SUPREME COURT RULINGS: MITIGATING CIRCUMSTANCES, YOUTH, INSANITY, MENTAL RETARDATION, THE ADMISSIBILITY OF VICTIM IMPACT STATEMENTS, AND THE INFLUENCE OF RACE IN CAPITAL CASES

MITIGATING CIRCUMSTANCES

Mitigating circumstances may lessen the responsibility for a crime, whereas aggravating circumstances may add to the responsibility for a crime. In 1978 an Ohio case highlighted the issue of mitigating circumstances before the U.S. Supreme Court after Sandra Lockett was convicted of capital murder for her role in a pawnshop robbery that resulted in the shooting death of the storeowner. Locket helped plan the robbery, drove the getaway car, and hid her accomplices in her home, but was not present in the store at the time the storeowner was shot. According to the Ohio death penalty statute, capital punishment had to be imposed on Lockett unless ''(1) the victim induced or facilitated the offense; (2) it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation; or (3) the offense was primarily the product of the offender's psychosis or mental deficiency.'' Lockett was found guilty and sentenced to die.

Lockett appealed, claiming that the Ohio law did not give the sentencing judge the chance to consider the circumstances of the crime, the defendant's criminal record, and the defendant's character as mitigating factors, lessening her responsibility for the crime. In July 1978 the Supreme Court, in Lockett v. Ohio (438 U.S.586), upheld Lockett's contention. Chief Justice Warren Burger (1907–1995) observed, ''A statute that prevents the sentencer in capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to the circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty, and when the choice is between life and death, such risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.''

Mitigating Circumstances Must Always Be Considered

In Hitchcock v. Dugger (481 U.S. 393, 1987), a unanimous Supreme Court further emphasized that all mitigating circumstances had to be considered before the convicted murderer could be sentenced. A Florida judge had instructed the jury not to consider evidence of mitigating factors that were not specifically indicated in the Florida death penalty law. Writing for the Court, Justice Antonin Scalia (1936–) stressed that a convicted person had the right ''to present any and all relevant mitigating evidence that is available.''

CAN A MINOR BE SENTENCED TO DEATH?

On April 4, 1977, sixteen-year-old Monty Lee Eddings and several friends were pulled over by a police officer as they traveled in a car in Oklahoma. Eddings had several guns in the car, which he had taken from his father. When the police officer approached the car, Eddings shot and killed him. Eddings was tried as an adult even though he was sixteen at the time of the murder. He was convicted of first-degree murder for killing a police officer and was sentenced to death.

At the sentencing hearing following the conviction, Eddings's lawyer presented substantial evidence of a turbulent family history, beatings by a harsh father, and serious emotional disturbance. The judge refused, as a matter of law, to consider the mitigating circumstances of Eddings's unhappy upbringing and emotional problems. He ruled that the only mitigating circumstance was the petitioner's youth, which was insufficient to outweigh the aggravating circumstances.

In Eddings v. Oklahoma (455 U.S. 104, 1982), the Supreme Court, in a 5–4 opinion, ordered the case remanded (sent back to the lower courts for further proceedings). The justices based their ruling on Lockett v. Ohio, which required the trial court to consider and weigh all the mitigating evidence concerning the petitioner's family background and personal history.

By implication, because the majority did not reverse the case on the issue of age, the decision let stand Oklahoma's decision to try Eddings as an adult. Meanwhile, Chief Justice Burger, who filed the dissenting opinion in which Justices Byron R. White (1917–2002), Harry A. Blackmun (1908–1999), and William H. Rehnquist (1924–2005) joined, observed, ''the Constitution does not authorize us to determine whether sentences imposed by state courts are sentences we consider 'appropriate'; our only authority is to decide whether they are constitutional under the Eighth Amendment. The Court stops far short of suggesting that there is any constitutional proscription against imposition of the death penalty on a person who was under age 18 when the murder was committed.''

Hence, even though the high court did not directly rule on the question of minors being sentenced to death, the sense of the Court would appear to be that it would uphold such a sentencing. Eddings's sentence was subsequently changed to life in prison.

Not at Fifteen Years Old

With three adults, William Thompson brutally murdered a former brother-in-law in Oklahoma. Thompson was fifteen at the time of the murder, but the state determined that Thompson, who had a long history of violent assault, had ''virtually no reasonable prospects for rehabilitation . . . within the juvenile system and . . . should be held accountable for his acts as if he were an adult and should be certified to stand trial as an adult.'' Thompson was tried as an adult and found guilty. As in Eddings, Thompson's age was considered a mitigating circumstance, but the jury still sentenced him to death.

Thompson appealed, and even though the Court of Criminal Appeals of Oklahoma upheld the decision, the U.S. Supreme Court, in Thompson v. Oklahoma (487 U.S. 815, 1988), did not. In a 5–3 majority vote, with Justice Sandra Day O'Connor (1930–) agreeing to vacate (annul) the sentence but not agreeing with the majority reasoning, the case was reversed. (Justice Anthony M. Kennedy [1936–] took no part in the decision.)

Writing for the majority, Justice John Paul Stevens (1920–) observed that ''inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.''

Justice Stevens noted that eighteen states required the age of at least sixteen years before the death penalty could be considered. Counting the fourteen states prohibiting capital punishment, a total of thirty-two states did not execute people under sixteen.

Justice O'Connor agreed with the judgment of the Court that the appellate court's ruling should be reversed. O'Connor pointed out, however, that even though most fifteen-year-old criminals are generally less blameworthy than adults who commit the same crimes, some may fully understand the horrible deeds they have done. Individuals, after all, have different characteristics, including their capability to distinguish right from wrong.

Writing for the minority, Justice Scalia found no national consensus forbidding the execution of a person who was sixteen at the commission of the murder. The justice could not understand the majority's calculations establishing a ''contemporary standard'' that forbade the execution of young minors. He reasoned that abolitionist states (states with no death penalty) should not be considered in the issue of executing minors because they did not have executions in the first place. Rather, the eighteen states that prohibited the execution of offenders who were younger than sixteen when they murdered should be compared to the nineteen states that applied the death penalty to young offenders.

For a Number of Years Minors Could Be Sentenced to Death at Sixteen or Seventeen

In 1989 a majority of the Court, with Justice O'Connor straddling the fence, found the death penalty unacceptable for an offender who was less than sixteen when he or she committed murder. A majority of the Court, however, found the death sentence acceptable for a minor who was sixteen or seventeen during the commission of murder. The Supreme Court, in two jointly considered cases, Stanford v. Kentucky and Wilkins v. Missouri (492 U.S. 361, 1989), ruled that inmates who committed their crimes at ages sixteen or seventeen could be executed for murder.

