Case Summaries

Question 1

Trop v. Dulles

Answer 1

Bucket/Pillar: Pre-Furman
Year: ‘58
J: Warren
Facts: WWII desertion
Issue: Is denaturalization for desertion cruel and unusual under 8A?
Holding: Yes. 8A contains an “evolving standard of decency that marks the progress of an evolving society.”

Question 2

McGautha v. CA

Answer 2

Bucket/Pillar: Pre-Furman
Year: ‘71
J: Harlan
Facts: ???
Issues: 1) 14A violation for jurors to have unrestricted discretion in deciding whether defendants live or die? 2) 14A violation for unitary merits/sentencing proceedings?
Holdings: No and no. Unitary proceedings do not compel self-incrimination as contemplated by 5A. Enumerating relevant factors for sentencing determinations would do a greater disservice to defendants than not. Guiding capital sentencing discretion is “beyond present human ability.” ***First global challenge to DPen.
Douglas Dissent: a single verdict proceeding is a burden on the exercise of one’s 5A right against compelled self-incriminating testimony, and is at tension with the 8A right to be heard re: sentencing.
Brennan Dissent: no procedural guidance leads to random/arbitrary choices by jurors.

Question 3

Furman v. GA (per curiam)

Answer 3

Bucket/Pillar: Furman
Year: ‘72
Facts: N/A
Issue: Is GA’s DPen statute, giving juries complete sentencing discretion, cruel and unusual under 8A?
Holding: Yes. GA’s DPen statute can result in arbitrary sentencing.
Opinions - Douglas, Brennan, Stewart, White, Marshall
Dissents - Burger, Blackmun, Powell, Rehnquist

Question 4

Ford v. Wainwright

Answer 4

Bucket/Pillar: Proportionality
Year: ‘86
Facts: Ford was not legally insane according to TX, because insanity was defined as being unable to determine one’s actions were wrong at the time of the crime.
Issue: Is executing insane persons unconstitutional?
Holding: Yes. Also, adversarial process for determining mental competency at time of execution is now required. Less about cruelty to individual and more by cruelty done by society.

Question 5

Penry v. Lynaugh

Answer 5

Bucket/Pillar: Individualization/Proportionality
Year: ‘89
J: O’Connor
Facts: Defendant with a “mental age” of 6.5yo was sentenced to death.
Issues: 1) Was defendant’s death sentence when there was no jury instruction that they could consider mitigating evidence (re: TX’s post-Furman statute) a violation of 8A? 2) Is executing persons with “mental retardation” unconstitutional?
Holding: Yes and no.
1) Jurek did not unconditionally save the TX statute from mitigation evidence/special issues challenges. a) Defendant could be deliberate but less culpable because of ID, b) evidence of ID could be used to simultaneously aggravate AND mitigate re: future dangerousness, and c) a response to provocation could be unreasonable but less culpable because of ID. Furthermore, the prosecutor’s argument exploited the limited reach of the special issues and communicated to the jury that they should not consider defendant’s ID.
2) There is insufficient evidence of a national consensus against executing [individuals with ID]…to conclude that it is categorically prohibited by 8A. It cannot be said that all people with ID inevitably lack the capacity to act with the degree of culpability to warrant a death penalty. The concept of “mental age” is insufficient for a categorical 8A rule. BUT, ID is so relevant to culpability that states cannot refuse to allow the jury to consider it as a mitigating factor. Consideration of ID is necessary for the jury to make a “reasoned moral response.”
***O’Connor’s idea that “full consideration” must be given is later undercut in Johnson v. TX (‘93) - only “some consideration”

Scalia Concurrence/Dissent: Requiring consideration of individualization displaces channeling of discretion. Requiring consideration of specific mitigating circumstances will lead the jury to make an “unguided emotional response.”

Question 6

Atkins v. VA

Answer 6

Bucket/Pillar: Proportionality
Year: ‘02
Facts: ???
Issue: Is executing persons with “mental retardation” unconstitutional?
Holding: Yes. Overrule Penry v. Lynaugh.
A) Objective indicia:
1) in ‘89, 3 jurisdictions outlawed executing persons with ID. By ‘02, 19 jurisdictions outlawed it. 47% of DPen states + 60% of US states do not allow execution of people with ID. Raw numbers are secondary; “consistency and direction of change” is primary.
2/3) only 5 executions of people with ID since ‘89. Juries similarly spared people with ID in large numbers
4) Expert opinion - APA amici
5) Religious opinion - COEXIST amici
6) World opinion - EU
7) Opinion polls
B) Court’s own judgment:
1) Why are people in lowest 1-3% of intellectual functioning the “worst of the worst?”
2) On top of reduced culpability, the fact of impairment makes it more difficult to communicate that reduced culpability.

Scalia Dissent:
1) If basically no states outlawed it in ‘89, what other direction could it have gone? If legislatures didn’t make the prohibition retroactive, is it inherently immoral?
2) No way to know, but probably higher; pre-Atkins, defining “mental retardation” wasn’t dispositive.
3) Special protections problem: if people with ID as a class are given positive special treatment here, will they be given negative special treatment elsewhere?

Question 7

Roper v. Simmons

Answer 7

Bucket/Pillar: Proportionality
Year: ‘05
Facts: ???
Issue: Is executing defendants whose crimes were committed as juveniles unconstitutional?
Holding: Yes. Overrule Stanford.
1) Objective indicia:
A) 12 jurisdictions outlawed in ‘89; 18 outlawed in ‘05. Although the trend is less strong than that in Atkins re: ID, we “shouldn’t punish earlier recognition of disapproval.”
B) World opinion - only jurisdiction in the world that claims the official sanction.
C) Expert opinion - “anyone with kids…” and emerging brain science.

Question 8

McCleskey v. Kemp

Answer 8

Bucket/Pillar: Race
Year: ‘87
Facts: ???
Issue: Does a study showing racial discrimination in the application of GA’s DPen (presenting a statistical analysis showing a pattern of racial disparities in death sentences based on race of the victim) make GA’s DPen practice unconstitutional?
Holding: No. An Equal Protection challenge would require a showing of intentional racial discrimination against the defendant. An 8A challenge…???

