Abstract
This chapter summarizes two significant developments influencing capital punishment in the United States. First, in Atkins v. Virginia (2002) and Roper v. Simmons (2005), the Supreme Court of the United States held that the death penalty could not be inflicted upon, respectively, mentally retarded persons and persons under the age of eighteen because the characteristics of those groups rendered them insufficiently culpable to justify the punishment. Influential professional groups have proposed extending the principle to mentally ill persons, a proposal that is likely to be adopted case-by-case by the Supreme Court. Second, Cullen v. Pinholster (2011) limited the power of a federal court reviewing a death sentences to examine the state court record independently. But Martinez v. Ryan (2012) for the first time allowed a petitioner seeking federal court review to attack the quality of legal assistance he received in the later stages of state court review. As a result the positive and negative incentives for states to have robust systems of post-conviction review have increased. These two developments should accelerate the existing downward trend in executions.
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Notes
- 1.
Gregg v. Georgia, 428 U.S. 153 (1976)
- 2.
Furman v. Georgia, 408 U.S. 238 (1972)
- 3.
Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape of a juvenile); Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult).
- 4.
Atkins v. Virginia, 536 U.S. 304 (2002), overruling Penry v. Lynaugh, 492 U.S. 302 (1989).
- 5.
Roper v. Simmons, 543 U.S. 551 (2005), overruling Stanford v. Kentucky, 492 U.S. 361 (1989). See also Graham v. Florida, 130 S.Ct. 2011 (2010) (juveniles may not be sentenced to life without parole for non-homicide offenses).
- 6.
See American Bar Association Resolution 122A and accompanying report on exempting those with severe mental illness from the death penalty, 8 August 2006, available at: http://www.deathpenaltyinfo.org/documents/122AReport.pdf. An almost identical resolution has been endorsed by the American Psychiatric Association, the American Psychological Association and the National Alliance for the Mentally Ill.
- 7.
In Atkins v. Virginia, supra, note 4, the Court quoted with approval the American Psychiatric Association’s definition of mental retardation contained in its Diagnostic and Statistical Manual of Mental Disorders, at 41 (4th ed. 2000) (“DSM-IV”): “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.”
- 8.
See, e.g., B. Carey, “Psychiatry Manual Drafters Back Down on Diagnoses”, New York Times, 8 May 2012, available at: http://www.nytimes.com/2012/05/09/health/dsm-panel-backs-down-on-diagnoses.html?_r=1&hp, K. Franklin, “Hebephilia Update: DSM-5 Workgroup Stubbornly Clinging to Pet Diagnosis”, Forensic Psychologist, 5 May 2012 blogpost available at: http://forensicpsychologist.blogspot.be/2012/05/hebephilia-update-dsm-5-workgroup.html); P.J. Caplan, “Psychiatry’s Bible, the DSM, is Doing More Harm Than Good”, Washington Post, 27 April 2011, available at: http://www.washingtonpost.com/opinions/psychiatrys-bible-the-dsm-is-doing-more-harm-than-good/2012/04/27/gIQAqy0WlT_story.html?
- 9.
See American Bar Association Resolution 122A, supra, note 6.
- 10.
Before it changed its view in Atkins, the Supreme Court had held in Penry v. Lynaugh, supra, note 4, that mentally retarded defendants were entitled only to jury consideration of their condition, not to a categorical exemption from execution.
- 11.
In addition to the Eighth Amendment argument many of them have also asserted that to exempt mentally retarded offenders but not mentally ill ones violates the command of the Fourteenth Amendmendment that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
- 12.
This logjam is the consequence of a much-criticized Supreme Court case, Teague v. Lane, 489 U.S. 288 (1989), whose practical effect is that only the Supreme Court, whose case-handling capacity is miniscule compared to that of the lower federal courts, can create new constitutional rules of criminal procedure. See E.M. Freedman, “Federal Habeas Corpus in Capital Cases”, in J. Acker, R.M. Bohm and C.S. Lanier (eds.), America’s Experiment With Capital Punishment: Reflections on the Past, Present and Future of the Ultimate Penal Sanction , 2nd ed., (Durham, NC: Carolina Academia Press, 2003) at 553, 566–567 (Explaining and criticizing Teague). Thus it has happened several times over the last 25 years that literally dozens of people have been executed despite presenting a claim that the Supreme Court eventually found meritorious. Examples are to be found in E.M. Freedman, “Mend It or End It?: The Revised ABA Capital Defense Representation Guidelines as an Opportunity to Reconsider the Death Penalty”, 2 Ohio State Journal on Criminal Law (2005), 663, 673 n.53, available at: http://law.hofstra.edu/_site_support/files/pdf/directory/faculty/fulltime/EFreedman/Ghent/ohrecon.pdf
- 13.
