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nding the penalty disproportionate, first because of the degree of participation of the defendant in the underlying crime, id. at 823–26, but also because the Court appeared to be constitutionalizing a standard of intent required under state law. 134 481 U.S. 137, 158 (1987). The decision was 5–4. Justice O’Connor’s opinion for the Court viewed a ‘‘narrow’’ focus on intent to kill as ‘‘a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers,’’ id. at 157, and concluded that ‘‘reckless disregard for human life’’ may be held to be ‘‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’’ Id. 135 Cabana v. Bullock, 474 U.S. 376 (1986). Moreover, an appellate court’s finding of culpability is entitled to a presumption of correctness in federal habeas review, a habeas petitioner bearing a ‘‘heavy burden of overcoming the presumption.’’ Id. at 387–88. See also Pulley v. Harris, 465 U.S. 37 (1984) (Eighth Amendment does not invariably require comparative proportionality review by a state appellate court). 136 477 U.S. 399 (1986). 137 There was an opinion of the Court only on the first issue, that the Eighth Amendment creates a right not to be executed while insane. Justice Marshall’s opinion to that effect was joined by Justices Brennan, Blackmun, Stevens, and Powell. The Court’s opinion did not attempt to define insanity; Justice Powell’s concurring opinion would have held the prohibition applicable only for ‘‘those who are unaware of the punishment they are about to suffer and why they are to suffer it.’’ 477 U.S. at 422. not as a result of his own intention serves neither of the purposes underlying the penalty. 133 In Tison v. Arizona, however, the Court eased the ‘‘intent to kill’’ requirement, holding that, in keeping with an ‘‘apparent consensus’’ among the states, ‘‘major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.’’ 134 A few years earlier, Enmund had also been weakened by the Court’s holding that the factual finding of requisite intent to kill need not be made by the guilt/innocence factfinder, whether judge or jury, but may be made by a state appellate court. 135 Limitations on Capital Punishment: Diminished Capacity.— The Court has recently grappled with several cases involving application of the death penalty to persons of diminished capacity. The first such case involved a defendant whose competency at the time of his offense, at trial, and at sentencing had not been questioned, but who subsequently developed a mental disorder. The Court held in Ford v. Wainwright 136 that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of executiontime sanity must be determined in a proceeding satisfying the minimum requirements of due process. 137 The Court noted that execution of the insane had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and con- VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1590 AMENDMENT 8—PUNISHMENT FOR CRIME 138 There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that ‘‘the ascertainment of a prisoner’s sanity . . . calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.’’ 477 U.S. at 411–12. Concurring Justice Powell thought that due process might be met by a proceeding ‘‘far less formal than a trial,’’ that the state ‘‘should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel.’’ Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court’s holding. 139 Penry v. Lynaugh, 492 U.S. 302, 335 (1989). While unwilling to conclude that execution of a mentally retarded person is ‘‘categorically prohibited by the Eighth Amendment,’’ the Court did point out that, due to the requirement of individualized consideration of culpability, a retarded defendant is entitled to an instruction that the jury may consider and give mitigating effect to evidence of retardation or a background of abuse. Id. at 328. 140 122 S. Ct. 2242 (2002). Atkins was a 6–3 decision. Justice Stevens’ opinion of the Court was joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. Chief Justice Rehnquist and Justices Scalia and Thomas dissented. 141 122 S. Ct. at 2249. 142 122 S. Ct. at 2249. tinued to be so viewed. And, while no states purported to permit the execution of the insane, Florida and a number of others left the determination to the governor. Florida’s procedures, the Court held, fell short of due process because the decision was vested in the governor without the defendant having the opportunity to be heard, the governor’s decision being based on reports of three state-appointed psychiatrists. 138 When first confronted with the issue of whether execution of the mentally retarded is constitutional, the Court in 1989 found ‘‘insufficient evidence of a national consensus against executing mentally retarded people.’’ 