Tag Archives: death penalty

Arizona Legal News

  • Arizona Governor Jan Brewer signed the ‘Revenge Porn,’ bill into law this week.  The law with  seeks to establish privacy rights on the Internet, but some say it may unconstitutionally infringe upon the First Amendment. [Phoenix New Times]
  • Some are accusing the Phoenix Veterans Health Care Center of corruption and unnecessary deaths.  A preliminary investigation from the Veterans Administration indicates no wrong doing on the part of the hospital. [ABC 15]
  • Gravity author sues Warner Bros. over lack of attribution in movie.  A failure to credit one’s work in an area where there is a standard practice of credit/attribution may be a civil violation (think of movie credits, magazine credits, CD credits, etc).  [NY Times]
  • For anyone who has ever made a mistake in a court filing, it may be comforting to know you are not alone.  United States Supreme Court Associate Justice Antonin Scalia wrote a dissent in EPA v. EME Homer City Generation, L. P. To make his argument, he cited a case he authored the majority opinion more than ten years ago.  However, his dissent misstated the holding. [NPR]
  • It is six years after the housing mortgage meltdown on Wall Street. The government has only prosecuted a single person, so far.  Corporations may be too big to fail, but can they also be too big to prosecute?  [ProPublica]
  • An execution by lethal injection in Oklahoma this week was botched.  After the experimental cocktail of drugs was intravenously injected it took over forty-five minutes for the inmate to die.  Fifteen minutes into the execution, it is reported that the inmate tried to talk.  Then the Director of Prisons allegedly said the chemicals did not make it into the veins.  After drug companies said they did not want their drugs to be used in executions, death penalty states, including Arizona, are searching for new ways to perform lethal injections.  Are these experimental executions a violation of the Eighth Amendment?  [Atlantic]
  •  There are rumors of facial recognition technology being deployed on the internet by private companies to the government.  Where are the privacy protections?  Legislators, are you listening? [Guardian]







Punitive Damages and the Death Penalty

The reason why I write about this is because last night I ran across a law review article from a few years ago that argued a contrary premise: the procedural safeguards for the death penalty should be used to keep punitive damages proportional.[1]  The author, Jeremy Baron, makes the argument that Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), created a due process standard because of the arbitrariness of the death penalty.  I have argued that a concept similar to the remittitur’s which helps keep civil damages proportional, should be used in the death penalty to help achieve more proportionality in sentences, in my paper “Correcting a Fatal Lottery.”

Also, the death penalty is currently practiced in Arizona.  The state of Arizona has executed 36 people since 1976, and two alone in 2013.  That places the state with the 11th most executions.[2]

Punitive damages[3] are a construct of civil law. Whereas the death penalty is a construct of criminal law.  On the face, it does not appear that the two have much in common. Both punitive damages and the death penalty intend to punish a person for their behavior.  However, there are tools for checking the proportionality of punitive damages that are not available in the death penalty.

Procedural due process can be summed up as “our fundamental guarantee of fairness.”[4] Both Mr. Baron and I agree the most protective system for procedural due process should be applied equally across the law.  We disagree as to which system provides more protection and if it is fair or not.[5]

Punitive Damages and Remittiturs

Punitive damages are awarded when civil wrongs are egregious enough to warrant punishment through monetary damages.  The precise definition of what constitutes an award of punitive damages can vary from state to state.  Arizona has historically grappled with when to award punitive damages. Generally, in Arizona punitive damages can be defined as:

[Conduct] justifying punitive damages should be only those limited classes of consciously malicious or outrageous acts of misconduct where punishment and deterrence is both paramount and likely to be achieved.

Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 680 (Ariz. 1986).

The use of a remittitur is a powerful judicial tool to keep punitive damages proportional. In civil law, there is an ability to check against monetary damage awards that are disproportionate to the “[s]tate’s legitimate interests in punishment and deterrence.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996).  When monetary awards are deemed excessive to violate the Due Process Clause of the Fourteenth Amendment, judges are allowed to reduce the award, a procedure which is called a remittitur.[6]  Then the judge has the ability to reduce the award to what she deems is appropriate.  Previously, I wrote about remittiturs in the context of medical malpractice awards on this blog.

The state of Arizona has gone further and created three minimum standards to help “punitive damage procedures to meet due process standards: (1) the procedure should be bifurcated from the compensation portion of the case;[7] (2) proof of the right to punitive damages should be by clear and convincing evidence; and (3) the maximum amount for punitive damages should be established by law.” Hawkins v. Allstate Ins. Co., 733 P.2d 1073, 1089-90 (1987); see Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 58 (1991).

Even with all of these protections to ensure due process verdicts still differ.  That is because each case is unique — different facts, different suffering.  It would be unfair to impose an across the board penalty. “Because reasonable people differ as to how much [a plaintiff] should be compensated for her pain,” punitive awards can and do vary.  Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014).