Question 9

Herrera v. Collins

Answer 9

Bucket/Pillar: Heightened Reliability
Year: ‘93
Facts: Statements by Herrera’s brother and nephew came to light which implicated his brother. TX courts refused to hear the evidence because 10 years had gone by, and bare innocence claims have a 30 day SOL after conviction. Federal courts refused to hear the evidence because there was no constitutional or federal law violation at issue. Herrera argued his inability to be heard was a 14A Due Process violation, which was rejected out of hand.
Issue: In the absence of other constitutional violations, does new evidence of innocence require a judicial forum to hear that evidence?
Holding: No. The Court left open the possibility that the Constitution bars the execution of someone who conclusively demonstrates that they are actually innocent, but noted that such cases would be very rare.

Question 10

Woodson v. NC

Answer 10

Bucket/Pillar: Guidance
Year: ‘76
J: Stewart
Facts: ???
Issue: Is the NC DPen statute, which mandates death sentences for those convicted of 1st degree murder, cruel and unusual under 8A and a denial of due process under 14A?
Holding: Yes. Evolving standards of decency, as indicated by the pre-Furman mercy trend by juries and infrequent pre-Furman mandatory statutes enacted by legislatures, mandate consideration of individual differences among defendants. The NC statute does not reflect the actual beliefs of the public but is just an attempt to comply with Furman. Furthermore, a mandatory death sentence just allows for greater jury discretion at the merits phase, possibly making their decision even more arbitrary and capricious. The constitution requires that the sentencer be allowed to consider the defendant’s character, record, and the circumstances of the crime.

Question 11

Gregg v. GA

Answer 11

Bucket/Pillar: Guidance
Year: ‘76
J: Stewart (Plurality)
Facts: ???
Issue: 1) Is capital punishment clearly unconstitutional without more evidence? 2) Is DPen disproportionate to murder? 3) Does GA’s DPen statute, which - a) provides for bifurcated proceedings, b) requires finding at least one aggravating circumstance beyond a reasonable doubt, and c) requires automatic appellate review re: proportionality - prevent arbitrary and capricious verdicts by guiding discretion?
Holding: No, no, and yes. Objective indicators that the statute comports with evolving standards of decency include a) the post-Furman legislative response and b) that juries are still willing to hand out death sentences.

White Concurrence: 1) unwilling to assume that judicial actors will abuse discretionary powers under new statutes and 2) arguments that government is incompetent to administer capital punishment are really just arguments against the entire criminal justice system.

Brennan Dissent: “evolving standards of decency” are about substance, not procedure.

Marshall Dissent: DPen is not necessary as a deterrent. The majority’s retribution argument is mostly a disguised deterrent argument.

Question 12

Godfrey v. GA

Answer 12

Bucket/Pillar: Guidance
Year: ‘80
J: Stewart
Facts: Following a domestic dispute during which he threatened her with a knife, Godfrey shot his wife with a shotgun, struck his daughter with the butt of the gun, and shot his mother-in-law.
Issue: Is GA’s DPen statute, which contains an aggravator that the offense was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of the mind, or an aggressive battery to the victim,” unconstitutional?
Holding: Yes. The statute is unconstitutionally vague and failed to properly distinguish between those cases that would be eligible for the death penalty and those that wouldn’t. This was worrisome to states who modeled their aggravating/mitigating factors off of the MPC DPen provision, which had a similar “catch-all” aggravator. However, states could save their statutes’ facial vagueness if proper limiting instructions were given to sufficiently narrow/tailor use of the aggravator. GA Supreme Court actually did use such proper limiting instructions, and just applied them improperly.

Question 13

Lockett v. OH

Answer 13

Bucket/Pillar: Individualization
Year: ‘78
J: Burger
Facts: pre-Enmund non-triggerperson case.
Issue: Does OH’s DPen statute, which requires imposition of a death sentence for murder if 1 out of 2 enumerated aggravators is found and 1 out of 3 enumerated mitigators is not found, violate 8A and 14A because it narrowly limits the sentencer’s discretion to consider the defendant’s character, record, and circumstances of the crime as mitigating?
Holding: Yes. The three enumerated mitigators - a) the victim induced/facilitated the murder, b) the defendant was coerced, provoked, or under duress, and c) the defendant was insane or experiencing psychosis - do not allow the jury to account for all potentially relevant aspects of a defendant’s character, record, and circumstances of the crime. In fact, the enumerated mitigators are more like defenses relevant to the merits phase than properly individualizing mitigators.

Question 14

Thompson v. OK

Answer 14

Bucket/Pillar: Proportionality
Year: ‘88
Facts: ???
Issue: Is imposing DPen for murders committed by a person who was younger than 16 at the time of the offense cruel and unusual?
Holding: Yes. 16 is the new floor.

Question 15

Stanford v. KY

Answer 15

Bucket/Pillar: Proportionality
Year: ‘89
Facts: ???
Issue: Does 8A prohibit DPen for murders committed at 16/17?
Holding: No. 16 is still the floor.

Question 16

The Scottsboro Case (Powell v. AL)

Answer 16

Bucket/Pillar: Pre-Furman
Year: ‘32
Facts: 9 Black boys and young men were charged with capital rape after 2 white women accused them of rape. They did not receive counsel until the morning of trial and were quickly convicted and sentenced to death.
Issue: Do capital defendants have a right to pretrial and trial counsel?
Holding: Yes. “[D]uring perhaps the most critical period of the proceedings…from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”

Question 17

Strickland v. Washington

Answer 17

Bucket/Pillar: IAC
Year: ‘84
Facts: ???
Issue: Was counsel’s representation ineffective to the extent that it was unconstitutional?
Holding: No. For counsel’s representation to be ineffective assistance of counsel, the defendant must prove 1) counsel’s representation was deficient AND 2) there is a reasonable probability that, but for counsel’s deficiency, the outcome of the trial would have been different. This is a very high standard, and defense counsel will be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

Question 18

Williams v. Taylor

Answer 18

Bucket/Pillar: IAC/Habeas
Year: ‘00
Facts: ???
Issues: 1) Was failure to conduct a thorough investigation of the client’s background ineffective assistance of counsel? 2) How should federal courts in habeas proceedings interpret new AEDPA provisions re: state deference?
Holdings: 1) Yes. 2) Federal courts in habeas proceedings should now review questions of law in state postconviction proceedings according to whether the state court’s legal analysis was “unreasonably wrong” (as opposed to pre-AEDPA de novo). In concert with Strickland’s high deference to trial counsel’s representation, this is known as “double deference.”

