Category Archives: Eighth Amendment

Thompson v. Oklahoma

487 U. S. 815

June 29, 1988

William Wayne Thompson committed a brutal murder and was sentenced to die. But Thompson was only 15 years old at the time, and argued that the death penalty would be cruel and unusual punishment. While 15 year olds had been routinely executed long ago, the Supreme Court had long since established that it would strike down sentences which did not comport with the nation’s “evolving standards of decency.” The Court had to decide whether or not to strike down Thompson’s sentence on that basis.

The Court struck down his sentence 5-3 (Kennedy did not participate). Stevens, writing for a plurality with Brenna, Marshall, and Blackmun, said that the nation’s “evolving standards of decency” flatly prohibited execution for a murder committed at age 15. Nearly two thirds of the states banned the practice, and the remaining third only allowed it by tacit implication. He doubted that many of those states explicitly intended to allow it. Executions for under-16 murderers had become vanishingly rare, and none had occurred in 40 years. Stevens stressed that 15 was still a tender age, and that children of that age were denied the right to smoke, marry, drive, or vote in all or most states.

O’Connor concurred in judgment, and provided the fifth vote to vacate the death sentence. She was hesitant to find a national consensus against executing under-16 murderers, finding the answer to that question murky rather than obvious. Nevertheless, like Stevens, she wasn’t sure whether Oklahoma, by allowing 15 year olds to be tried as adults in rare circumstances, had really intended to allow for the imposition of the death penalty in these rare cases. Unless a state explicitly spelled out that 15 year olds were eligible for capital punishment, she refused to allow executions.

Scalia, joined by Rehnquist and White, wrote a valiant dissent. He showed that Oklahoma had carefully weighed the propriety of sentencing Thompson to death in every stage in the proceedings. Given this extensive consideration by the prosecutors, judge, and jury, it made no sense to hold that the jury’s ruling was somehow contrary to a national consensus. Many state laws allowed execution as a punishment for under-16s, and there was no reason to presume that these states didn’t know what their own laws meant. Furthermore, the rarity of the penalty’s imposition meant nothing, or else one could just as easily argue that a national consensus existed against executing women. Scalia pointed out the undeniable fact that many 15 year olds clearly understand the consequences of committing murder. As for O’Connor’s concurrence, it was a totally lawless attempt to split the baby. Finally, he quickly disposed of an alternate ground for vacating the sentence which the majority did not address.

I absolutely agree with everything in Scalia’s dissent, with the exception of his disheartening admission that even he accepts the awful “evolving standards of decency” test. It’s one of the worst constitutional distortions ever; Trop v. Dulles deserves to be near the very top of any shortlist of the Warren Court’s blatant activism. Logically, the “evolving standards of decency” test cannot possibly be correct, because it would hypothetically permit the most torturous of punishments to be imposed if society “evolved” to find them no longer cruel.


Franklin v. Lynaugh

487 U. S. 164

June 22, 1988

In Texas, a defendant is sentenced to death if the jury answers ‘yes’ to two questions focused on the defendant’s substantial guilt, and his future danger to the community. The Supreme Court upheld this sentencing process in a case called Jurek. Nonetheless, one convict challenged his sentence by claiming that the jury did not have adequate opportunity under the two questions to consider his good behavior in prison, and any lingering doubts about his guilt. Under the Lockett-Eddings line of cases, juries had to be given the chance to weight any mitigating evidence.

The Court ruled 6-3 that the jury had an adequate opportunity to consider all the mitigating evidence. White, joined by Rehnquist, Scalia, and Kennedy, said that there is no Eighth Amendment right to have the jury consider lingering residual doubt over the defendant’s guilt (indeed, all nine Justices agreed with this proposition). Turning to the prison behavior issue, White said that this would naturally be considered under the jury question about the defendant’s future danger to the community. Since the Court had found the Texas system Constitutional in Jurek, White was loath to entertain doubts about it now. And indeed, it was quite appropriate for states to have preexisting systems in place to channel and foster proper consideration of mitigating evidence.

O’Connor, joined by Blackmun, said that the Jurek framework would sometimes be insufficient for certain mitigating factors. Nonetheless, she agreed that good prison behavior did go directly to the question of the defendant’s future danger. Thus, in the facts of this particular case, the jury questions allowed for the consideration of all relevant mitigating evidence.

Stevens, joined by Brennan and Marshall, dissented. He contended that the prison behavior issue communicated two different things about the defendant. First, it communicated that he would not be a danger in the future. But it also communicated that he was a decent person in the past. A precedent called Skipper had recognized this subtle distinction. The Jurek system did not allow for proper consideration of mitigating evidence relevant to a defendant’s good behavior in the past. Stevens stressed that the Jurek case only upheld the system against a facial challenge, and that in the facts of this case, the jury was indeed denied the opportunity to weigh all of the facets of the prison behavior evidence.