Death Penalty

First, death is a different type of punishment.[8] One of the largest problems the death penalty has dealt with is how to apply it without acting in an arbitrary and capricious manner because the Death Penalty is reserved for the worst of the worst.[9]

Mr. Baron suggests the seminal case Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) creates a procedural due process standard that can and should be applied to punitive damages.  First, let’s look at the realities of why Furman has never held that much precedential weight, even though it did effectively abolish the death penalty in the United States from 1972-1976 until newer procedural standards were deemed constitutional in Gregg v. Georgia, 428 U.S. 153 (1976) (plurality). Furman is a one paragraph, 208 word, unsigned per curiam (of the court) opinion. The per curiam opinion looked at three different death penalty cases that were in front of the Court.  One defendant was charged with murder and the other two defendants for rape.  Because of the range of offenses the Court found the laws of 1972 violated the Eight and Fourteenth Amendments.

There are eight separate individual opinions either concurring or dissenting opinions that take up 232 PAGES, excluding footnotes — when the per curiam opinion (the one written on behalf of the Court) is only 208 words.  I have never looked to see what is the longest judicial opinion, but I would imagine this would be a frontrunner.  Opinions range from arguing for the outright abolishment of the death penalty to the court did not have jurisdiction to strike down the state death penalty statutes.

In Gregg v. Georgia, 428 U.S. 153 (1976) (plurality) the Court made suggestions of what might qualify for a minimum due process that would be constitutional. “A capital sentencing scheme must. . . provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’”[10]

The Supreme Court suggested a number of procedural steps that could be taken in Gregg v. Georgia including: a system of aggravators, mitigators and meaningful appellate review.[11] However, the Court refused to provide more than suggestions in order to leave the states to have autonomy to devise their own systems.  “We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,for each distinct system must be examined on an individual basis.”[12]

In the end, the Supreme Court has taken a stand against arbitrary and capricious sentencing in the death penalty, but in practicality has offered little to no guidance on how to achieve it.  In the alternative, the Court resorted to looking at each individual procedure a state created to determine if it met the minimum level of constitutionality or not.

Differences in Due Process

[C]apital punishment be imposed fairly, and with reasonable consistency, or not at all.

Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

The reason why it might appear there is a heightened procedural due process in the death penalty rather than civil system is because society collectively believes it is “far worse to convict an innocent man than to let a guilty man go free.”[13] That is why there are more protections for defendants in general in the criminal system. A defendant who is death eligible in Arizona has only three possible sentences: death, natural life, or life.  Ariz. Rev. Stat. § 13-751(A).  With so few options, and since a death sentence is irrevocable, all possible procedural protections should be afforded in the death penalty to ensure the sentence is the correct one.

When a procedural error is made in the criminal system it affects life, liberty and property.  Alternatively, when an error is made in the civil system it affects only property.

The criminal system does not utilize a remittitur type of system for the death penalty.  For example, if a jury gave someone the death penalty a judge does not have a formal power to reduce the sentence to life in prison, like a judge can reduce monetary damages through a remittitur.  “[T]he Court repeatedly has emphasized that procedural due process rules are shaped by the risk of error inherent in the truth-finding process.”[14] There cannot be any more risk than potentially a wrong decision in a death penalty case.  This is why remittiturs should be applied to the death penalty.  And why defendants in the death penalty should have every procedural protection available to them.


[1] Jeremy C. Baron, The Monstrous Heresy of Punitive Damages: A Comparison to the Death Penalty And Suggestions For Reform, 159 U. Pa. L. Rev. 853.

[2] Number of Executions by State and Region Since 1976, Death Penalty Information Center, http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited Mar. 31, 2014).

[3] Punitive damages may also be referred to as exemplary damages. They are synonymous terms. In this blog post I use punitive damages. However, the reader should not when reading court cases or secondary materials cited in this blog post, the term exemplary damages may also be used.

[4] Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 589 (1972) (Marshall, J., dissenting).

[5] For simplicity’s sake, I am going to focus the discussion on Arizona law. The law of the death penalty varies too much from state to state to comprehensively discuss it in this blog post. See Robert J. Smith, The Geography of the Death Penalty and its Ramifications, 92 B.U. L. Rev. 227.

[6] “Only when an award can fairly be categorized as ‘grossly excessive’ in relation to [the State’s legitimate interests in punishment and deterrence] does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996). The idea of excessive damages potentially violating the Due Process clause can be traced back to: Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276 (1989) (stating “There is some authority in our opinions for the view that the Due Process Clause places outer limits on the size of a civil damages award made pursuant to a statutory scheme.”).

