News and Developments 2008: Crimes Punishable by the Death Penalty

U.S. Supreme Court Denies Rehearing in Kennedy v. Louisiana Opinion

On October 1, the U.S. Supreme Court denied Louisiana's request for a rehearing of the Court's ruling striking down the death penalty for non-homicidal offenses against individuals. Louisiana contended that a recent adjustment to military law that continued to allow the death penalty for child rape should have been taken into account by the Court, resulting in a different opinion. The Court slightly modified both the majority and dissenting opinions to include reference to the military code.

Federal Judge Sharply Criticizes Texas System in Ordering Stay of Execution

Jeff Wood’s execution was stayed with only hours remaining by U.S. District Court Judge Orlando Garcia of San Antonio. The judge chastised the Texas courts for their refusal last week to hire mental health experts to determine whether Wood (pictured) was insane or appoint a lawyer to represent him for a competency hearing. The state courts had ruled that Wood had to show he was insane before they would appoint a lawyer and a psychologist to help prove he was insane. Judge Garcia's opinion said such a system is absurd, “With all due respect, a system that requires an insane person to first make ‘a substantial showing’ of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”

In their appeal, Wood’s attorneys argued he is too delusional to understand why he is to die. Attorney Scott Sullivan said, “He will become delusional and deny the apparent reality right in front of him,” adding that Wood believes he is the victim of a Freemason conspiracy. In granting the stay, the court noted that Wood's bizarre statements at his trial and in prison, “at least arguably suggest the petitioner lacks a rational understanding of the casual link between his role in his criminal offense and the reason he has been sentenced to death.”

U.S. to Seek Death Penalty under New Military Commissions

The U.S. government has decided to seek the death penalty against six Guantánamo detainees who are accused of having central roles in the terrorist attacks of September 11, 2001. The defendants will be tried before Military Commissions, which are neither part of the federal criminal justice system nor the military's justice system for its own members. The laws and procedures under the Military Commission Act of 2006 have not been tested and had to be re-written after the government's first attempt was found unconstitutional. One person has been convicted under the new act following a guilty plea.

Some experts have stated that the trials of the detainees will be a “historic challenge” for prosecutors. Eric Freedman, a Hofstra University law professor who has consulted with the detainees’ lawyers, noted that a decision to seek the death penalty will draw “intense scrutiny” to the proceedings “both legally and politically from around the world.” Seeking the death penalty could also bog down the military court system, noted Tom Fleener, a former military defense lawyer, particularly since there are many unanswered legal questions such as how to handle evidence obtained through coercive methods. He stated, “Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba.”

Crimes Punishable by the Death Penalty News and Developments: 2007

Supreme Court Asked to Review Unusual Death Sentence  Attorneys for Patrick Kennedy, the only person on death row in the U.S. for a non-homicide offense, have asked the U.S. Supreme Court to review whether a death sentence for a crime where the victim was not murdered is constitutional. Kennedy was convicted of raping his 8-year-old step-daughter in Louisiana in 1998. Only a handful of states have laws that would allow a death sentence for such a crime. No one has been executed for a non-homicide offense since the death penalty was reinstated in 1976, and Kennedy is the only person under a death sentence for such an offense.

Those Executed Who Did Not Directly Kill the Victim

Everyone who has been executed since the death penalty was reinstated in 1976 participated in a crime in which at least one victim died. In most cases, the person executed directly killed the victim. In a small minority of cases, the person executed ordered or contracted with another person to carry out the murder. In another group of cases, the person executed participated in a felony during which a victim died at the hands of another participant in the felony.