Question 19

Wiggins v. Smith

Answer 19

Bucket/Pillar: IAC
J: O’Connor
Year: ‘03
Facts: Evidence found via reports in state postconviction was vastly different from that found at trial. Defendant suffered extreme physical and sex abuse throughout his entire childhood from several actors.
Issues: Was failure to conduct a thorough investigation of the client’s background ineffective assistance of counsel?
Holding: Yes. It was not constitutional error to not make abuse the centerpiece of counsel’s sentencing phase presentation. However, it WAS constitutional error to not do enough investigation to unearth the extent and severity of that abuse. Standard practice in MD in ‘89 included the preparation of a social history report, which his attorneys did not commission even though necessary funds were available. The lack of investigation met the Strickland test; this was a) ineffective assistance of counsel and b) prejudicial. Furthermore, the 4th Circuit should have found that the MD Supreme Court was “unreasonably wrong” in not holding ineffective assistance of counsel.
***Wiggins did not overtly adopt a “guidelines” approach to ineffectiveness claims, but relied heavily on ABA guidelines (as of ‘89) in its analysis. O’Connor had recently hinted that Strickland was proving untenable because no capital defendants were getting relief on IAC claims.
*Court overapplied Strickland

Question 20

Rompilla v. Beard

Answer 20

Bucket/Pillar: IAC/Habeas
Year: ‘05
Facts: ???
Issues: Was counsel’s failure to continue investigation ineffective assistance of counsel even though defendant and his family suggested no mitigating evidence is available?
Holding: Yes. Counsel is bound to make reasonable efforts to obtain and review material that counsel has reason to believe the prosecution will rely on as evidence of aggravation at the trial’s sentencing phase.

Question 21

US v. Shipp

Answer 21

Bucket/Pillar: Pre-Furman
Year: 1906
Facts: Ed Johnson, Black man, accused of raping white woman. No actual i.d. of Johnson, and he had 12 alibi witnesses. Thwarted lynch attempt prior to trial. The jury handed down a death sentence, and it was obvious to everyone Johnson would be lynched otherwise. Black lawyers appealed for new trial, eventually via federal habeas. Harlan approved appeal for a hearing. Johnson was then brutally lynched. US AG investigated, found conspiracy to lynch involving local sheriff, Shipp.
Issue: 1) Does SCOTUS have authority to intervene in state criminal proceedings via federal habeas? 2) Is Shipp guilty of contempt of court?
Holding: Yes and yes. Shipp was guilty because he actively worked to kill Johnson while Johnson’s constitutional rights were still being litigated. This is the only SCOTUS original jurisdiction criminal case EVER. Huge assertion of rule of law and an independent judiciary. Groundbreaking, brilliant Black lawyers (first ever as lead counsel at SCOTUS) who argued 6 different constitutional arguments that the Court eventually adopted.

Question 22

Robinson v. CA

Answer 22

Bucket/Pillar: Pre-Furman
Year: ‘62
Facts: ???
Issue: Is it cruel and unusual to punish someone for having a drug addiction? Can 8A be applied to a state criminal sanction?
Holding. Yes and yes (incorporated 8A against states).

Question 23

Rudolph v. AL (Goldberg Dissent from Denial of Cert)

Answer 23

Bucket/Pillar: Pre-Furman
Year: ‘63
Facts: Rudolph was convicted of raping a white woman.
Issues: 1) Does use of the electric chair violate 14A equal protection because that DPen has only been used on Black people? 2) Was Rudolph’s confession coerced in violation of 14A due process because he was interrogated by armed cops with vicious police dogs?
Goldberg Dissent: Worthy questions - 1) Does punishing rape with death violate “evolving standards of decency” that mark progress or are universally accepted because the world and US both usually don’t do that? 2) Is taking human life to protect a value other than human life inconsistent with the Constitution because excessively severe/greatly disproportionate? 3) Can permissible aims of punishment (deterrence, isolation, rehabilitation) be achieved as effectively by life imprisonment? ***shifted from 14A to 8A. “Shot across the bow”; not a global challenge but set the stage for moratorium and Furman.

Question 24

Furman v. GA - Douglas Opinion

Answer 24

Bucket/Pillar: Furman
Inherently unconstitutional? No.
Main Argument: Equal protection violation (as-applied). Its arbitrary and discriminatory application also qualifies as “unusual.” US DPen as it exists essentially is a caste system. It is under-inclusive in that it exempts wealthy and non-marginalized groups. It is over-inclusive in that it only applies to the poor and marginalized groups.

Question 25

Furman v. GA - Brennan Opinion

Answer 25

Bucket/Pillar: Furman
Inherently unconstitutional? Yes.
Main Argument: Death is Different.
Principles:
1) DPen does not comport with HUMAN DIGNITY (first and last articulation of dignity argument in 8A jurisprudence). It is unusually severe in finality and enormity.
2) States may not inflict unusually severe punishments ARBITRARILY. It is used infrequently, and there is a strong inference of irregular and unfair application.
3) DPen is almost universally REJECTED BY SOCIETY. It enjoys some legislative and public opinion support, but is tolerated only because of its actual disuse.
4) Unusually severe punishments may not EXCEED PURPOSES for which they are used. There is no valid penal purpose that can’t be served by other punishments.
*tracks LDF strategy/principles the closest

Question 26

Furman v. GA - Stewart Opinion

Answer 26

Bucket/Pillar: Furman
Inherently unconstitutional? No.
Main Argument: 1) US DPen is cruel in that it exceeds legislatively determined necessary punishments in kind, not degree (death is different). 2) US DPen is unusual in that it is infrequently imposed for murder and extremely infrequently imposed for rape -> “wantonly and freakishly imposed…cruel and unusual in the way being struck by lightning is cruel and unusual.”

Question 27

Furman v. GA - White Opinion

Answer 27

Bucket/Pillar: Furman
Inherently unconstitutional? No.
Main Argument: 1) Does not serve any valid deterrent purpose. 2) Likely does not serve any valid retributive purpose, given its disuse. 3) Does serve incapacitation purpose, but that could be achieved with a life sentence. 4) Likely does not serve any valid community value reinforcement purpose, given its disuse. If punishment doesn’t serve any valid penal purpose, it is cruel and unusual.

