The Unconstitutionality of Different Standards of Death: Arbitrariness in States’ Capital Punishment Laws Elizabeth Cantrell Department of Political Science University of Vermont Spring 2013 Cantrell 2 Author’s Note I wish to express my sincere thanks to all those who made it possible for this thesis to come to fruition. I would like to thank my committee members, Professor Alec Ewald and Professor Felicia Kornbluh, for graciously devoting their time and thoughts to this project. I also extend my gratitude to Professor Alex Zakaras, who has been an outstanding mentor over the years. In addition, I owe many thanks to my thesis advisor, Professor Lisa Holmes, whose time, expertise, and good humor were essential to the completion of this thesis. Cantrell 3 Table of Contents Introduction 5 A. Statement of the problem: arbitrariness in the death penalty B. Thesis goals and structure C. The question of federalism D. “Death is different” E. Background information a. Death penalty facts b. Brief literature review on arbitrariness research Section I Chapter I: Furman v. Georgia and the Beginnings of Arbitrariness 25 A. Overview B. Facts of the case C. Court decision and opinions D. Doctrinal significance Chapter II: Gregg v. Georgia and the Model Death Penalty Code 33 A. Overview B. Facts of the case C. Court decision and opinions D. Doctrinal significance Chapter III: Supreme Court Jurisprudence on State Statutes 38 A. Upholding statutes a. Proffitt v. Florida b. Zant v. Stephens c. Lowenfield v. Phelps d. Walton v. Arizona e. Arave, Warden v. Creech f. Harris v. Alabama B. Invalidating statutes a. Godfrey v. Georgia b. Maynard v. Cartwright c. Hitchcock v. Dugger d. Ring v. Arizona C. The Court’s confusion and retraction Section II Chapter IV: Overview of Four State Statutes 56 A. Capital murder definitions, trial procedures, and sentencing procedures a. Alabama Cantrell 4 b. Florida c. Missouri d. Pennsylvania Chapter V: Interstate Comparisons 63 A. Judicial Override: Florida and Alabama a. Statutory provisions and practice in both states b. Consequences of judicial override c. Supreme Court precedent d. Implications after Ring v. Arizona B. Vague Aggravating Circumstances a. “Grave Risk of Death” i. Alabama, Florida, and Pennsylvania, b. “Especially Heinous, Atrocious, and Cruel” i. Alabama, Florida, and Missouri Section III Chapter VI: Evolving Standards and Equal Protection 82 A. Development of “Evolving Standards of Decency” B. Atkins and Roper: A New Definition of Consensus C. Why Interstate Variation Violates Equal Protection Conclusion 93 A. Recent developments, future directions, and significance Bibliography 98 Appendix 102 A. Table of Supreme Court cases B. State Statutes Cantrell 5 Introduction On February 22, 1994, the United States Supreme Court denied Texas death row inmate Bruce Edwin Callins’ petition for a writ of certiorari. In sole dissent, Justice Harry Blackmun authored one of the most poignant passages in capital punishment jurisprudence: Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel… we hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants' rights…we hope that the prosecution, in urging the penalty of death… will be humbled, rather than emboldened, by the awesome authority conferred by the State. But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all…and despite the effort of States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake…from this day forward, I no longer shall tinker with the machinery of death.”1 The Supreme Court has been “tinkering” with death since its 1972 landmark decision, Furman v. Georgia 408 U.S. 238. The Court held that arbitrary and inconsistent application of the death penalty was unconstitutional under the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Furman decision effectively ground the American death machine, as practiced in the several states, to a halt. Shortly thereafter, in 1976, the Court reopened the gates to capital punishment by approving states’ revised death penalty statutes in Gregg v. Georgia 428 U.S. 153. 