acceptance of the death penalty for murder; however, when you
view the legislative responses to Furman in regard to capital rape statutes, a different
view is presented.92 The Court held that these actions by the state legislatures reflect
a rejection of capital punishment for rape which confirmed their finding that death is
a disproportionate penalty for the rape of an adult woman.93
The Court did not just consider public sentiment based upon state legislatures
and sentencing juries but concluded that it must also analyze for itself the question of
the acceptability of the death penalty for the crime of rape under the Eighth
punishment and hence is nothing more than the purposeless and needless imposition of pain
and suffering; or (2) is grossly out of proportion to the severity of the crime.”).
89 Id. at 593.
90 Id. The Court noted that “In 1925, 18 States, the District of Columbia and the Federal
Government authorized death as a punishment for rape of an adult female. By 1971 just
prior to the decision in Furman v. Georgia, that number declined, but not substantially, to
16 States plus the Federal Government. Furman then invalidated most of the capital
punishment statutes in this country, including the rape statutes, because, among other
reasons, of the manner in which the death penalty was imposed and utilized under those
91 Id. at 593-594.
92 Id. at 594. The Court stated: “...if the most marked indication of society’s endorsement
of the death penalty for murder is the legislative response to Furman,...it should also be a
telling datum that the public judgment with respect to rape, as reflected in the statutes
providing the punishment for that crime, has been dramatically different. In reviving death
penalty laws to satisfy Furman’s mandate, none of the States that had not previously
authorized death for rape chose to include rape among capital felonies. Of the 16 States in
which rape had been a capital offense, only three provided the death penalty for rape of an
adult woman in their revised statutes [which included] Georgia, North Carolina, and
Louisiana. In the latter two States, the death penalty was mandatory for those found
guilty....” Id. The Court stated that two of these three states (Louisiana and North Carolina)
had to revise their statutes because they called for mandatory death sentences and death
penalties could not be mandatory [pursuant to Woodson v. North Carolina,428 U.S. 280
(1976) and Roberts v. (Stanislaus) v. Louisiana, 428 U.S. 325 (1976)]. Id. When North
Carolina and Louisiana revised their statutes a second time, the legislature authorized the
death penalty for murder, but excluded rape. Id. The Court also noted that Florida,
Mississippi, and Tennessee “authorized the death penalty in some rape cases, but only where
the victim was a child and the rapist an adult.” Id. at 595.
93 Id. at 597.
Amendment because its judgment is contemplated by the Constitution.94 Neither did
the Court deny that rape was a serious crime, acknowledging that “[s]hort of
homicide” rape “is the ultimate violation of self.”95 Nonetheless, the Court found that
“in terms of moral depravity and the injury to the person and to the public [rape] does
not compare with murder” because it “by definition does not include the death of or
even the serious injury to another person.”96 “The murderer kills; the rapist, if no
more than that, does not.”97 Notwithstanding the fact that Coker was found to have
committed rape under two aggravating circumstances, the Court said it did not change
its holding that the death sentence is a disproportionate punishment for rape and,
consequently, a violation of the Eighth Amendment.98
Death Penalty For One Who Does Not Kill
Since 1982, the Supreme Court has addressed the “law of parties”99 and its100
applicability in capital cases on four occasions. In Enmund v. Florida, the Court
decided in 1982 that Enmund’s agreement to act as a getaway driver in a robbery that
ended in murder was insufficient to warrant death. Enmund did not kill or intend to
kill and thus his culpability is plainly different from that of the robbers who killed.
The Court wrote, “ We have concluded that imposition of the death penalty in these
circumstances is inconsistent with the Eighth and Fourteenth Amendments.”101 The
Court ruled that in order to be eligible for the death penalty, a defendant either had to
kill, attempt to kill, or intend to kill.102
96 Id. at 598.
98 Id. at 599.
99 Generally defined as a state statutory procedure that allows the assignment of cause and
guilt to be transferred to secondary parties in a crime. See Texas Penal Code § 7.02 and
Texas Code of Criminal Procedures Article 37.071(b)(2).
100 458 U.S. 782 (1982).
101 Id. at 788.
102 Id. at 797. See also Cabana v. Bullock, 474 U.S. 376 (1986) (Death sentence reversed
for absence of sufficient factual findings on the nature of the offender’s involvement in the
homicide; the instructions to the jury require finding an intent to commit murder–they
should reflect whether the defendant/respondent killed, attempted to kill, or intended to kill);
citing Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court in Solem v. Helm, 463
U.S. 277, 288 (1983) said it has applied the principle of proportionality to hold capital
punishment excessive in certain circumstances “...when defendant did not take life, attempt
to take life, or intend that a life be taken or that lethal force be used.”
In 1987, the Supreme Court reconsidered Enmund when it accepted Tison v.
Arizona103 for review. In Tison, two brothers were sentenced to death for a quadruple
homicide their father committed after the brothers helped him escape from prison.
Although the brothers did not intend to kill, the Court was of the opinion that their
involvement in the prison break was substantial, and the supply of weapons they took
along suggested that they were ready to kill if necessary. “[T]he reckless disregard for
human life implicit in knowingly engaging in criminal activities known to carry a
grave risk of death represents a highly culpable mental state that may be taken into
account in making a capital sentencing judgment when that conduct causes its
natural...lethal result”104 the Court concluded. “We will not attempt to precisely
delineate the particular types of conduct and states of mind warranting imposition of
the death penalty....Rather, we simply hold that major participation in the
felony...combined with reckless indifference to human life, is sufficient to satisfy the
Enmund culpability requirement.105
Eluding the Court in Bradshaw v. Stumpf,106 was the issue of whether the death
penalty may be imposed when the prosecution argues in successive trials that each of
two accomplices personally killed the victim who had been murdered with a single
shot. Stumpf, among other things, pled guilty, and was sentenced to death for a crime
for which the state later sought the death penalty for his accomplice.107 The state
knew one of the two juries would have to be in error if in separate trials they found
first Stumpf and then his accomplice subject to the death penalty as the lone shooter.
