Part Two :
Challenging the
Constitutionali
ty of the Death
Penalty
Chapter I - Two Landmark Rulings : Abolition
and Restoration of Capital Punishment
In this part, we will analyze how the death penalty had been challenged on
constitutional grounds by studying the two main cases which completely transformed capital
punishment, i.e. Furman v. Georgia1 and Gregg v. Georgia.2 A deeper analysis into this
constitutional debate would also lead us to study Amendments of the Constitution which had
been, at a certain time, considered to be violated by the death penalty, i.e. mainly the Eighth
and the Fourteenth Amendments. However, we will observe, later on, that other amendments
provide guaranties to offenders’ constitutional rights, and that they have also to be taken into
account to fully understand the basis of this Constitutional issue.
1 - Furman v. Georgia :
a – A “race-based” justice system :
During the 1960’s, the Civil Rights movement made tremendous steps for colored
people, and then associations (NAACP, ACLU) began to work against the death penalty.
During this period (1960 to 1965), opinion polls demonstrate that public support for capital
punishment was seriously declining (see figure 1).
After having succeeded to impose the moratorium strategy, the Legal Defense Fund felt
victorious with the landmark ruling Furman v. Georgia (June 29, 1972), which held that the
imposition of the death penalty was motivated by ethnic and racial bias and thus rendered the
death penalty arbitrary and discriminatory. As a result, Furman v. Georgia declared that the
death penalty was a violation of the Eighth and Fourteenth Amendments, because it was
unequally applied to different categories of population, and thus was considered as a “cruel
and unusual punishment,” as well as a violation to the “Equal Protection Law.”
As we previously saw, the Furman case represented in fact three cases, in which were
involved black defendants. In the first, Lucius Jackson, a twenty one year old black man, was
sentenced to death because he had raped a white woman while holding a knife on the neck of
his victim. He then robbed her money. He committed thereafter many other offences,
including burglary and auto theft. Moreover he was an escaped convict, and had a previous
criminal record. In the second case, Elmer Branch, a 21 year old black Texan, raped a 65 year
old woman, and then stole her money. Finally, in the last case, William Furman, also a black
man, killed a white man, William Micke, while committing a burglary. The victim was the
father of five children, the shot was accidentally hit through a closed door. Though the death
penalty could be imposed, it was not mandatory. These three cases share similarities, and for
1
2
Furman v. Georgia [408 U.S. 238] (1972).
Gregg v. Georgia [428 U.S. 153] (1976).
43
that reason are entitled under one Supreme Court case : Furman v. Georgia. The common
point between these cases is that all offenders are black and victims are white. So it raised
many questions : was the death penalty, in these three cases, fairly or arbitrarily imposed ?
Was the jury well guided enough ? Did they take into account some extenuating
circumstances such as mental deficiency (it was Furman’s case), a low IQ or a difficult
childhood ? Was the imposition of the death penalty in these three cases motivated by the fact
that the offenders were black and the victims were white ? In other words, were these death
sentences based on arbitrary or discriminatory grounds ?
Figure 1 (Source : Death Penalty Information Centre)
b – Capital punishment becomes a violation to the Constitution :
If it is proved that the death penalty had been arbitrarily imposed, it clearly becomes a
violation to the Constitution because :
It would seem to be incontestable that the death penalty inflicted on one defendant is
“unusual” if it discriminates against him by reason of his race, religion, wealth, […]
or if it is imposed under a procedure that gives room for the play of such prejudices.3
We have to understand that it was not the death penalty in itself which was considered as a
“cruel and unusual punishment,” but rather the way it had been enforced :
The death sentence is disproportionately imposed and carried out on the poor, the
Negro, and the members of unpopular groups.4
Furman v. Georgia sets the basis of the controversy upon the racial disparities, because it
demonstrates that capital punishment had been arbitrarily and discriminatorily imposed, based
on the race of the defendant :
3
4
Furman v. Georgia, 408 U.S. 238, at 242.
Ibid. at 250.
44
In several instances where a white and a Negro were co-defendants, the white was
sentenced to life imprisonment or a term of years, and the Negro was given the death
penalty.5
Furman v. Georgia denounces racial disparities as well as inequalities at the core of the US
justice system. It points out as well the disproportion and different types of punishment that
are given in other similar cases :
Another ethnic disparity is found in the type of sentence imposed for rape. The Negro
convicted for rape is far more likely to get the death penalty than a term sentence,
whereas whites and Latins are far more likely to get a term sentence than the death
penalty.6
Angela J, Davis, Law Professor at the American University, Washington College of Law, and
author of Prosecution and Race : The Power and Privilege of Discretion, also makes a harsh
criticism over the discriminate imposition of the death penalty for offenders of different races,
though the circumstances of the crimes committed are similar :
The more difficult issue arises when two cases involving the same offense but
defendants or victims of different races are charged differently. If two murder cases
involving similar facts with victims of different are charged differently, the issue of
unconscious racism becomes relevant. If a defendant in a case involving a white
victim is charged with capital murder while a defendant in a similar case involving a
black victim is charged with second-degree murder, questions arise about the value the
prosecutors unconsciously placed on the lives of the respective values.7
RACE OF
BLACK
VICTIMS*
SINCE 1976
HISPANIC
WHITE
188
13.8%
54
4.0%
1111
80.8%
OTHER
21
1.6%
*NOTE: Number of Victims refers to the
victims in the underlying murder in cases
where an execution has occurred since the
restoration of the death penalty in 1976.
There are more victims than executions
because some cases involve more than one
victim.
5
Furman v. Georgia, 408 U.S. 238, at 251.
Ibid. at 251.
7
Angela J, Davis, Prosecution and Race : The Power and Privilege of Discretion (Fordham Law Review, Vol
67, 1998) 35.
6
45
"In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with
capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be
sentenced to death than those who murdered blacks."
Figure 2 (Source : Death Penalty Information Center)
Figure 2 demonstrates that the issue is not only based on the offender’s race, but also on the
victim’s one : Offenders who committed murder against a white victim have more chances to
get a death sentence rather than an offender in a similar case which involves a black victim.
c – Discrimination and arbitrariness :
In other words, if Furman, Branch or Jackson would have been white, or if the victims
would have been black as well, they would probably have been given a lesser sentence, such
as life imprisonment, rather than the death penalty. In Furman v. Georgia, the Justices agreed
that there was an unfair representation in death penalty cases. Yet it is interesting to observe
that though they already realized these social and racial inequalities, the situation has
nonetheless remained the same today :
The defendant of wealth and position never goes to the electric chair […] but the
defendant with ample means is able to have his case presented with every favorable
aspect, while the poor defendant often has a lawyer assigned by the court.8
In the next chapters, we will demonstrate that the situation did not change so much and that
indigent defendants who cannot afford a lawyer always are unfairly represented, because of
the inexperience of those appointed lawyers in most of the cases.
There are class barriers which are obstacles to a non-arbitrary system. A comparison with the
Indian system of “castes” has even been drawn in Furman v. Georgia, in order to
demonstrate that only the most indigent people suffer from the death penalty.9 It almost seems
that rich people are exempted from the penalty of death.
The clear basis of Furman v. Georgia is that the death penalty is considered as a “cruel and
unusual punishment” when it is imposed and carried out in an arbitrary manner, i.e. when a
particular group of people may suffer from capital punishment while others would not for
similar crimes. Yet, we already observed that because of the many differences and disparities
between death penalty states, a capital crime in one state may not be punished by a death
sentence in another.
As a conclusion, the basis of Furman v. Georgia is that the death penalty, in the way it is
imposed, is unconstitutional :
8
Furman v. Georgia, 408 U.S. 238, at 251. quote from Warden Lewis E. in Lawes of Sing Sing.
