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Pennsylvania reiterated that, “[i]n the post-Ring world, . . . 24. 25. “'murder plus one or more aggravating circumstances' is a separate offense from 'murder' ...
IS DEATH STILL DIFFERENT? EXPANDING CONSTITUTIONAL RIGHTS UNDER THE COURT’S EVOLVING “DEATH IS THE SAME” JURISPRUDENCE by Robert Brett Dunham1 Death is Different – Since Furman v. Georgia, 408 U.S. 238 (1972), held that the systemically arbitrary and capricious imposition of the death penalty invalidated all death penalty statutes across America, it has been accepted that “death is different.”2 This core Eighth Amendment value is grounded in the maxim that “[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.”3 “Because of th[is] qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”4 The proposition was

1

B.A., University of Pennsylvania; J.D.; Georgetown University Law Center; Adjunct Professor of Law, Villanova University School of Law. Mr. Dunham is Director of Training of the Federal Community Defender Organization for the Eastern District of Pennsylvania, Capital Habeas Corpus Unit, and was Executive Director of the former Pennsylvania Capital Case Resource Center from 1994 through 1999. He is a Fellow of the American Bar Foundation, a member of the Steering Committee of the American Bar Association Death Penalty Representation Project, and a member of the Board of Directors of the Pennsylvania Association of Criminal Defense Lawyers. 2

Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ). 3

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion).

4

Id.; see Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (plurality opinion of Stevens, Stewart, & Powell, JJ.); id. at 363-64 (White, J., concurring); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (opinion of Burger, C.J., Stewart, Powell, & Stevens, JJ.); Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980); Beck v. Alabama, 447 U.S. 625, 637-38 (1980) (majority opinion of Stevens, J., joined by Burger, C.J., Brennan, Stewart, Blackmun; and Powell, JJ.); California v. Ramos, 463 U.S. 992, 998-99 & n.9 (1983) (majority opinion of O’Connor, J.) (“the Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater 1

so well established, that within a decade of Furman every Justice of the Court had written or joined at least one opinion endorsing the proposition that because death is different, death sentences must be accompanied by commensurate procedural safeguards.5 Death is the Same – Since that time, the ascension of activist conservative Justices to the United States Supreme Court has eroded the rhetorical force of the “death is different” argument, and the scope of the Eighth Amendment has been viewed more narrowly.6 At the same time, the

degree of scrutiny of the capital sentencing determination”); Ake v. Oklahoma, 470 U.S. 68 (1985) (“The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling. Indeed, the host of safeguards fashioned by this Court over the years to diminish the risk of erroneous conviction stands as a testament to that concern. The interest of the individual in the outcome of the State’s effort to overcome the presumption of innocence is obvious and weighs heavily in our analysis.”); id. at 87 (1985) (Burger, C.J., concurring) (“In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases”); Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985) (“[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. This Court has repeatedly said that under the Eighth Amendment ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’”); Turner v. Murray, 476 U.S. 28, 36-37 (1986); Ford v. Wainwright, 477 U.S. 399, 411 (1986) (“In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. . . . This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different”); Mills v. Maryland, 486 U.S. 367, 383-84 (1988) (“The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case.”); Johnson v. Mississippi, 486 U.S. 578, 584-85 (1988); see also Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring); Eddings v. Oklahoma, 455 U.S. 104, 117-18 (1981) (O’Connor, J., concurring); Spaziano v. Florida, 468 U.S. 447, 468 (1984) (Stevens, J., concurring in part & dissenting in part). 5

See Spaziano v. Florida, 468 U.S. 447, 468 (1984) (Stevens, J., concurring in part & dissenting in part). 6

E.g., Buchanan v. Angelone, 522 U.S. 269, 275-79 (1998) (majority opinion of Rehnquist, C.J.) (the absence of an instruction on statutorily-defined mitigating factors that were 2

