3 .CONGRESS|ONAL : RESEARCH SERVICE \mmR@§@i]@f§'§i;jx\iii3§g§i§@'fiiiiiii\\\\nu CAPITAL PUNISH HENT ISSUE BRIEF NUHBER 1373013 AUTHOR : ucclure, Barbara Education and Public welfare Division THE LIBRARY OF CONGRESS CONGRESSIONAL RESBAKIH SERVICE HAJOR ISSUES S YSTEH DATE ORIGINATED ggggggzg DATE UPDATED g9gQ§4§Q FOR ADDITIONAL INFORMATION CALL 287-5700 0909 CRS- 1 1373013 UPDATE-09708/80 l§§§2-23FlE£-lQ§ On July 2, 1976, the Supreme Court issued five opinions in which it dealt ‘ comprehensively with the constitutionality of the sentence of death for murder and with the procedures under which it can be properly imposed. The ”jCourt ruled that capital punishment pg;_ gg does not contravene the Constitution's prohibition against "cruel and unusual punishments." At the same time, it struck down mandatory death penalty laws. These rulings mean ‘ that the Court does not ban the death penalty for murder, but will hold the States to strict constitutional standards in imposing it. on June 29, 1977, the Court ruled that death is cruel and unusual punishment for the crime of rape (ggkgg v. gegggig, 433 U.S. 584). Still remaining are the issues of whether specific State and Federal statutes meet the constitutional standards set out by the Court and whether capital punishment is a desirable feature of 1 criminal sentencing structures at all. 6 ‘ 9 ;§l§E§BQQ!2-AE2-2QLl§Z-A!ALI§L§ In 1972, the Supreme Court held in the case of gggmgn v. figgggig, #08 U.S. 238 (1972), that the imposition of the death penalty in Georgia and Texas ” 6 under the procedures then employed by those States would constitute a violation of the cruel and unusual punishment clause of the Eighth Amendment. The Fg;g§g_decision struck down virtually all of the then-existing State and Federal capital punishment statutes which, like those of Georgia and Texas, left the determination of whether the death.penalty should be imposed to the guided discretion of the jury or judge -%-the result being that the penalty ” was flwantonly“ and "freakishly" imposed. In response to gggggg, Congress and 35 State legislatures enacted new laws attempting to avoid constitutional defects by removing the death penalty determination from the unguided discretion. of ‘the judge or jury. Host_ commonly, these laws either (1) made imposition of the death penalty mandatory rather than discretionary for certain crimes, or (2) provided the judge or jury with specified’ aggravating‘ and mitigating factors to be considered in determining whether the death.penalty should be imposed, often with separate hearings fora determination of guilt and determination of penalty. In 1974, Congress passed the Anti-Hijacking Act (P.L. 93-366) providing for the imposition of the death hpenalty in certain cases of aircraft piracy where death results. The penalty-setting procedures under this Act provide for a separate hearing to consider aggravating and mitigating factors before the death penalty can be imposed. In 1976, the Supreme Court again reviewed the death penalty question to determine whether capital punishment is constitutionally permissible at all -- a question left open by ggggag--and, if so, whether the new statutes met the objections set out in ggggag. On July 2, 1976, the Court, in Qgegg v. Qggggig, H28 U.S. 153 (1976), ruled 7 to 2 that capital punishment for the crime of murder does not pg;_ gg constitute cruel and unusual punishment within the meaning of the Eighth Amendment. The majority of the justices agreed that the reenactment of death penalty statutes by 35 States precluded t . conclusion that this form of punishment is not acceptable to a majority of the American people. Neither did they believe the punishment of death to be disproportionate in relation to the crime of murder. CRS- 2 IB73013 UPDATE-O9/08/80 Having sustained the constitutionality of capital punishment peg; gg, the majority then found that the sentencing structures adopted by Georgia, Florida (rrifiiirt v- Elgrida. 