The Sixth Circuit reversed Stumpf’s conviction, finding that the state secured
convictions of both Stumpf and his accomplice for the same crime, using inconsistent
theories and also because his guilty plea was not knowing and voluntary because he
was not aware that specific intent was an element of the crime to which he plead
guilty. While Stumpf admitted to wounding the husband, he denied ever having shot
the man’s wife. Despite this, the jury found Stumpf to be the principal shooter and
sentenced him to death. The U.S. Supreme Court granted certiorari on two
issues—one of which was: does the Due Process Clause require vacating a
defendant’s guilty plea when the state subsequently prosecutes another person in
connection with the crime and allegedly presents evidence at the second defendant’s
trial that is inconsistent with the first defendant’s guilt?108 During the penalty phase
of his trial (he had previously entered a guilty plea), he turned around and argued that
a co-defendant was the shooter at the co-defendant’s trial which version was
103 481 U.S. 137 (1987).
104 Id. at 157-158.
105 Id. at 158.
106 125 S. Ct. 2398 (2005).
107 After Stumpf’s aggravated murder conviction, premised on his role as the shooter, the
state convicted his accomplice in a separate trial, alleging, inconsistently, that the
accomplice was the triggerman.
108 The other issue, upon which the case was ultimately decided was: whether representation
on the record from defendant’s counsel and/or the defendant that defense counsel has
explained the elements of the charge to the defendant, sufficient to show the voluntariness
of the guilty plea under Henderson v. Morgan,426 U.S. 637, 647 (1976)?
supported by the testimony of the third co-defendant. Because this issue was not
properly presented to the Court (the defendant instead argued that his guilty plea was
involuntary, which the Court rejected), the case was remanded to the Sixth Circuit for
it to consider the effect of the prosecutor’s inconsistent theories on the death
sentences.109 However, the Court decided that Stumpf was informed of the specific
intent element of the aggravated murder charge and the prosecutorial inconsistencies
between the two trials did not warrant voiding his guilty plea.110
Counsel–Effectiveness Under The Sixth Amendment
Although it has been established that criminal defendants have the right to
assistance of counsel, it was not until 1970 that the Supreme Court defined this right111
as “...the right to the effective assistance of counsel.” Except for the Court’s
decision regarding the issue of counsel having a conflict of interest112 the Court did113
not define “effective” until it decided the case of Strickland v. Washington, whereby
the Court articulated a general test for ineffective assistance of counsel in criminal114
trials and in capital sentencing proceedings. In Burger v. Kemp, 483 U.S. 776, 794-
795 (1987), the Court held that because the defense counsel’s decision not to develop
and present any mitigating evidence at a capital sentencing proceeding was supported
by his “reasonable professional judgment”, the defendant was not denied effective
assistance of counsel. Relying on the guidelines contained in Strickland, the Court
found no deficiency leading to a breakdown in the adversarial process. In Darden v.
Wainwright, 477 U.S. 168 (1986), the Court said there was no merit to the petitioner’s
109 125 S. Ct. 2398 at 2407-08 (2005).
110 Id. at 2406.
111 McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).
112 See Cuyler v. Sullivan,446 U.S. 335 (1980).
113 466 U.S. 668 (1980).
114 Strickland involved capital sentencing but the Court left open the issue of what standard
would apply in general sentencing, where there is a great deal of discretion which is not
present in capital sentencing, or in the guilt or innocence phase of a capital trial. 466 U.S.
at 686. In this case, defense counsel located four witnesses who were willing and able to
testify on behalf of the petitioner at the penalty phase of the trial. The witnesses were his
brother, two nieces, and his Canadian parole officer. The petitioner, however, was flatly
opposed to their providing any testimony, the only exception being that he would allow his
brother to provide a testimonial foundation for admitting the petitioner’s wood carvings into
evidence. After discussion with the petitioner, defense counsel agreed to abide by his
wishes and informed the court of their decision. The trial court closely questioned petitioner
personally on the matter to ensure that this was the course he wanted to follow. Petitioner
now claims he was denied effective assistance of counsel because the defense counsel failed
to present any mitigating evidence. To establish ineffective assistance of counsel, two
independent showings must be made: first, that counsel’s performance was deficient, and
second, the deficiency prejudiced the defense. This test applies to both the penalty and guilt
phases of the trial.
claim of ineffective assistance of counsel at the sentencing phase of the trial because
the petitioner failed to satisfy the first part of the two-part Strickland test; the record
shows several reasons why counsel reasonably could have chosen to rely on a simple
plea for mercy from petitioner himself, rather than to attempt to introduce mitigating
evidence; a defendant must overcome the presumption that, under the circumstances,
the challenged action of counsel might be considered sound trial strategy. Id. at 184-
In Lockhart v. Fretwell115 the Court refined the Strickland test to require that not
only would a different trial result be probable because of attorney performance, but
that the trial result which did occur was fundamentally unfair or unreliable.116
In 1999, the Court granted certiorari in Williams v. Taylor117 on the question of
the standard to be applied by federal courts in granting a habeas petition following the
passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)118,
and on the Fourth Circuit’s application of the Strickland standard in a capital case.119
Finding that the Virginia Supreme Court’s decision rejecting Williams’ ineffective
assistance claim was both “contrary to” and an “unreasonable application of” doctrine
well-established in Strickland, the Court believed that Williams was eligible for
Generally, when “...a defendant alleg[es] a Sixth Amendment violation, [he/she]
must demonstrate `a reasonable probability that, but for counsel’s unprofessional
errors, the results of the proceeding would have been different.’”120 It reaffirmed the
two-pronged Strickland test, holding that the Virginia Supreme Court’s “...decision
turned on its erroneous view that a ‘mere’ difference in outcome is not sufficient to
establish constitutionally ineffective assistance of counsel.”121 The Court explained
in Strickland the two components on which the petitioner, Williams, relies: “First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.”122
115 506 U.S. 364 (1992).