Court has been slowly applying trial-like constitutional protections to the penalty phase of capital trials,7 eventually declaring the proof of reasons for death to “operate as ‘the functional equivalent of an element of a greater offense.’”8 This presentation argues that the slow death of the expansion of “death is different” and the incremental expansion of the “death is the same” share a common core and can serve as a principled basis for interpreting and applying constitutional rights in capital cases. While the diminished power of “death is different” appears to mark a limitation on capital defendant’s rights under the Eighth Amendment, the evolving “death is the same” analytical framework requires that the constitutional rights enjoyed by all defendants in criminal trials be provided to all capital

supported by the evidence did not violate the Eighth Amendment requirement that jurors were required to consider and give full mitigating effect to mitigating evidence); Kansas v. Marsh, 126 S. Ct. 2516, 2528 (2006) (majority opinion of Thomas, J.) (rejecting as beyond the scope of the question presented the dissent’s argument that DNA exonerations of death-sentenced individuals provided additional support for the notion that “death is different,” and characterizing as “incendiary” the “debate [this argument] invokes”); cf. Schriro v. Summerlin, 542 U.S. 348, 357-58 (2004) (majority opinion of Scalia, J.) (rejecting the dissent’s argument “that death is different (or rather, ‘dramatically different’)” as a basis for holding that the Sixth Amendment requirement in Ring v. Arizona, 536 U.S. 584 (2002), of a jury determination of the presence or absence of aggravating circumstances did not justify retroactive application of Ring to capital cases pending in habeas corpus proceedings); Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (Scalia, J.) (Affirmatively referencing “death is different” jurisprudence as a limitation on the rights of non-capital defendants: “Proportionality review is one of several respects in which we have held that ‘death is different,’ and have imposed protections that the Constitution nowhere else provides. See, e.g., Turner v. Murray, 476 U.S. 28, 36-37 (1986); Eddings v. Oklahoma, 455 U.S. 104 (1982); id., at 117 (O'CONNOR, J., concurring); Beck v. Alabama, 447 U.S. 625 (1980). We would leave it there, but will not extend it further.”). 7

See infra (describing the evolution of trial-like constitutional rights).

8

Ring v. Arizona, 536 U.S. 584, 609 (2002); see also Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (plurality opinion of Scalia, J.) (“for purposes of the Sixth Amendment’s jurytrial guarantee, the underlying offense of ‘murder’ is a distinct, lesser included offense of ‘murder plus one or more aggravating circumstances’”). 3

defendants in the penalty-phase trial for life or death. How Death is Different – The practical manner in which death is different is self-evident. If the penalty is carried out, the defendant is dead; all opportunity to redress an unconstitutional or erroneous conviction or sentence is extinguished. It differs in kind, not in degree, from every other sentence. Accordingly, Eighth Amendment death is different analysis can viewed in a principled manner as standing for the proposition that because death is different than other types of sentences, the Eighth Amendment requires that states adopt heightened procedural safeguards affecting sentencing. These safeguards include: review to ensure that capital punishment is not imposed for offenses for which death is disproportionate9 or upon offenders with respect to whom its application serves no legitimate penological function;10 a principled narrowing of reasons for death;11 and the right to present and have the factfinder consider and give effect to mitigating evidence concerning any aspect of the defendant’s character, background, or record, or

9

E.g., Coker v. Georgia, 433 U.S. 584 (1977) (“We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability,’ Gregg v. Georgia, 428 U.S., at 187, is an excessive penalty for the rapist who, as such, does not take human life.”); Enmund v. Florida, 458 U.S. 782, 797 (1982) (“As was said of the crime of rape in Coker, we have the abiding conviction that the death penalty, which is ‘unique in its severity and irrevocability,’ Gregg v. Georgia, 428 U.S., at 187, is an excessive penalty for the robber who, as such, does not take human life.”). 10

E.g., Roper v. Simmons, 543 U.S. 551, 568 (2005) (unconstitutional to apply the death penalty to offenders who were younger than age 18 at the time of the offense: “Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. . . . Capital punishment must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’”) (citations omitted). 11

E.g., Godfrey v. Georgia, 446 U.S. 420 (1980); Clemons v. Mississippi, 494 U.S. 738

(1990). 4

circumstances of the offense that could be a basis for a sentence less than death.12 It also addresses certain procedures, for example: a death sentence may not be imposed based upon information in a presentence report that was not disclosed to the defense;13 a death sentence may not be imposed in a case in which the defendant was denied the right to a lesser included noncapital offense instruction at trial;14 a death sentence may not be imposed “by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere,”15 and states may not use hearsay rules or other state rules of evidence to prevent juries from hearing or giving full effect to relevant mitigating evidence.16