139 In 2002, however, the Court determined in Atkins v. Virginia 140 that ‘‘much ha[d] changed’’ since 1989, that the practice had become ‘‘truly unusual,’’ and that it was ‘‘fair to say’’ that a ‘‘national consensus’’ had developed against it. 141 In 1989, only two states and the Federal Government prohibited execution of the mentally retarded while allowing executions generally. By 2002, an additional 16 states had prohibited execution of the mentally retarded, and no states had reinstated the power. But the important element of consensus, the Court explained, was ‘‘not so much the number’’ of states that had acted, but instead ‘‘the consistency of the direction of change.’’ 142 The Court’s ‘‘own evaluation of the issue’’ reinforced the consensus. Neither of the two generally recognized justifications for the death penalty—retribution and deterrence—apply with full force to mentally retarded offenders. Retribution necessarily depends on the culpability of the offender, yet mental retardation reduces culpa- VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00026 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1591 143 122 S. Ct. at 2251. The Court also noted that reduced capacity both increases the risk of false confessions and reduces a defendant’s ability to assist counsel in making a persuasive showing of mitigation. 144 Thompson v. Oklahoma, 487 U.S. 815 (1988). 145 The plurality opinion by Justice Stevens was joined by Justices Brennan, Marshall, and Blackmun; as indicated in the text, Justice O’Connor concurred in a separate opinion; and Justice Scalia, joined by Chief Justice Rehnquist and by Justice White, dissented. Justice Kennedy did not participate. 146 492 U.S. 361 (1989). The bulk of Justice Scalia’s opinion, representing the opinion of the Court, was joined by Chief Justice Rehnquist and by Justices White, O’Connor, and Kennedy. Justice O’Connor took exceptions to other portions of Justice Scalia’s opinion (dealing with proportionality analysis); and Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissented. 147 The case of Wilkins v. Missouri was decided along with Stanford. 148 Compare Thompson, 487 U.S. at 849 (O’Connor, J., concurring) (two-thirds of all state legislatures had concluded that no one should be executed for a crime committed at age 15, and no state had ‘‘unequivocally endorsed’’ a lower age limit) with Stanford, 492 U.S. at 370 (15 of 37 states permitting capital punishment debility. Deterrence is premised on the ability of offenders to control their behavior, yet ‘‘the same cognitive and behavioral impairments that make these defendants less morally culpable . . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based on that information.’’ 143 So far the Court has not imposed a categorical prohibition on execution of juveniles. A closely divided Court has invalidated one statutory scheme which permitted capital punishment to be imposed for crimes committed before age 16, but has upheld other statutes authorizing capital punishment for crimes committed by 16 and 17 year olds. Important to resolution of the first case was the fact that Oklahoma set no minimum age for capital punishment, but by separate provision allowed juveniles to be treated as adults for some purposes. 144 While four Justices favored a flat ruling that execution of anyone younger than 16 at the time of his offense is barred by the Eighth Amendment, concurring Justice O’Connor found Oklahoma’s scheme defective as not having necessarily resulted from the special care and deliberation that must attend decisions to impose the death penalty. 145 The following year Justice O’Connor again provided the decisive vote when the Court in Stanford v. Kentucky 146 held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor Missouri 147 directly specified a minimum age for the death penalty. To Justice O’Connor, however, the critical difference was that there clearly was no national consensus forbidding imposition of capital punishment on 16 or 17-year-old murderers, whereas there was such a consensus against execution of 15 year olds. 148 This lack of consensus apparently continued in 2002. In At- VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00027 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1592 AMENDMENT 8—PUNISHMENT FOR CRIME cline to impose it on 16-year-old offenders; 12 decline to impose it on 17-year-oldoffenders). 149 122 S. Ct. at 2249 n.18. Only two months after the Atkins decision, Justice Stevens, author of the Court’s opinion in Atkins, asserted that the Court should reconsider the issue of execution of juvenile offenders, ‘‘[g]iven the apparent consensus that exists among the States and in the international community against the execution of a capital sentence imposed on a juvenile offender.’’ Patterson v. Texas, 536 U.S. 984 (2002) (dissenting from denial of stay of execution). Justice Ginsburg, joined by Justice Breyer, also dissented from the stay denial, asserting that Atkins had made it ‘‘tenable for a petitioner to urge reconsideration of Stanford v. Kentucky,’’ but the petition for a stay was rejected by 6–3 vote. 150 ‘‘A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.’’ 492 U.S. at 377. 151 492 U.S. at 394–96. Justice O’Connor, while recognizing the Court’s ‘‘constitutional obligation to conduct proportionality analysis,’’ did not believe that such analysis can resolve the underlying issue of the constitutionally required minimum age. 492 U.S. at 382. kins v. Virginia, the Court contrasted the national consensus said to have developed against executing the mentally retarded with the situation regarding execution of juvenile offenders over age 15, and noted that only two state legislatures had raised the threshold age. 149 The Stanford Court was split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality would focus almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for application of capital punishment. 150 The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant’s culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, and that looks to other statutory age classifications to arrive at a conclusion about the level of maturity and responsibility that society expects of juveniles. 151 As indicated above, the Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own ‘‘evaluation’’ into play along with their analysis of consensus on the issue of executing the mentally retarded. Limitations on Capital Punishment: Equality of Application.— One of the principal objections to imposition of the death penalty, voiced by Justice Douglas in his concurring opinion in Furman, was that it was not being administered fairly—that the capital sentencing laws vesting ‘‘practically untrammeled discretion’’ in juries were being used as vehicles for racial discrimination, and that ‘‘discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00028 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1593 152 408 U.S. at 248, 257. 153 Turner v. Murray, 476 U.S. 28, 36–37 (1986). 154 481 U.S. 279 (1987). The decision was 5–4. Justice Powell’s opinion of the Court was joined by Chief Justice Rehnquist and by Justices White, O’Connor, and Scalia. Justices Brennan, Blackmun, Stevens, and Marshall dissented. 155 481 U.S. at 308. 156 481 U.S. at 339–40 (Brennan), 345 (Blackmun), 366 (Stevens). 157 481 U.S. at 311. Concern for protecting ‘‘the fundamental role of discretion in our criminal justice system’’ also underlay the Court’s rejection of an equal protection challenge in McCleskey. See discussion of ‘‘Capital Punishment’’ under the Fourteenth Amendment, infra. See also United States v. Bass, 122 S. Ct. 2389 (2002) (per curiam), requiring a threshold evidentiary showing before a defendant claiming selective prosecution on the basis of race is entitled to a discovery order that the Government provide information on its decisions to seek the death penalty. ‘cruel and unusual’ punishments.’’ 152 This argument has not carried the day. Although the Court has acknowledged the possibility that the death penalty may be administered in a racially discriminatory manner, it has made proof of such discrimination quite difficult. A measure of protection against jury bias was provided by the Court’s holding that ‘‘a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.’’ 153 Proof of prosecution bias is another matter. The Court ruled in McCleskey v. Kemp 154 that a strong statistical showing of racial disparity in capital sentencing cases is insufficient to establish an Eighth Amendment violation. Statistics alone do not establish racial discrimination in any particular case, the Court concluded, but ‘‘at most show only a likelihood that a particular factor entered into some decisions.’’ 155 Just as important to the outcome, however, was the Court’s application of the two overarching principles of prior capital punishment cases: that a state’s system must narrow a sentencer’s discretion to impose the death penalty (e.g., by carefully defining ‘‘aggravating’’’ circumstances), but must not constrain a sentencer’s discretion to consider mitigating factors relating to the character of the defendant. While the dissenters saw the need to narrow discretion in order to reduce the chance that racial discrimination underlies jury decisions to impose the death penalty, 156 the majority emphasized the need to preserve jury discretion not to impose capital punishment. Reliance on statistics to establish a prima facie case of discrimination, the Court feared, could undermine the requirement that capital sentencing jurors ‘‘focus their collective judgment on the unique characteristics of a particular criminal defendant’’—a focus that can result in ‘‘final and unreviewable’’ leniency. 