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

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

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”

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

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”

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

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

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)

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

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

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

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”