A new book by Professor John D. Bessler, titled Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment, challenges the conventional wisdom that the country's founders were avid death penalty supporters, and explores their various views on capital punishment. Prof. Bessler discusses how the indiscriminate use of executions gave way to a more enlightened approach that has been evolving ever since. He sheds new light on the Constitution’s “cruel and unusual punishments” clause by exploring the early influence of Cesare Beccaria’s essay, On Crimes and Punishments. Bessler examines the Supreme Court’s Eighth Amendment case law and concludes that the death penalty may well be declared unconstitutional in time. Sister Helen Prejean, author of Dead Man Walking, called the book, “A searing indictment of capital punishment, this pioneering history of the Cruel and Unusual Punishments Clause is destined to reframe America’s death penalty debate. As a definitive account of the Eighth Amendment’s origins and the Founding Fathers’ own ambivalent views on executions, it will forever change our perceptions of cruelty and penal reform in the founding era."
On January 18, the U.S. Supreme Court (7-2) ordered a new hearing in federal court for Cory Maples, an Alabama death row inmate whose state and federal appeals had been rejected by lower courts because his lawyers quit and missed a critical filing deadline. Writing for six of the Court’s Justices, Justice Ruth Bader Ginsburg highlighted the poor quality of representation offered by the state in death penalty cases. The opinion stated, “Alabama sets low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial…. Appointed counsel need only be a member of the Alabama bar and have ‘five years’ prior experience in the active practice of criminal law.’ Experience with capital cases is not required.” Justice Ginsburg also noted that Alabama is nearly alone in not guaranteeing representation in post-conviction proceedings, electing instead “to rely on the efforts of well-funded [out-of-state] volunteers.” Finally, the opinion emphasized that appointed counsel in death penalty cases are severely under compensated by the state: “Although death penalty litigation is plainly time intensive, the State capped at $1,000 fees recoverable by capital defense attorneys for out-of- court work. Even today, court-appointed attorneys receive only $70 per hour.” The Court finally noted that "On occasion, some prisoners sentenced to death receive no postconviction representation at all." Maples's underlying claim, which he was prevented from appealing because his absent lawyers missed the deadline, was that he received ineffective representation at trial. Neither of his trial counsel had ever tried the penalty phase of a capital case.
On January 18, the U.S. Supreme Court (7-2) ordered a new hearing in federal court for Cory Maples, an Alabama death row inmate whose state and federal appeals had been rejected by lower courts because his lawyers quit and missed a critical filing deadline. Copies of an Alabama court ruling in Maples’s case were sent to a volunteer New York law firm handling his appeals but were unopened by the mailroom and returned to the state court because the attorneys representing Maples had left the firm. Justice Samuel Alito, concurring in the Court's opinion, wrote that the circumstances surrounding this case created a “veritable perfect storm of misfortune.” On behalf of the majority, Justice Ruth Ginsburg wrote, “Maples was disarmed by extraordinary circumstances quite beyond his control. He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned him without a word of warning.”
On January 10, the U.S. Supreme Court reversed (8-1) the murder conviction of Juan Smith because the New Orleans District Attorney's Office had withheld critical evidence that would have been favorable to Smith at his trial. Smith had been convicted of murder in the course of an armed robbery based on the sole eyewitness testimony of Larry Boatner. There was no DNA, fingerprints, or other physical evidence that linked Smith to the 1995 crime. Appellate attorneys later learned that prosecutors failed to disclose reports of initial interviews with Boatner in which he said he could not describe the intruders and had not seen their faces. Relying on Brady v. Maryland, which requires a state to disclose evidence that is favorable to the defense and material to the defendant’s guilt or punishment, the Court overturned Smith’s conviction, stating, "Boatner's testimony was the only evidence linking Smith to the crime. And Boatner's undisclosed statements directly contradict his testimony . . . .Boatner's undisclosed statements were plainly material." The decision in favor of Smith was the latest in a series of Supreme Court decisions revealing a pattern of prosecutorial misconduct in the Orleans Parish District Attorney’s Office. According to the Orleans Public Defender’s Office, 28 convictions obtained by the district attorney’s office were later ruled to have been tainted by Brady violations. (Smith is on death row in Louisiana because the conviction in the above case (now overturned) was used to help obtain a death sentence against him in another murder. This decision will likely assist him in challenging his death sentence.)