With prosecutors having to deal with junk appeals like this, it’s a wonder that anyone gets executed at all. The most appalling part of the decision was a footnote where we learn that defendant Franklin had been sentenced to death three separate times for the same murder. The first two sentences, we can safely assume, were overturned on the basis of some similarly trivial BS.

Ross v. Oklahoma

487 U. S. 81

June 22, 1988

When an Oklahoma court failed to excuse a potential juror from a capital sentencing panel, as required by Witherspoon, the defense lawyer eliminated this potential juror through a peremptory challenge. The defense ultimately used up all its peremptory challenges. When a death sentence was returned, Ross argued that it violated the Eighth Amendment because he lost one of his peremptory challenges to correct the court’s erroneous decision not to exlude an unqualified juror. Under last year’s Gray ruling, any errors that affected jury composition required overturning a death sentence.

The Court ruled 5-4 that the death sentence could stand. Rehnquist stressed that the final jury was conceded to be impartial and free of unqualified jurors, and that such a jury’s decision deserved the Court’s deference. With some unease, Rehnquist distinguished Gray as follows: “We decline to extend the rule of Gray beyond its context: the erroneous “Witherspoon exclusion” of a qualified juror in a capital case. We think the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved.” Finally, Rehnquist observed that losing one peremptory challenge was no great loss, because states could vary the precise amount of peremptory challenges, because Oklahoma law explicitly noted that they could sometimes be used to strike jurors for cause, and because Court precedents had allowed states to impose various limits on their usage.

Marshall, joined by Brennan, Blackmun, and Stevens, would have none of this. Gray controlled the case, plain and simple. Gray said that any error which could potentially affect the final jury composition required overturning the death sentence. Because Ross might have used his wasted peremptory challenge on another juror, the jury’s composition was potentially affected. Marshall found the majority’s grounds for distinguishing Gray totally unconvincing. He also said that peremptory challenges, once given, should be seen as entitlements that the state could not force the sacrifice of in order to correct a judge’s error.

This is one of those instances where the majority reached the right result for the wrong reasons. Gray obviously controlled, and could not be adequately distinguished. The majority should have had the courage and intellectual honesty to overrule it. Instead, they were a bunch of intellectually dishonest cowards, and they did the ‘we confine the reach of this precedent to its immediate facts’ thing. Screw that – Gray deserved to be overruled. In my final roundup of the 1986-1987 term, I even rated it as one of the four worst decisions of the entire year.

The Supreme Court never wants it to be thought that previous decisions can be overruled entirely on the basis of membership changes. This is, I’m fairly certain, the key to the majority’s intellectual dishonesty. Powell was gone, and Kennedy was his replacement. Gray would have been overruled based on a mere membership change. Yet again, here is a creepy prefiguring of Planned Parenthood v. Casey, in which Roe was reaffirmed, in part, because of the worry that overruling it would be accounted wholly to membership changes.

Johnson v. Mississippi

486 U. S. 578

June 13, 1988

When Samuel Johnson was sentenced to death, one of the aggravating circumstances was a prior felony conviction in New York. Some time later, New York vacated that conviction, and Johnson argued that the prior conviction aggravating circumstance was now destroyed. Mississippi disagreed for several reasons. Though it was now vacated, Johnson had indeed been convicted at one point in time, and allowing other states to throw death penalty sentences into question through overturned verdicts was bad public policy. Finally, Johnson had not challenged the New York conviction in his original round of Mississippi appeals.

The Court unanimously rejected all these arguments (though O’Connor concurred only in judgment, without opinion). Stevens said that New York’s action worked a total expunging  of the conviction. Thus, the death sentence was indeed based on an aggravating circumstance which was simply not factual. Further, allowing overturned verdicts in other states to affect death penalty impositions was good public policy, because it helped the system to become more accurate. Finally, because the Mississippi Supreme Court was not consistent in applying their rule against raising new legal concerns after the first round of appeals, Stevens was unimpressed by Mississippi’s contention that Johnson should have raised the issue in his original appeal.

I hardly need to tell you what Brennan said in a one paragraph concurrence joined by Marshall. But just in case you don’t know yet, he restated his continuing belief that the death penalty was always unconstitutional. White, joined by Rehnquist, concurred to point out that there were other aggravating circumstances against Johnson, and that the Mississippi Supreme Court could therefore decide, on remand, that his death penalty sentence ought to be summarily reimposed. I sure hope Mississippi did follow White’s recommendation, because this was yet another awful decision where a death sentence got overturned on dumb ticky-tacky grounds.

Mills v. Maryland

486 U. S. 367

June 6, 1988

Ralph Mills killed a fellow prison inmate, and was sentenced to death. The jury found no mitigating factors, and thus were not afforded the opportunity to decide whether life imprisonment would be a more appropriate sentence. Mills charged that the jury might not have known that they had to unanimously find no mitigating circumstances. If some (but not all) jurors thought there were mitigating circumstances, the death penalty should not have been automatically imposed. Lower courts ruled that reasonable jurors would understand that unanimity was required to reject the presence of mitigating circumstances.

Unfortunately, the Supreme Court disagreed in a 5-4 vote. Blackmun stressed that the jury forms did not explicitly spell out that the jury needed to be unanimous to find no mitigating circumstances. It was very plausible, Blackmun contended, that a reasonable juror might be confused. Because of the irreversible nature of the death penalty, it was of added importance that the Court be reasonably certain of how the jury interpreted their instructions. The majority vacated the death sentence, arguing that the jury could plausibly have understood the their instructions incorrectly.

Brennan filed his obligatory concurrence to say that the death penalty was always unconstitutional. Shockingly, Marshall did not join it. I guess he was too distracted by soap operas that particular day. Equally baffling was White’s decision to file a two-sentence concurrence which in essence said ‘I joined the majority opinion because I think it is correct.’ (Is White implying that he sometimes joins majority opinions he thinks are wrong???)

Rehnquist, joined by O’Connor, Scalia, and Kennedy, dissented. He analyzed the judge’s speech to the jurors, which stressed over and over the need for unanimity on every single question. Given this, a reasonable juror would not have misunderstood. Furthermore, Blackmun’s desire for reasonable certainty about the jury’s understanding was contrary to the previous year’s ruling in Brown. Finally, Rehnquist addressed a question that the majority set aside as moot: whether the death sentence was invalid because the trial involved a victim impact statement. Rehnquist here reiterated his belief that the Booth case about victim impact statements was incorrect and ought to be overruled.

I won’t belabor what I’ve said before in many other posts about the death penalty. This decision was absolutely horrible, and if you want to know more, you can start with the two decisions linked in the previous paragraph.

Maynard v. Cartwright

486 U. S. 356

June 6, 1988

A murderer named Cartwright challenged his death sentence on the ground that an aggravating circumstance which the jury used to give him the death penalty was void for vagueness. That aggravating circumstance? That the murder was “especially heinous, atrocious, or cruel.” Because there was no further elaboration, and because state courts hadn’t offered any narrowing interpretation, Cartwright charged that these words were too vague to base a death sentence on.

The Court unanimously agreed. White explained that the Court was effectively bound by a 1980 case that had held a similar standard from Georgia to be too vague for Eighth Amendment purposes. In both instances, the standards failed to give any concrete guidance to jurors, and allowed them too much unbounded discretion. White vacated the death sentence, but hinted that new developments in Oklahoma law might allow it to be easily reimposed on remand. Brennan, joined by Marshall, filed his obligatory concurrence to state that the death penalty was always unconstitutional.

Although the 1980 case did control, at least one Justice should have had the guts to call for overruling it. While “especially heinous, atrocious, or cruel” is not exactly self-defining, in some instances a murder will indisputably fit that description. And Cartwright committed such a murder. I’ll let Byron White himself lay it out for you

“On May 4, 1982, after eating their evening meal in their Muskogee County, Oklahoma, home, Hugh and Charma Riddle watched television in their living room. At some point, Mrs. Riddle left the living room and was proceeding towards the bathroom when she encountered respondent Cartwright standing in the hall holding a shotgun. She struggled for the gun and was shot twice in the legs. The man, whom she recognized as a disgruntled ex-employee, then proceeded to the living room where he shot and killed Hugh Riddle. Mrs. Riddle dragged herself down the hall to a bedroom where she tried to use a telephone. Respondent, however, entered the bedroom, slit Mrs. Riddle’s throat, stabbed her twice with a hunting knife the Riddles had given him for Christmas, and then left the house. Mrs. Riddle survived and called the police.”

I defy anyone to seriously argue that this is not “especially heinous, atrocious, or cruel.” No one can fail to see that it is. Under the guise of respecting precedent, the Supreme Court once again mutilated justice by letting a murderer go free on patently specious grounds.

Bankers Life & Casualty Co. v. Crenshaw

486 U. S. 71

May 16, 1988

After Lloyd Crenshaw lost a leg, his insurance company denied him a payout on some BS reasoning. Crenshaw prevailed in court, and was awarded punitive damages. The insurance company appealed and lost. Under Mississippi law, appellants who lost had to pay an additional 15% over the total value of money at issue. This law was made to discourage frivolous appeals. The insurance company appealed to the Supreme Court on two grounds: first, that Mississippi could not allow for unlimited punitive damages, and second, that the 15% law violated the Due Process clause.

Unanimously, the Court dismissed the punitive damages argument (Kennedy and Stevens did not participate). Marshall said that it really wasn’t properly raised below, and prudential concerns counseled against the Supreme Court dealing with the issue now. On the 15% law argument, the Court ruled 6-1 that the law comported with Due Process. Marshall said that the discouragement of frivolous appeals was a rational reason for the law. In a previous case, the Court had struck down a law requiring renters to post a bond of twice the rent before appealing, but that precedent was easily distinguished. It applied only to renters, instead of all appellants, and required that the extra money be paid before the appeal rather than after.

White concurred in judgment on the punitive damages portion. To him, it wasn’t just prudential to pass over that issue, but jurisdiction laws actively required the Court to pass over it since it hadn’t properly been raised below. O’Connor and Scalia also concurred in judgment on the punitive damages portion (they both also refused to assent to one trivial footnote). O’Connor largely agreed with Marshall’s reasoning, but noted that the punitive damages issue was certainly worth of decision in another case. Scalia both agreed with White that jurisdiction law barred consideration, and with O’Connor that the issue ought to be decided some time in the future.

Blackmun dissented from the holding about the 15% law. It violated Due Process because a great many appeals that it punished were not actually frivolous. Worse yet, the law had an exception for plaintiffs who lost in the first instance, and then appealed. Blackmun could not tolerate that kind of discrimination, since the law could only ever punish the original defendant.

These kinds of cases always leave me torn. On the one hand, the insurance company was being a jerk, and deserved some extra punitive damages. On the other hand, there very often are meritorious appeals where the appeals court simply gets it wrong, and I hate seeing a party being punished just because the court failed to rule correctly. So, it’s a dilemma.

Lowenfield v. Phelps

484 U. S. 231

January 13, 1988

So, this bad guy murders five people all in one go. Then, at sentencing, the jury seems to be at an impasse. Twice the judge polls the jury on whether more deliberation will help, and both times a majority of jurors say it will. The judge asks them to reach a conclusion if they can, and reminds them that the murderer will get life imprisonment if the jury cannot agree. Finally, the jury comes back with the death sentence. The aggravating circumstance that merited death was the five-fold nature of the murder – precisely what allowed the crime to be charged as first degree murder at all.

Rehnquist wrote for the Court that the death sentence was sound. The Court held 5-3 that the jury had not been coerced by the judge’s actions, and held 6-2 that the aggravating circumstance used was appropriate. Rehnquist noted that the judge never pressured the jurors to choose one sentence over another, just to come to a decision. He distinguished the case factually from other jury coercion rulings. What’s more, the defense counsel did not even object to the judge’s actions during the trial, so obviously any illicit coercion must have been extremely subtle. With regard to the aggravating circumstance being one of the factors that allowed for a first degree murder charge to be brought, Rehnquist noted that this was perfectly consistent with the 1976 death penalty cases. The point of the aggravating circumstance was only that it narrowed the field of death penalty candidates.

Marshall wrote the dissent, which Brennan joined in full, and Stevens joined on the coercion issue. He argued that a jury would only come to a verdict after 22 hours of deliberations if a judge was exerting pressure. He further noted that the judge’s repeated statement about life imprisonment must have functioned as tacit coercion to return with a death sentence. Finally, Marshall found it significant that the judge was informed which jury members were the most intransigent. On the issue of aggravating circumstances, Marshall blankly asserted that letting an element of the crime also function as a aggravating circumstance was unfair. It’s cases like this that give me an ever so slight appreciation for Justice Blackmun. As much as he hated the death penalty, he was sometimes willing to let sentences stand when the only argument against them were idiotic minutia.

Sumner v. Shuman

483 U. S. 66

June 22, 1987

Raymond Wallace Shuman was imprisoned for life without parole for first degree murder. While in prison, he murdered a fellow inmate. Under Nevada law, murdering an inmate while serving life without parole results in an automatic death sentence. Shuman sued, arguing that the Eighth Amendment requires individualized sentencing in every circumstance.