Question 28

Furman v. GA - Marshall Opinion

Answer 28

Bucket/Pillar: Furman
Inherently unconstitutional? Yes.
Main Argument: cruel and unusual language “must draw its meaning from evolving standards of decency that mark the progress of a maturing society.” -> Marshall Hypothesis
Reasons Punishment Can Be Cruel and Unusual:
1) Involve so much pain and suffering people can’t tolerate them.
2) Previously unknown for a given offense.
**3) Excessive and serves no valid legislative purpose. While there may not be sufficient evidence available to determine whether legislatures “acted wisely,” there is sufficient evidence to determine whether legislatures had any valid basis for acting.
**4) Popular sentiment abhors. Proper analysis shouldn’t focus on what % of Americans (dis)approve of DPen, but whether they WOULD if they were properly informed (Marshall Hypothesis). Most Americans don’t know about the lack of conclusiveness on its deterrent value, that death row prisoners are often model prisoners, the high cost of capital litigation and executions, that death row prisoners are stripped of societal function, and DPen may increase criminal activity.

Question 29

Furman v. GA - Dissents

Answer 29

Bucket/Pillar: Furman

Burger -
re: Brennan/Marshall - authorized in 40 states, DC, and federal courts. Congress has added capital crimes 4 times in the past 11 years. Marshall Hypothesis is distrustful of jurors.
re: Stewart/White - this 8A problem was created because of the flexible mercy trend in sentencing; if there are more sentences, DPen would no longer be cruel and unusual?
re: legislative compliance - McGautha problems + possible mandatory sentences.

Blackmun -
1) Federalism 2) fear of return to mandatory sentences (not currently unconstitutional, but most jurisdictions don’t use them).

Question 30

Proffitt v. FL

Answer 30

Bucket/Pillar: Guidance
Year: ‘76
J: Stewart - Plurality
Facts: ???
Issue: Is FL’s DPen statute, which gives the trial judge sentencing authority, constitutional?
Holding: Yes. Jury sentencing is not constitutionally required, and judge sentencing may lead to greater consistency.

White Concurrence: FL DPen statute does not violate constitution because prosecutor discretion and clemency are still available.

Question 31

Zant v. Stephens

Answer 31

Bucket/Pillar: Guidance
Year: ‘83
J: Stevens
Facts: Stephens given death sentence when a jury found 3 aggravators: 2 were specifically invalidated by SCOTUS, and one was specifically upheld by GA Supreme Court.
Issue: 1) Does the limited function of a jury’s finding of a statutory aggravator (aka a “non-weighing” jurisdiction) make GA’s statute invalid under Furman? 2) Is Stephens’ death sentence vacated because one of the aggravators that formed the basis for his death sentence was invalidated? 3) Is Stephens’ death sentence vacated because a jury instruction with regard to the invalid aggravator (re: serious assaultive convictions) may have unduly affected their deliberations?
Holding: No, no, and no. 1) The narrowing function of the statute was properly achieved here because the two valid findings adequately differentiate this case from other GA murder cases where the death penalty cannot be imposed. 2) Here, the jury specifically indicated which aggravators they rested their death sentence on, as opposed to Stromberg v. CA, in which an aggravator was invalidated and the jury did not specify how they made their decision. 3) The underlying evidence as to Stephens’ history of serious assaultive criminal convictions was fully admissible under GA law at the sentencing phase; while the aggravator was invalid, it was not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected.

Marshall Dissent: the GA statute essentially mandates consideration of an aggravator at both the “threshold” determination (“is this crime death eligible?”) and the “selection” determination (“do we give this person life or death?”). The constitutional defect here is that there is no jury guidance after the threshold determination. We cannot know how the jury would have weighed circumstances at the selection determination without the invalid aggravator, so the sentence should be vacated. ***this is where Steiker first brings up the threshold/selection triangle!

Question 32

Clemons v. MS

Answer 32

Bucket/Pillar: Guidance
Year: ‘90
J: White
Facts: N/A
Issues: 1) In a “weighing” state, can an appellate court reweigh aggravating/mitigating evidence to uphold a jury-imposed death sentence based in part on an invalid aggravator? 2) Did the MS Supreme Court correctly reweigh in this case? 3) Can a State Supreme Court apply harmless-error analysis to the jury’s consideration of the invalid aggravating circumstance? 4) Did the MS Supreme Court correctly apply harmless-error analysis in this case?
Holding: Yes, no, yes, and no. 1) Nothing in 6A, 8A, or other constitutional provision requires jury to reweigh/reimpose. There is no 8A violation when an appellate court reweighs in order to salvage a jury-imposed death sentence. 2) The appellate opinion could be read to either support a proper reweighing by completely disregarding the invalid factor (allowed) OR as creating an automatic rule that a sentence may be affirmed as long as one valid and undisturbed aggravator remains (would violate Lockett and Eddings). 3) Harmless-error analysis is allowed, full-stop. 4) Harmless-error analysis requires a detailed explanation based on the record, not a cryptic holding that the sentence would have been the same “beyond a reasonable doubt.”

Question 33

Brown v. Sanders

Answer 33

Bucket/Pillar: Guidance
Year: ‘05
J: Scalia
Facts: N/A
Issue: Should death sentence have been invalidated because 2/4 aggravators found by the jury were found to be invalid?
Holding: No. The “weighing/non-weighing” distinction is no longer applicable. An invalidated sentencing factor can be saved by shifting that factor’s aggravating weight to another factor if the latter accounts for the former because the same facts and circumstances apply to both.

Breyer Dissent: a broad harmless-error rule should apply to all such appeals.

Stevens Dissent: would have kept the “weighing/non-weighing” distinction.

Question 34

Hidalgo v. AZ (Denial of Cert)

Answer 34

Bucket/Pillar: Guidance
Year: ‘18
J: Breyer
Facts: N/A
Issue: Does AZ’s DPen statute, which includes so many broadly defined aggravators that virtually every 1st degree murder convict is death eligible, violate 8A?
Holding: N/A, cert denied. Breyer, Ginsburg, Sotomayor, and Kagan are basically signaling that they would take this question up with more record development.
Defendant Argument: The eligibility decision, or “narrowing requirement,” can be accomplished by a legislature 1) narrowly defining capital offenses or 2) broadly defining them and having the jury find aggravators. While AZ’s statute is nominally in the second category, its many broadly defined aggravators (especially its felony murder aggravator) have led to 1 or more aggravator being found by a jury in 856/866 1st degree murders.

