CHAPTER 2 HISTORY CAPITAL PUNISHMENT AND THE SUPREME COURT THE PREMODERN PERIOD Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases Some premodern death penalty cases set precedent for post-Furman capital jurisprudence Other cases, perhaps most of them, are mostly of historical interest Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Categories Clemency Jurisdiction Methods of execution Ex post facto Sentencing 5th Amendment Juries 14th Amendment Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Clemency United States v. Wilson (1833): Pardon can be refused Ex parte Wells (1855): Pardons can be conditional Biddle v. Perovich (1927): Death sentence can be commuted without defendant’s consent Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Jurisdiction Ex parte Milligan (1866): Trials of civilians by military commissions unauthorized by Congress unconstitutional in jurisdiction Milligan released and sued military for false imprisonment Awarded $5 in damages Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Permissible Methods of Execution Wilkerson v. Utah (1878): Shooting In re Kemmler (1890): Electrocution Louisiana ex rel. Francis v. Resweber (1947): A second electrocution after first one failed to kill Andres v. U.S. (1948): Hanging Copyright © 2011, Elsevier Inc. All rights Reserved

Ex Post Facto Laws Declares criminal an act that is not illegal when committed Increases punishment for a crime after it is committed Alters rules of evidence in a particular case after crime committed Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Ex Post Facto In re Medley (1890): New death penalty statute as applied to crimes committed before it came into force violated U.S. Constitution Rooney v. North Dakota (1905), Mallory v. South Carolina (1915): New statutes that benefit defendants can be applied despite ex post facto status Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Sentencing Calton v. Utah (1889):Trial court must direct jury’s attention to alternate sentences Williams v. New York (1949): Judge’s sentence of death overruling jury’s recommendation of life imprisonment was constitutional because it was based on additional information from other court sources Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Fifth Amendment (Double Jeopardy) Stroud v. United States (1919): After a defendant’s appeal, any reversals of convictions and/or sentences resulting in new trials do not constitute second jeopardy Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Juries Winston v. United States, Strather v. United States, and Smith v. United States (1899): Laws attempting to control jury discretion are unconstitutional Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Juries (cont.) Aldridge v. United States (1931): Juries my be questioned about racial and religious prejudices Patton v. Mississippi (1948): Jury selection may not consistently exclude members of any representative group Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Equal Protection and Due Process Powell v. Alabama (1932) Involved the Scottsboro Boys First case to apply 14th Amendment’s due process clause to capital cases in state courts First in a series of cases that extended 6th Amendment right to effective assistance of counsel Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Equal Protection and Due Process Irvin v. Dowd (1961): First time Court overturned murder conviction because of pretrial publicity Griffin v. California (1965) : Prosecutor’s comments and the trial judge’s instructions to the jury about Griffin’s failure to take the stand and testify during the guilt stage of his trial violated the self-incrimination clause of the Fifth Amendment Copyright © 2011, Elsevier Inc. All rights Reserved

Premodern Death Penalty Cases: Equal Protection and Due Process Gilbert v. California (1967): Taking of handwriting exemplars did not violate Gilbert’s constitutional rights However, postindictment pretrial lineup is a “critical” stage in criminal proceeding and the denial of counsel at that stage violates the Sixth Amendment’s right to counsel Copyright © 2011, Elsevier Inc. All rights Reserved