116 Id. at 369.
117 526 U.S. 1050 (1999).
118 Pub. L. No. 104-132, 110 Stat. 1218, 1219 (codified as amended at 28 U.S.C. 2254(d)(1)-
(2)) (Limits appeals for individuals on death row in a number of ways).
119 See William v. Taylor, 529 U.S. 362 (2000).
120 Id at 391. Mickens v. Taylor, 535 U.S. 162 , 166 (2002) (quoting Strickland v.
Washington,466 U.S. 668, 694 (1984)).
121 Id. at 397
122 Id. at 390.
There is an exception to this general rule that the defendant must show probable
effect upon the outcome where the assistance of counsel has been denied entirely or
during a critical stage of the proceeding; such effect will simply be presumed.123 But
only in “circumstances of that magnitude” will the defendant be relieved of the burden
to show that counsel’s inadequate performance undermined the reliability of the
verdict.124 The Court has also held in several cases that “‘circumstances of that
magnitude’ may also arise when the defendant’s attorney actively represented
conflicting interests.”125 However, according to the decision in Mickens v. Taylor,126
an analysis of a conflict of interest will require the same analysis and demonstration
of prejudice that is required under Strickland as opposed to the presumption of
prejudice and the resulting automatic reversal.127
In Florida v. Nixon,128 the Supreme Court through Justice Ginsburg, provided an
analysis of strategies for capital counsel including concession of guilt. The Court in
Nixon held that Counsel’s concession that his client committed murder, made without
the defendant’s express consent, does not automatically rank as prejudicial ineffective
assistance of counsel under United States v. Cronic129; the counsel’s performance must
be evaluated under the Strickland 130 test rather than under the Cronic test. The Court
recognized that some decisions concerning “basic trial rights” must be made by the
defendant and require that “...an attorney must both consult with the defendant and
obtain consent to the recommended course of action.”131 These basic trial rights
include the “‘ultimate authority’ to determine ‘whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal’”.132 For other matters, “[a]n
attorney undoubtedly has a duty to consult with the client regarding ‘important
123 Id. at 166.
124 Id. (quoting United States v. Cronic, 466 U.S. 648, 659, n.26 (1984)).
126 535 U.S. 162 (2002). In Mickens, the defendant had been convicted of capital murder
and sentenced to death. He sought a writ of habeas corpus on the ground that his Sixth
Amendment right to the assistance of counsel had been violated, because one of his trial
attorneys had previously represented the murder victim and the trial court failed to inquire
into the potential conflict. He contended that this failure to inquire required an automatic
reversal of his conviction. The Court disagreed, holding that automatic reversal is only
required where defense counsel is forced to represent codefendants over counsel’s timely
objection, unless the trial court has determined that there is no conflict.
127 Id. at 168.
128 125 S. Ct. 551 (2004).
129 466 U.S. 648, 659 (1984)(under Cronic, the defendant must demonstrate that there was
a complete denial of counsel at a critical stage of the trial whereby counsel fails entirely to
subject the prosecution’s case to meaningful adversarial testing thereby resulting in a denial
of Sixth Amendment rights that makes the adversary process presumptively unreliable).
130 466 U.S. 668, 694 (1984) (under Strickland, the “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.”)
131 Florida v. Nixon, 125 S. Ct. 551, 560 (2004).
132 Id. at 560.
decisions’, including questions of overarching defense strategy [but this] obligation,
however, does not require counsel to obtain the defendant’s consent to ‘every tactical
decision’...(an attorney has authority to manage most aspects of the defense without
obtaining his client’s approval).”133 Regarding capital cases, the Court recognized
...the gravity of the potential sentence in a capital trial and the proceeding’s two-
phase structure vitally affect counsel’s strategic calculus. Attorneys representing
capital defendants face daunting challenges in developing trial strategies, not least
because the defendant’s guilt is often clear.
Prosecutors are more likely to seek the death penalty, and to refuse to accept a
plea to a life sentence, when the evidence is overwhelming and the crime134
heinous....In such cases, ‘avoiding execution [may be] the best and only realistic
result possible’” ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases § 10.9.1, Commentary (rev. ed. 2003),135
reprinted in 31 Hofstra L. Rev. 913, 1040 (2003).
In circumstances where guilt is clear “...counsel must strive at the guilt phase to
avoid a counterproductive course” such as presenting “logically inconsistent”
strategies in the guilt-phase defense and sentencing phase.136
To summarize, in capital cases:
[C]ounsel must consider in conjunction both the guilt and penalty phases in
determining how best to proceed. When counsel informs the defendant of the
strategy counsel believes to be in the defendant’s best interest and the defendant
is unresponsive, counsel’s strategic choice is not impeded by any blanket rule
demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given
the evidence bearing on the defendant’s guilt, satisfies the Strickland standard,
that is the end of the matter; no tenable claim of ineffective assistance would137
In the most recent Supreme Court decision on the issue of “ineffective assistance138
of counsel”, the Court in Rompilla v. Beard, followed a series of rulings, including
Wiggins v. Smith139 which faulted lawyers for failing to investigate defendants’
records for mitigating evidence which “was the result of inattention, not reasoned
strategic judgment,” and may have made the difference between a life or death
134 Id. at 554.
135 Id. at 562.
136 Id. at 563 (citing, inter alia, Sundby, The Capital Jury and Absolution: The Intersection
of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557, 1589-1591
138 125 S.Ct. 2456 (2005).