Question 35

Eddings v. OK

Answer 35

Bucket/Pillar: Individualization
Year: ‘82
J: Powell
Facts: 16yo defendant shot a cop point blank. Had a very troubled and violent upbringing. A psychiatrist testified that defendant’s awareness during the shooting was low, and rehabilitation was very possible.
Issue: Was a judge’s refusal to consider mitigating evidence apart from defendant’s youth an 8A violation?
Holding: Yes. A sentencer must actually consider all mitigating evidence bearing on the defendant’s character, record, and circumstances of the crime. The fact that the statute allows for that consideration is not enough; it is constitutional error for the sentencer to disregard that evidence in application. The OK trial judge was unconstitutional in declaring that he could not consider other mitigating evidence as a matter of law, and the effect would be the same had he told a jury to disregard that evidence in its consideration.

Question 36

Jurek v. TX

Answer 36

Bucket/Pillar: Individiualization
Year: ‘76
J: Stevens
Facts: N/A
Issue: Is TX’s DPen statute, which requires at least one “murder-plus” narrowing finding AND requires the jury to find all 3 “special issues” - a) defendant’s conduct was deliberate, b) a probability defendant will commit criminal acts of violence which present a continuing threat to society, and c) if provoked, defendant’s conduct was unreasonable in response - constitutional?
Holding: Yes. The requirement to find an aggravator-equivalent serves the same narrowing function as the GA/FL statutes. The 2nd special issue (probability defendant will commit criminal acts of violence which present a continuing threat to society) allows the jury to consider the defendant’s criminal record, age, and mental/emotional pressures.

Question 37

Franklin v. Lynaugh

Answer 37

Bucket/Pillar: Individualization
Year: ‘88
Facts: N/A
Issues: Should the trial court have given a special jury instruction that they can consider 1) residual doubt and 2) defendant’s good behavior in prison?
Holdings: No and yes. Consideration of residual doubt is not required for individualization, but consideration of defendant’s good behavior in prison is.
***O’Connor signals that an as-applied challenge to TX Statute may succeed

Question 38

Tennard v. Dretke

Answer 38

Bucket/Pillar: Individualization
Year: ‘04
Facts (Procedural History): Fed District Court denied Tennard’s federal habeas petition and denied a certificate of appealability (COA). The 5th Circuit agreed that Tennard was not entitled to a COA. It applied a threshold test to Tennard’s mitigating evidence, asking whether it met the 5th Circuit’s standard of “constitutional relevance” in Penry cases: whether it was evidence of a “uniquely severe permanent handicap” that bore a “nexus” to the crime. The 5th Circuit held that (1) low IQ evidence alone does not constitute a uniquely severe condition, and no evidence tied Tennard’s IQ to intellectual disability, and (2) even if it amounted to intellectual disability, Tennard did not show his crime was attributed to it. The 5th Circuit reinstated its opinion in light of Atkins.
Issue: Does the Supreme Court’s prohibition of executing “mentally retarded” people in Atkins apply if the crime cannot be attributed to intellectual disability?
Holding: Declines to answer. BUT, the COA should have been granted.
1) The 5th Circuit’s test should have been whether reasonable jurists would find the district court’s assessment debatable/wrong. The 5th Circuit’s “constitutional relevance” test - a) “uniquely severe permanent handicap” AND b) “nexus” - is improper and without precedent. Indeed, reasonable jurists could conclude that the low IQ evidence Tennard presented was relevant mitigating evidence, and that CCA’s application of Penry to the facts of Tennard’s case was unreasonable.
2) The District Court’s test should have been: “was evidence of such a character that it might serve as a basis for a sentence less than death?” (Skipper). In other words, relevance of ID is at the general evidentiary level - “does it have any tendency to make the existence of any fact of consequence in determining the action more or less probable?”

Question 39

Walton v. AZ

Answer 39

Bucket/Pillar: Individualization
Year: ‘90
J: White
Facts: N/A
Issue: Have defendant’s 8A and 14A rights been violated because AZ law requires the defendant to show by a preponderance of the evidence the existence of mitigating circumstances sufficiently substantial to call for leniency?
Holding: No. AZ’s method does not lessen the State’s burden to prove the existence of aggravating circumstances.

Scalia Concurrence: “I will never again vote to reverse a death sentence on Woodson/Lockett grounds.” Woodson/Lockett individualization cases are contra-principles of Furman/Gregg guidance cases. Stare decisis cannot command the impossible. The jurisprudence purports to 1) narrow the class of offenders eligible and 2) make an individual assessment of each eligible offender; this doesn’t explain the opposite treatment of aggravators (sentencer has no discretion) and mitigators (sentencer has complete discretion).

Question 40

Callins v. Collins (Denial of Petition)

Answer 40

Bucket/Pillar: Individualization
Year: ‘94

Blackmun Dissent: “I shall no longer tinker with the machinery of death.” Fairness and rationality in the administration of DPen cannot be simultaneously achieved. Harlan was right in McGautha when he said it is “beyond human ability.” Furman was essentially correct insofar as it held the DPen should be applied consistently or not at all -> it just can’t be applied consistently. Re: McCleskey - “the power to be lenient is the power to discriminate.”

Scalia Concurrence: repeats Walton Concurrence. Agrees with Blackmun that guidance and individualization cases cannot be reconciled, but argues the solution should be that 8A does not constrict states’ DPen legislation and application.

Question 41

Coker v. GA

Answer 41

Bucket/Pillar: Proportionality
Year: ‘77
J: ???
Facts: N/A
Issue: Is the imposition of DPen for rape of an adult cruel and unusual -> violative of 8A?
Holding: Yes.
1) A punishment is excessive if it a) makes no measurable contribution to acceptable penal goals and is nothing more than purposeless/needless imposition of pain and suffering, or b) is grossly out of proportion to the severity of the crime.
2) Obj: Actions of legislatures and juries evidence public opposition. Pre-Furman, 16 jurisdictions allowed DPen for rape of an adult; post-Furman, only one does. 9/10 rape convictions in GA since ‘73 have not gotten the death sentence.
3) Subj: Because the rapist does not unjustifiably take human life, death is excessive.
4) Subj: Deliberate killers, without aggravators, cannot be given death sentences. Rapists should not be given more severe sentences than deliberate killers.