157 Limitations on Habeas Corpus Review of Capital Sentences.— The Court’s rulings limiting federal habeas corpus review VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00029 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1594 AMENDMENT 8—PUNISHMENT FOR CRIME 158 Pub. L. No. 104–132, 110 Stat. 1214. 159 Herrera v. Collins, 506 U.S. 390, 405 (1993) (‘‘we have ‘refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus’’’) (quoting Murray v. Giarratano, 492 U.S. 1, 9 (1989)). 160 492 U.S. 302 (1989). 161 489 U.S. 288 (1989). The ‘‘new rule’’ limitation was suggested in a plurality opinion in Teague. A Court majority in Penry and later cases has adopted it. 162 489 U.S. at 313. The second exception was at issue in Sawyer v. Smith, 497 U.S. 227 (1990); there the Court held the exception inapplicable to the Caldwell v. Mississippi rule that the Eighth Amendment is violated by prosecutorial misstatements characterizing the jury’s role in capital sentencing as merely recommendatory. It is ‘‘not enough,’’ the Sawyer Court explained, ‘‘that a new rule is aimed at improving the accuracy of a trial. . . . A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.’’ Id. at 242. 163 Penry, 492 U.S. at 314. Put another way, it is not enough that a decision is ‘‘within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.’’ A decision announces a ‘‘new rule’’ if its result ‘‘was susceptible to debate among reasonable minds’’ or if it would not have been ‘‘an illogical or even a grudging application’’ of the prior decision to hold it inapplicable. Butler v. McKellar, 494 U.S. 407, 415 (1990). of state convictions, reinforced by the Antiterrorism and Effective Death Penalty Act of 1996, 158 may be expected to reduce significantly the amount of federal court litigation over state imposition of capital punishment. In the habeas context, the Court has flatly rejected the ‘‘death is different’’ approach by applying to capital cases the same rules that limit federal petitions in non-capital cases. 159 The Court held in Penry v. Lynaugh 160 that its Teague v. Lane 161 rule of nonretroactivity applies to capital sentencing challenges. Under Teague, ‘‘new rules’’ of constitutional interpretation announced after a defendant’s conviction has become final will not be applied in habeas cases unless one of two exceptions applies. The exceptions will rarely apply. One exception is for decisions placing certain conduct or defendants beyond the reach of the criminal law, and the other is for decisions recognizing a fundamental procedural right ‘‘without which the likelihood of an accurate conviction is seriously diminished.’’ 162 Further restricting the availability of federal habeas review is the Court’s definition of ‘‘new rule.’’ Interpretations that are a logical outgrowth or application of an earlier rule are nonetheless ‘‘new rules’’ unless the result was ‘‘dictated’’ by that precedent. 163 While in Penry itself the Court determined that the requested rule (requiring an instruction that the jury consider mitigating evidence of the defendant’s mental retardation and abused childhood) was not a ‘‘new rule’’ because it was dictated by Eddings and Lockett, in subsequent habeas capital VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00030 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1595 164 See, e.g., Butler v. McKellar, 494 U.S. 407 (1990) (1988 ruling in Arizona v. Roberson, that the Fifth Amendment bars police-initiated interrogation following a suspect’s request for counsel in the context of a separate investigation, announced a ‘‘new rule’’ not dictated by the 1981 decision in Edwards v. Arizona that police must refrain from all further questioning of an in-custody accused who invokes his right to counsel); Saffle v. Parks, 494 U.S. 484 (1990) (habeas petitioner’s request that capital sentencing be reversed because of an instruction that the jury ‘‘avoid any influence of sympathy’’ is a request for a new rule not ‘‘compel[led]’’ by Eddings and Lockett, which governed what mitigating evidence a jury must be allowed to consider, not how it must consider that evidence); Sawyer v. Smith, 497 U.S. 227 (1990) (1985 ruling in Caldwell v. Mississippi, although a ‘‘predictable development in Eighth Amendment law,’’ established a ‘‘new rule’’ that false prosecutorial comment on jurors’ responsibility can violate the Eighth Amendment by creating an unreasonable risk of arbitrary imposition of the death penalty, since no case prior to Caldwell had invalidated a prosecutorial comment on Eighth Amendment grounds). But see Stringer v. Black, 503 U.S. 222 (1992) (neither Maynard v. Cartwright, 486 U.S. 356 (1988), nor Clemons v. Mississippi, 494 U.S. 738 (1990), announced a ‘‘new rule’’). 