46
Thus, these discretionary statutes are unconstitutional in their operation. They are
pregnant with discrimination and discrimination is an ingredient not compatible with
the idea of equal protection of the laws that is implicit in the ban on “cruel and
unusual” punishments.10
So, the death penalty was not a violation to the Constitution per se, but it was rather how it
was applied.11 While the death penalty would be abolished de facto, it would not, however, be
abolished de jure. During the four years after Furman, offenders were still sentenced to death,
and there were more impositions of death sentences than during any other period.12 For
example, in 1975, 298 offenders were sentenced to death.13 This is the highest number of
death sentences in American history. Furman v. Georgia, even if it declares the death penalty
as unconstitutional under the Eighth and Fourteenth Amendments, does not present the
situation as irremediable. Death penalty states only needed new death penalty statutes and non
discriminatory death penalty laws. Right after Furman, opposition to capital punishment fell
from 57% to 32%,14 which tends to demonstrate that public opinion was still strongly attached
to the death penalty, and that it would not stay out of order for long.
2 - The Jury : a Central Position in Death Penalty Cases :
The role of the jury is central in this case because it is almost at the core of the whole
debate. In the U.S justice system, in any trial, although the prosecutor has a major role in the
charging of the defendant15, it is the jury who decides over the offender’s guilt or innocence,
and in a capital case it is the jury who decides whether an offender will live or die. The
controversy in Furman v. Georgia over the role of the jury is that if the jury is not given
guidance, they will arbitrarily impose a death sentence. Guiding the members of jury consists
to give them information on the defendant,
the case and the crime. In order to avoid
arbitrariness and discrimination, members of the jury must take into account every
circumstance such as extenuating or aggravating factors. According to the Furman v.
Georgia, members of the jury “arbitrarily, wantonly [or]
9
freakishly” impose a death
Ibid. at 256 : ‘‘In a nation committed to equalprotection ofthe laws there is no permissible ‘‘caste’’ aspect of
law enforcement.”
10
Ibid. at 257.
11
Ibid. at 251 : “Application of the death penalty is unequal : most of those executed were poor, young and
ignorant.”
12
See Part I, p. 19, Figure 2 : Size of Death Row.
13
Stuart Banner, The Death Penalty, an American History (Harvard University Press, 2002) 270.
14
Stuart Banner, The Death Penalty, an American History (Harvard University Press, 2002) 268.
15
Angela J. Davis, Prosecution and Race : The Power and Privilege of Discretion (67 Fordham L. Rev 13,
1998)
47
sentence to some categories of people just because they are poorly or not guided at all. Thus,
members of the jury may represent a risk because :
Since [they] will have had little, if any, previous experience in sentencing, they are
unlikely to be skilled in dealing with the information they are given.16
Moreover, the Court is divided over the statute of the jury because it is not sure whether it is a
reliable institution or not.17
However, the role of the jury is crucial in any death penalty case because it makes the link
between justice and society, “between contemporary values and the penal system.” 18
According to Austin Sarat, author of When the State Kills : Capital Punishment and the
American Conditions, the sovereignty of the jury can be dangerous because they may make an
abusive use of this power, which could have negative consequences such as unfair sentencing
due to arbitrariness or discrimination.19 Furthermore, Austin Sarat underlines the fact that the
jury’s power is only performative20 and that they do not have in mind the whole process of
sentencing, which ends with the execution. He wonders about the jurors’ reactions and state
of mind during the trial if they had to “pull the trigger” themselves (or to administer the
lethal shot, as it is more and more common today).In other words, how would they react if
they had to follow the whole process, up to the offender’s execution ?
Though Furman v. Georgia abolishes the death penalty, it already led the states to envision
what would later be the solution to restore it. Moreover, we previously saw that it was only a
de facto abolition, which means that the states were still attached to capital punishment, and
that sooner or later it would finally come back in their legislation.
16
Furman v. Georgia [408 U.S. 238].
Austin Sarat, When the State Kills: Capital Punishment and the American Conditions (Princeton, 2001) 130 :
“The Court has, alternatively expressed expansive faith in the jury as a reliable, trustworthy repository of the
sovereign right over the lives ofthe citizens, and profound doubt about the jury’s capacity to exercise the power
responsibility.”
18
Gregg v. Georgia 428 U.S. 153, at 191.
19
Austin Sarat, When the State Kills: Capital Punishment and the American Conditions (Princeton, 2001) 132 :
‘‘leaving juries with the untrammeled discretion to decide who should live and who should die ensured
‘‘selective and irregular use’’ ofthe death penalty and allowed the punishment of death to be reserved for
‘‘minorities whose numbers arefew, who are outcasts of society, and who are unpopular’’.
20
Ibid. 135.
17
48
Figure 3 : The United States Supreme Court, Washington D.C.21
3 - The View of the Supreme Court :
The Furman case harshly divided the Supreme Court. At first it divided those who
voted in favor of capital punishment from those who voted against it. Then it divided those
among the opponents of capital punishment, because in fact there are two types of argument
against capital punishment : there is a procedural argument, which recognizes the death
penalty as unconstitutional only in the way it is imposed, while a substantive argument
declares the death penalty unconstitutional regardless of how it is administered.22 As we will
later see, only Justices William J. Brennan and Thurgood Marshall will oppose capital
punishment under the substantive argument.
Furman v. Georgia declares that the death penalty, as applied by the states, was found
unconstitutional. But though the majority voted against capital punishment, or more precisely
against the way it was imposed, yet the concurring justices did not have at all the same
opinions on this debate : There is not one decisive argument that carried a majority of views
among the Supreme Court. There was an accumulation of arguments, which in fact explained
the disappointing result of 1976. Furman v. Georgia was a five to four decision. A decision is
accepted and applied when the majority of the Supreme Court votes for it. The concurring
Justices were Justices Douglas, Brennan, Stewart, White and Marshall. All agreed that capital
punishment was a violation to the Constitution, but only two justices, Justice William J.
Brennan and Justice Thurgood Marshall, raised directly the issue of “cruel and unusual
punishment” on the basis that “standards of decency” have considerably evolved, and that the
death penalty was not anymore an acceptable form of punishment in such an evolved and
modern society. Thus they supported the substantive argument, according to which mentality
and moral grounds on which rested modern society had very much evolved and made
tremendous steps from previous decades. What was acceptable yesterday is no more
21
22
Deborah Kent, Thurgood Marshall and the Supreme Court (Grolier Publishing, 1997).
Stuart Banner, The Death Penalty, an American History (Harvard University Press, 2002) 272.
49
acceptable today, and the death penalty already belonged to the past. Even some methods of
execution had been challenged on the basis that they were considered as barbarous. It was the
example of the electric chair or the gas chamber, which have been very much criticized, and
that is also the reason why, nowadays, most of executions are carried out by lethal injection.23
The dissenting Justices were Chief Justice Burger, Justices Rehnquist, Blackmun and Powell.
One of the reasons which may explain why Furman v. Georgia was reversed four years later
is that in this case, except for Justices Brennan and Marshall, Justices who voted against death
penalty statutes were not firmly opposed to capital punishment, but rather to the way it was
being applied. According to Justice Stewart, for example, the fact that the jury was not
enough given guidance was sufficient to make the death penalty unconstitutional.24 But this
wording suggests that if jurors are given guidance later on, capital punishment would be
considered as constitutional again.