Question 42

Enmund v. FL

Answer 42

Bucket/Pillar: Proportionality
Year: ‘82
J: White
Facts: Enmund was the getaway driver who waited in the car during the robbery, did not participate in the killing and had no idea anyone would be killed.
Issue: Is DPen unconstitutionally excessive and disproportionate for someone who did not a) take a life, b) attempt to take a life, nor c) intend to take a life?
Holding: Yes.
1) Obj: out of >300 executions since ‘55, not a single person in Enmund’s position was executed. Compare with rape (post-Coker): 72 people executed for rape since ‘55.
2) Subj: robberies are not inherently productive of death; only 1/200 result in death. Enmund should not be given DPen on a “lottery.”
3) Subj: it is unlikely DPen could deter someone who did not intend or attempt to kill.
*DID NOT hold that non-triggerpersons are not subject to DPen.

Question 43

Cabana v. Bullock

Answer 43

Bucket/Pillar: Proportionality
Year: ‘86
J: White
Facts: N/A
Issues: 1) Is Enmund limited to requiring that a death sentenced defendant be legally responsible for killing as a matter of state law? 2) Can an appellate court rely solely on jury instructions to determine whether the sentencers made their decision in keeping with Enmund?
Holdings: No and no.
1) Enmund meant what it said: if defendant did not kill, attempt to kill, nor intend to kill, they cannot receive a death sentence.
2) An appellate court must look beyond jury instructions to the actual findings of the trial court and lower appellate courts to determine whether sentencers made their decision in keeping with Enmund.

Question 44

Tison v. AZ

Answer 44

Bucket/Pillar: Proportionality
Year: ‘87
J: O’Connor (i think?)
Facts: Really complex/intense - jailbreak, abduction, father of defendants shot abductees point-blank in desert.
Issue: Does 8A prohibit Dpen where the defendant participated substantially in the crime, but whose mental state is one of reckless indifference to the value of human life, rather than intent to kill?
Holding: No. Although the AZ Supreme Court was wrong to categorize defendants’ mens reas as intent, when the defendants a) majorly participated in a felony and b) exhibited reckless indifference to human life, Enmund is not applicable and a death sentence is not disproportionate.

Question 45

Panetti v. Quarterman

Answer 45

Bucket/Pillar: Proportionality
Year: ‘07
Facts: Panetti found competent for trial despite pro se representation where he dressed as a cowboy and subpoenaed Jesus.
Issue: Is Panetti competent for execution?
Holding: No. While Panetti rationally understands the fact of his upcoming execution and the stated reasons for it, he thinks TX is actually executing him because he is “preaching the gospel.” People who do not actually rationally understand why they are being executed cannot be executed.

Question 46

Washington v. Harper

Answer 46

Bucket/Pillar: Proportionality
Year: ‘90
Holding: Prisons are allowed to forcibly medicated prisoners IF they are a threat to themselves or others; otherwise, the liberty interests of the prisoners to refuse medication must be respected.

Question 47

Ex Parte Briseno***

Answer 47

Bucket/Pillar: Proportionality
CCA
Year: ‘04
Holding: Atkins did not contemplate every capital defendant who claims to have “mental retardation.” A defendant will not get Atkins relief merely by showing < 70 IQ; instead, they must also show adaptive defects. Literally gave Lenny from Of Mice and Men as an example.
**WRONG! FIX - more specifically, a State’s approach to ID cannot be pulled out of its ass

Question 48

Hall v. FL***

Answer 48

Bucket/Pillar: Proportionality
Year: ‘14
Holding: If a capital defendant shows they have an IQ below 70, they cannot be executed. Full stop. **WRONG FIX - has to be actual DSM diagnosis = IQ below 70 (accounting for error?) + adaptive functioning

Question 49

Moore I and II

Answer 49

Bucket/Pillar: Proportionality
Summary: the CCA continues to apply Briseno factors post-Hall. SCOTUS tells them to stop. TX continues to underenforce Hall where it can.

Question 50

Kennedy v. LA

Answer 50

Bucket/Pillar: Proportionality
Year: ‘08
Facts: N/A
Issue: Does 8A prohibit the death sentence for those convicted of child rape?
Holding: Yes.
1) Objective indicia:
A) 44/50 states outlaw. FAR more than Atkins or Roper.
B) Only 2 inmates in the US are on death row for child rape.
2) Court’s own judgment:
A) “When the law punishes by death, it risks its own descent into brutality.”
B) Notes the tension between guidance and individualization; offers proportionality as a solution.
C) DPen should not be allowed for nonhomicidal crimes against persons, full stop. Reserves nonhomicidal crimes against the state.
D) Keeping DPen raises the risk of underreporting, exposure of the victim to the public eye, and wrongful executions. Not an experiment worth undertaking.

Question 51

Graham v. FL

Answer 51

Bucket/Pillar: Proportionality
Year: ‘10
Facts: N/A
Issue: Is LWOP for non-homicidal juvenile offenders unconstitutional?
Holding: Yes. First application of Coker proportionality jurisprudence to noncapital case.
1) Objective indicia:
a) 39 jurisdictions authorize but only 12 actually imposed. Over 50% of these cases are in FL alone.
b) Rarity of imposition is similar to Atkins and Simmons.
c) Juvenile eligibility for LWOP is often a complex interaction of statutory schemes, not a great inference of legislative intent.
2) Court’s own judgment:
a) Twice diminished moral culpability - age AND nature of crime.
b) States should provide meaningful opportunity for release given maturity and rehabilitation.
c) Only country in the world that officially does it.

Question 52

Miller v. AL

Answer 52

Bucket/Pillar: Proportionality
Year: ‘12
Facts: N/A
Issue: Is mandatory LWOP for homicidal juvenile offenders unconstitutional?
Holding: Yes. Essentially, LWOP is the equivalent of DPen for juvenile offenders; as such, it requires analogous individualized sentencing considerations.