The U.S. Supreme Court recentlyconsidered Perry v. New Hampshire, a case questioning the validity of eyewitness testimony when the identification was made under unreliable circumstances. At the same time, years of scientific study on the accuracy of human memory are pointing to the need for reform in the use of eyewitness evidence in criminal cases. Barbara Tversky, a psychology professor at Columbia University, whose experiments on memory were reported in the journal Cognitive Psychology, noted, “Memory is weak in eyewitness situations because it’s overloaded. An event happens so fast, and when the police question you, you probably weren’t concentrating on the details they’re asking about.” About 75% of DNA-based exonerations have come in cases where eyewitnesses have made mistakes. Scientists suggest that witness testimony should be viewed more like trace evidence, with the same fragility and vulnerability to contamination. Strong emotions felt by victims of a crime is one such possible area of contamination. Gary Wells, a psychology professor at Iowa State University, found that the accuracy of lineups improves when the possible suspects are presented to witnesses in sequence, rather than all at once, as in the traditional lineup. The downfall of side-by-side lineups, Dr. Wells said, is that “if the real perpetrator is not in there, there is still someone who looks more like him than the others.” The Supreme Court of New Jersey recently promulgated new rules for dealing with the problems of eyewitness identification.
An editorial in the New York Times criticized a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit, upholding the heavy burden Georgia places on offenders with intellectual disabilities. In order to be exempt from the death penalty, defendants must prove "beyond a reasonable doubt" that they are mentally retarded. The U.S. Supreme Court held in 2002 that such defendants cannot receive the death penalty, but the Court left the procedures for determining this status to the states. According to the editorial, Georgia is the only state requiring this extremely difficult standard of proof. They called on the U.S. Supreme Court to strike down Georgia's law. The editorial concluded, “[W]hen the court ruled that the Eighth Amendment prohibits execution of the mentally retarded, it made plain that states cannot weaken that protection with an unfair procedural standard. In this and other ways, Georgia’s death penalty subverts the Constitution and is further evidence that capital punishment should be abolished.” Read full editorial below.
The Death Penalty Information Center is completely dependent on the generosity of individuals and organizations for its work. If you use this information and find our work valuable, please consider a donation. Contributions are tax deductible.
Thank you.
A new book by Professor John D. Bessler, titled Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment, challenges the conventional wisdom that the country's founders were avid death penalty supporters, and explores their various views on capital punishment. Prof. Bessler discusses how the indiscriminate use of executions gave way to a more enlightened approach that has been evolving ever since. He sheds new light on the Constitution’s “cruel and unusual punishments” clause by exploring the early influence of Cesare Beccaria’s essay, On Crimes and Punishments. Bessler examines the Supreme Court’s Eighth Amendment case law and concludes that the death penalty may well be declared unconstitutional in time. Sister Helen Prejean, author of Dead Man Walking, called the book, “A searing indictment of capital punishment, this pioneering history of the Cruel and Unusual Punishments Clause is destined to reframe America’s death penalty debate. As a definitive account of the Eighth Amendment’s origins and the Founding Fathers’ own ambivalent views on executions, it will forever change our perceptions of cruelty and penal reform in the founding era." 
On January 18, the U.S. Supreme Court (7-2) ordered a new hearing in federal court for Cory Maples, an Alabama death row inmate whose state and federal appeals had been rejected by lower courts because his lawyers quit and missed a critical filing deadline. Writing for six of the Court’s Justices, Justice Ruth Bader Ginsburg highlighted the poor quality of representation offered by the state in death penalty cases. The opinion stated, “Alabama sets low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial…. Appointed counsel need only be a member of the Alabama bar and have ‘five years’ prior experience in the active practice of criminal law.’ Experience with capital cases is not required.” Justice Ginsburg also noted that Alabama is nearly alone in not guaranteeing representation in post-conviction proceedings, electing instead “to rely on the efforts of well-funded [out-of-state] volunteers.” Finally, the opinion emphasized that appointed counsel in death penalty cases are severely under compensated by the state: “Although death penalty litigation is plainly time intensive, the State capped at $1,000 fees recoverable by capital defense attorneys for out-of- court work. Even today, court-appointed attorneys receive only $70 per hour.” The Court finally noted that "On occasion, some prisoners sentenced to death receive no postconviction representation at all." Maples's underlying claim, which he was prevented from appealing because his absent lawyers missed the deadline, was that he received ineffective representation at trial. Neither of his trial counsel had ever tried the penalty phase of a capital case.
An editorial in the New York Times criticized a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit, upholding the heavy burden Georgia places on offenders with intellectual disabilities. In order to be exempt from the death penalty, defendants must prove "beyond a reasonable doubt" that they are mentally retarded. The U.S. Supreme Court held in 2002 that such defendants cannot receive the death penalty, but the Court left the procedures for determining this status to the states. According to the editorial, Georgia is the only state requiring this extremely difficult standard of proof. They called on the U.S. Supreme Court to strike down Georgia's law. The editorial concluded, “[W]hen the court ruled that the Eighth Amendment prohibits execution of the mentally retarded, it made plain that states cannot weaken that protection with an unfair procedural standard. In this and other ways, Georgia’s death penalty subverts the Constitution and is further evidence that capital punishment should be abolished.” Read full editorial below.
