Criminal Law Lecture Outline - Fall 2008

Criminal Law

Fall 2008

Section 1

Professor Lee

Class Outline

October 3, 2008

DEATH PENALTY PROCEDURE

3.  The procedure of capital sentencing

a.  Who is "eligible" for the death penalty?

i.  First degree murder plus special circumstances

ii.  An accomplice to first degree felony-murder may be executed if:

A.  the accomplice was at least extremely recklessness with respect to the killing; and

B.  the accomplice's participation in the underlying felony is "major" (Enmund and Tison, n.7, p. 369)

iii.  Mental retardation (Atkins v. Virginia) (2002)

A.  Execution of the mentally retarded violates Cruel and Unusual Punishment Clause

B.  States have some latitude in deciding which defendants are "mentally retarded" (Atkins had an IQ of 59; generally accepted cutoff is 70 on WAIS-III)

 

C.  Rationale:  Emerging national consensus recognizes that neither retribution nor deterrence supports execution of the mentally retarded, and that mentally retarded defendants are less able to assist in their own defense

iv.  Juvenile defendants:  Roper v. Simmons (2005) (executing defendant who was under 18 at time of offense violates Eighth Amendment)

 

v.  Kennedy v. Louisiana:  Capital punishment for child rape violates 8th Amendment

b.  How the jury chooses between death and life without possibility of parole

i.  Weighing aggravating circumstances against mitigating circumstances

c.  The intractable problem of guiding the jury's discretion

i.  Woodson:  mandatory death sentences violate Eighth Amendment

ii.  Furman:  arbitrary imposition of death penalty violates Eighth Amendment

iii.  Lockett v. Ohio:  jury must be permitted to consider as a mitigating circumstance any aspect of defendant's character or record, or circumstance of offense

 

iv.  Are the principles irreconcilable?

A.  Justice Blackmun's response

B.  Justice Scalia's response