CAPITAL PUNISHMENT: RACE, POVERTY & DISADVANTAGE Yale University Professor Stephen B. Bright Class Four - Part One MITIGATING Sandra LOCKETT, Petitioner, v. CIRCUMSTANCES State of OHIO. He questioned himself if human society United States Supreme Court could have the right alike to crush its 438 U.S. 586, 98 S.Ct. 2954 (1978) members, in the one case by its unreasonable carelessness, and in the other by its pitiless Burger, C.J., delivered the opinion of the Court care; and to keep a poor man forever between with respect to the constitutionality of petitioner’s a lack of work [and] an excess of punishment. conviction (Parts I and II), together with an opinion (Part III), in which Stewart, Powell, and - Victor Hugo, Les Miserables Stevens, JJ., joined, on the constitutionality of the statute under which petitioner was sentenced to death, and announced the judgment of the Court. I think “empathy” is one of the most Blackmun, J., filed an opinion concurring in part powerful words in this world. A rich man and concurring in the judgment. Marshall, J., filed would look at a poor man, not with sympathy, an opinion concurring in the judgment. Rehnquist, feeling sorrow for the unfortunate poverty, J., filed an opinion concurring in part and but also not with contempt . but with dissenting in part. White, J., filed an opinion empathy, which means the rich man would concurring in part and dissenting in part. put himself in the poor man’s shoes, feel what the poor man is feeling, and understand what Mr. Chief Justice BURGER delivered the it is to be the poor man. Empathy breeds opinion of the Court with respect to the proper judgment. Empathy gives you an constitutionality of petitioner’s conviction (Parts inside view. It doesn’t say “If that was me…,” I and II), together with an opinion (Part III), in empathy says, “That is me.” which Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS joined, on - Final words of Ray Jasper before being the constitutionality of the statute under which executed by Texas on March 19, 2014 petitioner was sentenced to death, and announced the judgment of the Court. I am pleading for a time when hatred and We granted certiorari in this case to consider, cruelty will not control the hearts of men. among other questions, whether Ohio violated the When we can learn by reason and judgment Eighth and Fourteenth amendments by sentencing and understanding and faith that all life is Sandra Lockett to death pursuant to a statute that worth saving, and that mercy is the highest narrowly limits the sentencer’s discretion to attribute of man. consider the circumstances of the crime and the - Clarence Darrow, arguing for the lives of record and character of the offender as mitigating Nathan Leopold and Richard Loeb, Chicago, 1924 factors. Class 4 - Part 1 (Mitigation) 1 Prof. Bright - Capital Punishment I brother asked if they were “still going to do it,” Lockett was charged with aggravated murder and everyone, including Lockett, agreed to with the aggravating specifications (1) that the proceed. The four then drove by the pawnshop murder was “committed for the purpose of several times and parked the car. Lockett’s brother escaping detection, apprehension, trial, or and Dew entered the shop. Parker then left the car punishment” for aggravated robbery, and (2) that and told Lockett to start it again in two minutes. the murder was “committed while . committing, The robbery proceeded according to plan until the attempting to commit, or fleeing immediately after pawnbroker grabbed the gun when Parker committing or attempting to commit . announced the “stickup.” The gun went off with aggravated robbery.” That offense was punishable Parker’s finger on the trigger firing a fatal shot by death in Ohio. She was also charged with into the pawnbroker. aggravated robbery. The State’s case against her depended largely upon the testimony of a Parker went back to the car where Lockett coparticipant, one Al Parker, who gave the waited with the engine running. While driving following account of her participation in the away from the pawnshop, Parker told Lockett robbery and murder. what had happened. She took the gun from the pawnshop and put it into her purse. Lockett and Lockett became acquainted with Parker and Parker drove to Lockett’s aunt’s house and called Nathan Earl Dew while she and a friend, Joanne a taxicab. Shortly thereafter, while riding away in Baxter, were in New Jersey. Parker and Dew then a taxicab, they were stopped by the police, but by accompanied Lockett, Baxter, and Lockett’s this time Lockett had placed the gun under the brother back to Akron, Ohio, Lockett’s front seat. Lockett told the police that Parker home-town. After they arrived in Akron, Parker rented a room from her mother and lived with her and Dew needed money