Part II Constitutional Law of Corrections

Chapter 14 – Eighth Amendment: Death Penalty and Other Sentencing Issues Introduction: The first of two chapters looking at the Eighth Amendment – the focus in this chapter is primarily a discussion of the cruel and unusual punishment clause with respect to sentencing, including death penalty sentences and death row conditions

Chapter Outline Sentencing Death Penalty Sentences Death Row Conditions Cruel and Unusual Punishment in Noncapital Sentencing Cases

Sentencing The Supreme Court has used the Eighth Amendment’s “cruel and unusual” clause to weigh sentencing

Sentencing: cont’d Trop v. Dulles (1958) – the Court held that the punishment of loss of nationality following conviction for military desertion during wartime was cruel and unusual

Sentencing: cont’d The Court said: “[Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”

Sentencing: cont’d Weems v. United States (1909) - Court held that the punishment of 12-20 years hard labor, with ankle and wrist chains worn, and perpetual loss of civil rights, for the offense of being an accessory to falsification of a government document was too harsh

Sentencing: cont’d Court held that punishment is cruel and unusual if it is greatly disproportionate to the offense for which it was imposed; or If it goes beyond what is necessary to achieve a sentencing aim, even if that aim is justified Court continues to look at the dual issues of “evolving standards of decency” and proportionality in regards to punishment

Sentencing: cont’d Atkins v. Virginia (2002) – Court held that a punishment of the death penalty for a mentally retarded person convicted of murder was excessive “A claim that punishment is excessive is judged not by the standards that prevailed . . . when the Bill of Rights was adopted, but rather by those that currently prevail”

Death Penalty Sentences In Furman v. Georgia (1972), Court called a halt to use of the death penalty Found that it was imposed at the complete discretion of the judge or jury Led to arbitrary and varied results that did not allow any meaningful basis for distinguishing the cases from where it was imposed to those where it was not

Death Penalty Sentences: cont’d In Gregg v. Georgia (1976), the Court found Georgia’s new sentencing formula meeting Eighth and Fourteenth Amendment standards At least one aggravating factor had to be found by the jury to exist beyond a reasonable doubt before a death sentence could be imposed This was intended to meet the arbitrary or capricious concern in Furman

Death Penalty Sentences: cont’d In addition, the jury could consider other relevant aggravating and mitigating factors Georgia provided for an automatic appeal of all death sentences to the Georgia Supreme Court That court had to review all the procedural proprieties, plus compare the death sentence with those sentences imposed on similarly situated defendants in the state --These procedures satisfied the U.S. Supreme Court.

Death Penalty Sentences: cont’d In Gregg, the Court also looked at the “cruel and unusual” clause Means punishments must not be excessive “(P)unishment must not involve the unnecessary and wanton infliction of pain. . . . the punishment must not be grossly out of proportion to the severity of the crime” Court majority held that the death penalty was not an unconstitutional punishment per se --The Court said that the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are so grievous an affront to humanity that the death penalty may be the only adequate response.

Death Penalty Sentences: cont’d Court has recognized other permissible sentencing schemes In Pulley v. Harris (1984), the Court upheld the California sentencing scheme, which did not require a review of the death penalty in comparison to other similar cases in the state (a comparative proportionality review) Court held that what is required is a system of procedural checks and precautions to prevent arbitrariness

Death Penalty Sentences: cont’d In Woodson v. North Carolina (1976), the Court rejected a death penalty system that required the death penalty for all offenses of a certain kind, such as first-degree murder Court saw as “unduly harsh and unworkably rigid, ” that it eliminated consideration of the individual defendant

Death Penalty Sentences: cont’d Court has clearly indicated that its concern for individualizing the sentence requires the jury to consider mitigating circumstances in all death penalty cases

Death Penalty Sentences: cont’d In Eddings v. Oklahoma (1982), the Court gave the following guidance Looking for a death penalty system that is “at once consistent and principled but also humane and sensible to the uniqueness of the individual” --The Court in Eddings applied the following rule: “[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer. . . 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.”