In January 1981 seventeen-year-old Kevin Stanford and an accomplice raped Barbel Poore, an attendant at a Kentucky gas station they were robbing. They then took the woman to a secluded area near the station, where Stanford shot her in the face and in the back of the head. Stressing the seriousness of the offense and Stanford's long history of criminal behavior, the court certified him as an adult. He was tried, found guilty, and sentenced to death.

In July 1985 sixteen-year-old Heath Wilkins stabbed Nancy Allen to death while he was robbing the convenience store where she worked. Wilkins indicated he murdered Allen because ''a dead person can't talk.'' Based on his long history of juvenile delinquency, a Missouri court ordered Wilkins to be tried as an adult. He was found guilty and sentenced to death.

Writingforthemajority,JusticeScaliacouldfindno national consensus that executing minors aged sixteen and seventeen constituted a cruel and unusual punishment. Scalia observed that of the thirty-seven states whose statutes allowed the death penalty, just twelve refused to impose it on seventeen-year-old offenders, and besides those twelve, only three more states refused to impose it on sixteen-year-old offenders.

Furthermore, Justice Scalia saw no connection between the defendant's argument that those under eighteen were denied the right to drive, drink, or vote because they were not considered mature enough to do so responsibly and whether this standard of maturity should be applied to a minor's understanding that murder is terribly wrong. Scalia added, ''Even if the requisite degrees of maturity were comparable, the age statutes in question would still not be relevant . . . . These laws set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests for each driver, drinker, or voter . . . . In the realm of capital punishment in particular, 'individualized consideration [is] a constitutional requirement,' and one of the individualized mitigating factors that sentencers must be permitted to consider is the defendant's age.''

Writing for the minority, Justice William J. Brennan (1906–1997) found a national consensus among thirty states when he added the twelve states forbidding the execution of a person who was sixteen years during the commission of the crime to those with no capital punishment, and the states that, in practice if not in law, did not execute minors. Justice Brennan, taking serious exception to the majority's observation that they had to find a national consensus in the laws passed by the state legislatures, stated, ''Our judgment about the constitutionality of a punishment under the Eighth Amendment is informed, though not determined . . . by an examination of contemporary attitudes toward the punishment, as evidenced in the actions of legislatures and of juries. The views of organizations with expertise in relevant fields and the choices of governments elsewhere in the world also merit our attention as indicators whether a punishment is acceptable in a civilized society.''

In 1996 Wilkins was retried in Missouri and sentenced to three life terms. Stanford remained on Kentucky's death row until 2003, when his sentence was commuted to life without parole by Governor Paul E. Patton (1937–).

The Supreme Court Reverses Its Decision Regarding Minors

For fifteen years the nation's highest court held fast on its decision to allow for the execution of minors who committed capital crimes. The Supreme Court even rejected another appeal by Stanford in 2002. In Roper v. Simmons (543 U.S. 633, 2005), however, the Court reversed its earlier opinion when it ruled that executing Christopher Simmons was cruel and unusual based on the fact that Simmons was a minor when he committed murder.

In 1993 seventeen-year-old Simmons and two friends, John Tessmer and Charles Benjamin, planned the elaborate burglary and murder of Shirley Cook, who lived in Fenton, Missouri. The three teenagers wanted to experience the thrill of the crime, reasoning that they would not be held accountable because they were under the age of eighteen. On the night of the murder, Tessmer and Simmons broke into Cook's house. (Benjamin backed out.) When Cook identified who the boys were, they covered her eyes and mouth with duct tape and bound her hands. The teenagers drove Cook to a state park, wrapped more duct tape over her entire face, tied her hands and feet with electrical wire, and threw her off a railroad trestle into a river.

The next day Simmons began bragging about the murder at school and was picked up by the police along with the two other teenagers. Simmons confessed on videotape and was tried and sentenced to death. He made a number of unsuccessful appeals and pleas for habeas corpus (a petition to be heard in federal court). Just weeks before he was scheduled to die, the Missouri Supreme Court called off the execution and reopened the debate in light of the U.S. Supreme Court's Atkins decision. (In Atkins v. Virginia [536 U.S. 304], the Court ruled that executing mentally retarded criminals was a violation of the Eighth Amendment because the mentally retarded do not have as strong a sense of lasting consequences or of right and wrong as normal adults.) The state court overturned Simmons's death sentence 6–3, stating that a national consensus had developed against executing minors since Stanford and Wilkins were decided. Simmons was resentenced to life without parole.

The U.S. Supreme Court upheld the Missouri court's decision in a 5–4 vote, reversing Stanford. The majority reasoned that adolescents do not have the emotional maturity and understanding of lasting consequences that adults have. As such, they cannot be held to as high of a standard and should not be sentenced to death. The majority also agreed with the Missouri court in that a national and international consensus had changed over the past fifteen years. The Court noted, ''To implement this framework we have established the propriety and affirmed the necessity of referring to 'the evolving standards of decency that mark the progress of a maturing society.'''

Justices O'Connor, Scalia, Rehnquist, and Clarence Thomas (1948–) dissented, claiming that the guidelines for executing minors should not be inflexible and that a great many U.S. citizens still favor the death penalty for teenagers who commit especially heinous crimes. Scalia stated that the majority was bowing to international pressures. In his dissent, he wrote, ''Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage.''

Youth: A Mitigating Circumstance Even for Those over Eighteen

On March 23, 1986, Dorsie Lee Johnson Jr. and an accomplice staked out a convenience store in Snyder, Texas, with the intention of robbing it. They learned that only one employee worked during the predawn hours. Agreeing to leave no witnesses to the crime, the nineteen-year-old Johnson shot and killed the clerk, Jack Huddleston. They then emptied the cash register and stole some cigarettes.

The following month Johnson was arrested and subsequently confessed to the robbery and murder. During jury selection the defense attorneys asked potential jurors whether they believed that people were capable of change and whether they, the potential jurors, had ever done things in their youth that they would not now do.

The only witness the defense called was Johnson's father, who told of his son's drug use, grief over the death of his mother two years before the crime, and the murder of his sister the following year. He spoke of his son's youth and the fact that, at age nineteen, he did not evaluate things the way a person of thirty or thirty-five would.

Johnson was tried and convicted of capital murder. Under Texas law the homicide qualified as a capital offense because Johnson intentionally or knowingly caused Huddleston's death. Moreover, the murder was carried out in the course of committing a robbery.

In the sentencing phase of the trial, the judge instructed the jury to answer two questions: (1) whether Johnson's actions were deliberate and intended to kill, and (2) whether there was a possibility that he would continue to commit violent crimes and be a threat to society. If the jury answered ''yes'' to both questions, Johnson would be sentenced to death. If the jury returned a ''no'' answer to either question, the defendant would be sentenced to life in prison. The jury was not to consider or discuss the possibility of parole.

