December 13, 2004: The State of California versus Scott Peterson. The death penalty was returned by the jury on Monday after 11 and 1/2 hours deliberation.  On the same day the United States Supreme Court in Florida versus Nixon held that the defense attorney's decision to confess the guilt of his client in the guilt/innocence trial was a strategic decision which did not require the client's explicit consent. Justice Ginsburg wrote the 8-0 opinion which overruled Florida's State Supreme Court which held explicit consent was required and had ordered a new trial. 

The Death Penalty and the United States Supreme Court

This section of Trialbriefs.com will be devoted to the Death Penalty and the Supreme Court. My personal conviction that the death penalty should be abolished is unwavering. Our commitment to objective analysis of the death penalty cases and the United States Supreme Court's decisions relating to the death penalty is equally unwavering. On Friday June 21, 2002, the Supreme Court ruled in Atkins v Virginia 6-3 that it is unconstitutional (eighth amendment)  to execute the mentally retarded. On Monday June 24, 2002 the Supreme Court ruled in Ring v Arizona 7-2 that it is unconstitutional (both the sixth and eighth amendments were cited by the justices) for a judge not a jury to determine if death would be the punishment. For those who have not read Justice Scalia's opinions, it will come as a surprise to learn that he wrote a concurring opinion overruling the death penalty in Ring v. Arizona. He dissented in Atkins. To observe that this is a pivotal time in the history of the death penalty in America is an understatement.

The most recent decision on the death penalty Ring v. Arizona was announced on June 24, 2002. This case held 7-2 that the accused Ring was denied his sixth amendment right to jury trial when the enhancement of punishment, in this case death, was based on an aggravating circumstance which was determined by the judge not the jury which determined guilt. As Justice Scalia pointed out in his concurring opinion, the reasoning of Justice Breyer confuses the issue considerably. State legislatures will have to address the issue. Will they abolish judicial determination of the death penalty completely or try to devise a legislative scheme by which a jury can find an aggravating factor and then allow the judge to decide if such a finding deserves the death penalty. The problem in the Ring decision was the aggravating factor was not a finding of fact by the jury but was evidence introduced in the penalty phase in which the judge alone heard the evidence and made the determination.

The US Supreme Court on June 20, 2002 declared execution of the mentally retarded to be unconstitutional.

In the case of  Atkins v. Virginia  01-8452, the court ruled 6-3 that executing the mentally retarded now violates the cruel and unusual punishment provision of the 8th amendment. This issue was last decided in 1989 when the court in a 5-4 decision written by Justice O'Connor upheld the execution of the mentally retarded. In today's ruling, Justice Stevens wrote the majority opinion. O'Connor, Kennedy, Souter, Ginsburg, and Breyer joined in the majority opinion. Rehnquist, Thomas, and Scalia dissented.
This decision is very important. What is cruel and unusual punishment obviously changes with the times. In legal history terms, the 13 years between the 1989 decision and today's decision is short. The court states clearly that public attitudes on what is cruel and unusual punishment must be taken into account. Justice Stevens writing for the majority states that "it is not so much the number of states that is significant, but the consistency of the direction". In 1989 only two capital punishment states banned the execution of the retarded. Now 18 states ban it. The minority dissenters wrote that the majority went too far in looking to factors other than the state laws at issue.They objected to the majority's reliance on opinion polls and the opinions of observers. In a departure from Supreme Court etiquette, Rehnquist reportedly did not sign his dissent with "respect".
Perhaps, the clearest signs that times have changed in this regard are not opinion polls themselves but the opinion of Presidents.

-During his 1992 campaign for the presidency, then Governor Clinton made a point of returning to Arkansas in order to see that a mentally retarded person was executed.

-MSNBC.com states that "President Bush has said he opposes executing the mentally retarded".

Since some governors have declared a moratorium on the death penalty, will this not raise the issue of cruel and unusual punishment in the broadest possible terms? In other words, is the death penalty always cruel and unusual punishment in 2002?

 From the Desk of the Publisher
I am opposed to the Death Penalty. I have defended a Death Penalty case. Coming from that perspective, it might appear to be the worse possible time to bring this issue to the fore. I submit that it is precisely the time for our nation to reconsider and abolish the Death Penalty in America. We are united as a nation against terrorism and we believe that this is a moment in history when America can and should defend freedom at home and abroad. It is also the time to strengthen our democracy. As we struggle with such fundamental matters as balancing national security issues and maintaining civil liberties in this country, what better time to address the inherent injustice of the Death Penalty?

I submit that the death penalty is inherently unjust because it is unequally applied. It must be so because it is enforced by prosecutors. Not only does it matter in which state a murder is committed but it matters what jurisdiction within a death penalty state that the murder is committed.  It also can matter on what day a murder is committed. For example, if a Prosecutor who reluctantly utilizes the death penalty is replaced by one who enthusiastically supports the death penalty on January 1, of 2005, a murder which occurs one minute after midnight of the new year 2005 may well be the subject of the death penalty. It is not even necessary to delve into whether the accused is a minority or the victim has a favored status to decide it is inherently unjust. Nor does it matter whether the finding of guilt is 100 % certain. If the same crime is not always punishable by death, then how can it be just?

It should be noted that I also believe that life without parole should be an option available for sentencing. There are people who cannot be a part of society. I also believe in self defense or defense of another. There is a large distinction between the individual's right to defend themselves and the institutionalization of the death penalty. It is uncivilized.

Sherry Seiber
February 20, 2002

FRONT PAGE

A Special Edition

The Execution of Timothy McVeigh
June 11, 2001

Timothy McVeigh was executed today, June 11, 2001. With this execution we begin the  TrialBrief series on the Death Penalty in America in the 21st Century. For those who favor the death penalty even in very limited circumstances, his execution was mandatory. The heinous nature of his crime is not debatable by any thoughtful person. His confession removed all doubt about the validity of his conviction in moral terms. Thus, the only thoughtful opposition to Timothy McVeigh's execution is based on an opinion that state sanctioned killing is wrong in every case.

This execution was the result of the Federal Death Penalty Law enacted by the Congress of the United States. Each state determines if it wishes to have a death penalty. It is not mandated. Once a state determines that it will have the death penalty, it must meet Constitutional  standards. The United States Supreme Court ultimately determines whether or not the state's statute is Constitutional and whether it was applied constitutionally.

As recently as last week, the Supreme Court decided to reverse a Texas case in which the death penalty was imposed for the second time. Justice Sandra Day O'Connor wrote the majority opinion in :

PENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,INSTITUTIONAL DIVISION

No. 00–6677. Argued March 27, 2001—Decided June 4, 2001

Specifically, she wrote in reversing the Texas Court :

Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion we reached in Penry I: Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion we reached in Penry I: "[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." 492 U. S., at 326.

2000 Presidential Campaign Bush v Gore Re: DEATH PENALTY

Despite a great deal of comment on the Texas death penalty and Governor Bush's role as the last resort to commute it, there was no direct question of either candidate concerning the death penalty in general or Texas' implementation of it. In an exchange between the candidates during the second debate about Hate Crimes legislation, their views on crime and punishment were touched upon.

Transcript of a portion of the Second Presidential Debate on October 11, 2000: