Capital Punishment: Due Process Limits

The Due Process Clauses in the Fifth and Fourteenth Amendments to the U. S. Constitution have played an important role in efforts to promote fairness in the use of Capital Punishment. Principles derived from the Eighth Amendment provide the central limitations on the use of the death penalty. However, the Eighth Amendment rules apply in state courts, where most capital prosecutions occur, only because the Supreme Court has deemed them incorporated through the Due Process Clause in the Fourteenth Amendment. Moreover, the Supreme Court has relied on principles of free-standing due process to provide additional special protections in capital cases, and the mandates of due process that apply in all criminal cases also limit capital prosecutions.

From the time of the American founding through the middle of the twentieth century, the notion of in favorem vitae (‘‘in favor of life’’) often moved courts to take extra precautions to promote fairness in capital prosecutions. Concern about the severity of Capital Punishment manifested itself in many ways by trial judges administering individual capital trials and by appellate courts reviewing capital convictions. Courts frequently interpreted statutes imposing the death penalty literally and strictly so as to avoid their application. Courts also showed special concern for the procedural rights of capital defendants, sometimes justifying this concern openly on the special nature of the death penalty.

In the modern era, the central legal assault on the death penalty has focused on its arbitrary and discriminatory imposition, and the Supreme Court has relied for a remedy on the prohibition against cruel and unusual punishment in the Eighth Amendment, which then applies against the states as a matter of due process. Reform-minded lawyers argued before the Supreme Court in McGautha v. California, 402 U.S. 183 (1971), that the then-prevailing practice of submitting the capital Sentencing decision to the largely unrestricted discretion of a jury violated principles of free-standing due process. However, the Supreme Court rejected the challenge in an opinion concluding that the articulation of appropriate standards to guide capital sentencers was impossible and that jurors confronted with the capital Sentencing decision would generally act appropriately. Nonetheless, the following year, in Furman v. Georgia, 408 U.S. 238 (1972), the Court rejected standardless capital Sentencing under the Eighth Amendment, concluding that the potential for arbitrariness rendered death sentences imposed under standardless systems cruel and unusual. The Court also later judged revised capital-Sentencing statutes under the Eighth Amendment, upholding several that provided for a Sentencing hearing with standards while rejecting others that mandated the death penalty on conviction. Most of the modern doctrine regulating capital Sentencing proceedings also builds on this Eighth Amendment grounding, with due process operating only as the means of incorporating the rulings against the states.

While relying primarily on the Eighth Amendment to address arbitrariness, the Supreme Court has occasionally turned to general notions of due process to promote other forms of fairness in capital prosecutions. Some of the due process decisions that provide special protection to capital defendants have focused on the provision of notice and an opportunity to be heard at the capital Sentencing trial. For example, in Gardner v. Florida, 430 U.S. 349 (1977), the Court reversed a death sentence where the Sentencing judge had relied in part on a section of a Sentencing report that had been kept confidential from the defense. Likewise, in Lankford v. Idaho, 500 U.S. 110 (1991), the Court reversed a death sentence where it seemed that the defense had not been adequately notified before the Sentencing trial that the death penalty was being considered as a possible punishment.

Decisions that impose special protections in capital cases have also focused on a variety of other issues. For example, in Green v. Georgia, 442 U.S. 95 (1979), the Court held that a state could not appropriately object on hearsay grounds to the introduction at a capital Sentencing trial of a codefendant’s statement that the defendant had not been present when the victim was killed, where the state had previously introduced the same statement against the codefendant to obtain a death sentence at the codefendant’s separate trial. Likewise, in Beck v. Alabama, 447 U.S. 625 (1980), the Court held that a state could not impose a death sentence when the jury at the guiltor- innocence trial was not permitted to consider a verdict of guilt of a lesser included noncapital offense, although the evidence would have supported such a verdict. Further, in Turner v. Murray, 476 U.S. 28 (1986), the Court held that due process guaranteed a black capital defendant accused of killing a white person the opportunity to question potential Sentencing jurors about their racial biases, although the interracial nature of the crime would not alone have triggered such a right in a noncapital case.

Principles of due process that apply in all criminal cases, of course, also protect capital defendants. Long ago, in Brown v. Mississippi, 297 U.S. 278 (1936), the Court reversed a capital conviction where the state was allowed to introduce the defendant’s ‘‘involuntary’’ confession. Likewise, in Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court overturned a capital conviction because the state had denied an indigent defendant the assistance of a court-appointed psychiatrist to help prepare and present his defense at both the guilt-or-innocence and Sentencing trials. Also, in Kyles v. Whitley, 514 U.S. 419 (1995), the Court set aside a capital conviction where the prosecution had failed to disclose before trial evidence in its possession that was material and favorable to the defense. Furthermore, in Cooper v. Oklahoma, 517 U.S. 348 (1996), the Court reversed a capital conviction where the state required the accused to prove his incompetence to stand trial by a standard of proof greater than a preponderance of the evidence. While these kinds of general due process rulings apply in all criminal cases, the Supreme Court has often first announced them in capital prosecutions, which underscores their role in regulating the use of the death penalty.

SCOTT W. HOWE

References and Further Reading

• Israel, Jerold H., Free-Standing Due Process and Criminal Procedure: The Supreme Court’s Search for Interpretive Guidelines, St. Louis University Law Journal 45 (2001): 303–432
• Steiker, Carol S., and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, Harvard Law Review 109 (1995): 355–438
• Thurschwell, Adam. ‘‘Federal Courts, the Death Penalty, and the Due Process Clause: The Original Understanding of the ‘‘Heightened Reliability’’ of Capital Trials.’’ Federal Sentencing Reporter 14 (2002): 14–36

Cases and Statutes Cited

• Ake v. Oklahoma, 470 U.S. 68 (1985) 
• Beck v. Alabama, 447 U.S. 625 (1980) 
• Brown v. Mississippi, 297 U.S. 278 (1936) 
• Cooper v. Oklahoma, 517 U.S. 348 (1996) 
• Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) 
• Gardner v. Florida, 430 U.S. 349 (1977) 
• Green v. Georgia, 442 U.S. 95 (1979) 
• Kyles v. Whitley, 514 U.S. 419 (1995) 
• Lankford v. Idaho, 500 U.S. 110 (1991) 
• McGautha v. California, 402 U.S. 183 (1971) 
• Turner v. Murray, 476 U.S. 28 (1986) 

See also Capital Punishment: Eighth Amendment Limits; McGautha v. California, 402 U.S. 183 (1971)