Of equal importance was the instruction that the jury could consider all the evidence, both aggravating and mitigating, in either phase of the trial. The jury unanimously answered yes to both questions, and Johnson was sentenced to death.

Five days after the state appellate court denied John-son's motions for a rehearing, the U.S. Supreme Court issued its opinion in Penry v. Lynaugh (492 U.S. 302, 1989), in which it held that the jury should have been instructed that it could consider mental retardation as a mitigating factor during the penalty phase. Based on the Penry ruling, Johnson appealed once more, claiming that a separate instruction should have been given to the jurors that would have allowed them to consider his youth. Again, the appellate court rejected his petition.

Affirming the Texas appellate court decision, Justice Kennedy delivered the opinion of the Supreme Court in Johnson v. Texas (509 U.S. 350, 1993). He was joined by Justices Rehnquist, White, Scalia, and Thomas. Kennedy noted that the Texas special-issues system (two questions asked of the jury and instruction to consider all evidence) allowed for adequate consideration of Johnson's youth. Justice Kennedy stated:

Even on a cold record, one cannot be unmoved by the testimony of petitioner's father urging that his son's actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside . . . . As long as the mitigating evidence is within ''the effective reach of the sentencer,'' the requirements of the Eighth Amendment are satisfied.

Justice O'Connor, in a dissenting opinion joined by Justices Blackmun, Stevens, and David H. Souter (1939–), stated that the jurors were not allowed to give full effect to his strongest mitigating circumstance: his youth. Hearing of his less than exemplary youth, a jury might easily conclude, as Johnson's did, that he would continue to be a threat to society.

In 1997 Johnson was executed by lethal injection in the state of Texas.

ROLE OF PSYCHIATRISTS

Validity of a Psychiatrist's Testimony

In 1978 Thomas Barefoot was convicted of murdering a police officer in Bell County, Texas. During the sentencing phase of his trial the prosecution put two psychiatrists on the stand. Neither psychiatrist had actually interviewed Barefoot, nor did either ask to do so. Both psychiatrists agreed that an individual with Barefoot's background and who had acted as Barefoot had in murdering the policeman represented a future threat to society. Partially based on their testimony, the jury sentenced Barefoot to death.

Barefoot's conviction and sentence were appealed many times, and in 1983 his case was argued before the U.S. Supreme Court. Among the issues debated was the validity of the testimony of psychiatrists. Barefoot's lawyers questioned whether it was necessary for the psychiatrists to have interviewed Barefoot or if it was enough for them to answer hypothetical questions that pertained to a hypothetical individual who acted like Barefoot.

Barefoot's attorneys claimed that psychiatrists could not reliably predict that a particular offender would commit other crimes in the future and be a threat to society. They further argued that psychiatrists should also not be allowed to testify about an offender's future dangerousness in response to hypothetical situations presented by the prosecutor and without having first examined the offender.

In Barefoot v. Estelle (463 U.S. 880, 1983), the Supreme Court ruled 6–3 that local juries were in the best position to decide guilt and impose a sentence. The Court referred to Jurek v. Texas (428 U.S. 262, 1976), an earlier case that, among other things, upheld the testimony of laypeople concerning a defendant's possible future actions. Therefore, the Court looked on psychiatrists as just another group of people presenting testimony to the jury for consideration. The Court claimed that like all evidence presented to the jury, a psychiatric observation ''should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. If the jury may make up its mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of the State's psychiatrists along with opposing views of the defendant's doctors.''

The high court dismissed the amicus curiae brief (a friend-of-the-court brief prepared to enlighten the court) presented by the American Psychiatric Association (APA), indicating that psychiatric testimony was ''almost entirely unreliable'' in determining future actions. The Court countered that such testimony had been traditionally accepted. The high court also observed that arguments, such as the APA brief, were founded ''on the premise that a jury will not be able to separate the wheat from the chaff,'' a sentiment with which the Court did not agree.

The high court also dismissed Barefoot's contention that the psychiatrists should have personally interviewed him. Such methods of observation and conclusion were quite normal in courtroom procedures, and the psychiatric observations had been based on established facts. Barefoot's appeal was denied.

Justice Blackmun strongly dissented from the majority decision. He declared, ''In the present state of psychiatric knowledge, this is too much for me. One may accept this in a routine lawsuit for money damages, but when a person's life is at stake—no matter how heinous his offense—a requirement of greater reliability should prevail. In a capital case, the specious testimony of a psychiatrist, colored in the eyes of an impressionable jury by the inevitable untouchability of a medical specialist's words, equates with death itself.''

The state of Texas executed Barefoot by lethal injection in 1984.

A Prisoner Maintains Rights during Psychiatric Examination

During the commission of a robbery in 1973 Ernest Smith's accomplice fatally shot a grocery clerk (Smith had tried to shoot the clerk, but his weapon had jammed). The state of Texas sought the death penalty against Smith based on the Texas law governing premeditated murder.

Thereafter, the judge ordered a psychiatric examination of Smith by James P. Grigson to determine if Smith was competent to stand trial. Without permission from Smith's lawyer, Grigson interviewed Smith in jail for about ninety minutes and found him competent. Grigson then discussed his conclusions and diagnosis with the state attorney. Smith was eventually found guilty. During the sentencing phase of the trial, over the protests of the defendant's lawyers, Grigson testified that Smith was a ''very severe sociopath,'' who would continue his previous behavior, which would get worse. The jury sentenced Smith to death.

Smith appealed his sentence, claiming he was not informed of his rights. Both the federal district court and the appeals court agreed. So did a unanimous Supreme Court. In Estelle v. Smith (451 U.S. 454, 1981), the Court ruled that the trial court had the right to determine if Smith was capable of standing trial. It had no right, however, to use the information gathered without first advising him of his Fifth Amendment right against self-incrimination. According to the Court, the psychiatrist was ''an agent of the state'' about whom the defendant had not been warned, but who was reporting about the defendant. Noting Miranda v. Arizona (384 U.S. 436, 1966), the Court continued, ''The Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.''

The Court reiterated that the prosecution may not use any statements made by a suspect under arrest ''unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.''

In 1981 Smith was convicted of a lesser charge and sentenced to life in prison.

Needing a Psychiatrist to Prove Insanity

In 1979 Glen Burton Ake and Steven Hatch shot and killed the Reverend Richard Douglass and Marilyn Douglass and wounded their children, Brooks and Leslie, in Canadian County, Oklahoma. Before the trial, because of Ake's bizarre behavior, the trial judge ordered him examined by a psychiatrist to determine if he should be put under observation. The psychiatrist diagnosed Ake as a probable paranoid schizophrenic and reported that his client claimed ''to be the 'sword of vengeance' of the Lord.'' The physician recommended a long-term psychiatric examination to determine Ake's competency to stand trial.