Question 53

Simmons v. SC

Answer 53

Bucket/Pillar: Heightened Reliability
Year: ‘94
J: Blackmun
Facts: The trial team did four key things to bring about the result in Simmons -
1) Had Simmons plead guilty to other felonies to make him parole ineligible
2) Got USC to conduct public policy poll about juror beliefs re: parole eligibility (most thought most lifers eligible after 17y)
3) Requested instruction re: parole ineligibility
4) Motion in limine re: future dangerousness
Issue: Does a state court’s refusal to instruct a jury in a sentencing trial that a defendant is ineligible for parole violate 14A Due Process clause?
Holding: Yes. The lack of a specific instruction regarding the actual consequences of the jury’s decision led to Simmons being sentenced on the basis of essentially false information. The Due Process Clause grants defendants the right to “deny or explain” the evidence against them, and Simmons was not given the opportunity to do so re: his potential future danger to society.
***O’Connor’s vote made this holding narrow: limited to requiring an LWOP instruction -
a) when asked by counsel
b) when LWOP is the only other possible sentence
c) and the prosecution argues future dangerousness

Question 54

Caldwell v. MS

Answer 54

Bucket/Pillar: Heightened Reliability
Year: ‘85
Facts: N/A
Issue: Was a prosecutor’s argument in response to defense counsel’s closing remarks (which sought to impress upon the jury the enormity of their decision), suggesting that the jury’s role was minor because death sentences are subject to automatic review, improper so as to render the defendant’s death sentence invalid under 8A?
Holding: Yes. 1) A death sentence cannot rest 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. 2) Re: California v. Ramos, states are NOT free to expose capital-sentencing juries to any and all information and argument concerning post-sentencing procedures. What the jury is told regarding appellate review has to be totally accurate.
***O’Connor’s vote made this holding narrow. Marshall argued for holding that nothing that takes away the jury’s sense of moral agency could be told to them.

Question 55

KS v. Marsh

Answer 55

Bucket/Pillar: Heightened Reliability
Year: ‘06
J: Thomas
Facts: N/A
Issue: Is a death sentence based on equipoise of aggravators and mitigators constitutional?
Holding: Yes. Affirm Walton v. AZ. As long as juries are allowed to consider all of the relevant mitigating evidence, states are allowed to require the death penalty when aggravating and mitigating factors are equally balanced.

Souter Dissent: Various precedents suggest that the statute cannot stand up to “reasoned moral judgment.” Argued for a new DPen jurisprudence around the problem of wrongful convictions and executions, allowing for more and better procedures for defendants to bring actual innocence claims.

Scalia Concurrence: The fact that there are wrongful convictions that stop short of wrongful executions shows that the system is working.

Question 56

Baze v. Rees

Answer 56

Bucket/Pillar: Heightened Reliability
Year: ‘08
Concurrence: Stevens
Main Arguments - emphasizes the Trop approach:
1) Risk of executing based on wrongful convictions (although not much basis in jurisprudence; see Herrera)
2) General arbitrariness
3) Racial discrimination
4) Retributive quality of DPen “undercut” by sanitized lethal injection procedures

Question 57

Glossip v. Gross

Answer 57

Bucket/Pillar: Heightened Reliability
Year: ‘15
Dissent: Breyer
Main Arguments - leads with unreliability:
1) DPen is unreliable. 4% of executions are wrongful. Political passions drive death sentences and executions. Death qualification as a practice is unrepresentative of the public. Bad forensics are common.
2) DPen is arbitrary. Race, geography, politics, and resources are the prime determinants of whether or not someone will or won’t be executed for a given murder, NOT one’s culpability or desert.
3) DPen is excessively delayed. The average length of prisoners’ stay on death row constitutes “double punishment.” Both deterrent and retributive effects are nullified. If it was widely known that only 20% of death row inmates are actually executed, would that be effective deterrence? The actual conditions of confinement are cruel and unusual. Death row is the only type of incarceration where solitary is part of the punishment, rather than a method of rehabilitation for inmates.
4) DPen is increasingly unusual. In ‘60, the average death row inmate (who actually WAS executed) spent 2 years awaiting execution; in ‘04, -> 11 years; in ‘14 -> 18 years.

Scalia Concurrence:
1) Trop has done more damage to the Constitution and this Court’s jurisprudence than any other case in US history.
2) The Constitution, as a textual matter, allows capital punishment. It considers the possibility that someone may be “deprived of life” in the Due Process clause.
3) Death sentences are only elongating and declining because of this Court’s jurisprudence. Those are not inherent features of capital punishment.

Question 58

Bucklew v. Precythe

Answer 58

Bucket/Pillar: Heightened Reliability
Year: ‘18
J: Gorsuch
Holding: Basically, Scalia’s Concurrence in Glossip, minus the vitriol.

Question 59

Strickland v. Washington

Answer 59

Bucket/Pillar: IAC
Year: ‘84
J: O’Connor
Facts: Defendant’s counsel did no mitigation investigation and told his client that the judge appreciates defendants who take accountability.
Issue: Did counsel’s performance constitute a 6A violation because of ineffective assistance of counsel?
Holding: No. Developed the Strickland test: 1) counsel’s performance must be deficient and 2) the deficient performance must have prejudiced the defense so as to deprive the defendant of a fair trial. There is a very high presumption that counsel rendered adequate assistance, especially if counsel made their representation choices for strategic reasons. Furthermore, if assistance was ineffective, the defendant must show a “reasonable probability” that, but for counsel’s unprofessional errors, the result would have been different. Lastly, there is no constitutional right to counsel in state postconviction, and a defendant cannot claim ineffective assistance of counsel based on state postconviction representation.

Marshall Dissent:
1) Defense counsel should have to meet certain standard requirements in their representation of capital defendants. Most importantly, they should develop a trusting relationship with their client. The “very high” presumption of effective assistance is inappropriate.
2) The Court should not have left capital and noncapital representation undifferentiated with respect to creating an ineffective assistance of counsel test. Capital defendants deserve a higher and more demanding representation.
3) The defendant’s “reasonable probability” burden re: prejudice is too high, and should be more like a Brady materiality standard. Again, this is because death is different.

Question 60

Bobby v. Van Hook

Answer 60

Bucket/Pillar: IAC
Year: ‘09
J: Alito
Facts: N/A
Issue: Did the 6th Circuit err in relying on ABA guidelines announced 18 years after defendant’s trial in assessing whether his ineffectiveness claim was decided “unreasonably wrong” by the Ohio state court?
Holding: Yes. Van Hook’s counsel gave him representation that did not fall “below an objective standard of reasonableness” in light of “prevailing professional norms.” Judging counsel’s conduct in the 1980’s under 2003 standards was error. Counsel did not start their mitigation investigation too late, the scope of the investigation was not unreasonable, and their decision to not seek more mitigation evidence fell within the range of professionally reasonable judgments.
*Court underapplied Strickland

Question 61

Brown v. Allen

Answer 61

Bucket/Pillar: Federal Habeas
Year: ‘53
Codifies basic parameters of Federal Habeas

Reed Opinion:
Denial of cert (in general*) should not have any value re: claim or issue preclusion.
State adjudication is not res judicata with respect to a petitioner’s federal constitutional claims.