139 539 U.S. 510, 534 (2003).
sentence.140 In Wiggins v. Smith the Court ruled that attorneys in capital cases must
diligently investigate the background of their clients in order to find possible
mitigating evidence that could sway a jury’s or a judge’s sentencing decisions. The
case became significant when the Court concluded that Wiggins’ trial lawyers had
failed to do the work necessary to represent their client effectively. The Court’s
decision made it clear that defense counsel representing a client facing a death
sentence must thoroughly investigate all reasonable avenues of defense, and cannot
excuse inadequate performance merely by claiming they made a “tactical” decision
not to pursue an uninvestigated line of defense.141
In 1972, the death penalty was held in Furman v. Georgia to be
unconstitutional due to the arbitrariness and discriminatory impact it had on racial
minorities and the poor. Four years later, new capital punishment laws, which were
suppose to prevent arbitrariness and discrimination, were upheld by the Supreme143
Court in 1976.
Nonetheless, the Supreme Court continued to face questions concerning the
application of the death penalty to racial minorities. In McClesky v. Kemp,144 a
challenge was based on a study that showed Black murderers of White victims were
far more likely to be sentenced to death than Black murderers of Black victims, which
the Court concluded was insufficient to establish evidence of discrimination either in
general or in McClesky’s case.
In Batson v. Kentucky,145 the Supreme Court required courts to give genuine
attention to cleansing the criminal justice process of the taint of racial discrimination
in jury selection. Batson requires trial judges to assess the district attorney’s reasons
for excluding African-Americans from jury service in order to determine whether the
prosecutors intended to discriminate.146
140 125 S. Ct. at 2471(“[the lawyers’] conduct fell below constitutionally required
standards....[`S]trategic choices made after less than complete investigation are reasonable’
only to the extent that `reasonable professional judgments support the limitations on
141 See also, Cone v. Bell,243 F.3d 961, 975 (6th Cir. 2001)(Cone 1), rev,d, Bell v. Cone, 535
U.S. 685 (2002), on remand, 359 F.3d 785, 799 (6th Cir. 2004)(Cone 2), rev’d per curiam,
Bell v. Cone, 125 S. Ct. 847 (2005)
142 408 U.S. 238 (1972).
143 Gregg v. Georgia, 428 U.S. 153 (1976); Profitt v. Florida, 428 U.S. 242 (1976); Jurek
v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts
v. Louisiana, 428 U.S. 325 (1976).
144 481 U.S. 279, 286-287 (1987).
145 476 U.S. 79 (1986).
146 Id. at 98.
In 2002, Thomas Miller-El asked the Supreme Court to enforce the rule of
Batson prohibiting racial discrimination in the exercise of peremptory challenges in
jury selection. In 2003, the Court held that reasonable jurists could differ on whether
Miller-El had appealable issues and ordered the U.S. Court of Appeals for the Fifth
Circuit to grant a certificate of appealability to further review the case.147 The Court,
in an 8-1 opinion, criticized the Fifth Circuit’s “dismissive and strained interpretation”
of critical facts, ruled that the lower court’s refusal to consider Miller-El’s Batson
claim was based upon a standard of review that was too demanding, and remanded the
case for further consideration.148 On remand, the Fifth Circuit again found that
prosecutors had not intentionally excluded African Americans from Miller-El’s capital
jury.149 On June 28, 2004, the Supreme Court granted certiorari a second time, in
order to address whether the Fifth Circuit again erred in reviewing Miller-El’s claim
that the prosecution purposefully excluded African-Americans from his capital jury
in violation of Batson v. Kentucky.
On June 13, 2005, the Supreme Court in Miller-El v. Dretke150 overturned Miller-
El’s death conviction because of the racial bias that tainted the selection of the jury
in the use of peremptory challenges in his murder trial. In both Miller-El and Johnson
v. California151 the Court cited its 1986 ruling in Batson v. Kentucky which barred the
practice of the racial discriminatory use of peremptories.
Justice Souter reviewed the tactics used by the Dallas County prosecutors to
ensure that no African-Americans were on the jury that determined Miller-El’s fate,
who is African-American.152 Prosecutors “shuffled” the jury pool members when too
many African-Americans appeared in the front of the panel and they asked different
questions of White and Black potential jurors, Justice Souter said.153 When asking the
Black jurors about their views on the death penalty, the prosecutors used a far more
graphic description of executions, apparently to make it more likely they would
express disapproval and disqualify themselves.154
In the Johnson case, Justice Stevens wrote for the majority in deciding that the
California Supreme Court had made it too difficult for defendants to make out a prima
facie claim of bias in jury selection.155 Johnson, who is African-American, was
accused of murdering a White child. The prosecutor used three of his 12 peremptory
challenges to strike African-Americans from the jury pool thus causing Johnson’s jury
147 537 U.S. 322 (2003).
148 Id. at 344.
149 361 F.3d 849 (5th Cir. 2004).
150 125 S. Ct. 2317 (2005).
151 125 S. Ct. 2410 (2005).
152 125 S. Ct. at 2325.
153 Id. at 2321.
154 Id. at 2419.
155 125 S. Ct. at 2419.
to be all White.156 On appeal, Johnson raised the Batson claims and his conviction
was set aside. The conviction was later reinstated by the California Supreme Court,
which said Johnson was required to provide “strong evidence” that racial factors were
“more likely than not” the reasons for the challenges in order to begin a Batson
inquiry.157 The California Supreme Court also said that Batson gave states the right
to set their own standards for evaluating claims of jury selection bias.158 Justice
Stevens said the “overriding interest in eradicating discrimination” requires state
courts to adopt standards that make it easier for Batson claims to be tested–rather than
being excluded at the outset.159
Jury’s Role in Capital Sentencing
The Supreme Court has considered cases addressing the issue of juror bias in
capital cases and the defendant’s right to a fair trial guaranteed by the Sixth and
Fourteenth Amendments. These cases have focused on either the juror’s attitude
regarding the death penalty, i.e. whether they are strongly opposed or in favor of the
death penalty, or racially biased.