1 Justice Harry Blackmun, dissent in the denial of writ of certiorari to the United States Supreme Court, Callins v. Collins 114 S.Ct. 1127. (1994). Italics added for emphasis. Cantrell 6 Because states were able to demonstrate procedural fairness and rigorous efforts at combating discrimination and arbitrary sentencing, the Court reasoned that the death penalty, on its face, was constitutional, as long as certain safeguards were in place. No singular, bedrock principle emerged from Furman, since the justices’ nine separate opinions drew on different doctrinal sources. Robert Weisberg notes, “it [Furman] is not so much a case as a badly orchestrated opera, with nine characters taking turns to offer their own arias.”2 Furman certainly signaled a sentiment against arbitrary and capricious imposition, but it did not specify legal guidance for future cases. The Furman and Gregg decisions did, however, plant the doctrinal seed that arbitrariness in capital punishment is unconstitutional. Even though arbitrariness was not clearly defined, the underlying idea in the plurality opinions is that variation is a problem. Despite explicitly permitting states to retain control over certain areas of capital punishment, as the Court began to do in Gregg, the Court does have a latent concern about states’ operation of the death penalty. The core of that concern is an objection to arbitrariness and variation, themes to which the Court continually returns. However, as Justice Blackmun’s comments in 1994 show, even twenty years after Furman and Gregg, the justice system fails to constitutionally administer the death penalty. Regrettably, another twenty years after that stirring dissent, Blackmun’s remarks about capital punishment still hold true today. Scholars have 2 Weisberg, Robert. “Deregulating Death”. The Supreme Court Review. Vol. 1983 pp 315 Cantrell 7 noted that “virtually no one” believes constitutional regulation of the death penalty has succeeded in addressing Furman’s concerns.3 The Supreme Court’s handling of the death penalty has been anything but consistent or coherent. As Stuart Banner writes, “the constitutionalization of capital punishment created an enormously complicated, expensive, and time-consuming apparatus that had no real effect on the outcomes…being executed was still…akin to being struck by lightening; the only difference was now it took a decade and millions of public money for the lightening to strike.”4 Yet, as Blackmun wisely observed in his Callins dissent, “this is not to say that the problems with the death penalty today are identical to those that were present twenty years ago [in Furman]. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form.”5 It seems that, post-Furman, arbitrariness in the death penalty has only increased. This thesis will investigate areas of arbitrariness in the United States’ death penalty at the state level. I argue that differences in individual states’ capital murder definitions and sentencing statutes are unconstitutionally arbitrary. Since arbitrariness was not clearly defined in Furman or Gregg, I propose a new, hybrid doctrine that can overcome the Court’s mixed messages about state control over capital punishment and will also move jurisprudence away from the traditional 3 Steiker, Carol S. and Jordan M. Steiker. “Judicial Developments in Capital Punishment Law”. America’s Experiment With Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction. Eds. Acker, James R. et al. 2nd Ed. Durham, NC: Carolina Academic Press, 2003. pp 55. 4 Banner, Stuart. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002. pp 295. Here, Banner paraphrases Justice Potter Stewart’s famous assertion that, “these death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual”, Furman v. Georgia 408 U.S. 238, Stewart, J. concurring at 309. 5 Justice Blackmun, dissent in Callins v. Collins 114 S.Ct. 1127. (1994) at 1143-44. Cantrell 8 reliance on Furman. My hybrid doctrine takes the “evolving standards of decency” framework, which was recently revived in the cases of Atkins v. Virginia and Roper v. Simmons, and uses it to expose arbitrariness. The “evolving standards” doctrine reveals unusual practices employed by “outlier states” and also exposes how different standards of death across the nation permit defendants to be “struck by lightening”, as Justice Potter Stewart once described. To illustrate how the evolving standards framework can identify the problem of inter-state variation, this thesis examines four states’ death penalty laws. I use the practices of judicial override and the use of vague aggravating circumstances in these four states to show how state differences violate the Equal Protection Clause of the Fourteenth Amendment and the evolving standards doctrine, because these practices produce arbitrariness and inconsistency at the sentencing level of capital trials. Revised death penalty laws instituted after Gregg v. Georgia (1976) might have corrected for intrastate arbitrariness, but not interstate arbitrariness, and these differences do not comport with modern standards of decency.