12

Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion) (because “that the imposition of death by public authority is . . . profoundly different from all other penalties,” the sentencer in a capital case must be free to give “independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation”); Eddings v. Oklahoma, 13

Gardner v. Florida, 430 U.S. 349 (1977). The plurality would have applied due process to the penalty-phase as a matter of course. Justice White made clear that his concurrence was predicated solely upon the Eighth Amendment. 14

Beck v. Alabama, 447 U.S. 625, 637-38 (1980) (“While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense – but leaves some doubt with respect to an element that would justify conviction of a capital offense – the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant’s life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments . . . .”). 15

Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985).

16

E.g., Green v. Georgia, 442 U.S. 95, 97 (1979); McKoy v. North Carolina, 494 U.S. 433 (1990) (rejecting argument that requirement of juror unanimity as to the presence of mitigating evidence is necessary to ensure the reliability of that evidence). 5

Other capital opinions, although decided under other amendments, are best understood in “death is different” terms as cases providing special penalty-phase safeguards in capital cases.17 But over time, the fact that death is different – and the Court’s response to the statutes adopted by the States after Furman – has produced a body of death penalty statutes and laws that afford trial-like protections to capital sentencing proceedings. In short, death has become different as a punishment because it is the same as an independent offense. Prior to Furman, the typical death penalty case involved a trial on the question of guilt or innocence followed by a determination of life or death, usually without additional evidentiary proceedings, with the outcome left largely to the jury’s discretion.18 But all that changed after

17

The Court’s 1986 opinion in Turner v. Murray, 476 U.S. 28 (1986), granting a capital defendant the right to conduct voir dire on racial bias in interracial killings, but not affording that right to non-capital defendants accused of interracial offenses, is more understandable on these grounds, announcing an Eighth Amendment death penalty voir dire right, rather than a Sixth and Fourteenth Amendment jury right limited to interracial capital cases. That approach also better explains the result in the case: reversing Turner’s death sentence but not granting him a new trial. Viewed in this manner, Justice Brennan’s dissent is even more to the point. For Justice Brennan, requiring penalty-phase relief but not guilt-phase relief for the denial of voir dire on a juror’s possible racial bias “postulat[es] a jury role at the sentencing phase of a capital trial fundamentally different from the jury function at the guilt phase and . . . conclud[es] that the former gives rise to a significantly greater risk of a verdict tainted by racism.” But a juror who is racially biased will be racially biased at both stages of trial. For Brennan, this “improperly intertwines the significance of the risk of bias with the consequences of bias.” Accordingly, the outcome of Turner is “clearly half right, [but] even more clearly half wrong.” However, viewed as an Eighth Amendment “death is different” case, the potential capital consequences of the charges against Turner could justify a limited focus on penalty-phase bias, and the heightened procedural safeguards against erroneous death sentences could justify penalty-only relief. The penalty-phase outcome under the Eighth Amendment is therefore correct. That would leave a denial of guilt-phase under the Sixth and Fourteenth Amendments, an outcome that is no longer half right or half wrong, but wholly right or wrong. 18

See, for example, the sentencing proceedings in Stroud v. United States, 251 U.S. 15 (1919); Brady v. Maryland, 373 U.S. 83 (1963); Witherspoon v. Illinois, 391 U.S. 510 (1968); and Furman. 6

Furman. The States initially took two divergent approaches to addressing Furman’s concern that the death penalty was being imposed arbitrarily and capriciously. Some responded with statutes that required a second trial on life or death at which the jury was presented aggravating and mitigating evidence pursuant to which it could make a principled judgment on the moral culpability of the individual defendant. Others addressed the question of arbitrariness by making the death penalty mandatory in statutorily enumerated circumstances. The Supreme Court struck down the mandatory-death statutes altogether.19 In the former category, the Court stuck down statutes that limited the defense’s right to present or the sentencer’s ability to consider and give fully mitigating effect to reasons to spare the defendant’s life.20 For the most part, what survived were statutes like that upon closer inspection had “the hallmarks of the trial on guilt or innocence.”21 As the Court explained in Bullington v. Missouri, when it first determined that the trial-like safeguards of the Missouri capital sentencing statute implicated the protections of the Double Jeopardy Clause: The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those