Figure 4 : The nine Justices of the Supreme Court (1986). Front Row, from left : Thurgood Marshall, William
Brennan, Chief Justice William H. Rehnquist, Byron White, Harry Blackmun. Second row, from left : Sandra
Day O’Connor, Lewis F. Powell Jr., John Paul Stevens, Antonin Scalia.25
4 - Gregg v. Georgia and the Restoration of the Death Penalty :
a – 1972 – 1976 : four years to change death penalty statutes :
Four years after Furman v. Georgia, a new case, also brought to the Supreme Court of
Georgia, would put an end to this constitutional debate and finally restore the death penalty.
Gregg v. Georgia (July 2, 1976) is also a set of several cases (five). In the Gregg case, Troy
Gregg, the offender, committed armed robbery and murder, and was sentenced under the new
23
Stuart Banner, The Death Penalty, an American History (Harvard University Press, 2002): “Of theninetyeightinmates executed in 1999,three were electrocuted and one died in the gas chamber;the other ninety-four
died when poisonous chemicals were put into their veins. Never had a method of execution swept the country so
quickly.” 296. See also appendices.
24
Austin Sarat, When the State Kills: Capital Punishment and the American Conditions (Princeton, 2001) 133.
25
Deborah Kent, Thurgood Marshall and the Supreme Court (Grolier Publishing, 1997).
50
death penalty statutes. The judge instructed that such a case could recommend a death
sentence or life imprisonment. The murder was committed in the course of another felony,
which represents an aggravating circumstance. The defendant has received a death sentence.
Troy Gregg challenged the imposition of the death sentence as a “cruel and unusual
punishment,” under the Eighth and Fourteenth Amendments, as it had been previously done
with Furman v. Georgia.
But since 1972, thirty five states have changed their former death penalty statutes, which were
considered as unconstitutional at the time of Furman. In other words, these states enacted new
statutory sentencing guidelines which allowed non-arbitrary and non-discriminatory
application of capital punishment. Since that date, in the way it was applied and carried out,
capital punishment was not considered anymore as a violation of the Eighth nor the
Fourteenth amendments.26 Moreover, Justices Stewart, Powell (previously opposed to capital
punishment in Furman v. Georgia) and Stevens, as a conclusion to Gregg v. Georgia, agreed
on the fact that a death sentence imposed for murder was not a violation of the Eighth and
Fourteenth Amendments. There was no more this ambiguity around disproportion between
crime and punishment, since “capital punishment for the crime of murder cannot be viewed
as invariably disproportionate to the severity of that crime.” 27
b – The new statutes :
Gregg v. Georgia was a seven to two decision, which means that only Justices
Brennan and Marshall stood on their former position and remained opposed to the death
penalty. On the other side, Justices Burger, Blackmun and Rehnquist stood on their former
position as well, and remained strongly opposed to capital punishment. As we previously
observed, Justices Stewart, Douglas and White changed their position and definitely stood for
the restoration of capital punishment since it was no more a violation of the Constitution in
the way it was imposed and carried out. However, Justices Stewart and Powell stood in the
middle, i.e. that they were not totally opposed nor in favor of capital punishment, and yet they
were forced to recognize that the death penalty was not procedurally unconstitutional
anymore. The situation had changed, because it was not the death penalty in itself which was
considered as unconstitutional, but precisely the way in which it was applied, and as the
26
Gregg v. Georgia, 428 U.S. 153, at 155 : ‘‘[…] thedeath penalty has been undercut bythefactthatinthe four
years since Furman, supra, was decided, Congress and atleast 35 states have enacted new statutes providing for
the death penalty.”
27
Ibid.
51
former death penalty statutes had been changed and revised in order to be conform to the
Constitution, capital punishment could be enforced again. Jurors were then given guidance
enough to avoid any arbitrary or discriminatory decision that could lead to a death sentence.28
In fact, in the Gregg case, jurors did not find one but three aggravating factors : First, the
murder was committed in the course of another felony, in this case armed robbery. Second,
the offender committed the felony in order to receive money and a car (the victim’s one), and
third, “the offence of murder was outrageously and wantonly vile, horrible and inhuman, in
that they involved the depravity of mind of the defendant.” 29
As a conclusion to Gregg v. Georgia, the Supreme Court declared that :
Considering the nature of the crime and the defendant, the sentences of death had not
resulted from prejudice or any other arbitrary factor and were not excessive or
disproportionate to the penalty applied in similar cases.30
New statutes were enacted, and aimed at fighting against arbitrariness and discretionary
power. These new statutes were not the same everywhere : Georgia, Florida and Texas
statutes set out aggravating circumstances to guide the jury (like most of the states did), while
North Carolina and Louisiana statutes provided mandatory death sentences for certain
crimes.31 All justices, except Justices William J. Brennan and Thurgood Marshall, approved
the new sentencing schemes which guided the jury with aggravating circumstances, whereas
five justices (Brennan, Marshall, Stewart, Powell and White) considered mandatory death
sentences as unconstitutional.32
5 – No More Disproportion Between Crime and Punishment :
a – Death sentence for murder : Punishment fits the crime :
Tropp v. Dulles held that the punishment must not be too excessive. Then, Gregg v.
Georgia held that the penalty of death was not excessive as applied to murder, that there was
no disproportion, that the punishment fitted the crime : It was no more a violation of the
Eighth Amendment.33
28
Gregg v. Georgia, [428 U.S. 153] : ‘‘The concerns expressed in Furman that the death penalty not be imposed
arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authorityis
given adequate information and guidance’’.
29
Ibid.
30
Ibid. at 162.
31
Stuart Banner, The Death Penalty, an American History (Harvard University Press, 2002) 274
32
Ibid. 275.
33
Gregg v. Georgia, [428 U.S. 153] at 177 : ‘‘We now consider specifically whether the sentence of death for the
crime of murderis a per se violation ofthe Eighth and Fourteenth Amendmentstothe Constitution. We notefirst
thatthe history and precedent strongly support a negative answer tothis question’’.
52
Gregg v. Georgia held as well that the ‘‘Cruel and unusual’’ argument could not be applied to
the methods of execution. Firing Squad34 or electrocution cannot be considered as ‘‘cruel and
unusual’’ because :
The punishment of death is not cruel, within the meaning of that word as used in the
Constitution. It implies there something inhuman and barbarous, something more than
the mere extinguishment of life.35
Thus, what was stipulated in Furman four years before had been completely reversed and
ruled out.
Gregg v. Georgia relies also upon the perception of the death penalty by the public opinion :
It is now evident that a large proportion of American society continues to regard it as
an appropriate and necessary criminal sanction .36
But though it relies also very much on public opinion, Gregg v. Georgia, as well as Furman v.
Georgia, demonstrates the ineffectiveness of deterrence. It clearly declares that the death
penalty has no deterrent effect at all, but is a factor which have not to be taken into account in
order to punish an offender.37
b – A reassessment of the jury’s power :
Gregg v. Georgia reassesses roles and positions of the jury, which in fact have not
changed so much. The jury ‘‘act[s] as the conscience of the community, deciding whether
those accused of capital crimes live or die,’’
38
and for that reason remains necessary. We
consider after Gregg that members of the jury are given enough guidance and information
upon the case and the defendant, in such a way that the death penalty could be no more
imposed in a ‘‘freakishly [nor] wantonly manner.’’
Among others, the new sentencing guidelines enacted that before imposing a death sentence,
the jury must find at least one aggravating circumstance39, and thus have to take every factor
into account. They have also to compare ‘‘each death sentence with the sentences imposed on
34
Wilkerson v. Utah, 99 U.S., at 134-135 : ‘‘[…] The punishment of shooting as a mode of executing the death
penalty for the crime of murder in the first degree is not included into that category [of ‘‘cruel and unusual
punishment’’] within the meaning ofthe Eighth Amendment’’.
35
Gregg v. Georgia. [428 U.S. 153].