428 0.5- 2H2). and Texas (12223 V- Teres. "28 U.S. 262) met the objections expressed in gunman and concluded that tr statutes were constitutional. The plurality opinion, written by Justice «“ Stewart, further suggested the kind of proceedings that states must adopt if they choose to reinstate the death penalty: (1) The sentencing authority, whether juge or jury, must be provided with gistandards to govern its exercise of discretion and the opportunity to evaluate both the circumstances of the offense and the character and propensities of the offender. (2) The better practice, though not constitutionally mandated, would be to “ employ a bifurcated procedure in which the question of sentence is not: considered until after the determination of guilt. (3) The jury must be afforded guidance regarding the factors. about the. crime and the defendant that society deems particularly relevant to the sentencing decision. Such standards must include both aggravating and _ mitigating circumstances. (4) A sentencing system which does not include some form of review of each ‘ death sentence to ascertain that it was fairly imposed would be at least constitutionally suspect. _ Although the Court did not find they death penalty for murder to be : unconstitutional per sg, a different majority of the justices combined in Eeedsen v- !2rrh.§ar2lina. 428 0.5- 280 (1976). and Beherre V- Leuisianai #28 0.5. 325 (1976), to hold that a statuteemaking gandatggy the imposition of capital punishment for certain homicide offenses violates the cruel and unusual punishment clause, thus striking dknn the statutes of North Carolina and Louisiana. The plurality opinion examined history, legislative‘ actions, jury behavior, and public opinion in concluding that society has rejected the mandatory imposition of death as contrary to civilized standards. - The plurality also found that the mandatory structure "simply papered over the ~ problem of unguided and unchecked jury discretion" because the history of jury actions under mandatory statutes showed that juries would simply refuse 9 to convict or would convict of lesser offenses in those cases in which they did not wish to impose the death penalty. Finally, the opinion pointedi out that because death is a punishment different from all others both in kind and degree, a sentencing process, in order to comport with Eighth Amendment standards, must provide a means for considering all defendants as uniquely individual human beings with attention given to the [aggravating and mitigating circumstances of each crime and defendant. The first execution in this country since 1967 was carried out in Utah on Jan. 17, 1977. According to figures compiled by the NAACP Legal Defense Fund, as of June 30, 1980, there were a total of 636 inmates under sentence of death. Of these, 629 were men, 7 were women, 346 were whites, 253 were Blacks, 28 were of Spanish surname, 3 were native Americans, 2 were Oriental, and 4 were of unknown race. Many of these condemned inmates have avenues of appeal that have not yet been presented to the courts. Therefore, opponents of capital punishment are continuing to mount case-by-case challenges of individual convictions and of various State statutes. Of the 35 State death penalty laws in existence at the time of the Qgggg decision, many have nowi been voided by the courts as not conforming to the constitutionally required standards. The penalty-setting procedures of the Federal Anti-Hijacking Act CR5- 3 IB73013 UPDATE-O9/O8/80 are similar to the standards approved by th Court. According to the NAACP Legal Defense Fund, 37 States,currently have death penalty statu”es on their books for the crime of homicide: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indianaq entucky, Louisiana, naryland, Massachusetts, Mississippi, Missouri, Hontana, uebraska, Nevada, New Hampshire, flew .Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina,‘ South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wyoming. On June 29, 1977, thecourt held in the case of g__g1;gg v. §g9_1_:_g;a_1 was 0.5. 