Blackmun wrote for the six Justice majority. He reviewed the Court’s precedents since Gregg, and found individualized consideration to be a fundamental ingredient for death sentencing, because of “respect for humanity,” or some nonsense like that. Blackmun fretted that Shuman could not introduce mitigating evidence under the Lockett-Eddings line of cases, and argued that even Shuman’s second murder might possess important mitigating circumstances. Blackmun was unmoved by Nevada’s claim that Shuman might escape effectual punishment, and responded that he could still potentially be sentenced to death.

White dissented, joined by Rehnquist and Scalia. He stated the common sense observation that no amount of mitigating evidence, or lack of aggravating evidence, could possibly make imposition of the death penalty “cruel and unusual” in cases where a lifer without parole murders a fellow inmate. And he’s absolutely right. This is yet another cowardly anti-justice decision from a Court that plainly hates the basic concept of punishing evil. I’d say more, but it would be mere repetition of what I’ve already said in the term’s numerous other death penalty cases, so I’ll leave it at that.

Booth v. Maryland

482 U. S. 496

June 15, 1987

In 1983, John Booth broke into the home of Irvin and Rose Bronstein, and he murdered them in gory fashion. When it came time for sentencing, the prosecution introduced statements from the children and grandchildren of the Bronsteins. Even months and years later, the family remained broken, scarred, and frightened by the senseless and barbaric evil. The murder had happened days before one granddaughter’s wedding. After a marriage filled with grieving rather than joy, the newlyweds left the reception for the funeral rather than their honeymoon. After Booth was given the death penalty, he claimed that introducing this victim impact evidence made the sentencing unfair under the Eighth Amendment.

Justice Powell wrote for a bare 5-4 majority, which agreed that victim impact statements rendered the death sentence invalid. He argued that these statements shift the focus of the trial from the defendant to the victim, and that the happenstance of a victim having a large and articulate family was not relevant to the blameworthiness of a murderer. Powell also thought the possibility of cross-examining victims was unsavory, and that victim impact statements had an inflammatory quality that clashed with the deliberative atmosphere a trial ought to have.

White and Scalia filed remarkably restrained dissents, each of which was joined by the other, along with Rehnquist and O’Connor. Both pointed out that criminal law has always allowed for harsher punishments based on consequences that the culprit had no control over, like whether an attempted murder succeeds, or whether reckless driving kills a bystander. Both also denounced the double standard of allowing the defendant to offer an avalanche of mitigating evidence unrelated to the instant crime, while letting the victims say nothing. Both saw that the Court was imposing its own value judgments rather than letting the legislatures do so.

White further showed that the decision was not just a value judgment, but the wrong value judgment. “The affront to humanity of a brutal murder such as petitioner committed is not limited to its impact on the victim or victims; a victim’s community is also injured, and in particular the victim’s family suffers shock and grief of a kind difficult even to imagine for those who have not shared a similar loss… There is nothing aberrant in a juror’s inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused… At bottom, the Court’s view seems to be that it is somehow unfair to confront a defendant with an account of the loss his deliberate act has caused the victim’s family and society.”

It is darkly amusing to see liberals lecturing about the unfairness of a crime’s impact determining its perpetrator’s fate. In the realm of torts, these same liberals are more than happy to stick innocent men and women who did absolutely nothing wrong with ruinous multi-billion dollar punishments (see ‘strict liability’ and ‘res ipsa loquitur’). This case also shows how screwed up the remedies are for Constitutional violations. Not all violations can be said to genuinely merit the overturning of a sentence as a remedy – and this case is a paradigmatic example. Booth’s crime was depravity incarnate, and no subsequent procedural blip can possibly make his execution “cruel and unusual.”

The five Justices in the majority flatly ignored the Bible’s command against showing partiality to the wicked. They would silence a community and its victims, and denigrate the generational effects of sin, and do so in the name of ‘justice.’ The majority’s evident belief that Booth himself was somehow victimized by his own victim’s anguish, grief, and brokenness debases and mutilates the concept of justice beyond recognition. The prophets of the Old Testament wrote beautifully poetic laments of sin’s corrosive and destructive effects on the human community. Doubtless, Powell would have all this scrubbed from the scripture, and have it replaced by a parade of advocacy showing how ‘misunderstood’ and ‘good at heart’ Assyria and Babylon were, despite their respective ‘mistakes’ of brutally obliterating Israel and Judah.

Booth died of natural causes in prison on April 27, 2014, more than three decades after his barbaric murders. His death sentence was reinstated and overturned several more times after this one decision, always on specious grounds that caustically mocked the concept of justice. Until the day of his death, he was unrepentant, and felt that he was the greater victim. God is his judge now.