36
Gregg v. Georgia. [428 U.S. 153] at 180.
37
Ibid. quote from Lord justice Denning in ‘‘Royal Commission on Capital punishment, Minutes of Evidence’’,
Dec 1, 1949, p. 207 (1950) : “Punishment is the way in which society expresses its denunciation of wrong
doing […] Itis amistake to consider the objects of punishment as being deterrent or reformative or preventive
and nothing else.”
38
Austin Sarat, When the State Kills: Capital Punishment and the American Conditions (Princeton, 2001) 127.
39
Gregg v. Georgia. [428 U.S. 153], at 199 : “Georgia’s new sentencing procedures require as a prerequisiteto
the imposition ofthe death penalty,specificjury findings as tothe circumstances ofthe crime or the character of
the defendant.”
53
similarly situated defendants’’ 40 to ensure that there is no arbitrary imposition of the death
penalty, that it had not been imposed on a racial basis, and that the death penalty imposed in a
particular case is not disproportionate compared to the crime which has been committed.
Jury’s discretion has been thus very much bridled.
As a result to Gregg v. Georgia, ‘‘the race of a defendant was no longer a factor influencing
the likelihood of a death sentence.’’ 41
The conclusion to this case was the imposition of capital punishment for first degree murder,
and gives us the definition of what is a murder :
A person commits murder when he unlawfully and with malice aforethought, either
express or implied, causes the death of another human being. Express malice is that
deliberate intention unlawfully to take away the life of a fellow creature, which is
manifested by external circumstances capable of proof. Malice shall be implied where
no considerable provocation appears, and where all circumstances of the killing show
an abandoned and malignant heart. 42
The majority opinion among the Supreme Court was that the new statutory sentencing statutes
were no more considered as unconstitutional, and so capital punishment in itself was no more
unconstitutional as well. There were seven justices who were supporting the death penalty on
the basis that it was fitting the crime of murder. Three justices changed from their former
position and then supported the restoration of capital punishment. As for Justices Brennan and
Marshall, they stood on their position, i.e. that according to them, the death penalty was still a
violation of the Eighth Amendment.
Chapter II - Capital Punishment : A
Constitutional Issue
1 – Towards Abolition of Capital Punishment :
In the previous part, we saw what was the context which led to the abolition of capital
punishment in 1972 with the landmark ruling Furman v. Georgia. However, to understand
why capital punishment had been challenged, we have to analyze on what basis. We already
observed that it was on the basis of the Eighth and Fourteenth Amendments of the US
40
Gregg v. Georgia. [428 U.S. 153].
Stuart Banner, The Death Penalty, an American History (Harvard University Press, 2002) 289.
42
Furman v. Georgia. [408 U.S 238].
41
54
Constitution. The Eighth Amendment provided that “no cruel and unusual punishment”
would be inflicted, while the Fourteenth Amendment proclaimed “equal protection of the
laws.” In this part, we will study the Constitution, and more particularly these two clauses,
but we will not only analyze the death penalty under the constitutional aspect : we will also
focus on the original intent of the Framers by wondering if the Constitution is still valid and
reliable nowadays : Can we still apply it to modern society ?
2 - Deciphering the Constitution :
a – The Eighth Amendment :
The Eighth Amendment assesses the relation between a crime and the way it is
repressed. In other words, it declares that the punishment must fit the crime, that there must be
no disproportion between a crime and its punishment. In this amendment, three types of
penalties are considered : “bail, fines”, and “cruel and unusual punishment” which implicitly
refers to physical punishment. The first notion of punishment is financial : “Excessive bail” ,
which entails that one has to pay for being free. However this type of punishment cannot be
disproportionately imposed, and the sum which is fixed must not be too excessive compared
to the committed crime. Thus, the Eighth Amendment does not only apply to capital
punishment but to a wide variety of punishments.
The origin of the clause is a very old concern which goes back to the English system of
justice, during the period of Magna Carta (1215). According to that clause, there must be
some kind of proportionality between the crime and its punishment. There was a kind of norm
which recognized this system of correspondence. In fact, the Eighth Amendment of the
American Bill of Right (1791) is a copy of what was in the English Bill of Rights.
However, at the time this amendment was passed, we have to wonder about what was banned
and what was not banned, and what was considered as a “cruel and unusual” form of
punishment. Even once the Bill of Rights was passed in 1791, there were still forms and
methods of punishment, even if non capital, which we would consider nowadays as “cruel
and unusual”, like for example branding, ear cropping or tarring and feathering.
At first, the Eighth Amendment was not at all applied to capital punishment, but rather for a
wide variety of disproportionate punishments. During the nineteenth century, some forms of
punishment disappeared, such as tarring and feathering or ear cropping. Useless to say that
with the passing of time, such sentences were becoming to be considered as excessive,
barbarous, so “cruel and unusual” as well.
55
Before Furman v. Georgia, there were two cases of complaint around the cruel punishment
argument that came to the Supreme Court. In the first, Weems v. US
43
, an offender
condemned to hard labor was put up in chains at ankles and wrists, and the court decided that
it was a “cruel and unusual punishment” because of the disproportion of the chains. In
another case, Tropp v. Dulles44, a soldier had been deprived of his nationality for deserting
during World War II. It was a kind of symbolical punishment, and the court decided again
that it was disproportionate, and thus unconstitutional. According to Justice Thurgood
Marshall, a strong liberal opponent to the death penalty, capital punishment “is an excessive
and unnecessary punishment that violated the Eighth Amendment”
45
because it violates
“principles of justice which evolved with each generation.” 46
So the Eighth Amendment carries a strong potential because it defends people who have no
voice. It is a kind of safeguard for people who cannot defend nor be heard. The Eighth
Amendment defends the rights of the silent minority. However, this clause rests on moral
considerations, because in fact it rests on the way the court will interpret the law. As we
previously saw, it applies not only to the death penalty but to all types of punishment. It says
there will be a justice based on moral grounds : moral values, moral judgement. But where
does morality rest ? There are very relative changes in time and space. Here again we have to
make reference to the Tropp v. Dulles case, which sets up the “evolving standards of
decency.” 47
b – The Fourteenth Amendment :
More than the Eighth Amendment, it is the Fourteenth Amendment which challenged
the most capital punishment, on the grounds of moral discrimination. Indeed, this clause seeks
the same kind of punishment, or sentence, in any similar case. Thus, if a black defendant is
imposed a death sentence for having raped a white woman, while a white offender is only
imposed life imprisonment for the same crime, and on the same kind of victim, then we can
call it arbitrariness, or more explicitly racial discrimination. This type of sentencing is a
violation of the Fourteenth Amendment which grants “equal protection of the laws,” and
which reduces the discretionary power of judicial actors such as prosecutors or members of
43
Weems v. US [217 U.S. 373] (1910).
Tropp v. Dulles [356 U.S. 86] (1958).
45
Furman v. Georgia, 408 U.S. 238, at 358.
46
Alan I. Bigel, Justices Williams J. Brennan and Thurgood Marshall on Capital Punishment; Its
Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court (University Press of America,
1997) 126.
47
Tropp v. Dulles, 356 U.S. 86 at 101.
44
56
the jury. Thus, disregarding of external factors such as race, gender or religion, any offender
must be judged in equal terms. However, do we have guarantees that these principles are
strictly respected ? Is it possible to erase any trace of arbitrariness ? And what about
unconscious racism ?
Now that we have defined the purpose of the Fourteenth Amendment, it is obvious that capital
punishment was considered as a violation to these two clauses. However, it is definitely the
way in which it was imposed that capital punishment was unconstitutional because it was both
disproportionately and arbitrarily imposed.