584) that capital punishment for the crime of rape does constitute cruel and unusual punishment. The Court did not rule with regard to other crimes, wsuch.as treason, hijacking, or kidnapping, but as Chief Justice Burger noted in his dissenting opinion, the implication is that the death penalty would not be constitutional for other crimes where no death results. On July 3, J 1978, in the case of gggkggt v. ghig (#38 U.s. 586), the Court struck down the Ohio capital punishment statute because it too narrowly limited the consideration-of mitigating circumstances. The Court ruled that States must allow judges to consider as a mitigating fator "any aspect" of a defendant's character or record and any circumstance of his offense that he cites as a basis for mercy. on may 19, 1980, the Court voided the death sentence imposed on a Georgia man (ggggggy v. gggggig, #78-6899) because it found that the State's courts were interpreting ‘too vaguely the Georgia statute's language allowing the death sentence if a murder is found to be "outrageously. or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." These decisions and others suggest that the Supreme‘ Court will continue to closely monitor the application of the death penalty by the States. . ’ Despite the complexity and comprehensiveness of the Supreme Court's death ” penalty decisions, questions remain to be decided. For example, several justices in the majority wrecognized that the punishments barred by the cruel and unusual punishment clause change over' time with society's "evolving standards of decency." This keeps open theepossibility that at some future date the Court might be persuaded to. reverse the ggggg decision if it j,believes that national, standards of decency no longer condone capital punishment. The Court's decision as to the constitutionality of the death penalty notwithstanding, the debate over the desirability of capital punishment as a feature of the criminal sentencing structure continues. Those who would abolish the death penalty believe that it is morally wrong and contrary lto the letter and spirit of the Constitution. This argument received support from Justices Harshall.and Brennan in their’ dissenting opinions in ggggg. Abolitionists also point to the arbitrary and discriminatory manner in which the sentence of death has been imposed-—a situation that many see as impossible to remedy. Furthermore, they point out that the death penalty has not been shown to have any unique deterrent effect: death-penalty states do not have lower rates of homicide than non-death-penalty States, and police officers and prison personnel do not suffer higher rates of assault and homicide in non-death-penalty States. Abolitionists argue that since the death penalty has no effect unique from that of other punishments, the only ground for imposing it is retribution, and this they do not find to be a permissible reason for putting offenders to death. Proponents of capital punishment argue that instances do occur where the existence of the death penalty has a unique deterrent effect, and that citizens deserve the protection that such a deterrent may provide. with ens- u n 1373013 UPDATE-09/O8/80 regard to charges of discriminatory administration of the death penalty, proponents have maintained that the penalty itself is not at fault and that this situatibn will be corrected by fair sentencing procedures. Finally, some persons support capital punishment because they believe that society h; a right to express its consideration for the victims of capital crimes anu * its moral outrage at particularly offensive conduct. In the 95th Congress, several bills relating to the death penalty were j introduced. These bills proposed to (1) abolish the_ death penalty’ in the United States (e.g., H.R. ans); (2) establish constitutional procedures for imposition of the death penalty in Federal cases (e.g., S. 1382, H.R. 13360); __or (3) provide the penalty of death for certain Federal offenses (e.g., H.B. 670, H.R. 2779). A hearing on H.R. 13360 was held by the House Judiciary Subcommittee on Criminal Justice on July 19, 1978. ,The Senate Judiciary p Subcommittee on Criminal Laws and Procedures held a series of hearings on S. 1382, and a spokesman for the Justice Department testified that in the Department's opinion, the bill met the constitutional standards set out by bathe Supreme Court in Qrggg. In the 96th Congress, 5. 11“, a'bill similar to S. 1382 of last Congress, has been favorably reported by the Senate Judiciary Committee (5. Rept. 96—55fl). ‘ LEGISLATION H-R. uu19 (Stark et al.) 7 Prohibits the imposition of the death sentence upon any person convicted - of a criminal offense under Federal or State law or the execution of any such sentence imposed prior to the date of enactment. Directs the Attorney General to recommend to Congress appropriate amendments to current law tx vsubstitute for any sentence of death_ a sentence of life imprisonment. Introduced June 11, 1979; referred to Committee on Judiciary. 