165 Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 166 Lewis v. Jeffers, 497 U.S. 764, 780–84 (1990). The lower court erred, therefore, in conducting a comparative review to determine whether application in the defendant’s case was consistent with other applications. 167 Herrera v. Collins, 506 U.S. 390 (1993) (holding that a petitioner would have to meet an ‘‘extraordinarily high’’ threshold of proof of innocence to warrant federal habeas relief). 168 Dissenting Justices Blackmun, Stevens, and Souter (506 U.S. at 430); and concurring Justices O’Connor, Kennedy (id. at 419) and White (id. at 429). 169 Chief Justice Rehnquist’s opinion of the Court was joined by Justices O’Connor, Scalia, Kennedy, and Thomas. The Court distinguished Ford v. Wainwright, 477 U.S. 399 (1986) (minimal requirements of due process—i.e., the right to be heard—must be accorded to an insane prisoner in a proceeding in which the governor determines whether execution is to go forward), as involving ‘‘a matter of sentencing cases the Court has found substantive review barred by the ‘‘new rule’’ limitation. 164 A second restriction on federal habeas review also has ramifications for capital sentencing review. Claims that state convictions are unsupported by the evidence are weighed by a ‘‘rational factfinder’’ inquiry: ‘‘viewing the evidence in the light most favorable to the prosecution, [could] any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt.’’ 165 This same standard for reviewing alleged errors of state law, the Court determined, should be used by a federal habeas court to weigh a claim that a generally valid aggravating factor is unconstitutional as applied to the defendant. 166 In addition, the Court has held that, absent an independent constitutional violation, habeas corpus relief for prisoners who assert innocence based on newly discovered evidence should generally be denied. 167 While a majority of the Justices accepted the general principle that execution of the innocent is unconstitutional, 168 the different five-Justice majority that determined the outcome in the case indicated that the ‘‘traditional remedy’’ has been executive clemency. 169 VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00031 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1596 AMENDMENT 8—PUNISHMENT FOR CRIME punishment’’ rather than guilt or innocence. The guilt or innocence determination allegedly ‘‘becomes more uncertain with time for evidentiary reasons.’’ 506 U.S. at 406. 170 386 U.S. 18 (1967). 171 Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). 172 Brecht v. Abrahamson, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Brecht was a non-capital case, but the rule was subsequently applied in a capital case. Calderon v. Coleman, 525 U.S. 141 (1998) (per curiam). 173 Sawyer v. Whitley, 505 U.S. 333 (1992). The focus on eligibility limits inquiry to elements of the crime and to aggravating factors, and thereby prevents presentation of mitigating evidence. Here the court was barred from considering an allegation of ineffective assistance of counsel for failure to introduce the defendant’s mental health records as a mitigating factor at sentencing. 174 28 U.S.C. § 2254(d)(1). 175 122 S. Ct. 1843 (2002). 176 The state court’s decision, which applied the rule from Strickland v. Washington, 466 U.S. 668 (1984), rather than the rule from United States v. Cronic, 466 U.S. 648 (1984), to hold that the attorney’s performance was not constitutionally inadequate, was not ‘‘contrary to’’ clearly established law. Cronic had held that there are some situations, e.g., when counsel ‘‘entirely fails to subject the prosecution’s case to meaningful adversarial testing,’’ so presumptively unfair as to obviate the need to show actual prejudice to the defendant’s case. The Bell v. Cone Court em- Third, a different harmless error rule is applied when constitutional errors are alleged in habeas proceedings. The Chapman v. California 170 rule applicable on direct appeal, requiring the State to prove beyond a reasonable doubt that a constitutional error is harmless, is inappropriate for habeas review, the Court concluded, given the ‘‘secondary and limited’’ role of federal habeas proceedings. 171 The appropriate test is that previously used only for non-constitutional errors: ‘‘whether the error has substantial and injurious effect or influence in determining the jury’s verdict.’’ 172 A fourth rule was devised to prevent successive ‘‘abusive’’ or defaulted habeas petitions. Federal courts are barred from hearing such claims unless the defendant can show by

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