Each year, an abundance of death penalty cases rise to the Supreme Court level, but only a few are taken on by the justices. Through this year's cases, the court has made a point to clarify the procedures that are required for death sentences and may soon provide a ruling that could change the application of a death penalty sentence for juveniles.

In the court's most recent death penalty decision, the justices made clear to Texas courts in particular that a jury must give "full consideration and full effect" to mitigating circumstances in choosing the death sentence. In this case, Smith v. Texas, the judge had only instructed the jury to consider the deliberateness of the defendant's actions and whether he posed a continuing danger to others.

But in previous cases, the court has ruled that instructions such as these -- with no other mention of mitigating circumstances -- violate the Eighth Amendment.

Those who follow death penalty trends believe that by reiterating these points, the court is sending a deliberate message to death penalty states that they must follow the right procedures.

"It's an indication that the court isn't completely satisfied with the way [these cases] are being handled," said Richard Dieter of the Death Penalty Information Center. "I think the court has seen the exonerations and there's not a lot they can do about the facts, but they can make sure that the process is more rigid and fair and thorough and that is some of what we have seen in the recent case."

Dieter said that Texas cases have received a lot of attention recently because the lower courts there seem to be making the same mistakes with death penalty cases.

"[The decision] is not a surprise if you look at their prior rulings. The only surprise is that Texas keeps violating these rules.  If you look at the Supreme Court's rules on this, it's all very clear the evidence the juries have to consider," said Dieter.

Another Texas case on the Supreme Court's docket this term, Miller-El v. Dretke,  involves a claim by a petitioner that his constitutional rights had been violated in his death penalty case because African-Americans were excluded from the jury. The Supreme Court originally heard the case last year and remanded it to the circuit court to consider the jury selection claim.

This year, the case is back after the circuit court again ruled against the petitioner finding that he did not present clear and convincing evidence that the state court had erred by not finding "purposeful discrimination" in the exclusion of African-American jury members.

According to Dieter, the second time around, the high court will have a chance to review the discrimination claim.

"Now they may be able to get to the meat of the case. When it was sent back [to the lower court], the vote was 8 - 1. It's almost unheard of to get everyone agreeing," he said.

Another case that also touches upon jury issues in death penalty cases is Brown v. Payton.

Earlier this month, the Supreme Court heard oral argument in this California case, which raises the question of whether the jury considering the death penalty was incorrectly told that the offender's religious conversion after the crime was irrelevant.
At trial, the offender's lawyers made statements about his religious conversion but prosecutors told the jury those statements were irrelevant. On appeal to the Ninth Circuit, the court ruled that the jury instruction was inadequate and overturned a lower court's ruling that had upheld the death sentence.

According to recent reports, during oral argument before the Supreme Court the justices seemed to agree that the jury instruction was inadequate, but they were divided whether that mistake actually made a difference in the sentencing.

Attorneys for the state of California told the justices during oral argument that the state court has acted reasonably in the original decision because it was not clear whether  misstatements by prosecutors had actually influenced the jurors since they had heard the testimony about religious conversion anyway.

Another decision under review by the Supreme Court is a Florida death sentence in the case Florida v. Nixon. In this case the offender, Nixon, was charged with first degree murder, kidnapping, robbery and arson. His attorney followed a strategy of admitting his client's guilt in opening and closing statements at trial and then later argued that he should not be executed. The offender did not attend most of the proceedings.

Ultimately, the jury convicted him and sentenced him to death.

Nixon appealed claiming that he had ineffective assistance of counsel at his trial; the Florida Supreme Court sent the case back for a hearing and stated that counsel would be "ineffective" if Nixon could show that he did not consent to his attorney's strategy. Eventually the same court held that Nixon's "silent acquiescence" was not enough for  his attorney to proceed with the strategy.

Now, the Supreme Court must decided whether the Florida Supreme Court was incorrect in finding the defense counsel ineffective and whether it erred in finding that the attorney was prohibited from adopting a strategy to admit his client's guilt even if he intended to argue against the death penalty in the end.

For those watching these rulings and cases closely, many believe that the outcomes may serve to strictly tailor the application of the death penalty and put courts on notice that all aspects of the case need to be handled carefully.

The findings in these cases may also bolster a trend that many say is already emerging as fewer death sentences are being handed down in recent years.

Studies Find Decline

The most recent information about death penalty sentences is from a Department of Justice report that states that the number of people sentenced to death in 2003 was the lowest in 30 years and that this is part of a steady decline. Last year 144 offenders were given the death penalty in 25 states, which is 24 fewer than the previous year.

Some believe that this trend is due in part to exonerations from death row that have coincided with this steady death sentence decline.

"There was so much exposure in the late 90s and early 2000 of people walking off death row sometimes through DNA testing, or journalism students, but not through the justice system. These people would have been executed. That's alarming," said Dieter.

He added that the power of DNA testing has also made an impression on the public, which mans those juries that are imposing fewer death sentences.

"Judges are aware of this and are allowing DNA tests. Cases are taking longer, prosecutors are hesitating about seeking death sentences. And, they know these cases might be overturned in the end anyway," Dieter said.

Other surveys, however, such as one conducted late last year by the Harris Poll suggest that support for the death penalty remains very strong in the United States, "even though almost everyone believes that innocent people are sometimes convicted of murder, and only a minority believes it is a deterrent."

 "On average they believe that 11% of all those convicted are innocent. But the two-thirds of the public who support the death penalty seem to feel that that is an acceptable price to pay," said Humphrey Taylor, Chairman of the Harris Poll in a statement about the research.