5. 11a (DeConcini and Thurmond) Provides that whenever a defendant is found guilty of or pleads guilty to a Federal offense for which the penalty of death is authorized, a separate psentencing hearing must be held. Requires that after hearing all evidence relevant to the sentence, the jury, or if both sides agree, the court, must return special findings setting forth any agravating and mitigating factors found to exist. Provides that the burden of establishing the existence of any aggravating factor is on the Government, and must be established beyond a reasonable doubt. Provides that the burden of establishing the existence of any mitigating factor is on the defendant, and must be established by a preponderance of the evidence. Requires any finding of aggravating or mitigating factors to be made by majority vote. If 'no aggravating factors are found to exist, directs the court to impose an authorized sentence other than death. If one or more aggravating factors are found to exist, directs the jury or court to consider whether the aggravating factors sufficiently outweigh any mitigating factors, or whether the aggravating factors are~ themselves sufficient to justify a sentence iofv death. Based upon this consideration, directs the jury, by unanimcus vote, or fihe court to return a finding as to whether a sentence of vdeath is justified. Specifies the "following mitigating factors to be considered: (1) the defendant was youthful; (2) the defendant's capacity to appreciate the wrongfulness of his conduct was impaired; (3) the defendant was; under unusual and substantial duress; (H) the defendant's participation was relatively minor; (5) the defendant could not reasonably have foreseen that death would result from his conduct. Specifies the following aggravating factors to be considered in cases involving treason or espionage: (1) the defendant has been convictd of CBS~ 5 IB73013 UPDATE-09/O7 another offense involving espionage or treason for which a sentence of 1; inprisonment or death was authorized; (2) the defendant knowingly created grave risk of substantial danger to the national security; (3) the defendani knowingly created a grave risk of death to another person. Specifies the allowing aggravating factors to be considered in all other cases: (1) the death resulted from the commission or attempted commission of certain specified offenses; (2) the defendant has been convicted of another offense involving the death of a person; (3) ‘the defendant has previously‘ been 7 convicted of two or more offenses involving the infliction of serious bodily * 3 injury upon another person; (4) the defendant knowingly created a grave risk of death to another person; (5) the defendant committed the offense in an especially heinous, cruel or depraved manner; (6) the defendant procured the commission of the offense by payment; (7) the defendant committed the offense for the receipt of payment; (8) the defendant committed the offense after substantial planning and preneditation to cause the death of another (or commit an act of terrorism; (9) the offense was committed against the President of the United States or other specified. Federal officials. _Frovides that in any case in which death is the sentence, upon appeal by the.a defendant the sentence shall be subject to review by the court of appeals, ‘and such appeal shall have priority over all other cases. Introduced Jan. , 23, 1979; referred to Committee on .Judiciary. Favorably reported, as " amended, on Jan. 17, 1980 (S.Rept. 96-554). Two other bills, H.B. 4775 (Trible) and S. 1284 (Tower), would establish 3 constitutional procedures for imposition of the death penalty in Federal cases . H1Z.5.§I.§§.§ 0.5. Congress. House. Committee on the Judiciary. Subcommittee Ho. 3. Capital punishment. Hearings, 92d Congress, 2d session. Washington, 0.5. Govt. Print. Off., 1972. 457 p. Hearings held Mar. 9, 15-17; and.Hay 10, 1972. 0.5. Congress. House. Committee on the Judiciary. Subcommittee on Criminal Justice. Sentencing in.capital cases. Hearing, 95th Congress, 2d session on H.R. 13360. Washington, 0.5. Govt. Print. Off., 1978. 