Ake's psychiatric evaluation confirmed his paranoid schizophrenia. Consequently, the court pronounced him incompetent to stand trial and ordered him committed to the state mental hospital.

Six weeks later the hospital psychiatrist informed the court that Ake had become competent to stand trial. Under daily treatment with an antipsychotic drug, he could stand trial. The state of Oklahoma resumed proceedings against the accused murderer.

Before the trial Ake's lawyer told the court of his client's insanity defense. He also informed the court that for him to defend Ake adequately, he needed to have Ake examined by a psychiatrist to determine his mental condition at the time he committed murder. During his stay at the mental hospital, Ake was evaluated as to his ''present sanity'' to stand trial but not his mental state during the murder. Because Ake could not afford a psychiatrist, his counsel asked the court to provide a psychiatrist or the money to hire one. The trial judge refused his request, claiming the state is not obligated to provide a psychiatrist, even to poor defendants in capital cases.

Ake was tried for two counts of first-degree murder and for two counts of shooting with intent to kill. During the trial Ake's only defense was insanity; however, none of the psychiatrists at the state mental hospital could testify to his mental state at the time of the crime.

The judge instructed the jurors that Ake could be found not guilty by reason of insanity if he could not distinguish right from wrong when he committed murder. The jurors were told they could presume Ake sane at the time of the crime unless he presented sufficient evidence to raise a reasonable doubt about his sanity during the crime. The jury found him guilty on all counts. The jury sentenced Ake to death based on the earlier testimony of the psychiatrist, who concluded that Ake was a threat to society. On appeal, the Oklahoma Court of Appeals agreed with the trial court that the state did not have the responsibility to provide an impoverished defendant with a psychiatrist to help with his defense.

The U.S. Supreme Court disagreed. In Ake v. Oklahoma (470 U.S. 68, 1985), the Court ruled 8–1 to reverse the lower court's ruling, finding that ''there was no expert testimony for either side on Ake's sanity at the time of the offense.'' The high court further observed, ''This Court has long recognized that when a State brings its judicial power to bear on an indigent [poor] defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.''

In 1986 Ake was retried, found guilty, and sentenced to life in prison.

INSANITY AND EXECUTION

Can an Insane Person Be Executed?

In 1974 Alvin Ford was convicted of murder and sentenced to death in Florida. There was no question that he was completely sane at the time of his crime, at the trial, and at the sentencing. Eight years later, Ford began to show signs of delusion—from thinking that people were conspiring to force him to commit suicide to believing that family members were being held hostage in prison.

Ford's lawyers had a psychiatrist examine their client. After fourteen months of evaluation and investigation, the doctor concluded that Ford suffered from a severe mental disorder that would preclude him from assisting in the defense of his life. A second psychiatrist concluded that Ford did not understand why he was on death row.

Florida law required the governor to appoint a panel of three psychiatrists to determine whether Ford was mentally capable of understanding the death penalty and the reasons he was being sentenced to death. The three state-appointed doctors met with Ford once for about thirty minutes and then filed separate reports. Ford's lawyers were present but were ordered by the judge not to participate in the examination ''in any adversarial manner.''

The three psychiatrists submitted different diagnoses, but all agreed that Ford was sane enough to be executed. Ford's lawyers attempted to submit to the governor the reports of the first two psychiatrists along with other materials. However, the governor refused to inform the lawyers whether he would consider these reports. He eventually signed Ford's death warrant.

Ford's appeals were denied in state and federal courts, but a 7–2 Supreme Court, in Ford v. Wainwright (477 U.S. 399, 1986), reversed the earlier judgments. In light of the fact that there had been no precedent formed for such a case in U.S. history, the justices turned to English law. Writing for the majority, Justice Thurgood Marshall (1908–1993) observed that even though the reasons appear unclear, English common law forbade the execution of the insane. The English jurist Sir William Blackstone (1723–1780) had labeled such a practice ''savage and inhuman.'' Likewise, the other noted English judicial resource, Sir Edward Coke (1552–1634), observed that even though the execution of a criminal was to serve as an example, the execution of a madman was considered ''of extreme inhumanity and cruelty, and can be no example to others.'' Consequently, because the Eighth Amendment forbidding a cruel and unusual punishment was prepared by men who accepted English common law, there could be no question that the Eighth Amendment prohibited the execution of the insane.

The issue then became the method the state used to determine Ford's insanity. The high court noted that Florida did not allow the submission of materials that might be relevant to the decision whether or not to execute the condemned man. In addition, Ford's lawyers were not given the chance to question the state-appointed psychiatrists about the basis for finding their client competent. Questions the defense could have asked included the possibility of personal bias on the doctors' part toward the death penalty, any history of error in their judgment, and their degree of certainty in reaching their conclusions. Finally, the justices pointed out that the greatest defect in Florida's practice is its entrusting the ultimate decision about the execution entirely to the executive branch. The high court observed, ''Under this procedure, the person who appoints the experts and ultimately decides whether the State will be able to carry out the sentence that it has long sought is the Governor, whose subordinates have been responsible for initiating every stage of the prosecution of the condemned from arrest through sentencing. The commander of the State's corps of prosecutors cannot be said to have the neutrality that is necessary for reliability in the factfinding proceeding.''

The high court further observed that even though a prisoner has been sentenced to death, he is still protected by the Constitution. Therefore, ascertaining his sanity as a basis for a legal execution is as important as other proceedings in a capital case.

In dissent, Justice Rehnquist, joined by Chief Justice Burger, thought the Florida procedure consistent with English common law, which had left the decision to the executive branch. Rehnquist warned, ''A claim of insanity may be made at any time before sentence and, once rejected, may be raised again; a prisoner found sane two days before execution might claim to have lost his sanity the next day, thus necessitating another judicial determination of his sanity and presumably another stay of his execution.''

Ford remained on Florida's death row until 1991, when he died of natural causes.

Can an Insane Person Stabilized by Drugs Be Executed?

In 1979 Charles Singleton stabbed Mary Lou York twice in the neck after robbing her grocery store in Hamburg, Arkansas. He was tried, convicted, and sentenced to death. He was sane during the murder and throughout the trial.

However, Singleton developed schizophrenia while in prison. At one point during his incarceration, Singleton claimed his prison cell was possessed by demons. When given antipsychotic medication, however, Singleton regained his sanity. Fearing a psychotic outburst from Singleton, the prison forced medication on him when he refused to take it. Singleton filed several habeas corpus petitions in state and federal courts, claiming that in light of Ford, he was not competent enough to be executed. He also argued that the forcible administration of antipsychotic medication was a violation of the Eighth Amendment, which forbids a cruel and unusual punishment.