3 - The Original Intent of the Framers :
a – The wording of the Constitution :
In order to understand the current debate, we have to come back to the “roots” and to
inquire about the Framers’ wording of the Constitution as well as their perception of the death
penalty.
In Furman v. Georgia and Gregg v. Georgia, there are references to the original intent of the
Framers, of what they wanted to develop, or to defend when they wrote the Constitution. We
already studied the origins of some clauses, such as the Eighth and Fourteenth Amendments,
but what the Framers did not expect at that time, is that such clauses and amendments would
have, centuries later, to recover new situations that did not exist at the time of the writing.
The U.S Constitution is a fascinating text because it has always interested lawyers, judges,
scholars and many other people who have to work with and rely on it. However we must not
forget that the Constitution was written more than two hundred years ago and that the social
and historical reality of that time was far from being the same as it is today. Nowadays, the
Constitution has to cover many different situations, which the Framers did certainly not have
in mind during the writing of this text. For example, it is interesting to observe that though
there is nowhere in the Constitution any mentioning of the right to privacy, Supreme Court
Justices found the way to define it in the Fourteenth Amendment, also under the “Equal
Protection of Laws.” Thus, according to this right to privacy, women could abort, and could
decide whether to remain pregnant or not. Abortion was certainly not an issue that the
Framers had in mind, though this is a social issue that had been very much challenged during
the 1970’s, along with the death penalty. So in fact the Constitution has a flexibility which
allows the text to be extended to some issues that were completely unexpected during the
Eighteenth century.
57
The debate over the original intent is difficult because it is hard to define what were the
realities of that time, and above all what the Framers did have in mind. A question may arise
when one begins to think about the flexible capacity of the Constitution : Is it possible to
extend this text on and on ? This is a debate which opposes Conservative people, according
to whom the wording of the Constitution is forever fixed and cannot be extended to our social
realities. These people generally are opposed to abortion on the grounds that the Constitution
entails the right to life, and are also strong supporters of the death penalty, while more liberal
people tend to think that the wording of the Constitution is not fixed, but rather evolves as
well as society and mentalities. As this debate came up to the Supreme Court, Justices were
also strongly divided over this issue, and according to Justice Thurgood Marshall, the United
States at the time of the Constitutional Convention (1787) were a very different society from
nowadays :
I do not believe that the meaning of the Constitution was forever ‘fixed’ at the
Philadelphia Convention. Nor do I find the wisdom, foresight, and the sense of Justice
exhibited by the Framers particularly profound. To the contrary, the government they
divided was defective from the start, requiring several amendments, a civil war, and
momentous social transformation to attain the system of constitutional government,
and its respect for the individual freedoms and human rights, that we hold as
fundamental today48.
b – Justices William J. Brennan and Thurgood Marshall’s understanding of the
Constitution :
According to Justice Marshall, the Constitution was not “fixed” at all49. To argue upon
the racial disparities, Justices Marshall and Brennan, who entirely shared the same opinion,
discussed the Framers and the practices of their time, i.e. slavery, lynching and so on. In fact,
the meaning of the Constitution also evolved as well as American society has evolved. Many
historical events happened, and have completely reshaped the wording of the Constitution :
the Civil War and the abolition of slavery in 1863, the Civil Rights Movement of the 1960’s
have considerably redefined the meaning of the Constitution, because at the time of the
Philadelphia Convention, the Framers would have never expected that such events could
happen one day, whether it would be decades or centuries later. Marshall frequently discussed
the Framers, not only because he thought they wrote a “random catalogue of rights that
48
Alan I. Bigel, Justices Williams J. Brennan and Thurgood Marshall on Capital Punishment; Its
Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court (University Press of America,
1997) 31. Quote from Thurgood Marshall, Com mentary : R
eflections on the Bicentennial of the Constitution,
(1987).
49
Deborah Kent, Thurgood Marshall and the Supreme Court (Grolier Publishing, 1997) 24.
58
seemed to satisfy their urge for a statement of first principles,” 50 but also because there are
many points in the Constitution which are not clear because of its “ambiguous wording.”
51
The most interesting point for us is obviously the Eighth Amendment. Many erroneous
judgements have been made because one did not know whether it was the execution which
was considered as a “cruel and unusual punishment,” or the process, i.e. the way the
execution was carried out. Because of this ambiguity, Justice Brennan never made the
difference between the death penalty, i.e. the execution, and its methods :
Does “cruel and unusual” refer to the penalty itself or the manner in which it is
administered ? 52
Alan Bigel, author of Justices Brennan and Marshall on Capital Punishment; Its
Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court, also
unsuccessfully tries to redefine the original intent, but goes to the same conclusion :
It is uncertain whether the words “cruel and unusual” apply to the content of
legislation as well as the process by which a defendant is tried. 53
Compared to Marshall’s, Brennan’s perception of the wording of the Constitution is much
more subtle. According to him, the Framers’ intent was to ban “cruel and unusual” forms of
punishment, i.e. punishments that could inflict atrocities or which could be seen as barbarous
at the time. This goes on with what we previously studied in the deciphering of the Eighth
Amendment : what was banned at the time, and above all, what was considered as “cruel and
unusual ?”
William J. Brennan explains this ambiguous wording of the Constitution by the fact that it
was intended by the Framers, so that next generations could revise its understanding.54 This is
a theory that we cannot deny since, as we already saw, at the time they wrote the Constitution,
social realities of our times could not be expected, simply because it did not exist, and
because society was completely different. In 1973, when Roe v. Wade55 declared abortion
constitutional, it was written nowhere in the Constitution that abortion was illegal nor
unconstitutional, nor
was it written that the death penalty was a “cruel or unusual
50
Alan I. Bigel, Justices Williams J. Brennan and Thurgood Marshall on Capital Punishment; Its
Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court (University Press of America,
1997) 37
51
Ibid. 38
52
Ibid. 85
53
Alan I. Bigel, Justices Williams J. Brennan and Thurgood Marshall on Capital Punishment; Its
Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court (University Press of America,
1997) 38
54
Ibid. 81 ‘‘The Framers […] inserted ambiguous words into the Constitution to enable future generations to
revisethe original understanding.’’
55
Roe v. Wade[410 U.S. 113] (1973).
59
punishment.” It is this ambiguous wording that allows us to extend this text to our social
realities. American history already taught us that the Constitution is evolving on and on and
that what was acceptable and constitutional at one moment of history could not be acceptable
anymore, simply because society had evolved, along with the “standards of decency that
mark the progress of society.”56 The most obvious examples are the Supreme Court cases
Plessy v. Ferguson57 (1896), which set up the notion of “separate but equal”, and Brown v.
Board of Education58 (1954), which then ruled out this notion because it was finally
recognized as open segregation, and thus was made unconstitutional. It is also the case of Roe
v. Wade (1973), which finally made abortion into a legal institution. It was not until that
Supreme Court case that abortion became legal in the United States. These examples clearly
demonstrate how much society evolves, and how much the Constitution has to bend to some
situations.
The original intent is also quoted in Furman v. Georgia59, demonstrating thus that justices
bore in mind this argument, which is also a central argument in whether or not the death
penalty is constitutional, and whether or not capital punishment has some limits in its
constitutionality.
In Gregg v. Georgia, it is pointed out as well that in the original intent of the Framers, the
death penalty was a reality, and was accepted as a means of retribution :
It is apparent from the text of the Constitution itself that the existence of capital
punishment was accepted by the Framers. At the time the Eighth Amendment
was ratified, capital punishment was a common sanction in every state.60
c – Opposition to Brennan’s arguments :
It would be interesting as well to take into account the point of view of pro-death
penalty thinkers. According to Walter Berns, a defender of capital punishment and author of
For Capital Punishment, Crime and the Morality of the Death Penalty, the death penalty is
the expression of society’s anger. Berns gives many justifications (the need for justice and for
an efficient judicial tool) for anger, and thus for the death penalty, because it is a way for the
56
Tropp v. Dulles [356 U.S. 86] at 101 (1958).