"Based on this and other polls, it seems very unlikely that a majority of Americans will actually oppose capital punishment any time soon, leaving the United States as the only western democracy which executes murderers," he said.

Others such as Professor Robert Blecker of New York University Law School support the use of the death penalty, but for select cases where the commitment of murder is done by "the worst of the worst."

"I believe that some people kill so viciously, with an attitude so callous or cruel, that they deserve to die--and society has an obligation to execute them. But the obligation extends only to the most wicked: We need fewer death sentences, more justly applied," said Blecker in a Washington Post commentary in 2000.

Dieter and others who oppose the death penalty, however, believe that the recent court cases indicate it is only a matter of time before the death penalty becomes a rarity, if it is used at all.

"I think, in a way, the recognition that there are problems [with the death penalty] causes some review of the whole system and of reforms. You're not sure how to eliminate the problem of innocence, so you look around the edges [to] mental retardation or this year's juvenile case [and] the [Supreme] Court has found ineffectiveness of counsel," he said.

The outcome of this year's juvenile death penalty case before the Supreme Court is one that many are awaiting anxiously to learn if it moves capital punishment closer to extinction.

Juvenile Death Penalty Reviewed

In the case Roper v. Simmons, the state of Missouri hopes to convince the Supreme Court to let the decision of whether or not to sentence 16 and 17 year-olds to death be up to the states. But, attorneys for 17 year-old Christopher Simmons argue that the minimum age for the death penalty should be 18 - keeping in line with previous court rulings regarding culpability.

The case comes to the court just as new research has been released this fall showing that  juvenile death sentences, like adult death sentences, have declined significantly. A statistical analysis of the use of the death penalty for adolescent homicide offenders since 1990 is set to be published in the Journal of Law and Criminology.

Professor Jeffrey Fagan of Columbia University Law School and co- author of the research believes that the decline shows that attitudes are changing in relation to the imposition of death for juveniles.

"The decline is a combination of several things -- sentiment that the death penalty is overused, the innocence cases that changed the landscape of capital punishment (leading to the Illinois moratorium), our study here that showed that two-thirds of all death sentences are flawed and eventually reversed (including seven percent actually innocent), the Atkins decision on mental retardation, a decline in adult death sentences and executions, and the historically persistent and deep-seated cultural notion that kids have diminished culpability," said Fagan.

According to Fagan's research, the number of juveniles sentenced to death, excluding re-sentencings, has declined from 15 in 1994 to 14 in 1999 to one in 2003. And the research shows that this decline is even greater than that for adult death sentences.

All of this points to a change in attitudes about the execution of juveniles - and a ruling from the Supreme Court could confirm that the standards of decency have changed. But, if the Simmons case does not turn out to be the forum for that decision and statement by the Supreme Court, Fagan believes one way or another the juvenile death penalty will stop.

"If not Simmons, then there will be another case as states fall into line banning execution of juveniles below 18 -- six states have done so since 1993, more are on the brink. If it is not banned in Roper v. Simmons, the practice may well go extinct before the U.S Supreme Court gets around to taking on another case," he said.

Supporters of the death penalty have a different view and they say juveniles are culpable for their actions. The victim advocacy group Justice For All states in a friend of the court brief in Simmons that "Juveniles are capable of understanding right from wrong and the  consequences of their actions. Furthermore, they are capable of forming the requisite intent to kill to merit the death penalty."

Justice for All suggest that the high court is using the "national standards of decency doctrine in a way that ignores what punishment society really deems acceptable and appropriate." It goes on to say that states should be able to make those decisions.

"The time has come for the Court to adopt as federal law the clear objective criteria it has defined over the past century evolving out of state legislation to determine what punishment constitutes cruel and unusual under the Eighth Amendment.  The Court should require all states to apply the criteria on a case-by-case basis focusing on the moral culpability of the defendant," the brief said.

And, in the case of juveniles, Justice For All supports capital punishment for those who intend to kill, know right from wrong and still kill another human being.

Opponents of the death penalty, like Fagan, see juveniles as a group like the mentally retarded, who face "substantial risk of sentencing error when facing the death penalty." Fagan in a 2003 paper comparing the death penalty application for juveniles and the mentally retarded said that they are more likely to provide false confessions and are limited in their ability to assist defense counsel.

Fagan said this is at the heart of the Simmons case before the Supreme Court where the lower court in Missouri recognized the "diminished capacity of adolescents" in overturning Simmons death sentence and stated that a "national consensus" existed  against the execution of juveniles.

By banning the death penalty for those under age 18, Fagan said, the court "reduces the risk of executing children who are less than fully culpable for their crimes."

However the Supreme Curt rules in Simmons, death penalty watchers believe that change will continue. Simmons could be a large step or a small one, but they believe both will be in the same direction.

"I think in one sense we are not ready to get rid of it, but at least we are going to try to reform it. In some larger way [those ideas] are connected," said Dieter.

Resources:

Death Penalty Survey - Harris Poll - January 7, 2004 http://www.harrisinteractive.com/harris_poll/index.asp?PID=431

Among Killers, Searching For the Worst of the Worst, By Robert Blecker http://www.deathpenaltyinfo.org/article.php?scid=17&did=360

The Decline of the Juvenile Death Penalty: Scientific Evidence of Evolving Norms
By Jeffrey Fagan and Valerie West http://www.law.columbia.edu/news_events/2004/oct/fagan_article?exclusive=filemgr.download&file_id=95121&rtcontentdisposition=filename%3DFaganWest.Juvenile%20DP%20Article.pdf