In Witherspoon v. Illinois,160 the Court held “...that a sentence of death cannot be
imposed or recommended if the jury that imposed or recommended it was chosen by
excluding veniremen for cause simply because they voiced general objections to the
death penalty or expressed conscientious or religious scruples against its infliction.”161
The Court noted that even someone opposed to the death penalty “...can make the
discretionary judgment entrusted to him by the state and can thus obey the oath....”162
However, a state may exclude those jurors whose attitudes about the death penalty
would affect their decision regarding the defendant’s guilt.163
Later, the Court qualified Witherspoon by stating that it did not hold that the state
could exclude only those jurors who would automatically vote against capital
punishment.164 In Wainwright, the Court held that the standard for excluding a juror
because of his/her in opposition to the death penalty “...is whether the juror’s views
would `prevent or substantially impair the performance of his duties as a juror in
156 Id. at 2414.
157 Id. at 2416.
158 Id. at 2415.
159 Id. at 2418.
160 391 U.S. 510 (1968).
161 Id. at 522.
162 Id. at 519.
163 Id. at 522, n. 21.
164 Wainwright v. Witt, 469 U.S. 412 (1985).
accordance with his instructions and his oath.’”165 The Court viewed the question of
jurors’ beliefs with regard to the death penalty as simply a routine inquiry into juror
bias governed by Sixth Amendment standards applicable to all cases rather than the
Eighth Amendment’s prohibition against cruel and unusual punishment.166 Here as
well as elsewhere, the Court said “the quest is for jurors who will conscientiously
apply the law and find the facts.”167
The Court also indicated that trial judges have historically been charged with
determining whether a prospective juror harbors any bias.168 If the trial judge, who is
in a position to evaluate a juror’s credibility, receives a definite impression that the
juror would be unable to faithfully and impartially apply the law, the judge can
remove the juror for cause.169
While it appears that jurors are selected or rejected based on their views of the
death penalty, the Court recognized that jurors who vote to convict may nevertheless
entertain “residual doubts” about the defendant’s guilt that would “bend them to
decide against the death penalty.”170 Nonetheless, if a prospective juror could
reasonably determine guilt or innocence but could not impose the death penalty, that
person may be excluded from the jury.171 Whereas, if the prospective juror could
reasonably determine guilt or innocence and impose the death sentence, according to
Lockhart v. McCree, they could meet the qualifications for the jury.172
The Supreme Court has held that juries should be informed about the alternatives
to a death sentence. In Simmons v. South Carolina,173 the Court held that when a
defendant’s “future dangerousness” is at issue, the jury must be accurately informed
whether there is any possibility of parole under the alternative lifetime sentence.174 In
Shafer v. South Carolina,175 the Court reaffirmed its Simmons due process rule but
indicated that it is limited.176 If the prosecution does not present evidence about the
165 Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
166 Id. at 423.
168 Id. at 428.
169 Id. at 425-426.
170 Lockhart v. McCree, 476 U.S. 162, 181 (1986) (quoting Grigsby v. Mabry, 758 F.2d 226,
171 See, Lockhart , 476 U.S. 162 (1986)
172 Id. at 183.
173 512 U.S. 154 (1994).
174 Id. at 169.
175 532 U.S. 36 (2001).
176 Id. at 51.
defendant’s future dangerousness, the trial court may bar the jury from considering
whether there would be any chance of parole while serving a life sentence.177
The Constitution bars prosecutors and trial judges from misleading juries178 or
from unfairly influencing their decision on capital punishment. Thus in Dawson v.
Delaware,179 the Court vacated Dawson’s death sentence because the state introduced
evidence of his association with the Aryan Brotherhood against him during the
punishment phase of his capital murder trial. Whether such evidence is relevant must
be determined by a context sensitive balancing test. The Court said that the evidence
in Dawson left the belief that the state had introduced the evidence not because of its
relevance to the proceedings, but rather simply “because the jury would find these
beliefs morally reprehensible.”180 For the same reason, it initially concluded that
victim impact statements were unconstitutional and in violation of the Eighth
Amendment,181 a view it adjusted shortly thereafter when it held that victim impact
evidence violates the Constitution only if it is so unduly prejudicial that it renders the
proceedings fundamentally unfair.182 And the same sentiment prevailed when the
Court reversed the death sentence of a convicted murderer who was shackled in leg
irons and handcuffed to a chain around his waist when he faced a Missouri jury during
his sentencing hearing.183 Justice Breyer, writing for the majority, stated that
shackling almost always implies that authorities consider the offender a danger to the
community, a factor juries weigh in considering whether to impose the death
In addition the Court has made clear that a defendant has a constitutional right
to a jury determination of any facts critical to a finding of guilt or to imposition of the
death penalty. In Walton v. Arizona,185 Walton challenged Arizona’s death penalty
statute claiming that Arizona’s sentencing scheme violated the Sixth Amendment
right to a jury trial. Under Arizona law, the judge was allowed without a jury, to find
aggravating factors necessary to sentence the defendant to death instead of life
177 Id. In Rompilla v. Beard, 125 S. Ct. 961 (2005), the Supreme Court granted certiorari
in the case of a Pennsylvania death row inmate who, inter alia, argued that jurors should
have been instructed that life without parole was an option in his sentence. Rompilla cited
Simmons as support for his argument in his brief. The U.S. Court of Appeals for the Third
Circuit ruled against him. On appeal to the Supreme Court, the Court said: “ [b]ecause we
reverse on ineffective-assistance grounds, we have no occasion to consider
Rompilla’s...claim, under Simmons v. South Carolina, 512 U.S. 154 (1994)....It is enough
to say that any retrial of [his] sentence will be governed by the Simmons line of cases.”
Rompilla v. Beard, 125 S. Ct. 2456, 2461, n.1 (2005).
178 Caldwell v. Mississippi, 472 U.S. 320 (1985).
179 503 U.S. 159, 165-67 (1992).