Plessy v. Ferguson [163 U.S. 537] (1896).
58
Brown v. Board of Education [347 U.S. 483] (1954).
59
Furman v. Georgia [408 U.S 238]: ‘‘Those who wrote the Eighth Amendment knew what price they forebears
had paid for a system based, not on equaljustice, but discrimination.’’
60
Gregg v. Georgia [420 U.S. 153].
57
60
community to express its resentment, its refusal of crime and violence, and it shows that
society is based on laws and justice.61
Moreover Berns is harshly opposed to Justice Brennan, who put the emphasis on offender’s
human dignity as an argument against capital punishment :
Justice Brennan […] says the death penalty does not “comport with human dignity”
because it treats “members of the human race as non humans, as objects to be toyed
with and discarded.” On the contrary, it treats them as responsible moral beings.62
[…] What sort of humanism is it that respects equally the life of Thomas Jefferson and
Charles Manson, Abraham Lincoln and Adolf Eichmann, Martin Luter King and
James Earl Ray ? To say that these men […] equally possess human dignity is to
demonstrate an inability to make a moral judgement derived from or based on the idea
of human dignity.63
It was against this type of opposition and arguments that Justices Brennan and Marshall had to
fight the day after the restoration of the death penalty. We will not focus on the debate over
the morality or the human dignity aspect of capital punishment, though it is still very strong
and controversial today, but we would rather focus on its legality and constitutionality.
Chapter III -
Offenders’ Constitutional Rights
The Eighth and Fourteenth Amendments are guaranties to offenders that they will not
suffer from the penalty of death, that they will not be arbitrarily convicted and not punished in
a “cruel and unusual” manner.
Before being tried, an offender has several rights that must be respected : his constitutional
rights must not be violated, whatever the nature of the crime may be. Among others, any
defendant has a right to be tried by a jury, to be defended by a lawyer, to remain silent during
any interrogatory and not to incriminate him/herself.
1 - A Guaranty Against Illegal and “Unreasonable Searches:” 64
The Fourth Amendment guaranties any citizen the protection of his being and his
properties :
The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated […]65
61
Walter Berns. For Capital Punishment, Crime and the Morality of the Death Penalty (Basic Books INC
Publishers, 1979) 155.
62
Ibid. 162.
63
Ibid. 163.
64
Constitution of the United States of America, Fourth Amendment (1791).
61
Thus, according to this clause, if someone is suspected, the police must first acquire a “search
warrant” before proceeding any search. Even the car of an offender cannot be searched
without a search warrant, since it is considered as an extension of his/her home. The fact that
the police need a search warrant comes from a Supreme Court case66, (1966), much known
under the name “Miranda rule.” Among others, the Miranda rule set up the “exclusionary
rule”, according to which any evidence which has been illegally or unconstitutionally
acquired cannot be valid during the trial and has to be removed.67 Thus, the search warrant is
a proof that there is a presumption, since it is a magistrate who gives the search warrant to the
police. It is also a guaranty for the police, and a proof that they did not commit any violation
to the offender’s constitutional rights.
2 - A Guaranty Against Self-incrimination :
No person shall be held to answer for a capital, or otherwise infamous crime […] nor
shall be compelled in any criminal case to be a witness against himself.68
The Fifth Amendment is a guaranty that one cannot incriminate against oneself,
because indeed, any declaration must be accepted during pre-trial. However, there have been
many cases in which offenders have been tortured or mistreated by the police , to avow
offences that sometimes they did not commit. In a recent documentary realized by JeanXavier de Lestrade69, a fifteen year old black offender had been hit and forced by police
officers in charge of the case to avow he committed the offence (in this case it was the murder
of a white woman), though he was totally innocent. Police officers finally avowed they hit and
forced the defendant to sign forced confessions, which he even did not write himself.
When confessions are forced, they are not admissible at all before the Court and the judge.
Indeed, the state must prove the guilt with legal and constitutional practices. Once arrested by
the police, the defendant must be aware of his/her rights. Again this is part of the Miranda
rule which guaranties the “right to silence and counsel during custodial interrogation”70 : the
offender must be informed that (1) he/she has the right to remain silent; (2) anything he/she
says can be used against him/her at a trial; (3) he has a right to have an attorney present during
65
Ibid.
Miranda v. United States [384 U.S. 436] (1966).
67
Christine-Paule Trocellier, Système Judiciaire et Procédure Pénale aux Etats Unis (Document ACAT, octobre
2002) 29.
68
Constitution of the United States of America, Fifth Amendment (1791).
69
Jean Xavier de Lestrade, Un coupable idéal (2001).
70
Angela J, Davis, The American Prosecutor : Independence, Power and the Threat of Tyranny (Iowa Law
Review, 2001). 420.
66
62
questioning; and (4) if he/she cannot afford an attorney, one will be appointed prior to
questioning.71
Moreover, the Fifth Amendment prevents any offender to be judged twice for the same
offense :
[…] nor shall any person be subject for the same offense to be twice put in jeopardy of
life or limb.
3 - The Right to Have a Jury Trial :
The right to be tried before a jury is embedded in the Fifth,72 Sixth73 and Seventh74
Amendments of the U.S Constitution. We have already studied the role of the jury and its
function as an intermediary between “contemporary values and the penal system,” 75 but we
did not see yet that this right could be challenged.
a – The plea bargain :
Indeed, in a capital case, the prosecutor may propose a plea bargain to the defendant.
The plea bargain is in fact a guilty plea : the offender accepts to plead guilty, and in exchange
he obtains a lesser sentence. Before accepting to plead guilty, the offender must be fully
aware of the procedures, its consequences and has to accept it. If the guilty plea has been
made under constraint, it is considered as unconstitutional.76 Only offenders with no prior
records are more likely to be proposed a plea bargain.77 This type of bargain, which is very
much used and which represents the safest way for any guilty offender to avoid the execution,
is however dangerous because it does not guaranty anymore some constitutional rights, such
as the right to be tried by a jury. The guilty plea is in fact an old concern which comes back to
the Christian theology, according to which the recognition of one’s own faults was the first
step towards redemption. Nowadays, the plea bargain is used in 90% of the penal cases,78
because it allows the courts to file the case more rapidly. According to experts such as Angela
J. Davis, Law Professor at American University, Washington College of Law, the use of the
plea bargain is necessary, though it carries many risks.
71
Christine-Paule Trocellier, Système Judiciaire et Procédure Pénale aux Etats Unis (Document ACAT, octobre
2002) 29.
72
Constitution of the United States of America, Fifth Amendment (1791): “No pe
r
son shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment orindictment of a grand jury […]”
73
Ibid. Sixth Amendment (1791): “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and publictrial,by an impartialjury ofthe state and district wherein the crime shall have been committed […]”
74
Ibid, Seventh Amendment (1791) : “Insuits atcommon law, […] the right oftrial by jury shall be preserved
[…]”
75
Gregg v. Georgia 428 U.S. 153, at 191
76
Alain Bauer, Emile Perez. L’Amérique,la violence,le crime.Les réalités et les mythes (PUF 2000) 219.
77
Angela J, Davis, Prosecution and Race : The Power and Privilege o
fDiscretion (Fordham Law Review, Vol
67, 1998) 36.