Death Penalty Sentences: cont’d Court’s view on the death penalty in other situations In Coker v. Georgia (1977), the Court rejected the death penalty for the crime of rape – held it was unconstitutional on the grounds that it is disproportionate to the offense

Death Penalty Sentences: cont’d In Tison v. Arizona (1987), Court upheld death penalty for a defendant who did not do the murder, but was a significant accomplice Tison assisted his father and another inmate to escape from prison, and then to commandeer a car in which all four passengers were killed Court held this showed “reckless indifference to human life” and that Tison “knowingly engaged in activities known to carry a grave risk of death”

Death Penalty Sentences: cont’d Court has held that death sentences imposed on 16 and 17 year olds are constitutional (Stanford v. Kentucky, 1989) All states forbid the execution of persons who are (or have become) insane --In January 2004, the Supreme Court granted cert, and scheduled oral arguments for October 2004, in Roper v. Simmons. A question in this case – “Is the imposition of the death penalty on a person who commits a murder at age seventeen ‘cruel and unusual,’ and thus barred by the Eighth and Fourteenth Amendments?”

Death Penalty Sentences: cont’d In 2002, Court rejected imposition of the death penalty for persons who are mentally retarded – Atkins v. Virginia Atkins was convicted of abduction, armed robbery, and capital murder In assessing punishment, a forensic psychologist testified that Atkins was “mildly mentally retarded”

Death Penalty Sentences: cont’d The Court noted that a significant number of states – 16 since 1990 – prohibited the execution of the mentally retarded This is in addition to the states that have rejected capital punishment entirely

Death Penalty Sentences: cont’d The Court said “the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal” --The Court saw this as significant given the well-known fact that anticrime legislation is far more popular than legislation offering protections to persons guilty of violent crimes.

Death Penalty Sentences: cont’d As of 2002, 38 states and the federal government have statutes authorizing the death penalty In 2001, there were 66 executions Methods of execution 28 use lethal injection exclusively 10 use lethal injection or an alternative (lethal gas, hanging, electrocution, or firing squad) 1 jurisdiction uses electrocution exclusively --37 states and the Federal Bureau of Prisons reported having 3,526 inmates on death row.

Death Row Conditions In states where the death penalty is authorized, it has been a practice to have a separate prison area called “death row” Security conditions are high Program facilities are low Recreation facilities are in, or attached to, the unit Inmates are allowed out of cells to shower and to receive visits Meals are eaten in the unit Medical staff visit the unit to check on medical concerns Movement outside the unit may see the inmate handcuffed and shackled

Death Row Conditions: cont’d In re Medley (1890) was first Supreme Court case on death row conditions Medley under sentence of death for killing his wife Challenged his solitary confinement status Court held solitary confinement was “additional punishment,” and, in the circumstances of the case, was unconstitutional “Circumstances of case” refers to fact that the solitary confinement requirement was enacted after the offense and was therefore an ex post facto law --In effect, the solitary confinement provision was seen as increasing the penalty for the offense, after the offense had been done.

Death Row Conditions: cont’d The Supreme Court has not subsequently set any constitutional requirements for death row conditions of confinement Court has given some indication that the question of many years being spent on death row may, in and of itself, raise a question of cruel and unusual punishment (Lackey v. Texas, 1995) --Lackey sought review of the question of whether the 17 years he had spent on death row violated the Eighth Amendment. The Court refused to issue a ruling on that question. One justice noted that it was a significant question and would eventually have to be addressed. The question was again raised, with the same result, in Knight v. Florida and Moore v. Nebraska (1999), two cases considered at the same time.

