CAPITAL PUNISHMENT: SUMMARY OF SUPREME COURT DECISIONS OF THE 1998-99 TERM
CRS Report for Congress
Capital Punishment: Summary of Supreme Court
Decisions of the 1998-99 Term
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
The most significant capital punishment cases decided by the Supreme Court during
the 1998-99 term did very little in terms of reversing the lower courts where the
petitioners were the defendants at the trial level.1 Significantly, among these cases, the
Court settled splits in the circuits on issues of statutory interpretation and other trial-
related issues. The Court also made clear that withholding an element of an offense from
a jury’s consideration can be a harmless error. In the Strickler case, the Court gave some
guidance on what “materality” means for purposes of the disclosure rule of Brady v.
Maryland. Additionally, the Court took its first look at the new federal death penalty
Decisions During the October 1998 Term
The four capital punishment decisions which were decided during the October 1998
Term involved issues concerning (1) erroneous jury instructions prior to a sentence of
death, (2) prosecutorial misconduct, (3) jury instructions on consequences of deadlock in
a sentencing hearing conducted under the Federal Death Penalty Act of 1994, and (4)
challenge to use of lethal gas over lethal injection as a method of execution.
1For additional background materials on the subject, see W. White, Capital Punishment’s Future,
91 Mich. L. Rev. 1429, 1429 (1993); D. Schrader, Capital Punishment: Summary of Supreme
Court Decisions on the Death Penalty, CRS Report 96-116 A (Feb. 1, 1996); P. Wallace, Capital
Punishment Summary of Supreme Court Decisions During the 1997-98 Term, CRS Report
RL30145 (April 19, 1999).
Congressional Research Service ˜ The Library of Congress
In two cases2 the Court rejected the defense arguments for specific jury instructions.
In the third,3 the Court decided that the suppression by the prosecution of evidence
favorable to the accused did not violate due process inasmuch as the accused failed to4
demonstrate the prejudice necessary to establish “materiality”. In the fourth, the Court
refused to entertain an action challenging the state’s use of lethal injection rather than the
use of lethal gas.
Calderon v. Coleman.5 In a 5-4 per curiam opinion, the Supreme Court held that
the Ninth Circuit erred in failing to apply the harmless error analysis of Brecht v.
Abrahamson6 to determine whether to grant habeas corpus relief to a prisoner sentenced
to death following an erroneous jury instruction about the power of the governor of
California to commute a sentence of life without possibility of parole. Under Brecht, relief
may be granted only if the erroneous instruction had “... a substantial and injurious effect
or influence on the jury’s sentence of death ....”7 This criterion insures that a state will not
be put to the “arduous task” [of retrial] “based on mere speculation that the defendant was
prejudiced by trial error.”8 Rather than pursue the Brecht test, the Ninth Circuit applied9
the Boyde v. California test to determine whether there is a “reasonable likelihood that
the jury” applied the challenged instruction in a way that “prevent[s] [the] consideration10
of constitutionally relevant evidence.” The opinion indicated that this Boyd analysis “...
is not a harmless-error test at all,” but rather a “test for determining, in the first instance,11
whether constitutional error [has] occurred ....” The Court returned the case for
application of the proper test.
2Jones v. United States, 119 S.Ct. 2090 (1999); Calderon v. Coleman, 119 S.Ct. 500 (1998).
3Strickler v. Greene, 119 S. Ct. 1936 (1999).
4Stewart v. LaGrand, 119 S. Ct. 1018 (1999).
5119 S. Ct. 500 (1998).
6507 U.S. 619 (1993).
7119 S. Ct. at 502.
8Id. at 503.
9494 U.S. 370, 377 (1990).
10119 S.Ct. at 503.
11Id. The “reasonable likelihood” test applied in Boyd is the test for determining whether a
constitutional error has occurred in the jury instructions at the penalty phase of a capital
proceeding; it is not for determining whether the error is harmless. After a court determines that
a constitutional error occurred, a federal court sitting in habeas corpus review must go on to apply
the “substantial and injurious effect or influence” test from Brecht, the majority confirmed. The
jury instruction at issue had to do with the governor’s authority to commute a sentence of life
imprisonment without parole. The state had conceded that the jury instruction was erroneous, and
the majority did not review this conclusion. However, the majority pointed out that the precedent
upon which the Ninth Circuit relied has not been approved by the Supreme Court and the decision
in California v. Ramos, 463 U.S. 992 (1983), constituted no violation of the U.S. Constitution in
a capital jury instruction regarding the governor’s commutation authority.