for the trip back to New family. After verifying this story with Lockett’s Jersey. Dew suggested that he pawn his ring. parents, the police released Lockett and Parker. Lockett overheard his suggestion, but felt that the Lockett hid Dew and Parker in the attic when the ring was too beautiful to pawn, and suggested police arrived at the Lockett household later that instead that they could get some money by evening. robbing a grocery store and a furniture store in the area. She warned that the grocery store’s operator Parker was subsequently apprehended and was a “big guy” who carried a “45" and that they charged with aggravated murder with would have “to get him real quick.” She also specifications, an offense punishable by death, volunteered to get a gun from her father’s and aggravated robbery. Prior to trial, he pleaded basement to aid in carrying out the robberies, but guilty to the murder charge and agreed to testify by that time, the two stores had closed and it was against Lockett, her brother, and Dew. In return, too late to proceed with the plan to rob them. the prosecutor dropped the aggravated robbery charge and the specifications to the murder Someone, apparently Lockett’s brother, charge, thereby eliminating the possibility that suggested a plan for robbing a pawnshop. He and Parker could receive the death penalty. Dew would enter the shop and pretend to pawn a ring. Next Parker, who had some bullets, would Lockett’s brother and Dew were later convicted enter the shop, ask to see a gun, load it, and use it of aggravated murder with specifications. to rob the shop. No one planned to kill the Lockett’s brother was sentenced to death, but Dew pawnshop operator in the course of the robbery. received a lesser penalty because it was Because she knew the owner, Lockett was not to determined that his offense was “primarily the be among those entering the pawnshop, though product of mental deficiency,” one of the three she did guide the others to the shop that night. mitigating circumstances specified in the Ohio death penalty statute. The next day Parker, Dew, Lockett, and her brother gathered at Baxter’s apartment. Lockett’s Two weeks before Lockett’s separate trial, the Class 4 - Part 1 (Mitigation) 2 Prof. Bright - Capital Punishment prosecutor offered to permit her to plead guilty to Amendment rights and refused to testify. In the voluntary manslaughter and aggravated robbery course of the defense presentation, Lockett’s (offenses which each carried a maximum penalty counsel informed the court, in the presence of the of 25 years’ imprisonment and a maximum fine of jury, that he believed Lockett was to be the next $10,000) if she would cooperate with the State, witness and requested a short recess. After the but she rejected the offer. Just prior to her trial, recess, Lockett’s counsel told the judge that the prosecutor offered to permit her to plead guilty Lockett wished to testify but had decided to to aggravated murder without specifications, an accept her mother’s advice to remain silent, offense carrying a mandatory life penalty, with the despite her counsel’s warning that, if she followed understanding that the aggravated robbery charge that advice, she would have no defense except the and an outstanding forgery charge would be cross-examination of the State’s witnesses. Thus, dismissed. Again she rejected the offer. the defense did not introduce any evidence to rebut the prosecutor’s case. At trial, the opening argument of Lockett’s defense counsel summarized what appears to have * * * been Lockett’s version of the events leading to the killing. He asserted the evidence would show that, The jury found Lockett guilty as charged. as far as Lockett knew, Dew and her brother had planned to pawn Dew’s ring for $100 to obtain Once a verdict of aggravated murder with money for the trip back to New Jersey. Lockett specifications had been returned, the Ohio death had not waited in the car while the men went into penalty statute required the trial judge to impose the pawnshop but had gone to a restaurant for a death sentence unless, after “considering the lunch and joined Parker, thinking the ring had nature and circumstances of the offense” and been pawned, after she saw him walking back to Lockett’s “history, character, and condition,” he the car. Lockett’s counsel asserted that the found by a preponderance of the evidence that (1) evidence would show further that Parker had the victim had induced or facilitated the offense, placed the gun under the seat in the taxicab and (2) it was unlikely that Lockett would have that Lockett had voluntarily gone to the police committed the offense but for the fact that she station when she learned that the police were “was under duress, coercion, or strong looking for the pawnbroker’s killers.