19

Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976); Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977) ; Sumner v. Shuman, 483 U.S. 66 (1987). 20

E.g., Lockett v. Ohio, 438 U.S. 586 (1978); Bell v. Ohio, 438 U.S. 637 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); Hitchcock v. Dugger, 481 U.S. 393, 394 (1987). It also struck down the application of facially constitutionally statutes that prevented the jury in individual cases from considering and giving full effect to relevant mitigating evidence. E.g., Skipper v. South Carolina, 476 U.S. 1 (1986); Mills v. Maryland, 486 U. S. 367 (1988); Penry v. Lynaugh, 492 U.S. 302 (1989); McKoy v. North Carolina, 494 U.S. 433 (1990); Penry v. Johnson, 532 U.S. 782 (2001); Tennard v. Dretke, 542 U.S. 274 (2004); Abdul-Kabir v. Quarterman, 127 S. Ct. 1654 (2007). 21

Bullington v. Missouri, 451 U.S. 430, 439 (1981). 7

employed in any of the Court's cases where the Double Jeopardy Clause has been held inapplicable to sentencing. The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The [penalty] hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.22 This conclusion appears inescapable after Ring v. Arizona23 declared that death penalty aggravating circumstances “operate as ‘the functional equivalent of an element of a greater offense,’”24 and Sattazahn v. Pennsylvania25 reiterated that, “[i]n the post-Ring world, . . . “‘murder plus one or more aggravating circumstances’ is a separate offense from ‘murder’

22

Id. at 438. The Court also was influenced by the fact that

[M]any of the protections available to a defendant at a criminal trial also are available at a sentencing hearing similar to that required by Missouri in a capital case. See, e. g., Specht v. Patterson, 386 U.S. 605 (1967) (due process protections such as right to counsel, right to confront witnesses, and right to present favorable evidence are available at hearing at which sentence may be imposed based upon “a new finding of fact . . . that was not an ingredient of the offense charged,’ id., at 608). Because the sentencing proceeding at petitioner’s first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his retrial. Id. at 446. 23

536 U.S. 584 (2002).

24

Id. at 609.

25

537 U.S. 101 (2003). 8

simpliciter”26 In fact, this is precisely the ultimate impact of Furman – because death is different, a defendant is entitled to a separate trial-like penalty proceedings, with the constitutional rights afforded defendants in all other trials. How death is the same. The death is the same doctrine evolves out of a series of Supreme Court opinions over the years, some that predate Furman, and culminate with Ring’s and Sattazahn’s functional acknowledgment that the penalty phase is the equivalent of a separate offense. But even before Ring, Supreme Court death penalty case law was beginning to produce results that supported the induction that a capital defendant should be protected in the penalty phase by all of the procedural rights required by the federal constitution at trial. In 1963, Brady v. Maryland27 announced the constitutional rule that the prosecution must produce to the defense all evidence that is material and exculpatory. There is no question that Brady applies the due process right to production of exculpatory evidence to capital sentencing: Brady was a capital case and the violation found in Brady related to the imposition of the death sentence, not to trial. Like Brady, there is no question that Strickland v. Washington28 applies the Sixth Amendment right to effective assistance of counsel to capital sentencing. Like Brady, Strickland

26

Id. at 112.

27

373 U.S. 83 (1963).

28

466 U.S. 668 (1984). Subsequently, every major ineffectiveness decision issued by the Supreme Court of the United States has come in a capital case. E.g., Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). 9

was a capital case, and like Brady, the issue decided by the Court was counsel’s alleged ineffectiveness as it resulted to the imposition of death. In Adams v. Texas,29 the Supreme Court applied the same Sixth and Fourteenth Amendment test of juror bias to capital jurors’ penalty-phase bias as traditionally applied to noncapital trials.30 The Court later explained in Wainwright v. Witt31 that There is nothing talismanic about juror exclusion under Witherspoon merely because it involves capital sentencing juries. Witherspoon is not grounded in the Eighth Amendment's prohibition against cruel and unusual punishment, but in the Sixth Amendment. Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts. That is what an "impartial" jury consists of . . . .32 In the context of Double Jeopardy adjudications, Bullington, Sattazahn, and Arizona v. Rumsey33 all say that because the penalty-phase resembles a trial, the Fifth Amendment’s Double Jeopardy protections apply.34 In Estelle v. Williams,35 the Court wrote:

29

448 U.S. 38 (1980).

30

See also Morgan v. Illinois, 504 U.S. 719, 728 (1992); Ross v. Oklahoma, 487 U.S. 81, 85 (1988). 31

469 U.S. 412 (1985).

32

Id. at 419.

33

467 U.S. 203 (1984).

34

Bullington, 451 U.S. at 444 (double jeopardy where jury had sentenced capital defendant to life imprisonment after trial-like capital sentencing proceeding); Rumsey, 467 U.S. at 209-12 (double jeopardy where, after trial-like capital sentencing proceeding, trial judge sentenced capital defendant to life based upon erroneous view that the evidence did not support any aggravating circumstances); Sattazahn, 537 U.S. 101 (2003) (double jeopardy clause applies to capital sentencing proceeding, but jeopardy not terminated when original jury did not reach unanimous verdict for life). 35

451 U.S. 454 (1981). 10

We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege [against self-incrimination] is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.36 Analogously, the Supreme Court in Deck v. Missouri37 applied the due process proscription against shackling a defendant in view of the jury to a capital sentencing determination.38 The Court wrote: The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases. This is obviously so in respect to the latter two considerations mentioned, securing a meaningful defense and maintaining dignified proceedings. It is less obviously so in respect to the first consideration mentioned, for the defendant's conviction means that the presumption of innocence [of murder] no longer applies. Hence shackles do not undermine the jury’s effort to apply that presumption. Nonetheless, shackles at the penalty phase threaten related concerns. Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the “‘severity’” and “‘finality’” of the sanction, is no less important than the decision about guilt.39

36

Id. at 462-63 (citations omitted).

37

544 U.S. 622 (2005).

38

See also Ake v. Oklahoma, 470 U.S. 68 (1985) (due process requires that the State provide petitioner with access to a mental health expert to assist in the preparation of both his guilt phase defense and sentencing proceedings); Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality opinion) (“It is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause”). 39

Id. at 632. Notably, the Petitioner in Deck did not argue that, after Ring and Sattazahn, the constitution required a penalty-phase presumption of innocence of the capital aspects of murder. This is in part responsible for Justice Breyer’s comment that the presumption of innocence of guilt no longer applies. Interestingly, however, Justice Breyer’s recognition that that “shackles at the penalty phase threaten related concerns” presages the logical consequences 11

These cases are not all-inclusive, but their clear import is summarized by Justice Stevens’ observation in his dissent in Delo v. Lashley,40 that “[w]e have made it clear that procedural safeguards constitutionally required at the guilt stage of a capital trial are also required at the penalty stage.”41 Ultimately, the Court decided Ring and Sattazahn and the evolution of the law that until then could be reached only by induction was now also deductively compelled. Ring applied the Sixth Amendment right to a jury determination of all elements of an offense to penalty-phase findings of aggravating circumstances, which the Court held “operate as ‘the functional equivalent of an element of a greater offense.’”42 Justice Scalia made the Sixth Amendment implications plain in the plurality portion of his opinion for the Court in Sattazahn, setting forth this very quote and explaining: “That is to say, for purposes of the Sixth Amendment's jury-trial guarantee, the underlying offense of ‘murder’ is a distinct, lesser included offense of ‘murder plus one or more aggravating circumstances.’”43 The former, guilt-stage offense he denominated “‘murder’ simpliciter.”44 The second, penalty-phase offense (i.e., capital

of the penalty phase constituting a separate offense. The related concern in such a circumstance would be the penalty-phase presumption of life. 40

507 U.S. 272 (1993).

41

Id. at 286 n.7.