U.S. Constitution, Sixth Amendment (1791) (“In all criminal prosecutions the accused shall enjoy the right … to have the assistance of counsel for his defence”), XIV, Sec. 1 (1868) (No state shall “deprive any person of life liberty or property without due process of law”); Powell v. Alabama, 287 U.S. 45(1932) (Due process requires State to provide counsel to indigent capital defendant); Gideon v. Wainwright, 372 U.S. 335 (1963) (Rule extended to all felony defendants). The right extends to the final appeal as of right in state court but not to the application for review by the United States Supreme Court, Ross v. Moffitt, 417 U.S. 600 (1974).
- 14.
Brady v. Maryland, 373 U.S. 83 (1963).
- 15.
28 U.S.C. Sec. 2254 (b).
- 16.
See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (Because defendant filed appeals papers in state post-conviction proceedings three days late, federal courts would not review claims that the Constitution was violated during his trial). In technical language the federal courts often say that if the state courts determine that the defendant committed a “procedural default” during the state proceedings, the federal courts will in the exercise of their sound discretion honor that determination by refusing to reach the merits of the federal constitutional claims.
- 17.
Murray v. Giarratano, 492 U.S. 1 (1989). The practical result, as Coleman shows, is that counsel may forfeit all of a defendant’s rights but the defendant may not attack counsel as ineffective for having done so. Not suprisingly, this line of cases has been subject to sustained criticism by the profession, see, e.g., E.M. Freedman, “Giarratano is a Scarecrow: The Right to Counsel in State Capital Post-conviction Proceedings”, 91 Cornell Law Review (2006) 1079, and has been flatly rejected by the American Bar Association. See American Bar Association, “Guidelines for the Appointment and Performance of Counsel in Death Penalty Case”, Guideline 1.1, reprinted in 31 Hofstra Law Review (2003) 919 (Standards to provide high quality legal representation to capital defendants apply to all stages of proceedings) available at: http://www.americanbar.org/advocacy/other_aba_initiatives/death_penalty_representation/resources/aba_guidelines.html.
- 18.
See Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011); Dist. Atty’s Office v. Osborne, 129 S. Ct. 2308, 2320 (2009).
- 19.
18 U.S.C. Sec. 3599 (2).
- 20.
28 U.S.C. Sec. 2254 (d).
- 21.
131 S.Ct. 1388 (2011).
- 22.
For a more detailed discussion, see E.M. Freedman, “State Post-Conviction Remedies in the Next Fifteen Years: How Synergy Between the State and Federal Governments Can Improve the Criminal Justice System Nationally” 24 Federal Sentencing Reporter (2012) 298 available at: http://law.hofstra.edu/_site_support/files/pdf/directory/faculty/fulltime/EFreedman/Ghent/fedsent.pdf.
- 23.
See supra, note 18.
- 24.
See supra, note 13.
- 25.
This rule is based on the perfectly sensible rationales that (a) the same counsel is likely to handle all the proceedings in Column 1, and (b) the direct appeal is supposed to focus on errors in the record while claims of ineffective assistance will necessarily involve investigating the record that counsel failed to make. See Massaro v. United States, 538 U.S. 500 (2003).
- 26.
See supra, note 16.
- 27.
132 S.Ct. 1309 (2012).
- 28.
For a discussion of subsequent developments see E.M. Freedman, “Enforcing the ABA Guidelines in Capital State Post-Conviction Proceedings After Martinez and Pinholster,” 41 Hofstra Law Review (2013) available at http://ssrn.com/abstract=2251529. See Freedman, supra, note 12, at 668–670.
- 29.
Under the ruling in Murray v. Carrier, 447 U.S. 478 (1986), a defendant confronted with a claim in federal court that an issue has been procedurally defaulted at trial, and who wishes to assert that any such default was the fault of trial counsel, needs to plead and prove that the overall performance of that counsel was constitutionally ineffective under the stringent standards of Strickland v. Washington, 466 U.S. 668 (1984), which remain in place despite intense criticism, see American Bar Association, Guidelines, supra, note 17, at 930.
- 30.
See id., Commentary to Guideline 10.13, reprinted in 31 Hofstra Law Review 1074, 1075 n.324, available at: http://www.americanbar.org/advocacy/other_aba_initiatives/death_penalty_representation/resources/aba_guidelines.html.
- 31.
See supra, note 14.
- 32.
See Giglio v. United States, 405 U.S. 150 (1972).
- 33.
See Mooney v. Holohan, 294 U.S. 103 (1935).
- 34.
See Pyle v. Kansas, 317 U.S. 213 (1942).
- 35.
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Freedman, E.M. (2014). New Frontiers in American Capital Punishment Litigation. In: Haeck, Y., Brems, E. (eds) Human Rights and Civil Liberties in the 21st Century. Ius Gentium: Comparative Perspectives on Law and Justice, vol 30. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7599-2_8
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