180 Id. at 167.
181 Booth v. Maryland, 482 U.S. 496, 508-9 (1987).
182 Payne v. Tennessee, 501 U.S. 808, 824-26 (1991).
183 Deck v. Missouri, 125 S.Ct. 2007 (2005).
184 Id. at 2014.
185 497 U.S. 639 (1990).
imprisonment. The Supreme Court held that Arizona’s sentencing scheme was
compatible with the Sixth Amendment right to a jury trial in capital cases because
aggravating factors were sentencing considerations and not elements of the crime.186
However, in a non-death penalty case in Apprendi v. New Jersey,187 Apprendi
challenged his enhanced sentence for possession of a firearm because the sentencing
judge, and not a jury, found that his crime had been motivated by racial hatred—an
element of the crime. The Supreme Court held that if a defendant’s sentence can be
increased based on a finding of fact (including an aggravating factor), that fact must
be found by a jury, beyond a reasonable doubt, in order to be consistent with the Sixth
In Ring v. Arizona,189 the Court addressed the conflict between the Walton and
Apprendi decisions. In Ring, the Court decided that it was unconstitutional for a judge
to find additional facts that would increase a defendant’s sentence when those facts
186 Id. at 648-649. See also, Lockett v. Ohio, 438 U.S. 586 (1977) (Sentencing authorities
must have the discretion to consider every possible mitigating factor, rather than being
limited to a specific list of factors to consider). See also Bell v. Ohio, 438 U.S. 637 (1978);
Godfrey v. Georgia, 446 U.S. 420 (1980) (sent back for retrial several cases on grounds of
too broad and vague an application of the provision stipulating the death penalty if the
offense was “outrageously or wantonly vile, horrible, or inhumane, in that it involved
torture, depravity of mind, or an aggravated battery to the victim”); Beck v. Alabama, 447
U.S. 625 (1980) (struck a portion of Alabama’s death penalty statute that blocked juries
convicting defendants of an included lesser offense rather than the capital crime itself; juries
were required to either convict a defendant of the capital crime or to acquit him); Adam v.
Texas, 448 U.S. 38 (1980) (prospective jurors cannot be excluded from jury service in
capital trials because they would be “affected” by the possibility of a capital sentence);
Hopper v. Evans, 456 U.S. 605 (1982) (upheld the death sentence of a defendant convicted
under the Alabama statute which was partially struck down in Beck v. Alabama; the Court
held that, since a lesser offense was not an issue, the law’s failure to allow for it did not
prejudice the case; i.e., the conviction of a capital prisoner tried under a partially flawed
statute need not be reversed unless it was actually touched by the imperfection); Blystone
v. Pennsylvania, 494 U.S. 299 (1990) (mandatory imposition of the death sentence if the
jury unanimously finds at least one aggravating circumstance and no mitigating
circumstances or aggravating circumstances outweigh the mitigating circumstances); Harris
v. Alabama, 513 U.S. 504 (1995) (judge may impose death sentence over jury
recommendation of life imprisonment); Loving v. United States,517 U.S. 748 (1996)
(aggravating factors are necessary under the Eighth Amendment for validity of the military
capital punishment scheme; based upon being found guilty of three aggravating factors by
the military court, Loving’s sentence of death was lawful and the judgment of the Court of
Appeals of the Armed Forces was affirmed); Summer v. Shuman, 517 U.S. 748 (1987) (held
categorically that mandatory death sentences are unconstitutional; a sentencer cannot make
a judgment based on the facts of the particular case without all of the relevant mitigating
187 530 U.S. 466 (2000).
188 Id. at 476.
189 536 U.S. 584 (2002).
include elements of the crime.190 The Court said that a defendant is entitled to a jury
determination of any fact on which the law conditions an increase in his/her maximum
punishment, overruling Walton in relevant part.191
Habeas Corpus Procedures in Capital Cases
The writ of habeas corpus is the procedure by which a federal court inquires into
the illegal detention and, potentially, issues an order directing state authorities to192
release the petitioner. The Supreme Court has described the function of the writ as
a process “[T]o provide a prompt and efficacious remedy for whatever society deems
to be intolerable restraints. Its root principle is that in a civilized society, government
must always be accountable to the judiciary for a man’s imprisonment: if the
imprisonment cannot be shown to conform with the fundamental requirements of law,
the individual is entitled to his immediate release.”193
On April 24, 1996, President Clinton signed into law the Antiterrorism and194
Effective Death Penalty Act of 1996 (AEDPA). Title I of the AEDPA makes
significant changes in the statutes governing federal habeas corpus practice for state
prisoners and enacts a new set of statutes to govern federal habeas corpus practice in
capital cases.195 The Court summarized the effect of Title I of the AEDPA as follows:
Title I of the act stands more or less independent of the act’s other titles in
providing for the revision of federal habeas practice and does two main things.
First, in §§ 101-106, it amends § 2244 and §§2253-2255 of chapter 153 of Title
28 of the United States Code, governing all habeas corpus proceedings in the
federal courts. 110 Stat. 1217-1221. Then, for habeas proceedings against a State
in capital cases, § 107 creates an entirely new chapter 154 with special rules
favorable to the state party, but applicable only if the State meets certain
conditions, including provisions for appointment of post-conviction counsel in
state proceedings. 110 Stat. 1221-1226. In § 107(c), the act provides that
“Chapter 154...shall apply to cases pending on or after the date of enactment of
this act.” 110 Stat. 1226.196
190 Id. at 608-609.
192 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 2.2 at 15 (3d
ed. 1998). A habeas-like procedure is available to federal prisoners under 28 U.S.C. §2255.
193 Fay v. Noia, 372 U.S. 391, 401-402 (1963).
194 Pub. L. 104-132, 110 Stat. 1214 (1996).
195 28 U.S.C. §§2244-2266.
196 Lindh v. Murphy, 521 U.S. 320, 326-327 (1997) (holding that the AEDPA does not apply
to habeas petitions pending at the time of enactment).
Shortly after passage of the AEDPA, it was challenged and upheld in Felker v.
Turpin197 in several key provisions. Among the most significant reforms in the act are
new tighter filing deadlines, limitations on successive petitions, restrictions on
evidentiary hearings, heightened exhaustion and deference standards and specific
capital case standards.198 Since apparently no state has opted to take advantage of
AEDPA’s special capital procedures (28 U.S.C. ch. 154),199 the AEDPA general
habeas provisions apply to both capital and noncapital cases.