63
Without plea bargains, the court would have lots of troubles because trials would last for
months and months. Once the plea agreement is made, there is no more trial because the
offender’s guilt is already defined. The procedures directly goes to the sentencing phase. If
the offender does not plead guilty, he/ she goes to trial, after two or three weeks of preparation
for the trial. During this time, the defense will prepare motions , in order to remove from the
file any evidence which had been illegally or unconstitutionally acquired. Besides, during the
trial, police officers have to explain how they obtained evidence.79
Thanks to the plea bargain, there is no trial before a jury, and no guilty or innocent phase,
since the offender is already guilty. Law Professor Angela J, Davis explains how works the
plea bargain :
Plea Bargain is usually a very informal process. It can occur at any point after the
charging decision had been made […]. Prosecutors are not required to offer a plea
bargain in every case […]. In most cases, prosecutors make the plea bargain decision
early in the process. After the defendant is presented with a copy of the charges, the
prosecutor will let the defendant whether there is a plea offer and whether a defendant
must accept the offer by a certain date […]. Typically, the judge will schedule a status
hearing at some point before the trial date, primarily for the purpose of determining
whether a defendant will plead guilty or exercise his right to a trial […]. If the
defendant accepts the offer, usually he will plead guilty at the status hearing and the
judge will either sentence him at that time, or in more serious cases, schedule a
sentencing hearing at a later date. Sometimes plea bargaining involves back-and-forth
negotiating between the prosecutor and the defense attorney, with offers, counteroffers, and discussion about the relative strengths and weaknesses of the prosecutor’s
case […]. The prosecutor will offer to dismiss one or more charges in exchange for the
defendant’s guilty plea to other charges. The defense attorney may make a counter
offer that would produce a more favorable result for her client. The prosecutor may
not accept the counter-offer, but may respond with an offer that is more attractive to
the defendant. If the parties reach an agreement, they inform the judge and the guilty
plea is entered at the next court hearing.80
Thus, the defendant gives up some of his constitutional rights, like his/her right to a trial, to be
heard by a jury, to have witnesses in his/her favor, to be protected against self incrimination,81
but on the other side he/she “avoids the possibility of being convicted of a more serious
offense and being imprisoned for a longer period of time.” 82
As we previously said, the plea bargain is very dangerous, because it may carry many risks if
the defendant is innocent. If the defendant is innocent, refuses a plea offer and that he is
further sentenced to death, then what happens ? That is the reason why some innocent
78
Colloque « Egalité et Justice :Regards croisés France /Etats Unis » 2 et 3 Avril 2004.
Alain Bauer, Emile Perez. L’Amérique,la violence,le crime.Les réalités et les mythes (PUF 2000) 219.
80
Interview with Angela J, Davis, Law professor at Washington College of Law (June 2004). The whole
interview is available in the appendices.
81
Alain Bauer, Emile Perez. L’Amérique,la violence,le crime.Les réalités et les mythes (PUF 2000) 219.
82
Angela J, Davis, Prosecution and Race : The Power and Privilege of Discretion (Fordham Law Review, Vol
67, 1998).
79
64
offenders have later confessed of having pleaded guilty, in order to avoid an execution.
Indeed this plea is possible even if the offender is innocent, which in a capital case will avoid
him/her the execution83 : In most of the cases, though the plea bargain can be considered as an
opportunity for offenders, it may sometimes turn into a threat, constraining them to accept the
plea only because of the fear to be executed. In those cases, because it were capital crimes, a
guilty plea would assure them a life sentence.84 But in this case, the plea bargain is in general
abusively used. Is it nonetheless normal that an offender who claims himself as innocent has
to plead guilty in order to avoid a death sentence ? If the justice system would correctly
function, no innocent defendant would have to make a guilty plea. According to Professor
Angela J, Davis:
Innocent people should never plead guilty. If a person is innocent, he/she should go to
trial. Judges will not accept guilty pleas from individuals who say they are innocent of
the offense.85
b – Abusive use of the plea bargain :
However, the plea bargain is more and more criticized because it may be used
abusively. That is the reason why some states and counties have completely abolished the plea
bargain from their judicial system.86 In some cases, when the police lacks evidence, they will
use the plea bargain, more generally in capital cases :
- In cases in which there are two defendants, the police would sometimes make a bargain with
one offender so that this one testifies against the other during the trial. The offender accepts
the guilty plea and gets a reduced sentence in exchange of his testimony. In this type of case,
the offender who committed the crime is generally the one who accepts to plead guilty.87 This
is clearly an abusive use of the plea bargain because it does not treat both offenders equally :
The defendant who testified gets life imprisonment while the other is sentenced to death.
- The police, or the prosecutor may also use a co-prisoner (also called “jailhouse informants”
or “snitches”
88
) to testify against the defendant. These witnesses in fact never met the
defendant before, and claim at the trial that the offender confessed them important details of
83
Alain Bauer, Emile Perez. L’Amérique,la violence,le crime.Les réalités et les mythes (PUF 2000) 219.
Christine-Paule Trocellier, Système Judiciaire et Procédure Pénale aux Etats Unis (Document ACAT, octobre
2002) 52.
85
Interview with Angela J, Davis, Law professor at Washington College of Law (June 2004).
86
Alain Bauer, Emile Perez. L’Amérique, la violence, le crime. Les réal
tési et s
l
emythes (PUF 2000) 219 :
Alaska, and some counties of Louisiana, Texas, Iowa, Arizona, Michigan and Oregon have abolished the plea
bargain from theirjudicial system.
87
Christine-Paule Trocellier, Système Judiciaire et Procédure Pénale aux Etats Unis (Document ACAT, octobre
2002) 53
84
65
the crime. These snitches expect rewards, such as reduced charges or early release.89 Some of
these snitches are ready to invent testimonies in exchange of a lesser sentence, and thus some
convicted offenders have been later exonerated because the snitches later recognized they lied
during the trial.90 We can assume that, contrary to what pro-death penalty people claim,
innocent people have already been executed because of these doubtful practices. Despite all
the risks it may entail, such testimonies are not restricted in some states such as Texas.91
4 – The Right to a Lawyer :
The right to have a lawyer, i.e. the right to be adequately defended during a trial, is
granted to any citizen in the Sixth Amendment of the U.S Constitution :
In all criminal prosecution, the accused shall enjoy the right […] to have the
assistance of counsel for his defense.92
According to this clause, any offender, from any racial and social background, deserves a fair
representation in front of the Court. Indigent offenders can also be defended by lawyers who
are thus appointed by the Court. However, as we saw previously with the analysis of the
Furman case, poor defendants have much more chances to be sentenced to death than richer
offenders. How and why is it so ?
a - American lawyers :
There are approximately one million lawyers who are exercising in the United States
nowadays, which represents quantitatively one lawyer for every 280 inhabitants. The Sixth
Amendment guaranties the right to counsel, and the Fourteenth Amendment extends it,
because it guaranties that there will be no “deprivation of life, property or freedom” without
“due process of law.” 93
The lawyer is omnipresent during the whole investigation and the different phases of the trial.
The aim of the Sixth Amendment is to guaranty first and foremost individual freedom.94 The
primary role of the lawyer is to defend and help the offender to understand the nature and the
consequences of the actions that are engaged against him/her. The lawyer represents the
defendant from his arrest until his/her sentence, he counsels the defendant during
88
Texas Defender Service. A State of Denial: Texas Justice and the Death Penalty. (2000) 22.
Ibid.
90
Christine-Paule Trocellier, Système Judiciaire et Procédure Pénale aux Etats Unis (Document ACAT, octobre
2002) 53
91
Texas Defender Service. A State of Denial: Texas Justice and the Death Penalty. (2000) 22.
92
Constitution of the United States of America, Sixth Amendment (1791).
93
Constitution of the United States of America, Fourteenth Amendment (1791).