Frankfurter Opinion:
There must be a federal question.
A petitioner must exhaust their claims in state proceedings before they can reach federal habeas.
Procedural default: claims can be defaulted upon failure to preserve in state court.
Federal judges have discretion on whether to have a hearing on fact development (changed by AEDPA***).
Deference to state factfinding.
De novo as to mixed questions of law and fact.

Question 62

Wright v. West

Answer 62

Bucket/Pillar: Federal Habeas
Year: ‘92
J: Thomas
Facts: N/A
Issue: Should there be de novo review of mixed questions of law and fact in federal habeas, or a more deferential standard?
Holding: The outcome is not dependent on which standard of review is applied; left undecided. BUT articulates narrow conception of federal habeas via articles by Bator and Friendly.

Bator - “process model”:
a) Federal habeas should only make sure state courts are meaningfully doing full/fair review of constitutional claims.
b) The federal habeas forum was far more limited pre-Brown v. Allen.
c) history/doctrine

Friendly:
a) Federal habeas should only be for vindicating rights for those most egregiously wronged because they are potentially innocent - aka analyzing the “accuracy of the underlying verdict.”
b) Looks to comity, finality, and legitimacy costs of the federal habeas system.
c) normative

O’Connor Concurrence: Brown v. Allen was rightly decided. Articulates broad (and contemporaneous) conception of federal habeas via Peller article.

Peller (response to Bator):
a) The only right state prisoners had was due process, which was stingy at the time (because of inadequacy of state processes); cases never really highlight federal habeas. Incorporation naturally led to more frequent use of federal habeas system.
i) Example: the case of Leo Frank was a due process violation, requires looking outside the record to find it, because he was nearly lynched and did not attend his verdict as a result.
ii) Example: Moore v. Dempsey, which involved organizing by Black tenant farmers which led to a massacre of 250, and the prosecutors of the black survivors said “there won’t be a lynching if they’re quickly executed.”
b) textual (creates momentum for AEDPA)

Question 63

Fay v. Noia

Answer 63

Bucket/Pillar: Federal Habeas
Year: ‘63
J: Brennan
Holdings:
a) Federal habeas is not appellate jurisdiction, but a Congressionally-created cause of action for people unlawfully detained.
b) Federal habeas courts have equitable discretion to enforce default if petitioner has “deliberately bypassed” state court procedures.
i) This is only true if because of the defendant’s voluntary choice (<1% of cases).
ii) Not applicable if attorney error (>99% of cases).
c) Otherwise, a defendant has not failed to exhaust remedies in state court.
d) Federal courts may hold evidentiary hearings for further fact development at their discretion.

Question 64

Wainwright v. Sykes

Answer 64

Year: ‘77
J: Rehnquist
Holdings:
a) Does not overrule basic conclusion that defaults are non-jurisdictional; aka, still “independent and adequate state ground” for Supreme Court.
b) Changes standard from presuming no default if there’s no deliberate bypass -> petitioner now has to show “cause and prejudice” or “miscarriage of justice.”
c) Attorney error is typically not cause to overcome default. Can be cause if:
i) Ineffective assistance of counsel.
ii) Error is “external to defense” - i.e. judge or prosecutorial interference.
d) Cause is not relief. Cause is what is necessary to access consideration of relief.

Question 65

Coleman v. Thompson

Answer 65

Year: ‘91
Holding: There is no right to effective counsel at state habeas because there is no right to any counsel at state habeas. Therefore, any claim of ineffective assistance of counsel in state habeas will not be cause to overcome procedural default in federal habeas.

Question 66

Martinez v. Ryan

Answer 66

Year: ‘11
J: Kennedy
Holding: While there is no constitutional right to effective counsel at state habeas, equity demands that “double ineffectiveness,” or ineffectiveness at trial AND ineffectiveness at state habeas, can constitute cause to bring a claim at federal habeas. This is a carve-out of Coleman v. Thompson, limited to providing a forum for the trial ineffectiveness claim.

***Later extended to states that do not restrict trial ineffectiveness claims to state habeas (aka those that allow trial ineffectiveness claims on direct appeal).

Question 67

Shinn v. Ramirez

Answer 67

Year: ‘22
J: Thomas
Holding: Federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on ineffectiveness of state habeas counsel. Rests on agency law - aka, counsel’s mistake is defendant’s mistake.

Question 68

McCleskey v. Kemp

Answer 68

Year: ‘87
J: Powell
Procedural History:
1) District Court - the Baldus study is methodologically flawed.
2) 11th Circuit - assuming the study is valid, it still fails Equal Protection and 8A claims.
Study Findings:
a) technically, white defendants are more likely than Black defendants to get the death sentence.
b) BECAUSE victim effect is much stronger and most murders are intra-racial.
c) Black defendant + white victim = most likely death sentence.
d) Sturdiest stat: white victims are 4.3x more likely to result in a death sentence than any other victim. As predictably valuable as if you have previously been convicted of homicide.
Behind the Curtain: Scalia Memo
Holdings:
1) Not an equal protection violation. It is generally not enough to show statistical disparate treatment; generally, you need to show intent. The difference between here and Yick Wo/Title VII is the presence of many actors in the former and a single actor in the latter.
***see Kennedy article - in other equal protection contexts we demand a “level-up;” here, that would be same treatment for Black victims as white victims. Presupposes that abolition is not the solution; the connection between abolitionists and racial justice advocates is the only reason the main argument is to level-down.
2) Not an 8A violation.
a) States have done what they can to address arbitrariness and discrimination, but discretion is part and parcel of the US criminal justice system.
b) The Baldus study’s showing is not that strong - “at most, indicates a discrepancy that appears to correlate with race.” *Weakest argument. BUT, how do you quantify “unacceptable” amount of discrimination? And is the definition of 3 tiers offered by Baldus re: aggravation acceptable?
c) Other discrepancies would be grounds for 8A claims. Like attractiveness. *Brennan Dissent: race is singly invidious.
d) This would extend to other criminal cases. *But death is different?