42

Ring, 536 U.S. at 609; see also id. at 610 (Scalia, J., concurring) (“the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives – whether the statute calls them elements of the offense, sentencing factors, or Mary Jane – must be found by the jury beyond a reasonable doubt.”). 43

44

537 U.S. at 112 (plurality opinion). Id. at 112. 12

murder) he denominated “murder plus one or more aggravating circumstances.”45 Justice Scalia could “think of no principled reason to distinguish . . . between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an ‘offence’46 for purposes of the Fifth Amendment’s Double Jeopardy Clause.”47 And there is no principled basis to distinguish its status as an offense under any other constitutional amendment as well. The Consequences of Death Being “An Offense.” While the status of capital murder as an offense makes death different from other punishments, it makes proof of the offense of death analytically and constitutionally the same as other offenses. Consequently, because death is the same as other offenses, all constitutionally protected trial-rights apply in the penalty phase. Paradoxically, while this formulation of death as the same may in some respects limit the reach of the Eighth Amendment, it expands the constitutional protections available to defendants in the penalty phase of a capital trial. For instance, Kansas v. Marsh and the Eighth Amendment may not require that aggravating circumstances outweigh mitigating circumstances, but what about the Sixth and Fourteenth Amendments? The Eighth Amendment may or may not compel a penalty-phase presumption of life, but one would appear indispensable under the Sixth and Fourteenth Amendments if the penalty phase is a trial on the offense of life or death. Further, how one defines what that penalty-phase offense is has constitutional consequences. If capital murder is murder plus aggravating circumstances that outweigh

45

Id.

46

As spelled in the Fifth Amendment.

47

Sattazahn, 537 U.S. at 111. 13

mitigating circumstances, due process (the Fourteenth Amendment for state crime, and the Fifth Amendment for federal crime) requires proof beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances.48 If, on the other hand, capital murder is only murder plus aggravating circumstances, then mitigating circumstances can be best understood in the “death is the same” jurisprudence to constitute constitutionally protected affirmative defenses to death.49 In that regard, cases such as Holmes v. South Carolina50 and Crane v. Kentucky,51 and the Sixth and Fourteenth Amendment right to “a meaningful opportunity to present a complete defense”52 should entitle a defendant to an instruction on all constitutionally relevant mitigating circumstances. This is so even if Buchanan v. Angelone and the “death is different” jurisprudence – which was not faced with the question of affirmative defenses – does not require under the Eighth Amendment that capital sentencing juries be instructed on all mitigating circumstances as

48

Similarly, once murder plus aggravating circumstances becomes the offense, there are constitutional consequences and pleading and notice requirements relating to the State’s presentation of non-statutory aggravating circumstances. 49

The same result is reached if the analysis focuses on the difference between evidence that is relevant to what the Supreme Court has described as the “eligibility” phase of the trial for life, in which aggravating circumstances narrow the class of death-eligible defendants, and the “selection” phase, in which the jury weighs the reasons for death against the mitigating circumstances present in the case. See, e.g., Tuilaepa v. California, 512 U.S. 967, 971-72 (1994). 50

547 U.S. 319 (2006).

51

476 U.S. 683 (1986).

52

Id. at 690. The full quote is (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). 14

to which the defense has presented evidence.53 Because death is different as a sentence, the Eighth Amendment requires heightened penalty-phase procedural safeguards. Once – pursuant to the Eighth Amendment dictates of Furman – the penalty phase became in all material respects the equivalent of a trial, death became the same as a separate offense. Because “[i]n the post-Ring world, . . . “‘murder plus one or more aggravating circumstances’ is a separate offense from ‘murder’ simpliciter,”54 and the “capital sentencing procedure . . . resembles a trial on the issue of guilt or innocence,”55 there is “no principled reason”56 not to afford capital defendants the same rights in the penalty phase that all other defendants enjoy in all other trials. Because death is the same as an offense, capital defendants are entitled at sentencing to the full panoply of offense-related protections the Constitution guarantees.

– Robert Brett Dunham July 27, 2007

53

Buchanon v. Angelone, 522 U.S. 269 (1998).

54

Sattazahn, 537 U.S. at 112.

55

Bullington, 451 U.S. at 444.

56

Sattazahn, 537 U.S. at 111. 15