[7] Bifurcation is the act of separating the trial into two parts. In civil law the first part of the trial would be to find if the defendant should be held liable. If the jury makes a determination in favor of liability then the jury can determine how much damages to award, including punitive damages. Bifurcation works similarly in death penalty trials. The first part of the trial the jury is asked to find guilt or innocence. If guilt is determined, then the jury decides if the death penalty is appropriate.

[8] Gregg v. Georgia, 428 U.S. 153, 188 (1976) (plurality).

[9] Zant v. Stephens, 462 U.S. 862, 877 (1983). (holding “[A]n aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”).

[10] Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980) (quoting Furman v. Georgia, 408 U.S. 238, 313 (1972)) (White, J., concurring); see also Lowenfeld v. Phelps, 484 U.S. 231, 244 (1988).

[11] Gregg v. Georgia, 428 U.S. 153, 191-94 (1976) (plurality).

[12] Gregg v. Georgia, 428 U.S. 153, 195 (1976) (plurality).

[13] In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).

[14] Carey v. Piphus, 435 U.S. 247, 259 (1978) (internal quotation marks omitted).

Arizona Legal News

This will be a weekly/biweekly post detailing legal issues currently in the news.

  • Following in the footsteps of Ohio, Arizona is switching to a two drug cocktail to perform its executions. The new protocol has been used a limited number of times and the constitutionality of it is being questioned. [ABC 15]
  • A wrongful death lawsuit which alleged gross negligence of medical care in a Maricopa County Sheriff’s Office jail settled for $1.1 million. [Arizona Republic]
  • Closing arguments are being made in the Marissa Devault ‘hammer attack’ trial.  [Fox10]

Death Penalty Discrimination – Part 3 Procedural Due Process

This is the third part of a series of blog posts discussing how courts handle claims of discrimination in death penalty proceedings.  This post will look at it from a procedural due process point of view.

As noted in Part 1 of this series of blog posts, I discussed how there are two different systems for adjudicating discrimination.  The question raised in a procedural due process analysis: is the existence of two different systems of adjudicating claims of discrimination fundamentally fair?

This analysis may seem to be similar to the equal protection analysis and in many ways there is overlap.  Equal protection analysis seems to be more concerned about the end result.  Whereas, procedural due process is more concerned about the steps that are taken, the process, rather than the end product.

The rules are meant to facilitate fairness and impartiality.  Procedural due process is a right guaranteed in the Fourteenth Amendment of the Constitution that when Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.In other words, procedural due process can be summed up as “our fundamental guarantee of fairness.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 589 (1972) (Marshall, J., dissenting).  Since the process for determining claims of discrimination different from the death penalty proceedings to every other type of proceedings then there may be a procedural due process violation.

In the death penalty context, there is only one step and it uses a higher threshold to prove the discrimination.  With life on the line (it is a death penalty proceeding) it does not make sense for the standard to be more rigorous.  The reason why there is a heightened burden in the criminal system than in the civil system is because society collectively believes it is “far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring). For the judicial system to isolate only discrimination in death penalty proceedings goes against our fundamental societal beliefs.  Especially, when the punishment is irrevocable, it is of the utmost importance for the procedure to be fair.

Procedural due process is not invoked upon every procedural issue.  “Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).   When a claim of discrimination is made in the judicial system, it not only implicates the defendant, but the community at large. Batson v. Kentucky, 476 U.S. 79, 87 (1986) (stating “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community”).

The goal of procedural due process is to protect the wrongful deprivation of interests through fair procedures.  In discrimination claim in the death penalty process, procedural due process is meant to ensure that life and liberty of defendants is protected via a fair proceeding.

Part 1 – Different Systems for Discrimination

Part 2 – Equal Protection

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.

Death Penalty Discrimination – Part 2 Equal Protection

This is the second part of a discussion of discrimination in death penalty proceedings and will focus on how the different systems is a violation of the Equal Protection Clause.

The practice of equal protection in the constitutional sense is not as absolute as it is sometimes thought in our everyday lives.  “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.”  Baxstrom v. Herold, 383 U.S. 107, 111 (1966).  Traditionally claims of discrimination are made about race or gender.  To make an exception of equal protection when a claim of racial discrimination is made it must be proved the government has a compelling interest, but the action it takes is also narrowly tailored to meet its goal.  To make an exception of equal protection when a claim of gender discrimination is made, the government must have an important interest, and the policy must somehow further that interest. In other words, it would have to be shown how the different systems of adjudicating discrimination serves either a compelling or an important government interest.  The McCleskey court made a distinction between discrimination in the death penalty and discrimination in all other contexts. McCleskey v. Kemp, 481 U.S. 279, 294 (1987).  The Court argued that death penalty proceedings are more complex and fundamentally different than other types of discrimination cases.  Id.

My assertion is that even though there may be a fundamental difference between situations, the act of discrimination stays the same regardless of the surrounding circumstances.