The case was taken up by the U.S. Court of Appeals for the Eighth Circuit. In Singleton v. Norris (319 F.3d 1018 [8th Cir., 2003]), the appellate court upheld the death penalty for Singleton in a 5–4 decision. The majority felt that as long as Singleton was on medication and in full control of his faculties, his execution was not a violation of the Eighth Amendment. Singleton appealed to the U.S. Supreme Court, but the high court turned the case down, effectively endorsing the decision of the appellate court. Singleton was executed by the state of Arkansas on January 6, 2004.

CAN A MENTALLY RETARDED PERSON BE EXECUTED?

Penry I

In 1979 Pamela Carpenter was brutally raped, beaten, and stabbed with a pair of scissors in Livingston, Texas. Before she died, she was able to describe her attacker, and as a result, Johnny Paul Penry was arrested for, and later confessed to, the crime. At the time of the crime, Penry was out on parole for another rape. He was found guilty for the murder of Carpenter and sentenced to death.

Among the issues considered in his appeal was whether the state of Texas could execute a mentally retarded person. At Penry's competency hearing a psychiatrist testified that the defendant had an intelligence quotient (IQ) of fifty-four. Penry had been tested in the past as having an IQ between fifty and sixty-three, indicating mild to moderate retardation. According to the psychiatrist, during the commission of the crime the twenty-two-yearold Penry had the mental age of a child six-and-a-half years old and the social maturity of someone who was nine to ten years old. Penry's attorneys argued, ''Because of their mental disabilities, mentally retarded people do not possess the level of moral culpability to justify imposing the death sentence .... There is an emerging national consensus against executing the mentally retarded.''

Writing for the majority regarding the execution of mentally retarded people, Justice O'Connor, in Penry v. Lynaugh (492 U.S. 302, 1989), found no emerging national consensus against such executions. Furthermore, even though profoundly retarded people had not been executed for murder historically, Penry did not fall into this group.

Justice O'Connor noted that Penry was found competent to stand trial. He was able to consult rationally with his lawyer and understood the proceedings against him. She thought that the defense was guilty of lumping all mentally retarded people together, ascribing, among other things, a lack of moral capacity to be culpable for actions that call for the death punishment. O'Connor wrote:

Mentally retarded persons are individuals whose abilities and experiences can vary greatly. [If the mentally retarded were not treated as individuals, but as an undifferentiated group,] a mildly mentally retarded person could be denied the opportunity to enter into contracts or to marry by virtue of the fact that he had a ''mental age'' of a young child ....In light of the diverse capacities and life experiences of mentally retarded persons, it cannot be said on the record before us today that all mentally retarded people, by definition, can never act with the level of culpability associated with the death penalty.

Furthermore, the majority could find no national movement toward any type of consensus on this issue. Even though Penry produced several public opinion polls that indicated strong public opposition to executing the retarded, almost none of this public opinion was reflected in death penalty legislation. Only the federal Anti-Drug Abuse Act of 1988 and the states of Georgia and Maryland at the time banned the execution of retarded people found guilty of a capital crime.

Justice Brennan disagreed. Even though he agreed that lumping mentally retarded people together might result in stereotyping and discrimination, he believed there are characteristics that fall under the clinical definition of mental retardation. Citing the amicus curiae brief prepared by the American Association on Mental Retardation, he noted, ''Every individual who has mental retardation—irrespective of his or her precise capacities or experiences—has 'a substantial disability in cognitive ability and adaptive behavior.' . . . Though individuals, particularly those who are mildly retarded, may be quite capable of overcoming these limitations to the extent of being able to 'maintain themselves independently or semi-independently in the community,' nevertheless, the mentally retarded by definition 'have a reduced ability to cope with and function in the everyday world.'''

Justice Brennan did not believe that executing a person not fully responsible for his or her actions would serve the ''penal goals of deterrence or retribution.'' What is the point of executing someone who did not fully recognize the terrible evil that he or she had done? Furthermore, he argued, executing a mentally retarded person would not deter nonretarded people, those who would be aware of the possibility of an execution.

Even though the Supreme Court held that executing people with mental retardation was not a violation of the Eighth Amendment, it ruled that Penry's Eighth Amendment right was violated because the jury was not instructed that it could consider mental retardation as a mitigating factor during sentencing. The case was sent back to the lower court. In 1990 Texas retried Penry, and he was again found guilty of capital murder. During the sentencing phase the prosecution used a specific portion of a psychiatric report to point out the doctor's opinion that, if released from custody, Penry would be a threat to society. Penry appealed his case all the way to the Supreme Court. Ten years later, in November 2000, with Penry less than three hours from being put to death, the Supreme Court granted a stay of execution to hear Penry's claims.

Penry II

Penry once again appealed to the Supreme Court after his case was retried. In his appeal to the Supreme Court, Penry argued that the use of a portion of an old psychiatric report at his 1990 retrial violated his Fifth Amendment right against self-incrimination. In 1977 Penry was arrested in connection with another rape. During this rape case the state of Texas provided Penry with a psychiatrist at the request of his lawyer. The psychiatrist was to determine the defendant's competency to stand trial. In 2000 Penry argued that the psychiatrist was an ''agent of the state'' and that the prosecution's use of his report in the 1990 retrial for murder violated Penry's right against self-incrimination. Penry also claimed jury instructions were inadequate.

On June 4, 2001, the Supreme Court ruled 6–3 in Penry v. Johnson (532 U.S. 782) that the admission of the psychiatrist's report did not violate Penry's Fifth Amendment right. The Court held that this case was different from Estelle v. Smith, discussed earlier, in which the justices found that the psychiatrist's testimony about the defendant's future dangerousness based on the defend-ant's statements without his lawyer present violated his Fifth Amendment right. The justices emphasized that Estelle was restricted to that particular case.

The justices, however, sent the case back to the trial court for resentencing because, as in the original Penry case, the state did not give the sentencing jury adequate instructions about how to weigh mental retardation as a mitigating factor.

The Court Revisits Mental Retardation

Daryl Renard Atkins was convicted and sentenced to death for a 1996 abduction, armed robbery, and capital murder. On appeal to the Virginia Supreme Court, Atkins argued that he could not be executed because he was mentally retarded. Relying on Penry v. Lynaugh, the court affirmed the conviction. The court ordered a sentencing retrial because the trial court had used the wrong verdict form. As with the first penalty trial, a psychologist testified that Atkins was ''mildly mentally retarded,'' having an IQ of fifty-nine. The jury sentenced Atkins to death for a second time. Atkins again appealed to the Virginia Supreme Court, which upheld the trial court ruling.