In a case driven by the AEDPA’s statute of limitations, the Court in Bell v.
Thompson200 decided that a three-judge panel of the U.S. Court of Appeals for the
Sixth Circuit erred by withdrawing its decision in a habeas case months after its
original ruling was considered final by the issuance of its original mandate. Initially,
a three-judge panel issued a split decision denying Thompson’s Sixth Amendment
ineffective assistance of counsel claim. The same three judges later unanimously
announced their decision to consider whether this prior ruling was mistaken in view
of available evidence that Thompson was suffering from schizophrenia at the time of
the offense. After reconsidering the case, the Sixth Circuit corrected its earlier
decision and remanded the case to the district court for further proceedings,
concluding that trial counsel had failed to conduct a reasonable investigation of
197 518 U.S. 651 (1996) (barriers to federal relief on successive petitions placed on state
prisoners by the AEDPA do not violate constitutional rights or improperly infringe on the
jurisdiction of the Supreme Court; the Court retains jurisdiction under 28 U.S.C.§§ 2241 and
198 Nelson v. Campbell, 541 U.S. 637 (2004) (42 U.S.C. §1983 was the appropriate vehicle
for petitioner’s Eighth Amendment claim seeking a temporary stay of execution and
permanent injunction against use of a procedure wherein a 2-inch incision would be made
into his arm or leg in order to give access to his veins for lethal injection; the claim was not
the functional equivalent of a “second successive” habeas petition subject to the limitations
imposed by the AEDPA); Rhines v. Weber, 125 S. Ct. 1528 (2005) (Although the AEDPA
requires that habeas claims be “exhausted” in order to be considered by a federal court, the
U.S. Supreme Court held that the district court had the discretion to stay the petition to
allow Rhines to present his unexhausted claims to the state court and then return to federal
court for review if the petitioner has good cause for his failure to exhaust his potentially
meritorious claims); Brown v. Payton, 125 S. Ct. 1432 (2005) (the Court reversed the U.S.
Court of Appeals for the Ninth Circuit that the AEDPA required the Ninth Circuit to uphold
Payton’s death sentence; the California Supreme Court had ruled that the jury deciding upon
a possible death sentence need not be told explicitly that it must consider favorable post-
crime evidence as a mitigating factor; the Ninth Circuit had set aside Payton’s death
sentence on the basis of the judge’s instructions, holding that the California Supreme
Court’s ruling to the contrary was an unreasonable application of established law; however,
the U.S. Supreme Court ruled that California’s ruling was not an unreasonable application
of established law and therefore the AEDPA dictated that it’s decision must stand).
199 Newton, A Primer on Post-Conviction Habeas Corpus Review, 29 CHAMPION 16, 19
(June, 2005). See also 28 U.S.C. ch. 154 - Special Habeas Corpus Procedures in Capital
Cases regarding appointment of Counsel, limits on stays of execution, time requirements and
tolling rules, State review procedures and limitation periods for determinimg motions. For
a summary of the AEDPA, see CRS Report #96-499A “Antiterrorism and Effective Death
Penalty Act of 1996,” Summary by Charles Doyle, Senior Specialist.
200 125 S. Ct. 2825 (2005).
Thompson’s social history, failed to present powerful, readily available mitigating
evidence, and failed to pursue known leads that might have helped in preparing the
case for purposes of mitigation. The State of Tennessee challenged the Sixth Circuit’s
power to withdraw its prior decision, especially since Thompson’s case had
progressed to the extent that it had in reliance on the Sixth Circuit’s first opinion.
What is at issue is the authority of a federal appeals court, on the basis of newly
discovered evidence that is favorable to the defense, to change its earlier decision and
order a case reopened as the State is preparing to carry out a death sentence.
The Supreme Court, divided (5-4), did not touch Thompson’s death sentence but
decided that the Sixth Circuit’s decision remanding the case for an ineffective
assistance of counsel hearing was an abuse of discretion. Writing for the majority,
Justice Kennedy concluded that the scheduling of Thompson’s execution was
reasonable and the Sixth Circuit’s actions were an extraordinary departure from
standard procedure. While it was recognized that the Sixth Circuit panel was acting
on honest intentions, the State maintained that, legally, the court was not allowed to
change its mind. The Court noted that with the policies embodied in the Antiterrorism
and Effective Death Penalty Act of 1996 in cases arising from federal habeas corpus
review of a state conviction, the court’s discretion under Rule 41 must be exercised
“in a way that is consistent with the ‘State’s interest in the finality of convictions that
have survived direct review within the state court system’”201
The “...threshold question in every habeas case....” is whether the petitioner’s
claim is defeated by the nonretroactivity of the rule he/she seeks to apply to his/her202
petition. For federal courts, this question is governed by the rule of Teague v.
201 Id. at 2837 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).
202 Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
203 489 U.S. 288 (1989) (In Teague, the Supreme Court held, “In general,...a case announces
a new rule when it breaks new ground or imposes a new obligation on the States or the
Federal Government....To put it differently, a case announces a new rule if the result was
not dictated by precedent existing at the time the defendant’s conviction became final.” Id.
at 301. Teague allows for retroactivity for two types of new rules as exceptions to the bar:
“(1) new rules that place certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe, and (2) rules that define procedure
implicit in the concept of ordered liberty.” Id. at 307. A new rule qualifies for the latter
exception (and applies retroactively) if it is a watershed rule that implicates the fundamental
fairness and accuracy of the criminal proceeding. Id. at 311-312.