Jones v. United States.12 In the 1994 Federal Death Penalty Act (FDPA), Congress
established procedures for imposing capital punishment for several federal capital crimes.13
In what appeared to be the first case to be tried under the FDPA, the issue was whether
the submission of invalid non-statutory exacerbating factors was properly found to be14
harmless, and whether the jury should have been instructed that a failure by it to agree
on a sentencing recommendation would automatically result in a court-assessed sentence15
of life imprisonment without possibility of release. Upon the jury’s recommendation, he
was sentenced to death.16 On appeal, he complained, inter alia, of the district court’s
refusal to instruct the jury that a sentence of life imprisonment without possibility of
release would be imposed if the jury could not agree on the proper sentence or if it agreed
only that the sentence should not be less than life without possibility of release. The U.S.
Court of Appeals for the Fifth Circuit read the statute as providing that in the event of a
deadlock on punishment, a second jury would be empaneled; therefore, the Court of
Appeals held, the requested instruction was properly denied.17
The Supreme Court in a 5-4 decision said the interpretation given the statute by the
Court of Appeals was incorrect. After providing for the court’s imposition of a sentence
of death or life without possibility of release if the jury recommends, section 3594
continues: “Otherwise the court shall impose any lesser sentence that is authorized by
law.”18 As the defendant argued, the deadlock position is covered by the quoted language
and not by section 3593(b)(2)(C)’s provision for the empaneling of a new jury if the first
one is discharged for good cause, said the majority.19
The defendant did not prevail, however, on the constitutional issues on which his
hopes for reversal depended. The court’s refusal to instruct the jury that the court would
impose a sentence of life imprisonment without possibility of parole if the jury was unable20
to reach a unanimous agreement on a sentence did not violate the Eighth Amendment.
The Supreme Court declined to exercise its supervisory power to require that an21
instruction on the consequences of deadlock be given in every capital case. In this case
the court gave the jury three options: (1) it could by unanimous vote recommend the death
penalty, (2) the death penalty or life imprisonment without possibility of parole, or (3) ...
12119 S. Ct. 2090 (1999).
1318 U.S.C. §§ 3591-98 (1994).
14Id. at 2096.
15Id. The defendant was convicted of capital murder under 18 U.S.C. § 1201(a)(2), for kidnapping
and bludgeoning to death a 19-year-old female Air Force private.
16Id. at 2097.
17132 F.3d 232 (5th Cir. 1998).
18119 S.Ct. at 2098.
20Id. at 2098-99.
21Id. at 2099.
“some other lesser sentence.”22 If the jury recommended “some other lesser sentence,” the
instruction explained, “the court is required to impose a sentence that is authorized by
law.”23 The instruction did not constitute “plain error,” even though a “lesser sentence”24
was not authorized in this case. There is “no reasonable likelihood that the jury applied
the instructions incorrectly.”25 The instructions, read in their entirety, were not misleading
as to the consequences of the jury’s failure to reach a unanimous verdict.26 Any confusion
over the effect of a lesser sentence recommendation was allayed by the court’s instruction27
that the jury should not concern itself with such matters. Loose drafting of
“nonstatutory” aggravating factors was harmless error if it constituted error at all.28
Stewart v. LaGrand.29 In 1984, the petitioner and his brother were convicted in an
Arizona court of a capital crime and were sentenced to die in the gas chamber which was
the only method of execution at that time provided by Arizona law. The petitioner did not
challenge the method of execution on direct appeal or in his petition for state post-
conviction relief. By the time of his current petition, the state had changed its law to
provide that death sentences will be carried out by means of lethal injection unless the
prisoner opts for lethal gas. The petitioner exercised his option in favor of gas and
challenged that method of execution as violative of the Eighth Amendment’s Cruel and
Unusual Punishnment Clause. The U.S. Court of Appeals for the Ninth Circuit issued an
order restraining the state from executing the petitioner by means of gas. It did not stay
the execution but it ruled that he could not be executed under a death warrant that allowed
him to choose gas as an execution method. The court relied on its reasoning in an opinion
it issued just days before in the case of the petitioner’s brother, who has since been
executed. In that opinion, the court noted that the constitutional challenge was not
available at the time the petitioner defaulted in the state court, and held that — in light of
circuit precedents — Eighth Amendment protections could not be waived in capital30
In a per curiam opinion, the Court held that the petitioner waived any objection he
might have had to the constitutionality of execution by lethal gas.31 The petitioner also
procedurally defaulted by failing to raise the claim on direct appeal after having been
sentenced to death by lethal gas prior to the State’s adoption of the lethal injection
22Id. at 2100.
