Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Delaware Supreme Court Rules That State’s Death Penalty Law Is Unconstitutional

Delaware SC
Delaware Supreme Court
“Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury,” the state’s high court rules in a 3-2 decision striking down the entire death penalty law.

WASHINGTON — Delaware’s death penalty law is unconstitutional in light of a U.S. Supreme Court ruling from earlier this year addressing the role of the jury in handing down death sentences, the state’s Supreme Court ruled in a split decision on Tuesday.

The decision expresses “the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst [v. Florida]” — the January U.S. Supreme Court decision addressing the jury’s essential role in the sentencing phase of a death penalty trial.

Specifically, the Delaware court found the statute to be unconstitutional because a judge, independent of the jury, can find “the existence of ‘any aggravating circumstance’” that would be required to impose a death sentence.

Additionally, the state high court ruled the statute to be unconstitutional because it does not require juror unanimity in finding such aggravating circumstances and does not require the jury to find that the aggravating circumstances outweigh the mitigating circumstances presented. The court found that such a determination about the weighing of aggravating and mitigating circumstances, similarly, must be made unanimously.

Finally, the court ruled that the portions of the statute that it found to be unconstitutional are so intertwined with the remainder of the death penalty statute that it could find “no way to sever” the unconstitutional provisions, leaving “the decision whether to reinstate the death penalty—if our ruling ultimately becomes final—and under what procedures” to the state’s legislature.

Tuesday’s ruling was laid out in a brief, 5-page, unsigned opinion that was followed by extensive opinions from four of the five justices on the state’s high court.

The issue came to the Delaware Supreme Court in the form of a certified question from the Delaware Superior Court in Benjamin Rauf’s pending capital case.

The decision was deeply divided, despite the format of the ruling. Only a bare majority of three of of the five justices agreed that the entire death penalty law is unconstitutional. A fourth justice agreed only that one portion of the law is unconstitutional, and the final justice believed none of the law is unconstitutional.

In a lengthy, 91-page opinion for a three-justice majority of the court written by Chief Justice Leo Strine Jr., he first noted the state’s argument in the case. The U.S. Supreme Court’s decision in Hurst should be read narrowly, that state argued — effectively as “a clean-up case” to an earlier U.S. Supreme Court decision — Ring v. Arizona — holding that juries must determine facts necessary to make a defendant eligible for a punishment, here, the death penalty.

“I am reluctant to conclude that the Supreme Court was unaware of the implications of requiring ‘a jury, not a judge, to find each fact necessary to impose a sentence of death.’ If those words mean what they say, they extend the role of a death penalty jury beyond the question of eligibility,” Strine wrote in the opinion, joined by Justices Randy Holland and Collins Seitz Jr.

Notably, Strine wrote in a footnote in his opinion, “I admit that Hurst can be read more than one way,” adding, “I understand why my respected colleague in dissent views Hurst as simply an application of Ring, and as a case-specific ruling that a jury must make all findings necessary to make a defendant eligible for the death penalty.”

That was not, however, Strine’s conclusion — or the conclusion of the majority of the justices on the Delaware Supreme Court.

“There is no circumstance in which it is more critical that a jury act with the historically required confidence than when it is determining whether a defendant should live or die,” Strine concluded for himself, Holland, and Seitz. “Put simply, the Sixth Amendment right to a jury includes a right not to be executed unless a jury concludes unanimously that it has no reasonable doubt that is the appropriate sentence.”

Holland also wrote a brief opinion, in which he was joined by Strine and Seitz, concurring in the court’s decision.

A fourth member of the court, Justice Karen Valihura, “conclude[d] that the only portions of our statute that are adversely impacted [by Hurst] concern judicial findings of aggravating circumstances not found by the jury.”

Specifically, Valihura wrote that she “would leave to the citizens of Delaware to decide certain issues regarding capital punishment not directly addressed by Hurst” and would not declare other parts of the law unconstitutional — specifically, the unanimity questions and the role of the jury in weighing of aggravating and mitigating circumstances — “without a clear directive from the United States Supreme Court.”

