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VOLUME 17 - CHAPTER 301
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301.6 Death Penalty: Greater Reliability Is Required

    301.6.1 Death Is Different
    301.6.2 Death Penalty: Greater Reliability Required In Determining Guilt
    301.6.3 Death Penalty: Sentencing Decision Must Be Reliable
    301.6.4 Death Is Worse Then Life Imprisonment
    301.6.5 Death Penalty: Greater Obligation Of Counsel To Investigate
    301.6.6 Death Penalty: Constitutional Challenge Based On Unreliability

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PRACTICE NOTE: "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long....Because of this qualitative difference, there is a corresponding difference in the need for reliability...." (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)

    "[D]eath is a sentence which differs from all other penalties in kind rather than degree. Death is the most final, and most severe, of punishments....Sentencing procedures for capital crimes, far more so than for non-capital crimes, must be created and enforced in a way that ensures ‘that the punishment will [not] be inflicted in an arbitrary and capricious manner.’...‘[A]ny exclusion of the compassionate or mitigating factors stemming from the diverse frailties of humankind that are relevant to the sentencer’s decision would fail to treat all persons as uniquely individual human beings.’" (Flores v. Johnson (5th Cir. 2000) 210 F3d 456, 459-60, concurring opinion of Garza, J.)

    As a result, the 8th Amendment requires a "greater degree of accuracy" and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case "both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects"].) "[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error." (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)

    When the state seeks death, courts must ensure that every safeguard designed to guarantee "fairness and accuracy" in the "process requisite to the taking of a human life" is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)

Deborah W. Denno, Comment, Review Essay: "Death is Different" and Other Twists of Fate: The Death Penalty in the Nineties: An Examination of the Modern System of Capital Punishment. By Welsh W. White, 83 J. CRIM. L. & CRIMINOLOGY 437 (1992) [discussing Barefoot as an example of Supreme Court’s twisting of original "death is different" doctrine].

Erica Beecher-Monas and Edgar Garcia-Rill, The Law and the Brain: Judging Scientific Evidence of Intent, 1 J. App. Prac. & Process 243 (1999) ["It is doubtful that testimony about future dangerousness could withstand Daubert analysis"].

Michael H. Gottesman, From Barefoot to Daubert to Joiner: Triple Play Or Double Error, 40 Ariz. L. Rev. 753, 755 (1998) [Daubert cannot be squared with Barefoot"]; cf. Nenno v. Texas (TX 1998) 970 SW2d 549, 561 [a Daubert analysis applies with "less rigor" to the "social sciences or fields that are based primarily upon experience and training as opposed to the scientific method].

See also Capital Punishment Handbook [4.5.6a. Diminishing Jury Sense Of Responsibility: General Principles And Authorities].

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VOLUME 17 - CHAPTER 301

PRACTICE NOTE: The guilt determination in a capital case requires heightened reliability. (Beck v. Alabama (1980) 447 US 625, 627-46 [100 SCt 2382; 65 LEd2d 392]; 8th and 14th Amendments.)

    The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: "Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case."

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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VOLUME 17 - CHAPTER 301

PRACTICE NOTE: The sentencing determination must be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738]; 8th & 14th Amendments.)

    See also NCJIC 300.29 [Reliability Of Trial And Verdict].

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VOLUME 17 - CHAPTER 301

RATIONALE: Without an explanatory instruction some jurors could reasonably speculate that life imprisonment would be a worse punishment than death. If so, the sentencing result could violate the 8th Amendment because the constitution assumes that death is worse than life imprisonment.

POINTS AND AUTHORITIES: Despite the fact that many people believe to the contrary, in the eyes of the law, death is a more severe punishment than life imprisonment without the possibility of parole. (See People v. Murtishaw (CA 1989) 48 C3d 1001, 1027 [258 CR 821]; see also NCJIC 301.6.1 [Death Is Different].) The jury's understanding of this aspect of the sentencing alternatives is an essential prerequisite to the reliable sentencing determination required by the 8th and 14th Amendments. (See Townes v. Murray (4th Cir. 1995) 69 F3d 840, 851-52.)

    However, in reality, some jurors actually believe that a lifetime in prison would be a more severe punishment than death. Hence, it may be appropriate to instruct the jury as set forth below.

    Some of you expressed the view during jury selection that the punishment of life in prison without possibility of parole was actually worse than the death penalty.

    You are instructed that death is qualitatively different from all other punishments and is the ultimate penalty in the sense of the most severe penalty the law can impose. Society's next most serious punishment is life in prison without possibility of parole.

    It would be a violation of your duty, as jurors, if you were to impose the penalty of death with a view that you were thereby imposing the less severe of the two available penalties.

[Source: NCJIC.]

PRACTICE NOTE: In a death penalty case the broader use of evidence at sentencing creates a greater obligation on counsel to discover and evaluate potential evidence of mitigation. (St. Pierre v. Walls (7th Cir. 2002) 297 F.3d 617, 632.)

    See generally NCJIC 303.4 [Death Penalty: Mitigation – Miscellaneous Issues].

    See generally NCJIC 303.5 [Death Penalty: List Of Mitigating Factors Not Exclusive].

    301.6.6    Death Penalty: Constitutional Challenge Based On Unreliability

CAVEAT:  U.S. v. Quinones (SDNY 2002) 205 FSupp2d 256 held that the federal Death Penalty Act (18 USC 3591-98) violates the procedural and substantive components of the 5th Amendment’s Due Process Clause. In reaching this conclusion the court relied on recent instances in which death row inmates have been shown to be innocent. In the face of these events, the court concluded that implementing the death penalty deprived innocent persons of the chance to prove their innocence and, from the substantive standpoint, creates an undue risk that innocent persons will be executed. Even though this opinion was subsequently reversed and remanded (U.S. v. Quinones (2002) 313 F3d 49), its rationale may be the bases for future claims in other cases.

Article: Convictions of Innocent Persons in Massachusetts: an Overview, 12 B.U. Pub. Int. L.J. 1 (2002).

Article: "Truth or Consequences" and Post-conviction DNA Testing: Have You Reached Your Verdict?, 107 Dick. L. Rev. 845 (2003).

Book Review: The Deep Structure of Conflicts of Interest: Conflict of Interest in American Public Life by Andrew Stark, 16 Geo. J. Legal Ethics 473 (2003).

Article: Earning the Right to Be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L. Rev. 1099 (2003).

Symposium Article: the Evolving Role of State Constitutional Law in Death Penalty Adjudication, 59 N.y.u. Ann. Surv. Am. L. 341 (2003).

Article: The Death Penalty in the United States: an International Human Rights Perspective, 43 S. Tex. L. Rev. 1115 (2002).

Comment: Atkins V. Virginia: Commutation for the Mentally Retarded?, 54 S.c. L. Rev. 809 (2003).

Article: Should Judges Who Oppose Capital Punishment Resign? A Reply to Justice Scalia, 10 Va. J. Soc. Pol'y & L. 317 (2003).

Article: Mercy by the Numbers: an Empirical Analysis of Clemency and its Structure, 89 Va. L. Rev. 239 (2003).