The U.S. Supreme Court unanimously agreed to hear Atkins's case. Thirteen years after ruling that executing the mentally retarded does not violate the Constitution, the Supreme Court, in a 6–3 decision, reversed its 1989 Penry decision. On June 20, 2002, in Atkins v. Virginia (536 U.S. 304), most of the Court held that ''executions of mentally retarded criminals are 'cruel and unusual punishments' prohibited by the Eighth Amendment.''

Justice Stevens delivered the opinion of the Court. Justices O'Connor, Kennedy, Souter, Ruth Bader Ginsburg (1933–), and Stephen G. Breyer (1938–) joined the opinion. According to the Court, since Penry, many states had concluded that death is not a suitable punishment for mentally retarded offenders, reflecting society's sentiments that these individuals are less culpable than average offenders. The Court observed, ''Mentally retarded persons . . . have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others . . . . Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.''

The justices also noted that even though the theory is that capital punishment would serve as deterrence to those contemplating murder, this theory does not apply to the mentally retarded because their diminished mental capacities prevent them from appreciating the possibility of execution as punishment. Moreover, the lesser culpability of mentally retarded criminals does not warrant the severe punishment of death.

Justice Scalia disagreed with the ruling that a person who is slightly mentally retarded does not possess the culpability to be sentenced to death. He claimed that the ruling finds ''no support in the text or history of the Eighth Amendment.'' The justice also noted that current social attitudes do not support the majority decision. He pointed out that the state laws that the majority claimed reflect society's attitudes against executing the mentally retarded are still in their infancy and have not undergone the test of time.

On the relationship between a criminal's culpability and the deserved punishment, Justice Scalia stated:

Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime—which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today imposes upon all trials, but rather by the sentencer's weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society's moral outrage sometimes demands execution of retarded offenders. By what principle of law, science, or logic can the Court pronounce that this is wrong? There is none. Once the Court admits (as it does) that mental retardation does not render the offender morally blameless . . . there is no basis for saying that the death penalty is never appropriate retribution, no matter how heinous the crime.

Penry's Sentence Revisited

On July 3, 2002, about two weeks after the Supreme Court ruled that it is unconstitutional to execute a mentally retarded person, a Texas jury concluded that Penry is not mentally retarded. He was resentenced to death. Three years later the Texas Court of Criminal Appeals ruled that the jury had not fully considered Penry's claim of mental retardation and ordered a new sentencing hearing. The Texas attorney general appealed the decision. As of November 2007, Penry remained on death row in Texas awaiting his fourth sentencing hearing.

COMPETENCY STANDARD

In Las Vegas, Nevada, on August 2, 1984, Richard Allen Moran fatally shot a bartender and a patron four times each. Several days later he went to the home of his former wife and fatally shot her, then turned the gun on himself. However, his suicide attempt failed, and Moran confessed to his crimes. Later, the defendant pleaded not guilty to three counts of first-degree murder. Two psychiatrists examined Moran and concluded that he was competent to stand trial. Approximately ten weeks after the evaluations, the defendant decided to dismiss his attorneys and change his plea to guilty. After review of the psychiatric reports, the trial court accepted the waiver for counsel and the guilty plea. The defendant was later sentenced to death.

Seven months later Moran appealed his case, claiming that he had been ''mentally incompetent to represent himself.'' The appellate court reversed the conviction, ruling that ''competency to waive constitutional rights requires a higher level of mental functioning than that required to stand trial.'' A defendant is considered competent to stand trial if he can understand the proceedings and help in his defense. Yet, for a defendant to be considered competent to waive counsel or to plead guilty, he has to be capable of '''reasoned choice' among the alternatives available to him.'' The appellate court found Moran mentally incapable of the reasoned choice needed to be in a position to waive his constitutional rights.

The Supreme Court ruled 7–2 in Godinez v. Moran (509 U.S. 389, 1993) to reverse the judgment of the court of appeals, holding that the standard for measuring a criminal defendant's competency to plead guilty or to waive his right to counsel is not higher than the standard for standing trial. The high court then sent the case back to the lower courts for further proceedings. Moran was executed in March 1996.

VICTIM IMPACT STATEMENTS

First, They Are Not Constitutional

John Booth and Willie Reid stole money from elderly neighbors to buy heroin in 1983. Booth, knowing his neighbors could identify him, tied up the elderly couple and then repeatedly stabbed them in the chest with a kitchen knife. The couple's son found their bodies two days later. Booth and Reid were found guilty.

The state of Maryland permitted a victim impact statement to be read to the jury during the sentencing phase of the trial. The victim impact statement prepared in this case explained the tremendous pain caused by the murder of the parents and grandparents to the family. A 5–4 Supreme Court, in Booth v. Maryland (482 U.S. 496, 1987), while recognizing the agony caused to the victim's family, ruled that victim impact statements, as required by Maryland's statute, were unconstitutional and could not be used during the sentencing phase of a capital murder trial.

Writing for the majority, Justice Lewis F. Powell Jr. (1907–1998) indicated that a jury must determine whether the defendant should be executed, based on the circumstances of the crime and the character of the offender. These factors had nothing to do with the victim. The high court noted that it is the crime and the criminal that are at issue. Had Booth and Reid viciously murdered a drunken bum, the crime would have been just as horrible. Furthermore, some families could express the pain and disruption they suffered as a result of the murder better than other families, and a sentencing should not depend on how well a family could express its grief.

Willie Reid's sentence was later converted to two life terms. As of November 2007 Booth remained on Mary-land's death row.

. . . And Then They Are

Pervis Tyrone Payne of Tennessee spent the morning and early afternoon of June 27, 1987, injecting cocaine and drinking beer. Later, he drove around the town with a friend, each of them taking turns reading a pornographic magazine. In midafternoon, Payne went to his girlfriend's apartment, who was away visiting her mother in Arkansas. Charisse Christopher lived across the hall from the apartment. Payne entered Christopher's apartment and made sexual advances toward Christopher, who resisted. Payne became violent.

When the police arrived, they found Christopher on the floor with forty-two direct knife wounds and forty-two defensive wounds on her arms and hands. Her two-yearold daughter had suffered stab wounds to the chest, abdomen, back, and head. The murder weapon, a butcher knife, was found at her feet. Christopher's three-year-old son, despite several stab wounds that went completely through his body, was still alive. Payne was arrested, and a Tennessee jury convicted him of the first-degree murders of Christopher and her daughter and of the first-degree assault, with intent to murder, of Christopher's son, Nicholas.