24Id. at 2102.
25Id at 2103.
26Id. at 2104.
27Id. at 2103.
28Id. at 2108-109.
29119 S. Ct. 1018 (1999).
30Id. at 1020.
31Id. at 1021.
alternative.32 At the time of the petitioner’s direct appeal (1987) there had been sufficient
debate about the constitutionality of lethal gas executions that he cannot show cause for
his failure to raise the issue on appeal.33 A holding in a habeas case that Eighth
Amendment protections cannot be waived in the capital context would violate the “new
rule” prohibition of Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court noted.34
The companion decision stemmed from Germany’s effort to obtain enforcement of
an ex parte order by the International Court of Justice directing the United States to
prevent the scheduled execution.35 Germany claimed that LaGrand, a German national,
should have been informed at the time of his arrest that the Vienna Convention gave him
the right to contact the German Consulate. The Supreme Court held that the United
States did not waive its sovereign immunity, and it is “doubtful” that Article III, § 2, cl.
2, which extends jurisdiction to cases affecting ambassadors and consuls, “provides an
anchor” for the action.36 The Federal Republic’s suit against the State of Arizona, as was
Paraguay’s suit against Virginia in Breard v. Greene,37 “is without evident support in the38
Vienna Convention and in probable contravention of the Eleventh Amendment.”
Strickler v. Greene.39 The petitioner was convicted of kidnapping a college student
and killing her. The evidence linking the petitioner to the crime included physical evidence
and the testimony of an eyewitness by the name of Anne Stolzfus. The prosecution failed
to disclose evidence which consisted of notes made by a detective during interviews he had
with Stolzfus and letters she sent to the detective. This evidence cast doubt on the detailed
testimony she gave at the trial.
The prosecutor permitted the defense to see everything in his file except for some
documents which were not in the file. The documents surfaced after the affirmance of the
petitioner’s conviction and the denial of the state post-conviction relief, when the federal
district court ordered that the files be made available to the petitioner’s counsel. The
district court subsequently vacated petitioner’s capital murder conviction and death
sentence on the grounds that the State had failed to disclose those materials and that
petitioner had not, in consequence, received a fair trial. The Fourth Circuit reversed
because the petitioner had procedurally defaulted his Brady claim by not raising it at his
trial or in the state collateral proceedings. In addition, the Fourth Circuit concluded that
the claim was, in any event, without merit.
The Supreme Court held that Virginia did not violate the rule derived from Brady v.
Maryland that suppression by the prosecution of evidence favorable to an accused violates
32 Id .
33 Id .
34Id. a 1020.
35Federal Republic of Germany v. United States, 119 S. Ct. 1016 (1999).
36Id. at 1017.
37523 U.S. 371 (1998).
38119 S. Ct. at 1017.
39119 S. Ct. 1936 (1999).
due process where the evidence is material either to guilt or to punishment.40 In this case
the prosecution withheld an initial statement made to police by a prosecution witness.41
The statement, much less definite about the defendant’s role in the crime than her later42
testimony, could have been used by the defendant to impeach her credibility. The
petitioner’s procedural default in not raising the Brady claim in state courts is excused by
an adequate showing of cause and prejudice.43 The petitioner did in fact rely on the
prosecution’s “open file” policy and on assurances that “everything known to the44
government” had been disclosed. The petitioner could not, however, establish the basic
Brady violation.45 Two of the three components of a violation were established: (1) the
evidence was favorable to the accused and (2) was suppressed by the State.46 The
petitioner failed, however, to demonstrate the prejudice necessary to establish “materiality”
because he failed to show that there is a reasonable probability that his conviction or
sentence would have been different if the materials had been disclosed.47 Even if the
witness had been “severely impeached,” there was other evidence in the record lending
“strong support” for the conclusion that the petitioner still would have been convicted and48
sentenced to death. Furthermore, the testimony in question did not relate to the
petitioner’s eligibility for the death sentence, and was not relied upon by the prosecution
in its closing argument during the penalty phase of the trial.49
40119 S. Ct. at 1939-40.
41Id. at 1940.
42Id. at 1948.
43Id. at 1948-49.
44Id. at 1949-50.
45Id. at 1951.
46Id. at 1955.
47Id. Under Virginia law, the death penalty is available not only against a predominant participant
in a capital offense, but against equally prominent participants as well.
48Id. at 1954.
49Id. at 1954-55.