The Supreme Court addressed the rule of retroactivity in a capital sentencing
context in Beard v. Banks.204 In Mills v. Maryland,205 the Court held invalid a capital
sentencing scheme that required juries to disregard mitigating factors that they had not
found unanimously. In Beard, the Court held that the Mills rule does not apply
retroactively. In its analysis, the Court considered whether the rule was dictated by
existing precedent relative to whether the unlawfulness of Mills’ sentence would be
apparent to “all reasonable jurist.” After tracing the jurisprudential roots of the Mills
decision, the Court concluded that reasonable jurists could have differed as to whether
the prior cases compelled the results in Mills. As confirmation, the Court noted that
the Mills case (and a later released case) had dissents.
The Beard Court also provided guidance on the two Teague exceptions. The first
exception is reserved for “primary, individual conduct beyond the power of the
criminal law-making authority to proscribe.”206 This, Beard observes as would
Schriro v. Summerlin207 thereafter, is matter appropriately considered retroactive by
its substantive nature rather than an exception to the procedural Teague rule.208
Elsewhere, the Court has suggested that this exception covers things like “the
execution of mentally retarded...regardless of the procedure followed.”209 “In
providing guidance as to what might fall within [the watershed] exception,” the Court
has repeatedly referred to the rule of Gideon v. Wainwright,210 and only to this rule.211
In contrast to Gideon’s solitary standing, the Court has identified more than a few
decisions concerning procedural rights that may not claim “watershed” status for
204 124 S. Ct. 2504 (2004). Although Teague was not a capital case, its principles apply in
capital cases, Penry v. Lynaugh, 492 U.S. 302, 314 (1989).
205 486 U.S. 367 (1988).
206 Teague v. Lane, 488 U.S. at 307.
207 124 S. Ct. 2519 (2004).
208 Beard v. Banks, 124 S. Ct. at 2513, n.7; Summerlin, 124 S. Ct. at 2522, n.4.
209 Penry v. Lynaugh, 492 U.S. 302, 330 (1989).
210 372 U.S. 335 (1963) (right to counsel).
211 Beard v. Banks, 124 S. Ct. at 2514, citing Saffle v. Parks, 494 U.S. 484, 495 (1990). See
also, Gray v. Netherland, 518 U.S. 152, 171 (1996).
212 Beard v. Banks, 124 S. Ct. at 2515 (“However laudable the Mills rule [relating to capital
punishment schemes precluding jury consideration of mitigating factors not found
unanimously] might be, it has none of the primacy and centrality of the rule adopted in
Gideon. The Mills rule applies fairly narrowly and works no fundamental shift in our
understanding of the bedrock procedural elements essential to fundamental fairness”);
Schriro v. Summerlin, 124 S. Ct. at 2524 (the Ring rule relating to the right to jury
determination of facts required for the imposing of capital punishment is not a watershed
rule); O’Dell v. Netherland, 521 U.S. at 167 (decision recognizing capital defendant’s right
to inform the jury of a life without parole sentencing alternative is not a watershed decision);
Lambrix v. Singletary, 520 U.S. 518, 539-540 (1997) (decision precluding either capital
judge or jury from considering invalid aggravating factors is not a watershed decision);
Saffle v. Parks, 494 U.S. at 495 (proposed rule making invalid any anti-sympathy jury
One of the hallmarks of new Supreme Court decisions is that until their
announcement many of the lower courts are likely to have ruled erroneously on the
issue. The question becomes when may defendants convicted or sentenced on the
basis of these errors claim the benefit of the new decision and have their convictions
or sentences overturned.213 Generally new decisions of the Supreme Court will apply
“retroactively”214 to defendants currently on trial or on direct appeal.215 Also, a
defendant may take advantage, of a new Court rule in a few other limited situations,
for example, decisions which construe a criminal statute to exclude certain acts or
conduct.216 New decisions of the Court sometimes apply “retroactively” to those on
collateral review, and rarely apply “retroactively” to those petitioners on second or
successive collateral reviews.217
International Law Considerations
The Supreme Court granted certiorari in Medellin v. Dretke to determine what
effect U.S. Courts should give to a ruling by the International Court of Justice at the
Hague (ICJ). On May 23, 2005, the Court dismissed its writ of certiorari as
injudiciously granted primarily because President Bush intervened and ordered state218
courts to abide by the ICJ ruling. The Court noted that there was a likelihood that
Medellin would be back before the Supreme Court once the case runs its course in the
instruction would not be a watershed rule).
213 For a general overview, see CRS Report RL32613, Standards For Retroactive
Application Based Upon Groundbreaking Supreme Court Decisions in Criminal Law,
September 28, 2004.
214 Retroactivity deals with new decisions, or changes in the law. Occasionally, a court will
issue a decision which overrules a number of other decisions. Sometimes, these decisions
may provide relief for a defendant who has already been convicted. Generally, the courts
have held that new rules of procedure will not be applied retroactively. Hence, unless the
case is on direct appeal at the time of the decision is rendered, the defendant cannot take
advantage of it.
215 In a direct appeal, the court is limited to reviewing the record from the trial court. It will
not consider evidence which was not submitted. In habeas corpus the same limitations are
not present, and the court may consider additional evidence. In direct appeal, almost any
violation of the law may be addressed. This can include violations of statutes and rules. In
contrast, habeas corpus is generally limited to constitutional claims. As a result, the
violation of statutes or rules cannot generally be a basis for relief in a habeas proceeding.
216 Bousley v. United States, 523 U.S. 614, 620-21 (1998).
217 Schriro v. Summerlin, 124 S. Ct. 2519, 2522 (2004).
218 125 S. Ct. 2088 (2005) (the World Court [the International Court of Justice] ordered new
hearings in U.S. courts for Ernesto Medellin and 50 other Mexican nationals because, at the
time of their arrests, local police had not informed them of their rights to seek help from
Mexican consulates, in violation of the Vienna Convention on Consular Relations. Medellin
was sentenced to death for participating in the murder and rape of two girls in 1993).
Texas court and the losing party appeals.219 The case is significant because of its
implications for the World Court and U.S. foreign relations and the ongoing Supreme
Court debate over the relevance and effect of international law on the Court’s
219 Id. at 2090 n.1.