During the sentencing phase of the trial, Payne called his parents, his girlfriend, and a clinical psychologist to testify about the mitigating aspects of his background and character. The prosecutor, however, called Nicholas's grandmother, who testified how much the child missed his mother and baby sister. In arguing for the death penalty, the prosecutor commented on the continuing effects the crime was having on Nicholas and his family. The jury sentenced Payne to death on each of the murder counts. The state supreme court agreed, rejecting Payne's claim that the admission of the grandmother's testimony and the state's closing argument violated his Eighth Amendment rights under Booth v. Maryland.

On hearing the appeal, the U.S. Supreme Court ruled 6–3 in Payne v. Tennessee (501 U.S. 808, 1991) to uphold the death penalty and overturned Booth v. Maryland. In Payne, the Court ruled that the Eighth Amendment does not prohibit a jury from considering, at the sentencing phase of a capital trial, victim impact evidence relating to a victim's personal characteristics and the emotional impact of the murder on the victim's family. The Eighth Amendment also does not bar a prosecutor from arguing such evidence at the sentencing phase.

The Court reasoned that the assessment of harm caused by a defendant as a result of a crime has long been an important concern of criminal law in determining both the elements of the offense and the appropriate punishment. Victim impact evidence is simply another form or method of informing the sentencing jury or judge about the specific harm caused by the crime in question.

The Booth case unfairly weighted the scales in a capital trial. No limits were placed on the mitigating evidence the defendant introduced relating to his own circumstances. The state, however, was potentially barred from offering a glimpse of the life of the victim or from showing the loss to the victim's family or to society. Booth was decided by narrow margins, the Court continued, and had been questioned by members of the Supreme Court as well as by the lower courts.

Dissenting, Justice Stevens stated that a victim impact statement ''sheds no light on the defendant's guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.''

As of November 2007, Payne remained on Tennessee's death row.

THE ISSUE OF RACE IN CAPITAL CASES

In 1978 Willie Lloyd Turner, an African-American, robbed a jewelry store in Franklin, Virginia. Angered because the owner had set off a silent alarm, Turner first shot the owner in the head, wounding him, and then shot him twice in the chest, killing him for ''snitching.'' Turn-er's lawyer submitted to the judge the following question for the jurors: ''The defendant, Willie Lloyd Turner, is a member of the Negro race. The victim, W. Jack Smith, Jr., was a white Caucasian. Will these facts prejudice you against Willie Lloyd Turner or affect your ability to render a fair and impartial verdict based solely on the evidence?''

The judge refused to allow this question to be asked. A jury of eight whites and four African-Americans convicted Turner and then, in a separate sentencing hearing, recommended the death sentence, which the judge imposed.

Turner appealed his conviction, claiming that the judge's refusal to ask prospective jurors about their racial attitudes deprived him of his right to a fair trial. Even though his argument failed to convince state and federal appeals courts, the U.S. Supreme Court heard his case. The high court ruled 7–2 in Turner v. Murray (476 U.S. 28, 1986) to overturn Turner's death sentence, but not his conviction.

Writing for the majority, Justice White noted that, in considering a death sentence, the jury makes a subjective decision that is uniquely his or her own regarding what punishment should be meted out to the offender. White further stated:

Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this case, a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner's evidence of mental disturbance as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror's decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty.

The high court recognized that the death sentence differs from all other punishments and, therefore, requires a more comprehensive examination of how it is imposed. The lower court judge, by not asking prospective jurors about their racial attitudes, had not exercised this thorough examination. Consequently, the Supreme Court reversed Turner's death sentence. Justice Powell, in his dissent, observed that the Court ruling seemed to be ''based on what amounts to a constitutional presumption that jurors in capital cases are racially biased. Such presumption unjustifiably suggests that criminal justice in our courts of law is meted out on racial grounds.''

In 1995 Turner was executed by the state of Virginia.

Limits to Consideration of Racial Attitudes

On May 13, 1978, Warren McCleskey and three armed men robbed a furniture store in Fulton County, Georgia. A police officer, responding to a silent alarm, entered the store, was shot twice, and died. McCleskey was African-American; the officer was white. McCleskey admitted taking part in the robbery but denied shooting the police officer. The state proved that at least one shot came from the weapon McCleskey was carrying and produced two witnesses who had heard McCleskey admit to the shooting. A jury found him guilty, and McCleskey, offering no mitigating circumstances during the sentencing phase, received the death penalty.

McCleskey eventually appealed his case all the way to the U.S. Supreme Court. Part of his appeal was based on two major statistical studies of more than two thousand Georgia murder cases that occurred during the 1970s. Prepared by David C. Baldus, Charles A. Pulanski Jr., and George Woodworth, the statistical analyses were referred to as the Baldus study. (The two studies were ''Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience'' [Journal of Criminal Law and Criminology, vol. 74, no. 3, 1983] and ''Monitoring and Evaluating Contemporary Death Sentencing Systems: Lessons from Georgia'' [University of California Davis Law Review, vol. 18, no. 1375, 1985].)

The Baldus study found that defendants charged with killing white people received the death penalty in 11% of cases, but defendants charged with killing African-Americans received the death penalty in only 1% of the cases. The study also found a reverse racial difference, based on the defendant's race—4% of the African-American defendants received the death penalty, as opposed to 7% of the white defendants.

Furthermore, the Baldus study reported on the cases based on the combination of the defendant's race and that of the victim. The death penalty was imposed in 22% of the cases involving African-American defendants and white victims, in 8% of the cases involving white defendants and white victims, in 3% of the cases involving white defendants and African-American victims, and in 1% of the cases involving African-American defendants and African-American victims.

The Baldus study also found that prosecutors sought the death penalty in 70% of the cases involving African-American defendants and white victims, in 32% of the cases involving white defendants and white victims, in 19% of the cases involving white defendants and African-American victims, and in 15% of the cases involving African-American defendants and African-American victims.

Finally, after taking account of variables that could have explained the differences on nonracial grounds, the study concluded that defendants charged with killing white victims were 4.3 times as likely to receive the death penalty as defendants charged with killing African-Americans. In addition, African-American defendants were 1.1 times as likely to get a death sentence as other defendants were. Therefore, McCleskey, who was African-American and killed a white victim, had the greatest likelihood of being sentenced to death.

In court testimony Baldus testified that, in really brutal cases where there is no question the death penalty should be imposed, racial discrimination on the part of the jurors tends to disappear. The racial factors usually come into play in midrange cases, such as McCleskey's, where the jurors were faced with choices.

Even though the federal district court did not accept the Baldus study, both the court of appeals and the U.S. Supreme Court accepted the study as valid. However, a 5–4 Supreme Court, in McCleskey v. Kemp (481 U.S. 279, 1987), rejected McCleskey's appeal. McCleskey had to show that the state of Georgia had acted in a discriminatory manner in his case, and the Baldus study was not enough to support the defendant's claim that any of the jurors had acted with discrimination.

