10.4 Capital Cases
A defendant's rights are more carefully protected in capital cases because the considerations at stake obviously increase when an individual's life is involved. Notice is a significant due process concern in the protection of a defendant's rights in capital sentencing. In the usual sentencing setting, the judge or jury is not obligated to give notice that alternatives to incarceration were considered, nor are they required to explain why incarceration was chosen as the sentence.37 However, in a capital case, counsel must be advised that the judge or jury will consider the death penalty, especially when the prosecution announces that it will not seek the death penalty.38 The defense must know of this consideration in order to formulate effective arguments in favor of the defendant's interests. Receipt of the presentence report is also important in death penalty cases, as it is in noncapital prosecutions. The defendant must have a chance to "explain or deny" information in the presentence report and to challenge or correct misinformation.39
On the broader constitutional question, the Eighth Amendment does not necessarily bar the death penalty,40 but the Supreme Court has ruled that the death penalty is cruel and unusual punishment if it is not applied in a predictable and fair manner.41 Courts hold that these specific safeguards help to guarantee that the death penalty is not imposed arbitrarily:
1. A bifurcated trial for guilt determination and sentencing;42
2. Consideration of specific aggravating and mitigating factors by the trier of fact;43
3. Direct and broad appellate review; and44
4. Disallowance of mandatory death penalties—discretion is an important factor.45
Some of the aggravating and mitigating factors that can be considered are as follows:
5. Prior criminal record;
6. Extent of participation in the crime;
7. Age;
8. Mental/emotional disturbances;
9. Defendant's personal background;
10. Specifics of the crime (victim's characteristics, causation of injury or death);
11. Involvement of firearms;
12. Manner in which the offense was committed;
13. Monetary or financial gain;
14. Future dangerousness; and
15. If the defendant did not kill the deceased, whether he intended to kill or anticipated that a person would be killed.
These factors can be set by statute,46 but the sentencing authority can also consider nonstatutory factors that are part of the circumstances surrounding the convicted and the crime.47
The responsibility for deciding on the imposition of the death penalty varies according to jurisdiction. The jury often decides if the defendant is guilty of a capital offense48 and then determines if the sentence should be death, although the judge can make this determination as well. Because of the serious responsibility given to the jurors, it is important to impress upon them that they are responsible for this decision and that they should not rely on the possibility of appellate review.49
Appeals in death penalty cases often go directly to the state supreme court and then to the United States Supreme Court. Some states do a "comparative proportionality review," which compares the sentence to those in cases involving similar crimes that did not impose the death sentence.50 This review, however, has not been seen as a constitutional mandate.51
The penalty of death for a defendant must be proportional to that defendant's specific and individual participation in the crime.52 If the defendant was not the killer, the proportional culpability standard will be met only with a showing of "major participation in the felony committed, combined with reckless indifference to human life."53
Because of Eighth Amendment concerns, juveniles younger than eighteen years of age at the time of the crime cannot receive the death penalty.54 The Supreme Court has decided several other important issues found in capital cases. It struck down the execution of intellectually disabled persons in Atkins v. Virginia.55 In Ring v. Arizona,56 the Court would not allow the judge, rather than the jury, to make necessary findings of aggravating circumstances. The Court in Sba-fer v. South Carolina57 held that it was error to refuse a requested defense instruction at the sentencing stage of a death penalty trial under the appropriate state law. There, the jury, once it found an aggravating factor, had to choose between death and life imprisonment without parole. The defense asked that the jurors be told that life imprisonment without parole truly meant there could be no possibility of parole.
Lethal injection, as a form of execution, was held in Baze v. Rees not to be necessarily cruel and unusual punishment.58 Also relevant is Kelly v. South Carolina,59...