The government can have two different systems for adjudicating discrimination and not violate the Equal Protection Clause; however, the government must show that it either has a important or compelling interest at stake to justify the difference in procedure.  The government has an interest in justice.  This can be a double-edged sword, especially in death penalty proceedings when the defendant may not be innocent.  The government has an interest in punishing the guilty.  Although even if the defendant is guilty, the government has an interest in pursuing justice in a fair and impartial manner. The public will lose faith in the judicial system if it does not act in a fair and impartial manner.  The two competing interest makes the government’s interest a balancing act.

Is that enough to meet the important or compelling threshold?  Probably not.  Since the government’s interests are divided between prosecuting crimes and ensuring procedural fairness.

Added to the weighing of interests is that both systems are not equal. The burden-shifting standard was created by a unanimous Supreme Court in the case McDonnell-Douglas Corp. v. Green 411 U.S. 792 (1973), which dealt with the order and allocation of proof in employment discrimination.  The analysis of the McDonnell Douglas burden-shifting framework works in three parts: 1. The plaintiff must establish a prima facie case of discrimination; 2. The employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and 3. In order to prevail, the plaintiff must prove that the employer’s stated reason is a pretext to hide discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).  Created as an option procedurally by the Court to be used if the case lacks direct evidence of discrimination.  Many times there is not hard evidence of discrimination, especially as our society becomes more aware of what discrimination is, thus forcing a claim of discrimination to be pieced together from multiple items or sources.

Indirect or circumstantial evidence is extremely useful in vague or unclear issues, for instance when an issue turns on an “actor’s motive or intent.” Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991) (stating “circumstantial evidence alone can support a finding of political discrimination”). “A discrimination suit (unlike, for instance, an action for negligence or breach of contract) puts the plaintiff in the difficult position of having to prove the state of mind of the person making the [sentencing] decision.”  Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).  To prove the motive or intent, circumstantial evidence can be linked together as the basis of an argument. Piecing an argument together through circumstantial evidence can be daunting and confusing task both for the parties and for the judge.

That is why it is counter-intuitive to use a system that does not help with the order and allocation of evidence for significantly more complex fact patterns, like death penalty proceedings.  When it is also considered that the government has an interest in procedural fairness, then it becomes very difficult to show how a difficult more rigid procedure for adjudicating claims of discrimination in death penalty proceedings is not a violation of the Equal Protection Clause.

Part 1 – Different Systems

Part 3 – Procedural Due Process

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.

Death Penalty Discrimination – Part 1 Different Systems

“Capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

Ever since the death penalty was reinstated nationally in Gregg v. Georgia, 428 U.S. 153 (1976), it seems there is always some debate about whether or not the death penalty is applied in a discriminatory manner.  There are on-going discussions whether the death penalty is applied disproportionately against certain races or sex.

Without taking a stance as to if the system currently discriminates or not, I argue in my paper “Correcting a Fatal Lottery” that the system for adjudicating discrimination claims in the death penalty is unconstitutional.  I argue that there are two different systems of adjudicating discrimination: one for the death penalty and another for every other type of discrimination claim.

In the death penalty context, claims of discrimination use the evidentiary standard of  “exceptionally clear proof.”    McCleskey v. Kemp, 481 U.S. 279, 292 (1987).  Whether there is exceptionally clear proof of discrimination is argued in a single step.  Both sides make their arguments and the judge then makes her determination.

Every other type of discrimination – employment discrimination, housing discrimination, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws, and discrimination in jury venire – are decided with a burden shifting system using the preponderance of the evidence standard.  The burden shifting standard allows the judge to organize evidence so it can be more easily digested.  The preponderance of the evidence standard is which ever side has the more convincing evidence shall win. See e.g. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (employment discrimination in a mixed-motive case); Lindsay v. Yates, 578 F.3d 407, 421 (6th Cir. 2009) (housing discrimination); Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000) (reverse-racial discrimination) etc.

Is it just that claims of discrimination in administering the death penalty not only use a different system, but one that is much more rigorous?

My assertion in the paper is that with a defendant’s life on the line, the judicial system should not impose more strict measures to prove discrimination occurred.  If discrimination occurs then it is a flaw within the justice system.  We have all seen the pictures of where Lady Justice is blind.  If a person is being treated differently because of her sex or her skin color then Lady Justice is not administering proceedings with impartiality.  No matter what the crime a person is accused of, justice should be administered fairly and impartially.

This is the first of a  series that I will use to break down the argument of my paper detailing the differences in how the courts judge discrimination and why it is unconstitutional.

The race of the victim has been shown to be statistically significant in several studies.  Racial Discrimination and the Death Penalty in the Post-Furman era (full text). Prosecutorial Discretion in Requesting the Death Penalty (abstract only).

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.