89
66
interrogatories and makes sure he/she does not have any constitutional right violated and that
the procedure is legally led.
The lawyer has many rights and access to many pieces of the file : he has access to police
reports and details of the investigation, he can meet the police, the accused and witnesses, in
order to find new evidence in favor of the accused. The lawyer can also meet the prosecutor,
with whom he can converse about the content and the nature of the offense, and finally he
assists the accused during the trial, and can negotiate a plea bargain.
In fact, because 90% of the cases ends with a plea bargains, lawyers rarely go to trial. It is the
offender who chooses his/her own lawyer, except when this one is appointed. When the
lawyer is appointed, it is because the offender is indigent. The appointed lawyer generally
comes from a “public defender” service.95
Though the right to a lawyer is granted to any American citizen, the Supreme Court, in 1975,
allowed that an offender could defend him/herself, without any counsel. According to the
Supreme Court, he/she alone can be subject to the poverty of his/her own defense.
Finally, it is possible that one offender may be defended by several lawyers. On the other side,
one lawyer may represent several offenders in one case.96
b - Appointed lawyers :
Indigent inmates can have a lawyer, as it is stipulated in the Sixth Amendment, but in
most of the cases it is a lawyer who has little (if any) experience in capital cases.97 Because of
a lack of funds, these lawyers are generally young lawyers, who have not much experience.
Experienced and more trained lawyers would not do the job for free, because appointed layers
in capital cases are most of the time largely underpaid (the average is approximately $20 per
hour98) : They cannot spend the amount of time that would be necessary to lead such a case
seriously. Furthermore, they have basically no fund to hire the services of specialists such as
detectives or scientists to search or analyze the hints and evidence. In some cases, lawyers
have only seen the offender twice : once at the first meeting, during a brief interview, and the
second during the trial. Others have only spent a couple of hours on cases that would have
94
Alain Bauer, Emile Perez. L’Amérique,la violence,le crime.Les réalités et les mythes (PUF 2000) 216.
Alain Bauer, Emile Perez. L’Amérique,la violence,le crime.Les réalités et les mythes (PUF 2000)
96
Ibid.
97
Texas Defender Service. A State of Denial : Texas Justice and the Death Penalty. (2000) 95 : “Many Texas
death row inmates are represented by defense lawyers who have never tried a capital case.”
98
Ibid. 83
95
67
necessitated at least a hundred. Many reports99 heap criticism on these appointed lawyers, but
they do not seem to take into account the fact that these lawyers have no fund, no money to do
their job properly.
The American Bar Association estimates that in order to carry out a proper defense, there
must be at least two lawyers.100
According to Angela J, Davis :
Every lawyer who tries a death penalty case should go through and through training on
the laws and procedures that apply in the particular state. Only very experienced trial
lawyers with excellent advocacy skills should try these cases. They should also learn
how to investigate and present evidence in the penalty phase of the trial – a very
important and unique aspect of death penalty cases.101
The problem is not only that the appointed lawyers are not enough skilled to try capital cases,
but there are also disparities and inequalities in terms of access to justice :
- Today in the United States, can we say that there are inequalities in terms of “access
to justice ?”
- Absolutely. There are tremendous inequalities in the level of representation and in
how defendants are treated by the prosecution. People of color and the poor are treated
less fairly.102
Yet, there are very good and competent lawyers who freely offer their services and take
capital cases which would need the services of an expert. These pro-bono lawyers often
belong to a Public Defender Service too (such as the Texas Service Defender, which takes up
many cases in which mistakes have been committed during the trial) which receives public
funds. Useless to say that Southern states give practically no money to these public services.
Indeed, as we said previously, the death penalty is an unfair, even discriminatory institution
since it does not guaranty at all the “Equal protection of the Laws” granted by the Fourteenth
Amendments. The most fortunate defendants, who can pay the price and afford the services of
a good lawyer never go on death row, while the poorest ones are generally sentenced to death
(99% of death row inmates are indigent and were defended by appointed lawyers). These
differences in terms of access to justice not only differentiate poor offenders from the richest
ones (though it is rare that there are wealthy convicted offenders), but also black offenders
from the white ones, as we will see later on.
99
Texas Defender Service. A State of Denial : Texas Justice and the Death Penalty. (2000) / Amnesty
International.
100
Texas Defender Service. A State of Denial : Texas Justice and the Death Penalty. (2000) 81 : “Texas were
not required to appointtwo lawyers to represent a defendant in a capital case […]. Even today, a judge may still
choose to appoint only one lawyer.”
101
Interview with Angela J, Davis, Law professor at Washington College of Law (June 2004).
102
Ibid.
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c – The “sleeping lawyer” syndrome :
The Constitution says everyone’s entitled to the attorney of their choice… The
Constitution doesn’t say the lawyer has to be awake.
Harris County District Judge Doug Shaver, reacting to a
capital defendant’s lawyer sleeping during trial in his
court.103
As surprisingly and revolting as it may sound, several reports, such as A State of Denial,
Texas Justice and the Death Penalty, done by the Texas Defender Service, in many cases
lawyers were sleeping during the whole trial. It reports many cases in which the lawyer,
during the trial, was asleep. No use to say a single word about the bad and poor quality of the
offender’s representation. The problem for indigent inmates comes less now from the gravity
of the crime committed than from the competency (or the lack of competency) of some
lawyers. Rev. Jesse Jackson, in Legal Lynching. The Death Penalty and America’s Future,
also does a harsh criticism over these unacceptable practices, by telling us the story of John
Benn, appointed lawyer to John McFarland, convicted in 1991 :
Seated beside his client, defense attorney John Benn spent much of Thursday
afternoon’s trial in apparent deep sleep.
His mouth kept falling open and his head lolled back on his shoulders […] Every time
he opened his eyes, a different prosecution witness was on the stand describing
another aspect of the November 19, 1991, arrest of George McFarland in the robberykilling of Grocer Kenneth Kwan.
When State District Judge Doug Shaver finally called a recess, Benn was asked if he
truly had fallen asleep during a capital murder trial. […] Court observers said Benn
seems to have slept his way through virtually the entire trial.104
One would be completely shocked in front of the State District Judge’s reaction, but in fact, it
seems that such a reaction tends to generalize more and more, and that the total lack of
defense (the presence of a so called lawyer will do the job) is not a matter of interest in the
eyes of the judicial representatives. Though in 1970, a Supreme Court case105 reinforced the
meaning of the Sixth Amendment by holding that the right to a counsel clearly meant an
“effective and efficient counsel,”106 not just the presence of a lawyer, awaken or not. To tell
that the “right to a counsel” only means the presence of a lawyer during the trial would
completely empty the Sixth Amendment of its meaning.
103
Texas Defender Service. A State of Denial: Texas Justice and the Death Penalty. (2000) 89.
Jesse Jackson, Bruce Shapiro. Legal Lynching. The Death Penalty and America’s Future. (Anchor Books,
2001)36/37
105
McMann v. Richardson (1970)
106
Colloque « Egalité et Justice :Regards croisés France /Etats Unis » 2 et 3 Avril 2004.
104
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As we previously observed, the appointed lawyer has more interests in leading his client to a
plea bargain, which will avoid him to go to trial, but if the offender refuses to plead guilty, the
lawyer has no choice but to represent him, though he may have no competency at all in the
penal area.
In the next part, we will see what are the offenders’ means of defense against such
abuses, but we will also study much deeper some institutions like the jury (how jury members
are selected), and we will study particular cases (executions of juveniles, mentally retarded
offenders, black offenders) which tend to prove that the death penalty, as it is applied today in
the United States, contains many limits in its constitutionality and that executing innocent
people may not seem as unreal as we are constrained to believe.
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