Justice Powell noted that statistics, at most, may show that a certain factor might likely enter some decision-making processes. The Court recognized that a jury's decision could be influenced by racial prejudice, but the majority believed previous rulings had built in enough safeguards to guarantee equal protection for every defendant. The Court declared, ''At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. . . . We hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.''

The Court expressed concern that if it ruled that Baldus's findings did represent a risk, the findings might well be applied to lesser cases. It further noted that it is the job of the legislative branch to consider these findings and incorporate them into the laws to guarantee equal protection in courts of law.

Justice Brennan, who, along with Justice Marshall, believed capital punishment constitutes a cruel and unusual punishment and, therefore, is unconstitutional, thought the Baldus study powerfully demonstrated that it is impossible to eliminate arbitrariness in the imposition of the death penalty. Therefore, he argued, the death penalty must be abolished altogether because the Court cannot rely on legal safeguards to guarantee an African-American defendant a fair sentencing. Even though the Baldus study did not show that racism necessarily led to McCleskey's death sentence, ithadsurelyshownthatMcCleskeyfacedaconsiderably greater likelihood of being sentenced to death because he was an African-American man convicted of killing a white man.

Also writing in dissent, Justice Blackmun thought the Court majority had concentrated too much on the potential racial attitudes of the jury. As important, he thought, were the racial attitudes of the prosecutor's office, which the Baldus study found to be much more likely to seek the death penalty for an African-American person who had killed a white person than for other categories.

The district attorney for Fulton County had testified that no county policy existed on how to prosecute capital cases. Decisions to seek the death penalty were left to the judgment of the assistant district attorneys who handled the cases. Blackmun thought that such a system was certainly open to abuse. Without guidelines, the prosecutors could let their racial prejudices influence their decisions.

Blackmun also noted that the Court majority had totally dismissed Georgia's history of racial prejudice as past history. Even though it should not be the overriding factor, this bias should be considered in any case presented to the high court, he thought. Justice Blackmun found most disturbing the Court's concern that, if the Baldus findings were upheld, they might be applied to other cases, leading to constitutional challenges. Black-mun thought that a closer scrutiny of the effects of racial discrimination would benefit the criminal justice system and, ultimately, society.

In 1991 McCleskey was executed in the electric chair by the state of Georgia.

Prosecutor's Racially Based Use of Peremptory Challenges in Jury Selection

James Ford, an African-American, was charged with the kidnapping, rape, and murder of a white woman on February 29, 1984. The state of Georgia informed Ford that it planned to seek the death penalty. Before the trial, Ford filed a ''Motion to Restrict Racial Use of Peremptory Challenges,'' claiming that the prosecutor had consistently excluded African-Americans from juries where the victims were white.

At a hearing on the defendant's motion, Ford's lawyer noted that it had been his experience that the district attorney and his assistants had used their peremptory challenges (the right to reject a juror without giving a reason) to excuse potential African-American jurors. Ford's lawyer asked the trial judge to prevent this from happening by ordering the district attorney to justify on the record his reasons for excusing potential African-American jurors.

The prosecutor denied any discrimination on his part. He referred to the U.S. Supreme Court decision in Swain v. Alabama (380 U.S. 202, 1965), which said, in part, ''It would be an unreasonable burden to require an attorney for either side to justify his use of peremptory challenges.'' The judge denied the defense attorney's motion because he had previously seen the district attorney passing over prospective white jurors in favor of potential African-American jurors.

During jury selection the prosecutor used nine of his ten peremptory challenges to dismiss prospective African-American jurors, leaving only one African-American member seated on the jury. In closed sessions, the judge allowed Ford's attorney's observation, for the record, that nine of the ten African-American prospective members had been dismissed on peremptory challenges by the prosecutor. The judge, however, told the prosecutor that he did not have to offer any reasons for his peremptory actions.

Ford was convicted on all counts and sentenced to death. His attorney, believing that the jury did not represent a fair cross-section of the community, called for a new trial and claimed that Ford's ''right to an impartial jury as guaranteed by Sixth Amendment to the United States Constitution was violated by the prosecutor's exercise of his peremptory challenges on a racial basis.'' On appeal, the Georgia Supreme Court affirmed the conviction.

Ford appealed to the U.S. Supreme Court. In Ford v. Georgia (498 U.S. 411, 1991), the high court reversed the decision of the Georgia Supreme Court. The Court vacated Ford's conviction and ruled that its decision in Batson v. Kentucky (476 U.S. 79, 1986) could be applied retroactively to Ford's case, which had been tried in 1984. In 1986 the high court had superseded Swain when it ruled in Batson that a defendant could make a case claiming the denial of equal protection of the laws solely on evidence that the prosecutor had used peremptory challenges to exclude members of the defendant's race from the jury.

Delivering the opinion for a unanimous Court, Justice Souter held that the Georgia Supreme Court had erred when it ruled that Ford had failed to present a proper equal protection claim. Even though Ford's pretrial motion did not mention the Equal Protection Clause (of the Fourteenth Amendment), and his new trial motion had cited the Sixth Amendment rather than the Fourteenth, the motion referring to a pattern of excluding African-American members '''over a long period of time' constitutes the assertion of an equal protection claim.'' As of November 2007 Ford was in the Georgia State Prison serving a sentence of life without the possibility of parole.

Using Race/Ethnicity to Obtain a Death Sentence

On June 5, 2000, the Supreme Court, in a summary disposition, ordered the Texas Court of Criminal Appeals to hold a new sentencing hearing for Victor Saldano, an Argentine national on death row. In a summary disposition, the Court decides a case in a simple proceeding without a jury. Generally, a summary disposition is rare in criminal cases. In this instance, the crime was committed by a foreign national and thus fell outside of a trial jury's mandate. In Saldano v. Texas (No. 99-8119), the Court cited the confession of error by the Texas attorney general John Cornyn (1952–) regarding the use of race as a factor in sentencing the defendant.

Texas death penalty statutes require that the jury consider a defendant's future dangerousness to determine whether or not to impose the death penalty. At the sentencing hearing Walter Quijano, the court-appointed psychologist, testified that Saldano was ''a continuing threat to society'' because he is Hispanic. Quijano told the jury that because Hispanics are ''over-represented'' in prisons they are more likely to be dangerous. Following this decision, other death row inmates whose cases reflected similar circumstances were granted new sentencing hearings. Saldano's own case continued in the courts; in March 2004 the Fifth U.S. Circuit Court of Appeals refused to reinstate Saldano's death sentence. As of November 2007, Saldano remained on Texas's death row.