197 p. Hearing held July 19, 1978. U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Criminal Law and Procedures. Imposition of capital punishment. Hearings, 93d Congress, 1st session on S. 1, S. 1400, and S. 1401. Washington, 0.3. Govt. Print. Off., 1973. 329 p. I ~ Hearings held Feb. 16, 1972; Apr. 16; June 13; and July 26, 1973. ---- Reforn of the Federal Criminal Laws——Part V. Hearings, 93d Congress, 1st session on S. 1, S. 716, S. 1400, and S. 1401. [Hashingtou, 0.5. Govt. Erint. Off.) 1973. 1220 p. 1 Hearings held Apr. 16, 1973. ---- Reform of the Federal Criminal Laws--Part VII. Hearings, 93d Congress, 1st session, on S. 1 and S. 1400. [Washington, U.S. Govt. Print. Off.] 1974. 436 p. Hearings held June 8, 12-14, 1973. .'‘‘\x « CBS‘ 6 IB73013 UPDATE-09/08/80 ---- Reform of the Federal Criminal Laus--Part IX. Hearings, 93d cong;ess, 1st session, on S. 1 and S. 1uoo. [Washington, U.S. Govt. Print. Off.) 197a. 32h p. Hearings held July 25, 26, and Sept. 27, 1973. ---- To establish constitutional procedures for the imposition of capital punishment. Hearing, 95th Congress, 1st session, on S. 1382- [Washington, U.S. Govt. Print. Off.] 1977. 335 p. Hearing held may 18, 1977. ---- To establish rational criteria for the imposition of capital punishment. Hearings, 95th Congress, 2d session, on S. 1382. [Washington, U.S. Govt. Print. Off.] 1978. 419 p. Hearings held Apr. 27 and may 11, 1978. Congress. Conference Committees, 197a. Anti-Hijacking Act and Air Transportation Security Act; conference report to accompany S. 39. Washington, U.S. Govt. Print. Off., 1978. 29 p. (93d Congress, 2d session. House. Report no. 93-119“) 8.5. Congress. Senate. Committee on the Judiciary. Establishing constitutional procedures for the finposition of capital punishment; report together with additional views to accompany . 11¢. Washington, 0.5. Govt. Print. Off., 1980. 35 p. ’i .(96th Congress, 1st session. Senate. Report no. 96-SSH) ---- To establish rational criteria for the imposition of capital punishment; report together with additional vieus to accompany S. 1uo1. Washington, 0.5. 7Govt. Print. Off}, 1973. 60 p. (93d Congress, 1st session. Senate. Report no. 93-721) . QIB§§.§Qfl§E§§§£Q!£L.A§IlQE N/A QEBQEQLQQZ Q2 §V§!2§ 06/19/80 - Decision in gggzgggy v. gggggg handed down by Supreme Court- ~ O1/17/80 - S. 11nfavorably reported by Senate Judiciary Committee. 07/03/78 - Decision in Lgggggt v. Qhig handed down by Supreme Court. 06/29/77 —— Decision in ggggg v. gggggig handed down by Supreme Court. 01/17/77 re The first execution since 1567 was carried out in the State of Utah. CRS— 7 nIB73013 U? 07/02/76 -- Decisions in Qrggg v. gggggia and companion case - handed down by the Supreme Court. 08/05/70 - S. 39, the Anti-Hijacking Act of 1974, was enacted as pP.L. 93-366- 06/29/72 -- gggggg v. gegggia decision handed down by the Supreme Court. AQQLILQEAL-§§§§B§!Q§-§Q§B§§§ Bedau, Hugo Adam. The courts, the constitution, and capital punishment. Lexington, nass., D.C. Heath and Co., 1977. 165 p. (KF9227.C2B39) Bedau, Hugo Adam, ed. The death penalty in America; an anthology. Rev. ed. Garden City, H.Y., Anchor Books, 1967. 58h p. (HV8699.U5Bu) Bedau, Hugo Adam, and Chester H. Pierce, eds.) Capital punishment in the United States. New York, AHS Press, 1976. 567 p. (Hv8699.U5c32) - Berns, Halter. For capital punishment. New York, Basic Books, 1979. 210 p. (HV8694.BS) A Bowers, William J. Executions in America. Lexington, uass., D.C. Heath and Co., 197a. H89 p. (HV8699.U5B68) Qgggg v. gggggia, 433 0.5. 580 (1977) "d urggg v. gggggia, 008 U.S. 238 (1972) godgrgy v. §gg;gig,»#78-6899 (1980) figggg v. gggggig, 428 u.s. 153 (1976) ‘ggggg V. Tggag, 428 0.5. 262 (1976) Klein, Lawrence R., and others. The deterrent effect of capital punishaent: an assessment of the estimates, ‘in Blumstein, Alfred, and others, eds. Deterrence and incapacitation: estimating theeeffects of criminal sanctions on crime rates. Washington, National Academy of Sciences, 1978; p. 336-360. (LRS78-2597) « Lggggtt V. ghig, 038 0.5. 586 (1978) gggggitt v. zlggiga, H28 0.5. 202 (1976) Eetrerte V- .1.-92;§.i.e.11a.1. 428 0.5- 3250976) Sellin, Thorsten, ed. Capital punishment. New York, Harper 8 How, 1967. 290 p. (HV869u.Su) cns- 9 1373013 UPDATE—O9/08/80 !9£2L-Q2£2;ia2. 428 U-S- 280 (1976)