Death Row Conditions: cont’d Lower courts have addressed conditions: In Sinclair v. Henderson (1971), the district court held that denial of the opportunity for regular outdoor exercise for inmates on Louisiana’s death row, as a matter of law, constitutes cruel and unusual punishment

Death Row Conditions: cont’d A prison policy barring contact visits by death row inmates with their attorneys was struck down (Mann v. Reynolds (1995)) The appeals court noted the state allowed these same inmates contact visits with others, but singled out attorneys for the prohibition The appeals court held that absent a showing that the ban on contact visits with attorneys was necessitated by prison security concerns, it was not rational for the ban to be enforced

Death Row Conditions: cont’d Visiting with death row inmates may be limited Appeals court in Smith v. Coughlin (1984), held that the decision by New York prison authorities to limit visits to the inmate’s immediate family was justifiably based on security and administrative concerns

Cruel and Unusual Punishment in Noncapital Sentencing Cases In Rummel v. Estelle (1980), the Supreme Court upheld a Texas recidivist sentencing statute in which a mandatory life sentence was required for a third-time felony conviction Jury convicted him of “felony theft” for obtaining $120.75 by false pretenses

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d Jury also found he had two prior felonies (fraudulent use of a credit card, obtaining $80 in goods; passing a forged check for $28.68) Court observed that the purpose of the recidivist statute was to deter repeat offenders and to separate the recidivist from society for a lengthy period of time Court upheld mandatory life sentence; the sentence was not found to be unconstitutional

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d In Solem v. Helm (1983), Court found unconstitutional a South Dakota recidivist sentence Helm had been convicted of six prior non-violent felonies; he then was convicted of writing a “no account” check for $100 Ordinary penalty for that offense – a maximum of 5 years

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d Court held that the life sentence was “significantly disproportionate to his crime,” and therefore was in violation of the Eighth Amendment Court did not overrule Rummel – saying that the South Dakota statute was “far more severe” than the life sentence in Rummel Apparently the key factor was that Rummel, under Texas law was eligible for parole; Helm, under South Dakota law, was not --Apparently, the only way for Helm to be released was by commutation of his sentence by the governor, that relief had been granted very rarely on life sentences. The Court also noted that only one other state had such a severe recidivist statute with a nonparolable life sentence as punishment.

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d In Ewing v. California (2003), the Court examined the constitutionality of California’s three-strikes law The law provided that a defendant who is convicted of a felony and has previously been convicted of at least two serious or violent felonies must receive an indeterminate life imprisonment term

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d Ewing, on parole from a nine year term, tried to walk out of a golf pro shop with three golf clubs ($399 each), concealed in his pants leg Convicted of felony grand theft Under the three strikes law, received term of 25 years to life

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d Court upheld sentence – not grossly disproportionate to the severity of the crimes committed Court held sentence is “justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record”

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d Court: “To be sure, Ewing’s sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated --The dissenting justices concluded that Ewing’s sentence was grossly disproportionate to the “triggering offense conduct” – stealing three golf clubs – that led to the sentence.

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d In Lockyer v. Andrade (2003), the Supreme Court declined to accept the argument that two consecutive terms of 25 years to life for stealing about $150 in video tapes were grossly disproportionate to the offense, in violation of the Eighth Amendment Andrade, like Ewing, had a long criminal history, and was therefore subject to the three-strikes penalty --Lockyer was a companion case to Ewing.

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d Court has not ruled on the constitutionality of such statutes that require a convicted sex offender to be castrated, or allows the defendant to choose castration to avoid many years of imprisonment

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d Lower court opinions have split State v. Brown (1985) – court held that castration is a form of mutilation, violating South Carolina’s state constitution ban on cruel and unusual punishment; thus, castration as a condition to suspension of sentence and placement on probation was void

Cruel and Unusual Punishment in Noncapital Sentencing Cases: cont’d People v. Foster (2002) – court upheld a plea agreement where Foster, in exchange for the dismissal of a number of serious felony charges, agreed to a 30-year sentence that included the possibility of undergoing hormone suppression treatment The court said the inmate could not maintain on appeal such treatment would be cruel and unusual, and thus may not be imposed; to do so would be to allow the inmate “to have his cake and eat it too”