4 th PowerPoint Aftermath of Furman Decision Furman Positions of Five Concurring Judges Douglas discriminatory Brennan arbitrary excessive rejected by society unnecessary White infrequent serves no purpose and arbitrary Marshall excessive unnecessary and arbitrary Stewart arbitrary lightning and excessive o 6 arguments retribution deterrence incapacitation encouraging guilty pleas eugenics economy Implications for rewriting death penalty if 1 Excessive or unnecessary If main reason for rejecting death penalty are because excessive or unnecessary not many options for changing law If excessive the it is too severe and punishment should be lessened o Cannot reduce death penalty If unnecessary may only use for revenge loses validity Simply change the system so it is no longer discriminatory or arbitrary 2 Discriminatory or arbitrary o Easier said than done Burger s Response to Furman Basic problem juries have too much discretion o Resulted in discriminatory arbitrary capricious random unpredictable use of death penalty Solution o Guide discretion of juries with specific guidelines and instructions more narrowly define crimes eligible for death penalty o Completely eliminate discretion of jury use mandatory death sentence Burger opposed this though If mandatory death penalty was only alternative he preferred total abolition ALI Model Code Principles of Consistency Individualization Consistency similar cases should get similar sentences luck of the draw or discrimination should not determine the sentence avoid hanging judge zealous prosecutor o Avoid inconsistency by Bifurcation into 2 trials One trial for guilt one for sentence Aggravating factors must be found Heinous crime multiple victims cop victim etc Proportionality review Conducted by State Supreme Court of all sentences so that comparable crimes receive same sentence Individualization individual situation of each case examined Mitigating circumstances to be considered weigh against aggravating factors o Youth immaturity intellectual deficiency mental illness PTSD abusive parents drug addictions etc New Death Penalty Statutes Soon after Furman several states rewrote death penalty laws procedures and began sending to death row again 35 states had new death penalty laws within 4 years o Florida first state to rewrite statutes followed by Georgia All of the new laws used either guided discretion or mandatory sentencing o Each state statute was different though o Guided discretion followed ALI Model Penal Code principles of consistency and individualization Cases from 5 States Guided discretion approach all 3 upheld by Supreme Court o Gregg v Georgia 1976 o Jurek v Texas 1976 o Proffitt v Florida 1976 Mandatory sentencing both rejected by Supreme Court o Roberts v Louisiana 1976 o Woodson v North Carolina 1976 All states eventually rewrote statutes using guided discretion Georgia s Death Penalty Statute Bifurcated trial o Guilt phase and sentencing phase Sentencing jury must be unanimous in verdict to receive death penalty Aggravating factors 11 total in GA o Murder was particularly heinous cruel depraved torturous o Defendant knowingly created grave risk of death for other persons in addition to victim commission of crime o Murder committed to avoid or prevent arrest effect escape conceal o Capital offense committed by person who is incarcerated escaped on probation in jail or under sentence of imprisonment o Victim was police officer judge juror etc o Additional Committed for pecuniary gain defendant directed another to commit murder defendant has a prior murder defendant committed treason defendant previously convicted of rape sodomy child molestation Mitigating facts o Individual background family history role in crime psychiatric reports chances of rehab age mental maturity etc o Jury does not have to find mitigating factor in order to give life sentence o Mitigating factors not limited by law Prosecution must demonstrate at least one aggravating factor listed in statute is present in order to recommend death penalty Gregg v Georgia Facts Gregg hitchhiking north 2 men picked him up and another hitchhiker Next day bodies of 2 original travelers found Other individual identified Gregg Convicted under new death penalty law sentenced to death Question Is the new GA death penalty statute constitutional Does the GA law contain sufficient guards against arbitrary capricious imposition Decision 7 2 granted writ of certiorari to challenge that death penalty was cruel and unusual punishment in violation of 8th and 14th Stewart presented Marshall Brennan dissent Prior to Furman had never confronted death penalty always being in violation of constitution just that at that moment it was Does not invariably violate constitution According to constitution itself death penalty was accepted by Framers o Death penalty serves 2 purposes retribution and deterrence o Hold that death penalty is not punishment that may never be imposed o As long as sentencing authority is provided with sufficient structure info can eliminate arbitrariness bifurcated trial o Jury must find one aggravating factor o Proportionality review of ALI Model Penal Code o Does not violate constitution Summary death penalty is constitutional as punishment and changes to GA law provides sufficient safeguards against arbitrary capricious imposition bifurcated trial aggravators mitigators review o Blackmun Burger Powell Rehnquist Stevens Stewart White Brennan and Marshall voted against Importance established capital punishment is constitutional under rewritten laws using guiding discretion permitted states to resume executions Woodson v North Carolina Question Do mandatory death penalty statutes violate 8th and 14th rights making them unconstitutional Decision statutes with mandatory death sentences are unconstitutional o If lumping death eligible cases together would lead to same arbitrariness Summary statutes making death sentences mandatory violate 8th and 14th because fail to consider individual aspects of criminal crime and circumstances of case Importance rejection of mandatory sentence avoids return to 19th century laws with issue of jury nullification like Burger had warned about previously Lockett v Ohio 1978 Reaffirmed the need for mitigating factors Determined death penalty statutes must allow for considering mitigating factors Gregg had said this however Lockett closed the loopholes 1978 Presnell v Georgia Reaffirmed and determined that jury must find at least one
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