1. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Basic Criminal Law – The U.S. Constitution, Procedure, and Crimes By Anniken U. Davenport CHAPTER 13: CONSTITUTIONAL RIGHTS POST-CONVICTION

2. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Chapter Objectives  Explain the history of the Eighth Amendment to the United States Constitution  Define criminal punishment  List and explain the two requirements that must be satisfied before a punishment is “Cruel and Unusual”  Explain why capital punishment is not unconstitutional as “Cruel and Unusual” punishment

3. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Chapter Objectives (cont’d)  Explain what procedural protection is required before the death penalty can be carried out  Define aggravating and mitigating circumstances  List the classifications of persons who can be executed

4. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Chapter Objectives (cont’d)  List the crimes that are punishable by death  Explain the Supreme Court’s position on life in prison for repeat offenders  List and describe two current trends in punishment

5. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Popular forms of Punishment for Criminal Offenses in the Past public execution short prison stays transportation – a form of banishment or exile

6. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Eighth Amendment “Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted” taken from the English Bill of Rights of 1689, which had been based on the Magna Carta of 1215

7. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Defining Punishment Eighth Amendment is only applicable to punishment for criminal behavior Crime – a breach of law made for the public good that is punishable by public law; an offense against society if the act being punished is not properly a crime, then its labeling as a crime is in itself a “cruel and unusual punishment,” i.e., having an addiction or a disease cannot be a crime

8. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Cruel and Unusual Punishments according to the Supreme Court, a punishment is “cruel and unusual” if it: involves unnecessary infliction of pain is grossly disproportionate to the nature or severity of the crime the standards for determining what is “cruel and unusual” look to: what punishments were considered cruel and unusual at the time that the Bill of Rights was written what punishments are considered cruel and unusual based on the “evolving standards of decency that mark the progress of a maturing society”

9. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved The Death Penalty “No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury…” because the Constitution implicitly mentions capital punishment in its text, we can assume that the founding fathers intended its use and found it acceptable therefore, capital punishment is not in itself cruel and unusual

10. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved The Death Penalty (cont’d) Thirty-eight states currently employ the death penalty; twelve states and the District of Columbia do not usually applicable only in crimes involving the intentional killing of another human being federal law also allows the death penalty to be employed as punishment for espionage and treason

11. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved The Death Penalty (cont’d) It is the method of using the death penalty that sometimes raises questions about cruel and unusual punishment.

12. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Eighth Amendment Safeguards The Supreme Court has continued to focus more on the procedures used in the states for applying the death penalty more than the continued use of it in the criminal justice system. Furman v. Georgia – the Supreme Court ruled that the methods used for applying the death penalty were unfair (arbitrary and capricious); the result was a halting of the death penalty (moratorium) until states could contrive a new method.

13. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Eighth Amendment Safeguards (cont’d) Gregg v. Georgia – the Supreme Court determined that the death penalty was constitutional as long as procedural safeguards were in place to ensure fairness in it use. Bifurcated trial – the first phase of the trial is to determine guilt or innocence of the defendant; the second phase is to determine whether or not the death penalty is appropriate based on the presentation of: Aggravating circumstances – act or conduct that increases the seriousness of an act, often resulting in a harsher punishment Mitigating circumstances – act or conduct that lessens or reduces the punishment for a crime, such as lack of a criminal record, state of mind, or youth

14. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Eighth Amendment Safeguards (cont’d) automatic appeal to the state Supreme Court, with the exception of cases in which the defendant does not want an appeal

15. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Eighth Amendment Safeguards (cont’d) Kelly v. South Carolina – In cases in which the jury must decide between the sentences of death or life in prison, the jury must be instructed that life in prison means that the defendant will have absolutely no chance of ever leaving prison. This is to prevent a jury from choosing to administer the death penalty to avoid the possibility of the defendant returning to the streets to kill again.

16. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Appropriate Methods of Death In Re Kimmler – “punishments are cruel when they involve torture or a lingering death” permissible methods include firing squads, electrocution, lethal gas, and lethal injections Louisiana ex rel. Francis v. Resweber – attempting to execute a person twice is not cruel and unusual, i.e. equipment failure during the first attempt lethal injection is the most common method; most states mandate the use of lethal injection or give the condemned a choice

17. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Persons Who Can be Executed-Mentally Ill Ford v. Wainwright – Supreme Court ruled that the state may not execute a person who is mentally incompetent at the time of execution (He/she cannot understand their punishment.) Washington v. Harper – prison officials can force an otherwise mentally incompetent individual to receive medication to restore his/her competence, despite prisoner objections The Supreme Court has not yet ruled on whether or not a person can be forcibly medicated for the sole purpose of being eligible for execution

18. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Persons Who Can be Executed-Mentally Ill Sell v. United States – the government can forcibly medicate a person so that he/she will be competent to stand trial if the following requirements are met first: treatment is medically appropriate treatment is unlikely to have side effects that may undermine the trial’s fairness it is necessary to further important governmental trial- related interests, taking into account any possible less intrusive measures

19. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Persons Who Can be Executed- Mentally Retarded Penry v. Lynaugh – Supreme Court ruled that mentally retarded defendants are eligible for the death penalty; they can use their mental retardation as a mitigating circumstance and attempt to convince a jury that capital punishment would not be appropriate

20. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Persons Who Can be Executed- Mentally Retarded Atkins v. Virginia – Supreme Court found that contemporary standards of what is appropriate have changed and that mentally retarded people should not be subjected to execution the “evolving standards of decency that mark the progress of a maturing society” serve as the bench mark for what is and is not considered cruel and unusual a consensus of on standards of decency is found by counting how many states have prohibited or allowed a certain behavior; at the time of this case, a majority of states had statutes against execution of mentally retarded people

21. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Persons Who Can be Executed-Minors In 1988 the Supreme Court ruled that executing minors under 15 years old or younger is cruel and unusual. Later they then ruled that it was permissible to execute a minor who was 16 at the time the crime was committed (Thompson v. Oklahoma). A majority of nations do not execute minors. The U.N. Convention on the Rights of Children forbids this practice, but the U.S. has not ratified this treaty.

22. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Persons Who Can be Executed-Minors Throughout 2001 and 2002 the Supreme Court turned down cases that would have allowed them to revisit the issue of executing minors. Roper v. Simmons – the Supreme Court has granted cert. in a case involving executing minors in Missouri. However, at the time of this manual’s publication, the case had not yet been decided.

23. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Offenses Punishable by Death Many people who favor the use of capital punishment have reservations about how it is used and what crimes are punishable by death. Coker v. Georgia – Supreme Court ruled that capital punishment cannot be handed down for rape because such a punishment would be excessive Under federal law, the crimes that are punishable by death include: taking a human life espionage treason

24. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Life in Prison “three strikes and you’re out” laws – A.K.A., repeat offender legislation; Rummel v. Estelle – Supreme Court upheld some forms of repeat offender legislation because the state has a legitimate purpose in punishing those who show no attempt to conform to societal norms more harshly prisoners convicted and sentenced under these laws have argued that it is cruel and unusual punishment, especially when a relatively minor crime is at issue The Supreme Court has ruled that the possibility of parole must be present when the three crimes involved were nonviolent.

25. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Prison Conditions If conditions in prison can lead to serious illness or injury, if they are “wanton and unnecessary infliction of pain,” then the conditions violate the Eighth Amendment. double-bunking is permissible conditions leading to malnutrition are not permissible adequate medical care must be provided

26. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Emerging Trends predatory sex offender registration, A.K.A., Megan’s Laws mandate that prisoners who are released from prison after violent sexual offenses or those involving children must register their address The Supreme Court has ruled that such laws are not double jeopardy, nor are they ex post facto laws; the state must show that the person has some difficulty controlling his/her urges At the time of publication, Megan’s Laws are still permissible, although quite controversial

27. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Emerging Trends (cont’d) Chemical castration – injection of a chemical, Depo Provera, into the defendant to reduce the level of testosterone and decrease the male sex drive this is fairly new, but growing in popularity Norway, Sweden, Denmark, and Switzerland have all used this for several years California and Georgia have passed laws making this a condition of parole for sex offenders