The court’s final member, Justice James Vaughn Jr., wrote that Delaware’s law is “fundamentally different” from the Florida statute at issue in Hurst in ways that are “central” to this case because of determinations that are required to be made by the jury in Delaware. Vaughn would have upheld the statute’s constitutionality in whole.

Delaware most recently held an execution in 2012, and 18 people currently are on death row in the state. In the modern death penalty era, since 1976, Delaware has held 16 executions.

The head of Delaware’s superior court had put new death penalty prosecutions on hold in February while it considered the effect of the Hurst ruling on the death penalty in the state.

Source: BuzzFeed, Chris Geidner, August 2, 2016

Delaware latest state to end death penalty

Sen. Coash: “Ruling affirms Nebraska decision - we can't fix what's broken”

LINCOLN, NE – In light of today’s Delaware Supreme Court ruling declaring it’s death penalty unconstitutional, Nebraska State Senator Colby Coash said he is more confident than ever about the Legislature's vote to end the death penalty.

"With Delaware joining the growing majority of states that have abandoned the death penalty, it’s obvious the trend is away from this costly broken system that risks executing an innocent person and wastes millions of taxpayer dollars," Coash said.

"I understand why our Attorney General says he can't predict when or if Nebraska will ever carry out an execution again. This was a driving force for the supermajority of Senators - 16 Republicans, 13 Democrats, and 1 Independent - who voted to end our death penalty system last year. We’ve all studied the issue and its history carefully. We have spent years and years attempting to find a constitutional execution method, and ‘fix’ the system. But it wasn’t possible,” Coash said.

Last week, KFXL-Fox news caught up with Attorney General Doug Peterson at the Buffalo County Fair, and reported: “Nebraska Attorney General Doug Peterson says even if voters do vote to bring back the death penalty, it could still take quite awhile to enforce it.”

Including Delaware, nineteen states and the District of Columbia formally ban capital punishment, and 12 states haven’t carried out an execution in approximately 10 or more years (CO, NH, KS, CO, CA, AR, WY, MT, NC, NV, OR, and NE). Three of those 12 states have gubernatorial moratoriums on executions in place (Colorado, Oregon, and Pennsylvania) and Nebraska’s conservative legislature voted to replace the death penalty with life without parole last year. That decision will be decided by the voters in November.

“To his credit, Attorney General Peterson understands the hard reality of ever carrying out an execution again. One year ago, Gov. Pete Ricketts used state funds to spend $54,400 for the purchase of drugs from India; however, the Food and Drug Administration blocked the purchase. In May, pharmaceutical company Pfizer announced that it was blocking the use of all its drugs for lethal injections. All federally approved drugmakers in the U.S. whose medications could be used for executions have now put them off limits,” Coash noted.

“Nebraska’s last execution was in 1997, just shy of 20 years ago. In those two decades we’ve had enthusiastically pro-death penalty governors, attorney generals, and majorities in the Unicameral who have pledged to get our death machine up and running. Yet we’ve not been able to it make it happen, in our 19 years of trying, we’ve not been able to fix the system,” Coash said. “And there is no reason to think that will change, ever.”

“Voters should know they’re not voting to fix a system,” Coash said. “They’re voting to keep a system that hasn’t worked for 20 years and will continue to not work should the Legislature’s decision be reversed.”

Source: Retain a Just Nebraska, Press Release, August, 2, 2016. Retain a Just Nebraska is a public education campaign to urge the retention of LB 268, the Nebraska Legislature’s vote to end the death penalty. Supporters include fiscal conservatives, law enforcement officials, faith leaders, murder victims’ families, and Nebraskans from all walks of life. It is a statewide coalition conducting public education on the smart alternative of life in prison without parole, which protects society without the many problems of our death penalty system.

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"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

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